EXHIBIT 4.14
364-DAY CREDIT AGREEMENT
Dated as of June 18, 2001
AMVESCAP PLC, a company organized under the laws of England and Wales, and
its successors (the "Borrower"), the banks, financial institutions and other
institutional lenders (the "Initial Lenders") listed on the signature pages
hereof, the co-agents listed on the signature pages hereof, CITIBANK, N.A.
("Citibank"), BANK OF AMERICA, N.A. ("Bank of America") and HSBC BANK PLC
("HSBC"), as co-syndication Agents (the "Co-Syndication Agents") for the Lenders
(as hereinafter defined) and Bank of America, as funding agent (the "Funding
Agent"; the Funding Agent and the Co-Syndication Agents are collectively, the
"Agents"), agree as follows:
PRELIMINARY STATEMENTS:
The Borrower has requested that the Lenders provide the Borrower with a
revolving credit facility in an initial principal amount of up to $200,000,000.
The Lenders have agreed, subject to the terms and conditions of this Agreement,
to provide such credit facility to the Borrower.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms. As used in this Agreement, the
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following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Adjusted Debt" outstanding on any date means the sum, without
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duplication, of (a) the aggregate principal amount of all Debt of the
Borrower and its Subsidiaries, on a Consolidated basis, outstanding on such
date of the kinds referred to in clauses (a), (c), (d), (e), (f) and (h) of
the definition of "Debt" and (b) the aggregate principal amount of all Debt
of the Borrower and its Subsidiaries, on a consolidated basis, outstanding
on such date of the kinds referred to in clause (i) of the definition of
Debt that relates to Debt of other Persons of the kinds referred to in
clauses (a), (c), (d), (e), (f) and (h) of the definition of "Debt".
"Advance" means an advance by a Lender to the Borrower as part of a
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Borrowing and refers to a Base Rate Advance or a Eurocurrency Rate Advance
(each of which shall be a "Type" of Advance).
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"Affiliate" means, as to any Person, any other Person that, directly
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or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person
means the possession, direct or indirect, of the power to vote 10% or more
of the Voting Stock of such Person or to direct or cause the direction of
the management and policies of such Person, whether through the ownership
of Voting Stock, by contract or otherwise.
"Agents" has the meaning specified in the recital of parties to this
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Agreement.
"Applicable Lending Office" means, with respect to each Lender, such
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Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurocurrency Lending Office in the case of a Eurocurrency
Rate Advance.
"Applicable Margin" means, as of any date, a percentage per annum
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determined by reference to the Performance Level applicable on such date as
set forth below:
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Applicable Margin Applicable Margin for
Performance for Eurocurrency Rate
Level Base Rate Advances Advances
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I 0% 0.415%
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II 0% 0.475%
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III 0% 0.540%
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IV 0% 0.700%
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V 0% 0.800%
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For purposes of this definition, the Performance Level shall be determined
as at the end of each fiscal quarter of the Borrower based upon the
calculation of the Debt/EBITDA Ratio for such fiscal quarter set forth in
the compliance certificate delivered pursuant to Section 5.01(j)(i) or
(ii). The Applicable Margin shall be adjusted (if necessary) upward or
downward as of the first day of each fiscal quarter to reflect the
Performance Level as of the last day of the immediately preceding fiscal
quarter; provided that if such compliance certificate is delivered after
the first day of a fiscal quarter, such adjustment shall be made on the
first day following the delivery of such compliance certificate and shall
be deemed to have become effective as of the first day of such fiscal
quarter.
"Applicable Percentage" means, as of any date, a percentage per annum
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determined by reference to the Performance Level applicable on such date as
set forth below:
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Performance Applicable
Level Percentage
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I 0.085%
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II 0.100%
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III 0.110%
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IV 0.150%
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V 0.200%
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For purposes of this definition, the Performance Level shall be determined
as at the end of each fiscal quarter of the Borrower based upon the
calculation of the Debt/EBITDA Ratio for such fiscal quarter set forth in
the compliance certificate delivered pursuant to Section 5.01(j)(i) or
(ii). The Applicable Percentage shall be adjusted (if necessary) upward or
downward as of the first day of each fiscal quarter to reflect the
Performance
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Level as of the last day of the immediately preceding fiscal quarter;
provided that if such compliance certificate is delivered after the first
day of a fiscal quarter, such adjustment shall be made on the first day
following the delivery of such compliance certificate and shall be deemed
to have become effective as of the first day of such fiscal quarter.
"Assignment and Acceptance" means an assignment and acceptance entered
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into by a Lender and an Eligible Assignee, and accepted by the Funding
Agent, in substantially the form of Exhibit C hereto.
"Assuming Lender" means an Eligible Assignee not previously a Lender
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that becomes a Lender hereunder pursuant to Section 2.17.
"Assumption Agreement" means an agreement in substantially the form of
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Exhibit D hereto by which an Eligible Assignee agrees to become a Lender
hereunder pursuant to Section 2.17, in each case agreeing to be bound by
all obligations of a Lender hereunder.
"Bank of America" has the meaning specified in the recital of parties
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to this Agreement.
"Base Rate" means a fluctuating interest rate per annum in effect from
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time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by Bank of America from time to
time as Bank of America's prime rate;
(b) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance denominated in Dollars that bears
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interest as provided in Section 2.07(a)(i).
"Borrower" has the meaning specified in the recital of parties to this
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Agreement.
"Borrowing" means a borrowing consisting of simultaneous Advances of
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the same Type made by each of the Lenders pursuant to Section 2.01.
"Business Day" means a day of the year other than a day on which banks
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are required or authorized by law to close in Xxx Xxxx Xxxx xxx Xxxxxxxxx,
Xxxxx Xxxxxxxx and, if the applicable Business Day relates to any
Eurocurrency Rate Advances, a day on which dealings are carried on in the
London interbank market and banks are open for business in London.
"Capital Leases" means all leases that have been or should be, in
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accordance with UK GAAP, recorded as capital leases.
"Citibank" has the meaning specified in the recital of parties to this
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Agreement.
"Commitment" means, as to any Lender, the Dollar amount set forth
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opposite its name on the signature pages hereof or, if such Lender has
entered into any Assumption Agreement or Assignment and Acceptance, the
Dollar amount set forth for such Lender
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in the Register maintained by the Funding Agent pursuant to Section
8.07(d), in each case as such amount may be reduced pursuant to Section
2.05(a).
"Confidential Information" means information that the Borrower or its
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Subsidiaries furnishes to the Funding Agent, any Co-Syndication Agent or
any Lender in a writing designated as confidential, but does not include
any such information that is or becomes generally available to the public
(other than as a result of a breach by the Funding Agent, any
Co-Syndication Agent or any Lender of its obligations hereunder) or that is
or becomes available to such Agent or such Lender from a source or Person
other than the Borrower or its Subsidiaries (which Person is not known by
such Agent or such Lender, as the case may be, to be subject to a
confidentiality agreement).
"Consenting Lender" has the meaning specified in Section 2.17(b).
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"Consolidated" refers to the consolidation of accounts in accordance
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with UK GAAP.
"Convert", "Conversion" and "Converted" each refers to a conversion of
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Advances of one Type into Advances of the other Type pursuant to Section
2.08 or 2.09.
"Co-Syndication Agents" has the meaning specified in the recital of
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parties to this Agreement.
"Debt" of any Person means, without duplication, (a) all indebtedness
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of such Person for borrowed money, (b) all obligations of such Person for
the deferred purchase price of property or services (other than trade
payables incurred in the ordinary course of such Person's business and
payable on customary terms), (c) all obligations of such Person evidenced
by notes, bonds, debentures or other similar instruments, (d) all
obligations of such Person created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender under
such agreement in the event of default are limited to repossession or sale
of such property) (other than trade payables incurred in the ordinary
course of such Person's business and payable on customary terms), (e) all
obligations of such Person as lessee under Capital Leases, (f) all
obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit, (g) all net
payment obligations of such Person in respect of Hedge Agreements on the
date of determination, (h) all Debt of others referred to in clauses (a)
through (g) above or clause (i) below guaranteed directly or indirectly in
any manner by such Person, or in effect guaranteed directly or indirectly
by such Person through a written agreement (1) to pay or purchase such Debt
or to advance or supply funds for the payment or purchase of such Debt, (2)
to purchase, sell or lease (as lessee or lessor) property, or to purchase
or sell services, primarily for the purpose of enabling the debtor to make
payment of such Debt or to assure the holder of such Debt against loss, (3)
to supply funds to or in any other manner invest in the debtor (including
any agreement to pay for property or services irrespective of whether such
property is received or such services are rendered) or (4) otherwise to
assure a creditor against loss, and (i) all Debt referred to in clauses (a)
through (h) above secured by (or for which the holder of such Debt has an
existing right, contingent or otherwise, to be secured by) any Lien on
property (including, without limitation, accounts and contract rights)
owned by such
4
Person, even though such Person has not assumed or become liable for the
payment of such Debt.
"Debt/EBITDA Ratio" means, as of any date of determination, the ratio
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of Adjusted Debt to EBITDA for each period of four consecutive fiscal
quarters of the Borrower ended on or immediately prior to such time.
"Default" means any Event of Default or any event that would
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constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"Disclosed Litigation" has the meaning specified in Section 4.01(i).
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"Dollars" and the "$" sign each means lawful money of the United
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States of America.
"Domestic Lending Office" means, with respect to any Lender, the
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office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assumption Agreement or the
Assignment and Acceptance pursuant to which it became a Lender, or such
other office of such Lender as such Lender may from time to time specify to
the Borrower and the Funding Agent.
"EBITDA" means, for any period, net income (or net loss) of the
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Borrower and its Subsidiaries, on a Consolidated basis plus the sum of (a)
interest expense, (b) income tax expense, (c) depreciation expense, (d)
amortization expense and (e) extraordinary losses and exceptional losses,
minus extraordinary gains and exceptional gains, in each case determined in
accordance with UK GAAP for such period; provided, that, for purposes of
calculating EBITDA for the Borrower and its Subsidiaries for any period,
the EBITDA of any Person (or assets or division of such Person) acquired by
the Borrower or any of its Subsidiaries during such period shall be
included on a pro forma basis for such period (assuming the consummation of
such acquisition occurred on the first day of such period).
"Effective Date" has the meaning specified in Section 3.01.
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"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a Lender;
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(iii) a commercial bank organized under the laws of the United States, or
any State thereof, and having total assets of at least $1,000,000,000; (iv)
a savings and loan association or savings bank organized under the laws of
the United States, or any State thereof, and having total assets of at
least $1,000,000,000; (v) a commercial bank organized under the laws of any
other country that is a member of the Organization for Economic Cooperation
and Development or a political subdivision of any such country, and having
total assets of at least $1,000,000,000; (vi) the central bank of any
country that is a member of the Organization for Economic Cooperation and
Development; (vii) a finance company, insurance company or other financial
institution or fund (whether a corporation, partnership, trust or other
entity) that is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business and having total
assets of at least $500,000,000 and (viii) any other Person approved by the
Agents and the Borrower, such approval not to be unreasonably withheld or
delayed; provided, however, that neither the Borrower nor an Affiliate of
the Borrower shall qualify as an Eligible Assignee.
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"Equivalent" in Dollars of Sterling on any date means the equivalent
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in Dollars of Sterling determined by using the quoted spot rate at which
Bank of America's principal office in London offers to exchange Dollars for
Sterling in London at 11:00 A.M. (London time) two Business Days prior to
such date, and the "Equivalent" in Sterling of Dollars means the equivalent
in Sterling of Dollars determined by using the quoted spot rate at which
Bank of America's principal office in London offers to exchange Sterling
for Dollars in London at 11:00 A.M. (London time) two Business Days prior
to such date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
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amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
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ERISA is a member of any Loan Party's controlled group, or under common
control with any Loan Party, within the meaning of Section 414 (b) or (c)
of the Internal Revenue Code or, for purposes of Sections 412(c)(ii) and
412(u) of the Internal Revenue Code, under Section 414(m) or (o) of the
Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
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within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC, or (ii) at the time when the requirements of subsection
(1) of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are applicable to any Loan Party or any ERISA Affiliate an event
described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of
ERISA is reasonably expected to occur with respect to a Plan within the
following 30 days; (b) the filing by any Loan Party or any ERISA Affiliate
of an application for a minimum funding waiver with respect to a Plan; (c)
the provision by the administrator of any Plan of a notice of intent to
terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including any
such notice with respect to a plan amendment referred to in Section 4041(e)
of ERISA); (d) the cessation of operations at a facility of any Loan Party
or any ERISA Affiliate in the circumstances described in Section 4062(e) of
ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for
the imposition of a lien under Section 302(f) of ERISA on the assets of any
Loan Party or any ERISA Affiliate shall have been met with respect to any
Plan; (g) the adoption of an amendment to a Plan requiring any Loan Party
or any ERISA Affiliate to provide security to such Plan pursuant to 307 of
ERISA; or (h) the institution by the PBGC of proceedings to terminate a
Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition described in Section 4042 of ERISA that constitutes grounds for
the termination of, or the appointment of a trustee to administer, a Plan,
provided, however, that the event or condition set forth in Section
4042(a)(4) of ERISA shall be an ERISA Event only if the PBGC has notified
any Loan Party or any ERISA Affiliate that it has made a determination
under such section or that it is considering termination of a Plan on such
grounds.
"Eurocurrency Lending Office" means, with respect to any Lender, the
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office of such Lender specified as its "Eurocurrency Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement or
the Assignment and Acceptance pursuant to which it became a Lender (or, if
no such office is specified, its Domestic
6
Lending Office), or such other office of such Lender as such Lender may
from time to time specify to the Borrower and the Funding Agent.
"Eurocurrency Liabilities" has the meaning assigned to that term in
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Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurocurrency Rate" means, for any Interest Period for each
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Eurocurrency Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by dividing
(a) the average (rounded upward to the nearest whole multiple of 1/100th of
1% per annum, if such average is not such a multiple) of the rate per annum
at which deposits in Dollars or Sterling, as the case may be, are offered
by the principal office of each of the Reference Banks in London, England
to prime banks in the London interbank market at 11:00 A.M. (London time)
two Business Days before the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurocurrency Rate Advance
comprising part of such Borrowing to be outstanding during such Interest
Period and for a period equal to such Interest Period by (b) a percentage
equal to 100% minus the Eurocurrency Rate Reserve Percentage for such
Interest Period. The Eurocurrency Rate for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Borrowing shall be
determined by the Funding Agent on the basis of applicable rates furnished
to and received by the Funding Agent from the Reference Banks two Business
Days before the first day of such Interest Period, subject, however, to the
provisions of Section 2.08.
"Eurocurrency Rate Advance" means an Advance that bears interest as
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provided in Section 2.07(a)(ii).
"Eurocurrency Rate Reserve Percentage" for any Interest Period for all
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Eurocurrency Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for a
member bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities
(or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurocurrency Rate
Advances is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
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"Existing Debt" means the Debt of the Borrower and its Subsidiaries
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outstanding as of the Effective Date, as listed on Schedule 4.01(v).
"Extension Date" has the meaning specified in Section 2.17(b).
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"Federal Funds Rate" means, for any period, a fluctuating interest
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rate per annum 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 that is a Business Day, the
average of the
7
quotations for such day on such transactions received by the Funding Agent
from three Federal funds brokers of recognized standing selected by it.
"Funding Agent" has the meaning specified in the recital of parties to
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this Agreement.
"Funding Agent's Account" means (a) in the case of Advances
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denominated in Dollars the account of the Funding Agent maintained by the
Funding Agent at Bank of America with its office at Charlotte, North
Carolina, ABA No. 000000000, Account No. 1366210022506 Re: INVESCO,
Attention: Corporate Credit Support and (b) in the case of Advances
denominated in Sterling, the account of the Funding Agent maintained by the
Funding Agent at Midland Bank PLC with its office at 000 Xxxxxx Xxxxxx,
XX0X 0XX Xxxxxx, Xxxxxxx, for the account of Bank of America, N.A., Account
# 00000000 Ref: INVESCO.
"Guarantors" means INVESCO, Inc., a Delaware corporation, INVESCO
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North American Holdings, Inc., a Delaware corporation, AIM Management Group
Inc., a Delaware corporation, AIM Advisors, Inc., a Delaware corporation
and upon the execution and delivery of an Assumption of Guaranty (as
defined in the Guaranty) pursuant to Section 5.01(h) by any other
Subsidiary of the Borrower, such other Subsidiary.
"Guaranty" has the meaning specified in Section 3.01(d)(iv).
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"Hedge Agreements" means interest rate swap, cap or collar agreements,
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interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other similar agreements.
"Information Memorandum" means the information memorandum dated May 1,
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2001 used by the Agents in connection with the syndication of the
Commitments.
"Initial Lenders" has the meaning specified in the recital of parties
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to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount, if any,
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of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"Interest Period" means, for each Eurocurrency Rate Advance comprising
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part of the same Borrowing, the period commencing on the date of such
Eurocurrency Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurocurrency Rate Advance and ending on the last day of
the period selected by the Borrower pursuant to the provisions below and,
thereafter, with respect to Eurocurrency Rate Advances, each subsequent
period commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by the Borrower
pursuant to the provisions below. The duration of each such Interest Period
for each Eurocurrency Rate Advance shall be one, two, three or six months,
as the Borrower may, upon notice received by the Funding Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the
first day of such Interest Period, select; provided, however, that:
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(i) the Borrower may not select any Interest Period that ends
after the Termination Date or, if the Advances have been converted to
a term loan pursuant to Section 2.06 prior to such selection, that
ends after the Maturity Date;
(ii) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same Borrowing shall
be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
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amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Investment" in any Person means any purchase or other acquisition of
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any capital stock, warrants, rights, options, obligations or other
securities or all or substantially all of the assets of such Person, any
capital contribution to such Person or any other investment in such Person
(other than a loan or advance), including, without limitation, any
arrangement pursuant to which the investor incurs Debt of the types
referred to in clauses (h) and (i) of the definition of "Debt" in respect
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of such Person.
"Lenders" means the Initial Lenders, each Assuming Lender and each
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Person that shall become a party hereto pursuant to Section 8.07(a), (b)
and (c).
"Lien" means any lien, security interest or other charge or
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encumbrance of any kind, including, without limitation, the lien or
retained security title of a conditional vendor and any easement, right of
way or other encumbrance on title to real property.
"Loan Documents" means this Agreement, the Notes and the Guaranty.
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"Loan Parties" means the Borrower and each Guarantor.
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"Material Adverse Change" means any material adverse change in the
-----------------------
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower and its Subsidiaries taken as a
whole.
"Material Adverse Effect" means a material adverse effect on (a) the
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business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower and its Subsidiaries taken as a
whole, (b) the rights and remedies of the Funding Agent, any Co-Syndication
Agent or any Lender under this Agreement or any
9
Note or (c) the ability of the Borrower to perform its obligations under
this Agreement or any Note.
"Material Subsidiary" means each Subsidiary of the Borrower to which
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as of the end of any fiscal year of the Borrower is attributed twenty
percent or more of the Consolidated pre-tax income of the Borrower and its
Subsidiaries taken as a whole, determined by reference to the most recent
annual audited financial statements delivered by the Borrower to the
Lenders pursuant to Section 5.01(j) or, in the case of any Subsidiary of
the Borrower that is acquired or is merged with or into any other
Subsidiary of the Borrower, determined by reference to the pro forma
financial statements of the Borrower and its Subsidiaries prepared in
accordance with UK GAAP as of the most recent fiscal year end of the
Borrower, giving effect to such acquisition or merger as if such
transaction had been consummated as of the last day of such fiscal year.
"Maturity Date" means the earlier of (a) the first anniversary of the
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Termination Date and (b) the date of termination in whole of the aggregate
Commitments pursuant to Section 2.05 or 6.01.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
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4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any
of the preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
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Section 4001(a)(15) of ERISA, that is maintained for current or former
employees of any Loan Party or any ERISA Affiliate and at least one Person
other than such Loan Party and the ERISA Affiliates.
"Non-Consenting Lender" has the meaning specified in Section 2.17(b).
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"Note" means a promissory note of the Borrower payable to the order of
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any Lender, in substantially the form of Exhibit A hereto, evidencing the
aggregate indebtedness of the Borrower to such Lender resulting from the
Advances made by such Lender.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
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"PBGC" means the Pension Benefit Guaranty Corporation (or any
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successor).
"Performance Level" means, as of any date of determination, the level
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set forth below as then applicable:
I Debt/EBITDA Ratio is less than or equal to 1.00:1.00.
II Debt/EBITDA Ratio is greater than 1.00:1.00 but less than or
equal to 1.75:1.00.
III Debt/EBITDA Ratio is greater than 1.75:1.00 but less than or
equal to 2.25:1.00.
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IV Debt/EBITDA Ratio is greater than 2.25:1.00 but less than or
equal to 2.75:1.00.
V Debt/EBITDA Ratio is greater than 2.75:1.00.
"Permitted Liens" means such of the following as to which no
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enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced: (a) Liens for taxes, assessments or other governmental
charges being contested in good faith by appropriate proceedings promptly
initiated and diligently conducted and for which such reserves or other
appropriate provision, if any, as shall be required by UK GAAP shall have
been made and maintained in accordance with UK GAAP and past practices of
the Borrower and its Subsidiaries therefor; (b) statutory Liens of
landlords and Liens of carriers, warehousemen, mechanics and materialmen
incurred in the ordinary course of business for sums not yet due or being
contested in good faith by appropriate proceedings promptly initiated and
diligently conducted and for which such reserves or other appropriate
provision, if any, as shall be required by UK GAAP shall have been made
therefor; (c) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business (i) in connection with
workers' compensation, unemployment insurance and other types of social
security or (ii) to secure (or to obtain letters of credit that secure) the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, performance bonds, purchase, construction or sales contracts
and other similar obligations, in each case not incurred or made in
connection with the borrowing of money, the obtaining of advances or credit
or the payment of the deferred purchase price of property; (d) any
attachment or judgment Lien, unless the judgment it secures shall not,
within 60 days after the entry thereof, have been discharged or execution
thereof stayed pending appeal, or shall not have been discharged within 60
days after the expiration of any such stay; and (e) leases or subleases
granted to others, easements, rights of way and other encumbrances on title
to real property that, in the case of any property material to the
operation of the business of the Borrower and its Subsidiaries taken as a
whole, do not render title to the property encumbered thereby unmarketable
or materially adversely affect the use of such property for its present
purposes.
"Person" means an individual, partnership, corporation (including a
------
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
----
"Pro Rata Share" of any amount means, with respect to any Lender at
--------------
any time, the product of such amount times a fraction the numerator of
which is the amount of such Lender's Commitment at such time and the
denominator of which is the Total Commitment at such time.
"Reference Banks" means Citibank, Bank of America, The Chase Manhattan
---------------
Bank and SunTrust Bank.
"Register" has the meaning specified in Section 8.07(d).
--------
11
"Relevant Taxing Authority" means the taxing authority with which the
-------------------------
applicable Treaty Form is required to be filed, in the country of residence
of a Lender.
"Required Lenders" means at any time Lenders owed at least 51% of the
----------------
then aggregate unpaid principal amount of the Advances owing to Lenders,
or, if no such principal amount is then outstanding, Lenders having at
least 51% of the Commitments.
"Restricted Subsidiary" means each Subsidiary of the Borrower that (a)
---------------------
is a Guarantor or a Subsidiary of a Guarantor or (b) is subject to any
agreement described in Section 5.02(j)(i), (ii) or (iii), provided that
such Subsidiary shall be a Restricted Subsidiary under this clause (b) only
so long as such agreement is in effect.
"Significant Subsidiary" means each Subsidiary of the Borrower that
----------------------
(a) is organized under the laws of the United States or any political
subdivision thereof or (b) is an operating Subsidiary of the Borrower or a
Subsidiary of the Borrower that directly or indirectly owns an operating
Subsidiary of the Borrower.
"Single Employer Plan" means a single employer plan, as defined in
--------------------
Section 4001(a)(15) of ERISA, that is maintained for employees of any Loan
Party or any ERISA Affiliate and no Person other than any Loan Party and
the ERISA Affiliates.
"Solvent" and "Solvency" mean, with respect to any Person on a
------- --------
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured, (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond
such Person's ability to pay such debts and liabilities as they mature and
(d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in
the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual
or matured liability.
"Sterling" means lawful money of the United Kingdom of Great Britain
--------
and Northern Ireland.
"Subsidiary" of any Person means any corporation, limited liability
----------
company, partnership, joint venture, trust or estate of which (or in which)
more than 50% of (a) in the case of a corporation, the issued and
outstanding capital stock having ordinary voting power to elect a majority
of the Board of Directors of such corporation (irrespective of whether at
the time capital stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any contingency),
(b) in the case of a limited liability company, partnership or joint
venture, the interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) in the case of a trust or
estate, the beneficial interest in such trust or estate is at the time
directly or indirectly owned or controlled by such Person, by such Person
and one or more of its other Subsidiaries or by one or more of such
Person's other Subsidiaries.
12
"Termination Date" means the earlier of June 17, 2002, subject to the
----------------
extension thereof pursuant to Section 2.17 and the date of termination in
whole of the Commitments pursuant to Section 2.05 or 6.01; provided,
--------
however, that the Termination Date of any Lender that is a Non-Consenting
-------
Lender to any requested extension pursuant to Section 2.17 shall be the
Termination Date in effect immediately prior to the applicable Extension
Date for all purposes of this Agreement.
"Term Loan Conversion Date" means the Termination Date on which all
-------------------------
Advances outstanding on such date are converted into a term loan pursuant
to Section 2.06.
"Term Loan Election" has the meaning specified in Section 2.06.
------------------
"Total Commitment" means, at any time, the aggregate amount of the
----------------
Lenders' Commitments at such time.
"Treaty Form" means a form of claim for the benefits of an income tax
-----------
treaty between the United Kingdom and the country of residence of a Lender
or an Agent, as is specified from time to time by the Financial
Intermediaries and Claims Office (International) of the Board of Inland
Revenue for the United Kingdom.
"UK GAAP" has the meaning specified in Section 1.03.
-------
"Voting Stock" means capital stock issued by a corporation, or
------------
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening of
such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle
--------------------
E of Title IV of ERISA.
Section 1.02. Computation of Time Periods. In this Agreement in the
---------------------------
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
Section 1.03. Accounting Terms. All accounting terms not specifically
----------------
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(f) ("UK GAAP").
-------
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01. The Advances. Each Lender severally agrees, on the terms and
------------
conditions hereinafter set forth, to make Advances to the Borrower from time to
time on any Business Day during the period from the Effective Date until the
Termination Date in an aggregate amount (based in respect of any Advance
denominated in Sterling on the Equivalent in Dollars), not to exceed at any time
outstanding the amount set forth opposite such Lender's Commitment. Each
13
Borrowing shall be in an aggregate amount of $5,000,000 (or the Equivalent
thereof in Sterling) or an integral multiple of $1,000,000 (or the Equivalent
thereof in Sterling) in excess thereof and shall consist of Advances of the same
Type made on the same day by the Lenders ratably according to their respective
Commitments. Within the limits of each Lender's Commitment, the Borrower may
borrow under this Section 2.01, prepay pursuant to Section 2.10 and reborrow
under this Section 2.01.
Section 2.02. Making the Advances. (a) Each Borrowing shall be made on
-------------------
notice, given not later than (x) 11:00 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurocurrency Rate Advances denominated in Dollars, (y)
11:00 A.M. (New York City time) on the fifth Business Day prior to the date of
the proposed Borrowing in the case of a Borrowing consisting of Eurocurrency
Rate Advances denominated in Sterling, or (z) 9:00 A.M. (New York City time) on
the date of the proposed Borrowing in the case of a Borrowing consisting of Base
Rate Advances, by the Borrower to the Funding Agent, which shall give to each
Lender prompt notice thereof by telecopier or telex. Each such notice of a
Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed immediately
in writing, or telecopier or telex in substantially the form of Exhibit B
hereto, specifying therein the requested (i) date of such Borrowing, (ii) Type
of Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing,
and (iv) in the case of a Borrowing consisting of Eurocurrency Rate Advances,
the initial Interest Period and whether such Advance shall be in Dollars or in
Sterling. Each Lender shall, before 11:00 A.M. (New York City time) on the date
of such Borrowing, make available for the account of its Applicable Lending
Office to the Funding Agent at the applicable Funding Agent's Account, in same
day funds, such Lender's Pro Rata Share of such Borrowing. After the Funding
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Funding Agent will make such funds available to
the Borrower at the Funding Agent's address referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary notwithstanding, (i)
the Borrower may not select Eurocurrency Rate Advances for any Borrowing if the
aggregate amount of such Borrowing is less than $5,000,000 or if the obligation
of the Lenders to make Eurocurrency Rate Advances shall then be suspended
pursuant to Section 2.08 or 2.12 and (ii) the Eurocurrency Rate Advances may not
be outstanding as part of more than ten separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurocurrency Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified in such
Notice of Borrowing for such Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (excluding loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
(d) Unless the Funding Agent shall have received notice from a Lender prior
to the date of any Borrowing that such Lender will not make available to the
Funding Agent such Lender's Pro Rata Share of such Borrowing, the Funding Agent
may assume that such Lender has made such amount available to the Funding Agent
on the date of such Borrowing in accordance with subsection (a) of this Section
2.02 and the Funding Agent may, in reliance upon
14
such assumption, make available to the Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not have so made such amount
available to the Funding Agent, such Lender and the Borrower severally agree to
repay to the Funding Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the Funding
Agent, at (i) in the case of the Borrower, the interest rate applicable at the
time to Advances comprising such Borrowing and (ii) in the case of such Lender
(A) the Federal Funds Rate in the case of Advances denominated in Dollars or (B)
the cost of funds incurred by the Funding Agent in respect of such amount in the
case of Advances denominated in Sterling. If such Lender shall repay to the
Funding Agent such corresponding amount, such amount so repaid shall constitute
such Lender's Advance as part of such Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Advance to be made by it as part
of any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Lender shall
be responsible for the failure of any other Lender to make the Advance to be
made by such other Lender on the date of any Borrowing.
Section 2.03. [Intentionally omitted].
-----------------------
Section 2.04. Fees. (a) Facility Fee. The Borrower agrees to pay to the
---- ------------
Funding Agent for the account of each Lender a facility fee on the aggregate
amount of such Lender's Commitment from the Effective Date in the case of each
Initial Lender and from the effective date specified in the Assumption Agreement
or the Assignment and Acceptance pursuant to which it became a Lender in the
case of each other Lender until the Termination Date at a rate per annum equal
to the Applicable Percentage in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December,
commencing June 30, 2001, and on the Termination Date.
(b) Agent's Fees. The Borrower shall pay to the Agents for their own
------------
account such fees as may from time to time be agreed between the Borrower and
the Agents.
Section 2.05. Termination or Reduction of the Commitments. (a) Optional.
------------------------------------------- --------
The Borrower shall have the right, upon at least three Business Days' notice to
the Funding Agent, to terminate in whole or reduce ratably in part the unused
portions of the respective Commitments of the Lenders, provided that each
partial reduction of the Total Commitment shall be in the aggregate amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof.
(b) Mandatory. On the Termination Date, if the Borrower has made the Term
---------
Loan Election in accordance with Section 2.06 prior to such date, and from time
to time thereafter upon each prepayment of the Advances, the Commitments of the
Lenders shall be automatically and permanently reduced on a pro rata basis by an
amount equal to the amount by which (i) the aggregate Commitments immediately
prior to such reduction exceeds (ii) the aggregate unpaid principal amount of
-------
all Advances outstanding at such time.
Section 2.06. Repayment of Advances. The Borrower shall, subject to the
---------------------
next succeeding sentence, repay to the Funding Agent for the ratable account of
the Lenders on the Termination Date the aggregate principal amount of the
Advances then outstanding. The Borrower may, upon not less than 15 days' prior
written notice to the Funding Agent, elect (the
15
"Term Loan Election") to convert all of the Advances outstanding on the
-------------------
Termination Date in effect at such time into a term loan which the Borrower
shall repay in full ratably to the Lenders on the Maturity Date; provided that
the Term Loan Election may not be exercised if a Default has occurred and is
continuing on the date of notice of the Term Loan Election or on the date on
which the Term Loan Election is to be effected. All Advances converted into a
term loan pursuant to this Section 2.06 shall continue to constitute Advances
except that the Borrower may not reborrow pursuant to Section 2.01 after all or
any portion of such Advances have been prepaid pursuant to Section 2.10.
Section 2.07. Interest on Advances. (a) Scheduled Interest. The Borrower
-------------------- ------------------
shall pay interest on the unpaid principal amount of each Advance owing to each
Lender from the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a Base
------------------
Rate Advance, a rate per annum equal at all times to the sum of (x) the
Base Rate in effect from time to time plus (y) the Applicable Margin in
effect from time to time, payable in arrears quarterly on the last day of
each March, June, September and December during such periods and on the
date such Base Rate Advance shall be Converted or paid in full.
(ii) Eurocurrency Rate Advances. During such periods as such Advance
--------------------------
is a Eurocurrency Rate Advance, a rate per annum equal at all times during
each Interest Period for such Advance to the sum of (x) the Eurocurrency
Rate for such Interest Period for such Advance plus (y) the Applicable
Margin in effect from time to time, payable in arrears on the last day of
such Interest Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period and on the
date such Eurocurrency Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance of an
----------------
Event of Default, the Borrower shall pay interest on (i) the unpaid principal
amount of each Advance owing to each Lender, payable in arrears on the dates
referred to in clause (a)(i) or (a)(ii) above, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid on such
Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest
extent permitted by law, the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid on Base Rate
Advances pursuant to clause (a)(i) above.
Section 2.08. Interest Rate Determination. (a) Each Reference Bank agrees
---------------------------
to furnish to the Funding Agent timely information for the purpose of
determining each Eurocurrency Rate. If any one or more of the Reference Banks
shall not furnish such timely information to the Funding Agent for the purpose
of determining any such interest rate, the Funding Agent shall determine such
interest rate on the basis of timely information furnished by the remaining
Reference Banks. The Funding Agent shall give prompt notice to the Borrower and
the Lenders of the applicable interest rate determined by the Funding Agent for
purposes of Section 2.07(a)(i) or (ii), and the rate, if any, furnished by each
Reference Bank for the purpose of determining the interest rate under Section
2.07(a)(ii).
16
(b) If, with respect to any Eurocurrency Rate Advances, the Required
Lenders notify the Funding Agent that the Eurocurrency Rate for any Interest
Period for such Advances will not adequately reflect the cost to such Required
Lenders of making, funding or maintaining their respective Eurocurrency Rate
Advances for such Interest Period, the Funding Agent shall forthwith so notify
the Borrower and the Lenders, whereupon (i) each Eurocurrency Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance, and (ii) the obligation of the Lenders to
make, or to Convert Base Rate Advances into, Eurocurrency Rate Advances shall be
suspended until the Funding Agent shall notify the Borrower and the Lenders that
the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any Interest
Period for any Eurocurrency Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the Funding
Agent will forthwith so notify the Borrower and the Lenders and such Advances
will automatically, on the last day of the then existing Interest Period for
such Eurocurrency Rate Advance, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $5,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of Default,
(i) each Eurocurrency Rate Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate Advance and
(ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurocurrency Rate Advances shall be suspended.
(f) If fewer than two Reference Banks furnish timely information to the
Funding Agent for determining the Eurocurrency Rate for any Eurocurrency Rate
Advances.
(i) the Funding Agent shall forthwith notify the Borrower and the
Lenders that the interest rate cannot be determined for such Eurocurrency
Rate Advances.
(ii) with respect to Eurocurrency Rate Advances, each such Advance
will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance (or if such Advance is then a
Base Rate Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurocurrency Rate Advances
or to Convert Advances into Eurocurrency Rate Advances shall be suspended
until the Funding Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
Section 2.09. Optional Conversion of Advances. The Borrower may on any
-------------------------------
Business Day, upon notice given to the Funding Agent not later than 11:00 A.M.
(New York City time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.08 and 2.12, Convert all
Advances of one Type comprising the same Borrowing into Advances of the other
Type; provided, however, that any Conversion of Eurocurrency Rate Advances into
Base Rate Advances shall be made only on the last day of an Interest Period for
such Eurocurrency Rate Advances, any Conversion of Base Rate Advances into
Eurocurrency Rate Advances shall be in an amount not less than the minimum
amount specified in
17
Section 2.02(b) and no Conversion of any Advances shall result in more separate
Eurocurrency Rate Borrowings than permitted under Section 2.02(b). Each such
notice of a Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the Advances to be Converted, and (iii) if
such Conversion is into Eurocurrency Rate Advances, the duration of the initial
Interest Period for each such Advance. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
Section 2.10. Prepayments of Advances. (a) Optional Prepayments. The
----------------------- --------------------
Borrower may, upon notice to the Funding Agent stating the proposed date and
aggregate principal amount of the prepayment, given not later than 11:00 A.M.
(New York City time) on the third Business Day prior to the date of such
proposed prepayment, in the case of Eurocurrency Rate Advances, and not later
than 11:00 A.M. (New York City time) on the day of such proposed prepayment, in
the case of Base Rate Advances, and if such notice is given the Borrower shall,
prepay the outstanding principal amount of the Advances comprising part of the
same Borrowing in whole or ratably in part, together with accrued interest to
the date of such prepayment on the principal amount prepaid; provided, however,
that (x) each partial prepayment shall be in an aggregate principal amount of
$5,000,000 or the Equivalent thereof in Sterling or an integral multiple of
$1,000,000 or the Equivalent thereof in Sterling in excess thereof and (y) in
the event of any such prepayment of a Eurocurrency Rate Advance, the Borrower
shall be obligated to reimburse the Lenders in respect thereof pursuant to
Section 8.04(c).
(b) Mandatory Prepayments. (i) If the Funding Agent notifies the Borrower
---------------------
that, on any interest payment date, the sum of (A) the aggregate principal
amount of all Advances denominated in Dollars then outstanding plus (B) the
Equivalent in Dollars of the aggregate principal amount of all Advances
denominated in Sterling then outstanding exceeds 105% of the Total Commitment on
such date, the Borrower shall, within two Business Days after receipt of such
notice, prepay the outstanding principal amount of any Advances in an aggregate
amount sufficient to reduce such sum to an amount not to exceed 100% of the
Total Commitment on such date.
(ii) If the Funding Agent notifies the Borrower that, on any date, the
sum of the amounts described in clauses (A) and (B) of subsection (i) above
exceeds 103% of the Total Commitment on such date, the Borrower shall,
within two Business Days after receipt of such notice, prepay the
outstanding principal amount of any Advances in an aggregate amount
sufficient to reduce such sum to an amount not to exceed 100% of the Total
Commitment on such date, provided that if the aggregate principal amount of
Base Rate Advances then outstanding is less than the amount of such
required prepayment, the portion of such required prepayment in excess of
the aggregate principal amount of Base Rate Advances then outstanding shall
be paid on the last day of each Interest Period ended on or after the date
of such notice in an amount equal to the aggregate principal amount of the
Eurodollar Rate Advances then maturing until such excess has been fully
paid.
(iii) Each prepayment made pursuant to this Section 2.10(b) shall be
made together with any interest accrued to the date of such prepayment on
the principal amounts prepaid and, in the case of any prepayment of a
Eurocurrency Rate Advance on a date other than the last day of an Interest
Period or at its maturity, any additional amounts which such Borrower shall
be obligated to reimburse to the Lenders in respect thereof pursuant to
Section 8.04(c). The Funding Agent shall give prompt notice of any
prepayment required under this Section 2.10(b) to the Borrower and the
Lenders.
18
Section 2.11. Increased Costs. (a) If, due to either (i) the introduction
---------------
of or any change in or in the interpretation of any law or regulation occurring
after the date hereof or (ii) the compliance with any guideline or request from
any central bank or other governmental authority (whether or not having the
force of law) issued or made after the date hereof, there shall be any increase
in the cost to any Lender of agreeing to make or making, funding or maintaining
Eurocurrency Rate Advances (excluding for purposes of this Section 2.11 any such
increased costs resulting from (i) Indemnified Taxes or Other Taxes (as to which
Section 2.14 shall govern) and (ii) changes in taxes measured by or imposed upon
the net income or gross income or franchise taxes, or taxes measured by or
imposed upon capital or net worth, or branch taxes, of such Lender or its
Applicable Lending Office), then the Borrower shall from time to time, within
ten days of demand by such Lender (with a copy of such demand to the Funding
Agent), pay to the Funding Agent for the account of such Lender additional
amounts sufficient to compensate such Lender for such increased cost; provided
that, before making any such demand, each Lender agrees to use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making
of such a designation would avoid the need for, or reduce the amount of, such
additional cost and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender.
(b) If any Lender reasonably determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority regarding capital adequacy (whether or not having the
force of law) issued or made after the date hereof affects or would affect the
amount of capital required or expected to be maintained by such Lender or any
corporation controlling such Lender and that the amount of such capital is
increased by or based upon the existence of such Lender's commitment to lend
hereunder and other commitments of this type, and such Lender reasonably
determines that the rate of return on its or such controlling corporation's
capital as a consequence is reduced to a level below that which such Lender or
such controlling corporation would have achieved but for the occurrence of such
conditions, then, within ten days of demand by such Lender (with a copy of such
demand to the Funding Agent), the Borrower shall pay to the Funding Agent for
the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's commitment to lend hereunder.
(c) If a Lender changes its Applicable Lending Office (other than pursuant
to this Section 2.11 or Section 2.12 or 2.14(h)) and the effect of such change,
as of the date of such change, would be to cause the Borrower to become
obligated to pay any additional amounts under this Section 2.11, the Borrower
shall not be obligated to pay such additional amount.
(d) A certificate of a Lender setting forth the amount of any claim made
under this Section 2.11 and identifying with reasonable specificity the basis
for calculating such amount, shall be delivered to the Borrower and the Funding
Agent and shall be conclusive absent manifest error.
Section 2.12. Illegality. Notwithstanding any other provision of this
----------
Agreement, if any Lender shall notify the Funding Agent (who will promptly
notify the Borrower and the other Lenders) that the introduction of or any
change in or in the interpretation of any law or regulation after the date
hereof makes it unlawful, or any central bank or other governmental authority
asserts that it is unlawful, for any Lender or its Eurocurrency Lending Office
to perform its obligations hereunder to make Eurocurrency Rate Advances or to
fund or maintain Eurocurrency
19
Rate Advances hereunder, (i) each Eurocurrency Rate Advance will automatically,
upon such demand, Convert into a Base Rate Advance or an Advance that bears
interest at the rate set forth in Section 2.07(a)(i), as the case may be, and
(ii) the obligation of the Lenders to make Eurocurrency Rate Advances or to
Convert Base Rate Advances into Eurocurrency Rate Advances shall be suspended
until the Funding Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist or that such Lender has
entered into one or more Assignments and Acceptances pursuant to Section 8.07
assigning its Commitment to one or more Eligible Assignees; provided that,
before making any such demand, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Applicable Lending Office if the making of such a
designation would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
Section 2.13. Payments and Computations. (a) The Borrower shall make each
-------------------------
payment hereunder and under the Notes without set-off or counterclaim, not later
than 11:00 A.M. (New York City time) on the day when due in Dollars, in the case
of Advances denominated in Dollars, or in Sterling, in the case of Advances
denominated in Sterling, to the Funding Agent at the applicable Funding Agent's
Account in same day funds. The Funding Agent will promptly thereafter cause to
be distributed like funds relating to the payment of principal or interest or
facility fees ratably (other than amounts payable pursuant to Section 2.11, 2.14
or 8.04(c)) to the Lenders for the account of their respective Applicable
Lending Offices, and like funds relating to the payment of any other amount
payable to any Lender to such Lender for the account of its Applicable Lending
Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to Section 8.07(c),
from and after the effective date specified in such Assignment and Acceptance,
the Funding Agent shall make all payments hereunder and under the Notes in
respect of the interest assigned thereby to the Lender assignee thereunder, and
the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves. Upon any Assuming Lender becoming a Lender hereunder as a
result of a Commitment Increase pursuant to Section 2.05(b) or in connection
with a Commitment extension pursuant to Section 2.17 and upon the Funding
Agent's receipt of such Lender's Assumption Agreement and recording the
information contained therein in the Register, from and after the applicable
Increase Date, the Funding Agent shall make all payments hereunder and under the
Notes in respect of the interest assumed thereby to such Assuming Lender.
(b) All computations of interest based on the Base Rate or the Federal
Funds Rate shall be made by the Funding Agent on the basis of a year of 365 or
366 days, as the case may be, and all computations of interest based on the
Eurocurrency Rate and of facility fees shall be made by the Funding Agent on the
basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest or facility fees are payable. Each determination by the
Funding Agent of an interest rate hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be stated to be
due on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or facility fee, as the case
may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurocurrency Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
20
(d) Unless the Funding Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Lenders hereunder that the
Borrower will not make such payment in full, the Funding Agent may assume that
the Borrower has made such payment in full to the Funding Agent on such date and
the Funding Agent may, in reliance upon such assumption, cause to be distributed
to each Lender on such due date an amount equal to the amount then due such
Lender. If and to the extent the Borrower shall not have so made such payment in
full to the Funding Agent, each Lender shall repay to the Funding Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Funding Agent, at
the Federal Funds Rate.
Section 2.14. Taxes. (a) Except as otherwise required by law, any and all
-----
payments by the Borrower hereunder or under the Notes issued hereunder shall be
made, in accordance with Section 2.13, free and clear of and without deduction
for any and all present or future taxes, levies, imposts, deductions, charges or
withholdings and all liabilities with respect thereto (all such taxes, levies,
imposts, deductions, charges, withholdings, and liabilities in respect of
payments hereunder or under the Notes being hereafter referred to as "Taxes"),
----
excluding, in the case of payments made to any Lender or any Agent (A) Taxes
imposed on or measured by its net income, and franchise Taxes, branch Taxes,
Taxes on doing business and Taxes measured by or imposed upon its capital or net
worth, in each case imposed as a result of such Lender (and or such Lender's
Applicable Lending Office) or such Agent being organized under the laws of, or
being a legal resident of, or having a fixed place of business or a permanent
establishment or doing business in the jurisdiction imposing such Tax (other
than any such connection arising solely from such Lender (and or such Lender's
Applicable Lending Office) or such Agent having executed, delivered or performed
its obligations, or having received a payment, or having enforced its rights and
remedies, under this Agreement or any of the other Loan Documents), (B) United
Kingdom withholding Taxes except to the extent such United Kingdom withholding
Taxes would not have been imposed but for a change, after the date such Lender
or such Agent (as the case may be) becomes a party hereto, in United Kingdom tax
law or United Kingdom officially published Inland Revenue practice or an
amendment or revocation, after the date such Lender or such Agent (as the case
may be) becomes a party hereto, of an applicable United Kingdom income tax
treaty with Austria, Denmark, Finland, France, Germany, Ireland, Iceland,
Luxembourg, Netherlands, Norway, Sweden, Switzerland or the United States, (C)
United Kingdom Taxes imposed as a result of the failure of the Inland Revenue to
approve, on or before the payment of interest to a Lender hereunder, a claim by
such Lender for exemption, on or before the payment of interest hereunder, where
such failure is due to such Lender's failure to timely submit a validly
completed and executed Treaty Form within a time sufficient for the Inland
Revenue to approve such Lender's claim and (D) United States withholding Taxes
except to the extent such United States withholding Taxes are imposed solely as
a result of (1) a change, after the date such Lender or such Agent (as the case
may be) becomes a party hereto, in the Internal Revenue Code or any regulations
promulgated thereunder (or in the official interpretation of the Internal
Revenue Code or any regulations promulgated thereunder) or an amendment or
revocation or change in official interpretation, after the date such Lender or
such Agent (as the case may be) becomes a party hereto, of an applicable United
States income tax treaty with Austria, Denmark, Finland, France, Germany,
Ireland, Iceland, Luxembourg, Netherlands, Norway, Sweden or the United Kingdom
or (2) the failure by the Borrower to timely request an updated or successor
Form W-8BEN or W-8ECI, as appropriate, under Section 2.14(e) (all such
non-excluded Taxes hereinafter referred to as "Indemnifiable Taxes"). If the
-------------------
Borrower shall be required by law to deduct any Indemnifiable Taxes from or in
respect of any sum payable hereunder or under any Note issued hereunder to any
Lender or any Agent or, if
21
any Agent shall be required by law to deduct any Indemnifiable Taxes from or in
respect of any sum paid or payable hereunder or under any Note to any Lender,
(i) the sum payable shall be increased as may be necessary so that after making
all required deductions for Indemnifiable Taxes (including deductions for
Indemnifiable Taxes, whether by the Borrower or any Agent, applicable to
additional sums payable under this Section 2.14) such Lender or such Agent (as
the case may be) receives an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrower (or, as the case may be and as
required by applicable law, any Agent) shall make such deductions and (iii) the
Borrower (or, as the case may be and as required by applicable law, any Agent)
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future stamp or
documentary taxes or any other excise (other than income) or property taxes,
charges or similar levies that arise from any payment made hereunder or under
the Notes or from the execution, delivery or registration of, or performing
under this Agreement or the Notes or any document to be furnished under or in
connection with any thereof or any modification or amendment in respect of this
Agreement or the Notes (hereinafter referred to as "Other Taxes").
-----------
(c) The Borrower shall indemnify each Lender and each Agent for the full
amount of Indemnifiable Taxes or Other Taxes imposed on or paid by such Lender
or such Agent (as the case may be) and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such Lender or such
Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Indemnifiable Taxes
under Section 2.14(a) by the Borrower, the Borrower shall furnish to the Funding
Agent, at its address referred to in Section 8.02, the original or a certified
copy of a receipt evidencing such payment to the extent such receipt is received
by the Borrower, or other written proof of payment reasonably satisfactory to
the Funding Agent showing payment thereof. In the case of any payment hereunder
or under the Notes issued hereunder by or on behalf of the Borrower through an
account or branch outside the United Kingdom or by or on behalf of the Borrower
by a payor that is not a United Kingdom person, if the Borrower determines that
no Indemnifiable Taxes are payable in respect thereof, the Borrower shall
furnish, or shall cause such payor to furnish, to the Funding Agent, at such
address, an opinion of counsel acceptable to the Agents stating that such
payment is exempt from Indemnifiable Taxes.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assumption
Agreement or the Assignment and Acceptance pursuant to which it becomes a Lender
in the case of each other Lender, and from time to time thereafter as requested
in writing by the Borrower shall provide each of the Funding Agent and the
Borrower with (i) two original Internal Revenue Service Form W-8BEN or W-8ECI,
as appropriate, or any successor or other from prescribed by the Internal
Revenue Service, certifying that such Lender is exempt from United States
withholding tax and (ii) to the extent that any such form or other certification
becomes obsolete with respect to any Lender, such Lender shall, upon the written
request of the Borrower to such Lender and the Funding Agent, promptly provide
either an updated or successor form or certification to the Borrower and the
Funding Agent unless, in each case, any change in treaty, law or regulation has
occurred after the date such Lender becomes a party hereunder which renders all
such forms inapplicable or which
22
would prevent such Lender from duly completing and delivering any such form with
respect to it and such Lender so advises the Borrower and the Funding Agent.
(f) Each Lender shall (i) as soon as reasonably practicable following the
date it becomes a party hereto, submit to its Relevant Taxing Authority a
validly completed Treaty Form (or successor Treaty Form thereto) claiming
exemption from United Kingdom withholding Tax on interest, or (ii) (A) on or
before the date it becomes a party hereto, furnish to the Borrower, with a copy
to the Funding Agent, a certificate substantially in the form of Exhibit I (a
"U.K. Tax Compliance Certificate") certifying that such Lender (1) is a Bank
-------------------------------
within the meaning of Section 840A of the Income and Corporation Taxes Act of
1988 of the United Kingdom and (2) is within the charge to corporation tax in
the United Kingdom with respect to payment hereunder and (B) agree, upon
reasonable request by the Borrower, to provide to the Borrower and the Funding
Agent, to the extent it is legally entitled to do so, such other forms as may be
required by law in order to establish the legal entitlement of such Lender to an
exemption from United Kingdom withholding Tax with respect to payments under
this Agreement and the Notes issued hereunder, unless, in each case, any change
in treaty, law or regulation has occurred after the date such Lender becomes a
party hereunder which renders any such forms inapplicable or which would prevent
such Lender from duly completing and delivering any such form with respect to it
and such Lender so advises the Borrower and the Funding Agent.
(g) For any period with respect to which a Lender has failed to provide the
Borrower with the appropriate form described in Section 2.14(e) or (f) (other
than if the Borrower has failed to timely request with reasonable notice any
appropriate renewal, successor or other form or if any such form otherwise is
not required under subsection (e) or (f)), such Lender shall not be entitled to
indemnification under Section 2.14(a) or (c) with respect to Indemnifiable Taxes
imposed by the United Kingdom or the United States by reason of such failure;
provided, however, that should a Lender become subject to Indemnifiable Taxes or
United Kingdom withholding Taxes because of its failure to deliver a form
required hereunder, the Borrower shall take such steps as such Lender shall
reasonably request to assist such Lender to recover such Indemnifiable Taxes or
United Kingdom withholding Taxes. If the Borrower is required by law to pay
interest hereunder or on any Note issued hereunder, to any Lender subject to a
deduction or withholding for United Kingdom Tax, but the Borrower has received
at least 14 days prior to the relevant interest payment date a copy of a valid
claim made and filed by such Lender on a Treaty Form (or successor thereto) as
filed with the Inland Revenue which claim would, if accepted by the Inland
Revenue, result in an authorization being given to the Borrower to make the
payment of interest without such a deduction or withholding, then the Borrower
shall, at such Lender's request, make the relevant payment to such Lender
without such deduction or withholding; provided that such Lender shall indemnify
the Borrower for any Indemnifiable Taxes or United Kingdom withholding Taxes or
other costs imposed by the Inland Revenue upon and paid by the Borrower directly
resulting from having relied upon such copy in making such payment. If the
Borrower does make such payment without deduction or withholding for United
Kingdom Tax upon such a request of such Lender, the Borrower shall not be
obligated to such Lender to comply with the provisions of paragraph (a) of this
Section 2.14 with respect to such United Kingdom Tax.
(h) If a condition or an event occurs which would, or would upon the
passage of time or giving notice, result in the payment of any additional
amounts pursuant to this Section 2.14, each Lender agrees to use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Applicable Lending Office if the
making of such a change would avoid the need for, or reduce the amount of, any
such additional amounts
23
that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
(i) If any Agent or any Lender, in its sole opinion, determines that it has
finally and irrevocably received or been granted a refund in respect of any
Indemnifiable Taxes or Other Taxes as to which indemnification has been paid by
the Borrower pursuant to Section 2.14(a) or (c), it shall promptly remit such
refund to the Borrower, net of all out-of-pocket expenses of such Agent or such
Lender; provided, however, that the Borrower upon the request of such Agent or
such Lender, agrees promptly to return such refund to such party in the event
such party is required to repay such refund to the relevant taxing authority.
Such Agent or such Lender shall provide the Borrower with a copy of any notice
or assessment from the relevant taxing authority (deleting any confidential
information contained therein) requiring the repayment of such refund. Nothing
contained herein shall impose an obligation on any Agent or any Lender to apply
for any refund or to disclose to any party any information regarding their
proprietary information regarding tax affairs and computations.
(j) If a Lender changes its Applicable Lending Office (other than pursuant
to subsection (h) above or Section 2.11 or 2.12) and the effect of such change,
as of the date of such change, would be to cause the Borrower to become
obligated to pay any additional amounts under this Section 2.14, the Borrower
shall not be obligated to pay such additional amount.
(k) A certificate of a Lender setting forth such amount or amounts as shall
be necessary to compensate such Lender specified in Section 2.14(a), (b), or (c)
above, as the case may be, and identifying with reasonable specificity the basis
for calculation such amount or amounts, shall be delivered to the Borrower and
the Funding Agent and shall be conclusive absent manifest error.
(l) The obligations of a Lender under this Section 2.14 shall survive the
termination of this Agreement and the payment of the Advances and all amounts
payable hereunder.
Section 2.15. Sharing of Payments, Etc. If any Lender shall obtain any
------------------------
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Advances owing to it (other than
pursuant to Section 2.11, 2.14 or 8.04(c)) in excess of its ratable share of
payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.15
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such
participation.
Section 2.16. Use of Proceeds. The proceeds of the Advances shall be
---------------
available (and the Borrower agrees that it shall use such proceeds) solely (i)
to refinance Existing Debt, (ii) to
24
provide liquidity support for commercial paper issued by the Borrower and (iii)
for working capital and other general corporate purposes (including
acquisitions) of the Borrower and its Subsidiaries.
Section 2.17. Extension of Termination Date. (a) At least 30 days but not
-----------------------------
more than 45 days prior to the Termination Date, the Borrower, by written notice
to the Funding Agent, may request an extension of the Termination Date in effect
at such time by 364 days from its then scheduled expiration; provided, however,
-------- -------
that the Borrower shall not have made the Term Loan Election for Advances
outstanding on such Termination Date prior to such time. The Funding Agent shall
promptly notify each Lender of such request, and each Lender shall in turn, in
its sole discretion, not earlier than 30 days, nor later than 20 days, prior to
the Termination Date, notify the Borrower and the Funding Agent in writing as to
whether such Lender will consent to such extension. If any Lender shall fail to
notify the Funding Agent and the Borrower in writing of its consent to any such
request for extension of the Termination Date at least 20 days prior to the
Termination Date, such Lender shall be deemed to be a Non-Consenting Lender with
respect to such request. The Funding Agent shall notify the Borrower not later
than 15 days prior to the Termination Date of the decision of the Lenders
regarding the Borrower's request for an extension of the Termination Date.
(b) If all the Lenders consent in writing to any such request in accordance
with subsection (a) of this Section 2.17, the Termination Date in effect at such
time shall, effective as at the Termination Date (the "Extension Date"), be
--------------
extended for 364 days; provided that on each Extension Date the applicable
--------
conditions set forth in Section 3.02 shall be satisfied. If less than all of the
Lenders consent in writing to any such request in accordance with subsection (a)
of this Section 2.17, the Termination Date in effect at such time shall,
effective as at the applicable Extension Date and subject to subsection (d) of
this Section 2.17, be extended as to those Lenders that so consented (each a
"Consenting Lender") but shall not be extended as to any other Lender (each a
-----------------
"Non-Consenting Lender"). To the extent that the Termination Date is not
---------------------
extended as to any Lender pursuant to this Section 2.17 and the Commitment of
such Lender is not assumed in accordance with subsection (c) of this Section
2.17 on or prior to the applicable Extension Date, the Commitment of such
Non-Consenting Lender shall automatically terminate in whole, and all Advances,
interest fees and other amounts due to such Non-Consenting Lender shall be due
and payable on such unextended Termination Date without any further notice or
other action by the Borrower, such Lender or any other Person; provided that
--------
such Non-Consenting Lender's rights under Sections 2.11, 2.14 and 8.04, and its
obligations under Section 7.05, shall survive the Termination Date for such
Lender as to matters occurring prior to such date. It is understood and agreed
that no Lender shall have any obligation whatsoever to agree to any request made
by the Borrower for any requested extension of the Termination Date.
(c) If less than all of the Lenders consent to any such request pursuant to
subsection (a) of this Section 2.17, the Funding Agent shall promptly so notify
the Consenting Lenders, and each Consenting Lender may, in its sole discretion,
give written notice to the Funding Agent not later than 10 days prior to the
Termination Date of the amount of any Non-Consenting Lenders' Commitments for
which it is willing to accept an assignment. If the Consenting Lenders notify
the Funding Agent that they are willing to accept assignments of Commitments in
an aggregate amount that exceeds the amount of the Commitments of the
Non-Consenting Lenders, such Commitments shall be allocated among the Consenting
Lenders willing to accept such assignments in such amounts as are agreed between
the Borrower and the Funding Agent. If after giving effect to the assignments of
Commitments described above there remain any Commitments of Non-Consenting
Lenders, the Borrower may arrange for one or more
25
Consenting Lenders or other Eligible Assignees as Assuming Lenders to assume,
effective as of the Extension Date, any Non-Consenting Lender's Commitment and
all of the obligations of such Non-Consenting Lender under this Agreement
thereafter arising, without recourse to or warranty by, or expense to, such
Non-Consenting Lender; provided, however, that the amount of the Commitment of
--------- ------
any such Assuming Lender as a result of such substitution shall in no event be
less than $25,000,000 unless the amount of the Commitment of such Non-Consenting
Lender is less than $25,000,000, in which case such Assuming Lender shall assume
all of such lesser amount; and provided further that:
-------- -------
(i) any such Consenting Lender or Assuming Lender shall have paid to
such Non-Consenting Lender (A) the aggregate principal amount of, and any
interest accrued and unpaid to the effective date of the assignment on, the
outstanding Advances, if any, of such Non-Consenting Lender plus (B) any
---- -
accrued but unpaid facility fees owing to such Non-Consenting Lender as of
the effective date of such assignment;
(ii) all additional costs reimbursements, expense reimbursements and
indemnities payable to such Non-Consenting Lender, and all other accrued
and unpaid amounts owing to such Non-Consenting Lender hereunder, as of the
effective date of such assignment shall have been paid to such
Non-Consenting Lender; and
(iii) with respect to any such Assuming Lender, the applicable
processing and recordation fee required under Section 8.07(a) for such
assignment shall have been paid;
provided further that such Non-Consenting Lender's rights under Sections 2.11,
-------- -------
2.14 and 8.04, and its obligations under Section 7.05, shall survive such
assignment and assumption as to matters occurring prior to the date of
assignment and assumption. At least three Business Days prior to any Extension
Date, (A) each such Assuming Lender, if any, shall have delivered to the
Borrower and the Funding Agent an Assumption Agreement, duly executed by such
Assuming Lender, such Non-Consenting Lender, the Borrower and the Funding Agent,
(B) any such Consenting Lender shall have delivered confirmation in writing
satisfactory to the Borrower and the Funding Agent as to the increase in the
amount of its Commitment and (C) each Non-Consenting Lender being replaced
pursuant to this Section 2.17 shall have delivered to the Funding Agent any Note
or Notes held by such Non-Consenting Lender. Upon the payment or prepayment of
all amounts referred to in clauses (i), (ii) and (iii) of the immediately
preceding sentence, each such Consenting Lender or Assuming Lender, as of the
Extension Date, will be substituted for such Non-Consenting Lender under this
Agreement and shall be a Lender for all purposes of this Agreement, without any
further acknowledgment by or the consent of the other Lenders, and the
obligations of each such Non-Consenting Lender hereunder shall, by the
provisions hereof, be released and discharged.
(d) If (after giving effect to any assignments or assumptions pursuant to
subsection (c) of this Section 2.17) Lenders having Commitments equal to at
least 50% of the Commitments in effect immediately prior to the Extension Date
consent in writing to a requested extension (whether by execution or delivery of
an Assumption Agreement or otherwise) not later than one Business Day prior to
such Extension Date, the Funding Agent shall so notify the Borrower, and,
subject to the satisfaction of the applicable conditions in Section 3.02, the
Termination Date then in effect shall be extended for the additional 364-day
period as described in subsection (a) of this Section 2.17, and all references
in this Agreement, and in the Notes, if any, to the "Termination Date" shall,
----------- ----
with respect to each Consenting Lender and each Assuming Lender for such
Extension Date, refer to the Termination Date as so extended. Promptly following
each
26
Extension Date, the Funding Agent shall notify the Lenders (including, without
limitation, each Assuming Lender) of the extension of the scheduled Termination
Date in effect immediately prior thereto and shall thereupon record in the
Register the relevant information with respect to each such Consenting Lender
and each such Assuming Lender.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
Section 3.01. Conditions Precedent to Effectiveness. This Agreement shall
-------------------------------------
become effective on and as of the first date (the "Effective Date") on which the
--------------
following conditions precedent have been satisfied:
(a) The Borrower shall have paid all fees and expenses of the Agents and
the Lenders payable hereunder and accrued as of the Effective Date (including
the accrued fees and expenses of counsel to the Agents).
(b) On the Effective Date, the following statements shall be true and the
Funding Agent shall have received for the account of each Lender a certificate
signed by a duly authorized officer of the Borrower, dated the Effective Date,
stating that:
(i) The representations and warranties contained in Section 4.01 are
correct in all material respects on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a
Default.
(c) The Funding Agent shall have received on or before the Effective Date
the following, each dated such day, in form and substance satisfactory to the
Agents and (except for the Notes) in sufficient copies for each Lender:
(i) The Notes payable to the order of each of the Lenders, in a
principal amount equal to each such Lender's Commitment.
(ii) Certified copies of the resolutions of the Board of Directors (or
committee thereof) of the Borrower and each other Loan Party approving this
Agreement, the Notes and the Guaranty to which it is or is to be a party,
and of all documents evidencing other necessary corporate action and
governmental and other third party approvals and consents, if any, with
respect to this Agreement, the Notes and the Guaranty.
(iii) A certificate of the Secretary or an Assistant Secretary of each
Loan Party certifying the names and true signatures of the officers of such
Loan Party authorized to sign the Loan Documents to which it is a party and
the other documents to be delivered hereunder.
(iv) A guaranty in substantially the form of Exhibit E (as amended,
supplemented or otherwise modified from time to time, the "Guaranty"), duly
--------
executed by each Guarantor.
27
(v) An opinion of Xxxxxx & Bird, LLP, counsel for the Loan Parties, in
substantially the form of Exhibit F hereto and as to such other matters as
any Lender through the Agents may reasonably request.
(vi) An opinion of Ashurst Xxxxxx Xxxxx, English counsel for the
Borrower, in substantially the form of Exhibit G hereto and as to such
other matters as any Lender through the Agents may reasonably request.
(vii) An opinion of Shearman & Sterling, counsel for the Agents, in
form and substance satisfactory to the Agents.
(d) The termination of the commitments of the lenders and the payment in
full of all amounts outstanding under the Amended and Restated Credit Agreement
dated December 17, 1997 among the Borrower, the lenders parties thereto,
Citibank, N.A. and NationsBank, N.A., as co-syndication agents, and The Chase
Manhattan Bank, SunTrust Bank, Atlanta and Wachovia Bank, N.A., as managing
agents.
Section 3.02. Conditions Precedent to Each Borrowing and Each Extension
---------------------------------------------------------
Date. The obligation of each Lender to make an Advance on the occasion of each
----
Borrowing and each extension of Commitments pursuant to Section 2.17 shall be
subject to the conditions precedent that the Effective Date shall have occurred
and on the date of such Borrowing or the applicable Extension Date the following
statements shall be true (and each of the giving of the applicable Notice of
Borrowing, request for Commitment extension and the acceptance by the Borrower
of the proceeds of such Borrowing shall constitute a representation and warranty
by the Borrower that on the date of such Borrowing or such Extension Date such
statements are true):
(a) the representations and warranties contained in Section 4.01
(excluding, in the case of Borrowings, clauses (g) and (i)(i) of Section 4.01)
are correct in all material respects on and as of the date of such date, before
and after giving effect to such Borrowing or such Extension Date and to the
application of the proceeds therefrom, as though made on and as of such date,
and
(b) no event has occurred and is continuing, or would result from such
Borrowing or from the application of the proceeds therefrom, or such Extension
Date, that constitutes a Default.
Section 3.03. Determinations Under Section 3.01. For purposes of
---------------------------------
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Funding Agent responsible for the transactions contemplated by this
Agreement shall have received notice from such Lender prior to the date that the
Borrower, by notice to the Lenders, designates as the proposed Effective Date,
specifying its objection thereto. The Funding Agent shall promptly notify the
Lenders and the Borrower of the occurrence of the Effective Date.
28
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Borrower. The Borrower
----------------------------------------------
represents and warrants as follows:
(a) Each Loan Party (i) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation,
(ii) is duly qualified and in good standing as a foreign corporation in each
other jurisdiction in which it owns or leases property or in which the conduct
of its business requires it to so qualify or be licensed except where the
failure to so qualify or be licensed is not reasonably likely to have a Material
Adverse Effect and (iii) has all requisite corporate power and authority
(including, without limitation, all governmental licenses, permits and other
approvals) to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of
all Significant Subsidiaries of each Loan Party as of the Effective Date,
showing as of such date (as to each such Significant Subsidiary) the
jurisdiction of its incorporation, the number of shares of each class of capital
stock authorized, and the number of shares outstanding, on such date and the
percentage of the outstanding shares of each such class owned (directly or
indirectly) by such Loan Party and the number of shares covered by all
outstanding options, warrants, rights of conversion or purchase and similar
rights at such date. All of the outstanding capital stock of all of such
Significant Subsidiaries has been validly issued, is fully paid and
non-assessable and is owned by such Loan Party or one or more of its
Subsidiaries free and clear of all Liens. Each such Significant Subsidiary (i)
is a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, (ii) is duly qualified and in
good standing as a foreign corporation in each other jurisdiction in which it
owns or leases property or in which the conduct of its business requires it to
so qualify or be licensed except where the failure to so qualify or be licensed
is not reasonably likely to have a Material Adverse Effect and (iii) has all
requisite corporate power and authority (including, without limitation, all
governmental licenses, permits and other approvals) to own or lease and operate
its properties and to carry on its business as now conducted and as proposed to
be conducted.
(c) The execution, delivery and performance by each Loan Party of this
Agreement, the Notes and each other Loan Document to which it is or is to be a
party, and the incurrence of the obligations provided for herein and therein,
are within such Loan Party's corporate powers, have been duly authorized by all
necessary corporate action, and do not (i) contravene such Loan Party's charter
or bylaws, (ii) violate any law (including, without limitation, the Securities
Exchange Act of 1934), rule, regulation (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System), order,
writ, judgment, injunction, decree, determination or award, (iii) conflict with
or result in the breach of, or constitute a default under, any contract, loan
agreement, indenture, mortgage, deed of trust, lease or other instrument binding
on or affecting any Loan Party, any of its Subsidiaries or any of their
properties or (iv) result in or require the creation or imposition of any Lien
upon or with respect to any of the properties of any Loan Party or any of its
Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any
such law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award or in breach of any such contract, loan agreement,
indenture, mortgage,
29
deed of trust, lease or other instrument, the violation or breach of which is
reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or any other third
party is required for (i) the due execution, delivery, recordation, filing or
performance by any Loan Party of this Agreement, the Notes or any other Loan
Document to which it is or is to be a party, or for the performance of any Loan
Document or (ii) the exercise by the Agents or any Lender of its rights under
the Loan Documents, except for the authorizations, approvals, actions, notices
and filings listed on Schedule 4.01(d), all of which have been duly obtained,
taken, given or made and are in full force and effect.
(e) This Agreement has been, and each of the Notes and each other Loan
Document when delivered hereunder will have been, duly executed and delivered by
each Loan Party party thereto. This Agreement is, and each of the Notes and each
other Loan Document when delivered hereunder will be, the legal, valid and
binding obligation of each Loan Party party thereto, enforceable against such
Loan Party in accordance with its terms.
(f) The Consolidated and consolidating balance sheets of the Borrower and
its Subsidiaries as at December 31, 2000, and the related Consolidated and
consolidating statements of income and Consolidated statement of cash flows of
the Borrower and its Subsidiaries for the fiscal year then ended, accompanied by
an opinion of Xxxxxx Xxxxxxxx LLP, independent public accountants (as to such
Consolidated financial statements), and the Consolidated and consolidating
balance sheets of the Borrower and its Subsidiaries as at March 31, 2001, and
the related Consolidated and consolidating statements of income and Consolidated
statement of cash flows of the Borrower and its Subsidiaries for the three
months then ended, duly certified by the chief financial officer of the
Borrower, copies of which have been furnished to each Lender, fairly present,
subject, in the case of said balance sheets as at March 21, 2001, and said
statements of income and cash flows for the three months then ended, to year-end
audit adjustments, the Consolidated and consolidating financial condition of the
Borrower and its Subsidiaries as at such dates and the Consolidated and
consolidating results of the operations of the Borrower and its Subsidiaries for
the periods ended on such dates, all in accordance with United Kingdom generally
accepted accounting principles applied on a consistent basis.
(g) Since December 31, 2000, there has been no Material Adverse Change.
(h) No written information, exhibit or report furnished by any Loan Party
to any Agent or any Lender in connection with the negotiation of the Loan
Documents or pursuant to the terms of the Loan Documents contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements made therein not misleading in light of the circumstances under
which they were made.
(i) There is no action, suit, investigation, litigation or proceeding
affecting any Loan Party or, to the best knowledge of the Loan Parties, any of
its Subsidiaries pending or, to the best knowledge of the Loan Parties,
threatened before any court, governmental agency or arbitrator that (i) would be
reasonably likely to have a Material Adverse Effect (other than the matters
described on Schedule 4.01(i) hereto (the "Disclosed Litigation")) and there has
--------------------
been no material adverse change in the status, or financial effect on any Loan
Party or any of its Subsidiaries, of the Disclosed Litigation from that
described on Schedule 4.01(i) or (ii) purports to affect the
30
legality, validity or enforceability of this Agreement, any Note or any other
Loan Document or the consummation of the transactions contemplated hereby.
(j) Following application of the proceeds of each Advance, not more than 25
percent of the value of the assets (either of the Borrower only or of the
Borrower and its Subsidiaries on a Consolidated basis) subject to the provisions
of Section 5.02(a) or 5.02(d) or subject to any restriction contained in any
agreement or instrument between the Borrower and any Lender or any Affiliate of
any Lender relating to Debt and within the scope of Section 6.01(e) will be
margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System). Neither the making of any Advance nor
the use of proceeds thereof will violate or be inconsistent with the provisions
of Regulations T, U or X of the Board of Governors of the Federal Reserve
System.
(k) No ERISA Event has occurred or is reasonably expected to occur with
respect to any Plan that has resulted in or is reasonably expected to result in
a Material Adverse Effect.
(l) Schedule B (Actuarial Information) to the most recent annual report
(Form 5500 Series) required to be filed for each Plan, copies of which have been
filed with the Internal Revenue Service and, with respect to each Plan whose
funded current liability percentage (as defined in Section 302(d)(8) of ERISA)
is less than 100%, furnished to the Lenders, is complete and accurate and fairly
presents the funding status of such Plan, and since the date of such Schedule B
there has been no material adverse change in such funding status.
(m) Neither any Loan Party nor any ERISA Affiliate has incurred or is
reasonably expected to incur (i) any liability under Section 4064 or 4069 of
ERISA or (ii) any Withdrawal Liability to any Multiemployer Plan that has
resulted or would be reasonably likely to result in a Material Adverse Effect.
(n) Neither any Loan Party nor any ERISA Affiliate has been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title IV of ERISA,
and, to the best knowledge of any Loan Party or any ERISA Affiliate, no such
Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated, within the meaning of Title IV of ERISA.
(o) Each Loan Party and each of its Subsidiaries and Affiliates has filed,
has caused to be filed or has been included in all tax returns (Federal, state,
local and foreign) required to be filed and has paid all taxes shown thereon to
be due, together with applicable interest and penalties.
(p) Neither any Loan Party nor any of its Subsidiaries is an "investment
company", or a company "controlled by" an "investment company", as such terms
are defined in the Investment Company Act of 1940, as amended. Neither the
making of any Advances nor the application of the proceeds or repayment thereof
by the Borrower, nor the consummation of the other transactions contemplated
hereby, will violate any provision of such Act or any rule, regulation or order
of the Securities and Exchange Commission thereunder.
(q) Neither the Borrower 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.
31
(r) Each Subsidiary of the Borrower engaged in advisory or management
activities, if any, is duly registered as an investment adviser as and to the
extent required under the Investment Advisers Act of 1940, as amended, and the
rules and regulations promulgated thereunder. Each Subsidiary of the Borrower
engaged in the broker-dealer business, if any, is duly registered as a
broker-dealer as and to the extent required under the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder and, as
and to the extent required is a member in good standing of the National
Association of Securities Dealers, Inc.
(s) As of the Effective Date, neither the Borrower nor any of its
Subsidiaries is in default and no waiver of default is in effect with respect to
the payment of any principal or interest of any Existing Debt for borrowed
money.
(t) The obligations of each Loan Party under the Loan Documents to which it
is a party constitute direct, unconditional and general obligations of such Loan
Party that rank and will rank at least pari passu in priority of payment and in
all other respects with all other Debt of such Loan Party.
(u) Each Loan Party is, individually and together with its Subsidiaries,
Solvent.
(v) Set forth on Schedule 4.01(v) hereto is a complete and accurate list of
all Existing Debt showing as of the date hereof the principal amount outstanding
thereunder.
(w) The Borrower and each of its Significant Subsidiaries owns or has fully
sufficient right to use, free from all material restrictions (other than
Permitted Liens), all real and personal (including, without limitation,
intellectual) properties that are necessary for the operation of their
respective businesses as currently conducted.
(x) Except under documents governing any Existing Debt and except for any
restrictions under documents governing Debt of a Person that shall be acquired
by, or merged with or into, the Borrower or any Subsidiary of the Borrower, no
Subsidiary of the Borrower is party to any agreement prohibiting, conditioning
or limiting the payment of dividends or other distributions to the Borrower or
any of its Subsidiaries or the repayment of Debt owed to the Borrower by any
Subsidiary of the Borrower.
ARTICLE V
COVENANTS OF THE BORROWER
Section 5.01. Affirmative Covenants. So long as any Advance shall remain
---------------------
unpaid or any Lender shall have any Commitment hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries
-------------------------
to comply, in all material respects, with all applicable laws, rules,
regulations and orders, such compliance to include (to the extent applicable),
without limitation, compliance with the Investment Advisers Act of 1940, as
amended, ERISA and environmental laws, except where the failure to do so would
not, and would not be reasonably expected to, have a Material Adverse Effect.
32
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
---------------------
Subsidiaries to pay and discharge, before the same shall become delinquent, all
taxes, assessments, claims and governmental charges or levies imposed upon it or
upon its property, except to the extent that any failure to do so would not, and
would not be reasonably expected to, have a Material Adverse Effect; provided,
however, that neither the Borrower nor any of its Subsidiaries shall be required
to pay or discharge any such tax, assessment, claim or charge that is being
contested in good faith and by proper proceedings and as to which appropriate
reserves are being maintained.
(c) Maintenance of Insurance. Maintain, and cause each of its Significant
------------------------
Subsidiaries to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties
in the same general areas in which the Borrower or such Significant Subsidiary
operates.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain, and
----------------------------------------
cause each of its Subsidiaries to preserve and maintain, its existence, legal
structure, legal name, rights (charter and statutory), permits, licenses,
approvals, registrations, privileges and franchises; provided, however, that the
Borrower and its Subsidiaries may consummate any merger or consolidation
permitted under Section 5.02(c); and provided further that neither the Borrower
nor any of its Subsidiaries shall be required to preserve any right, permit,
license, approval, registration, privilege or franchise if the Board of
Directors of the Borrower or such Subsidiary shall determine that the failure to
so maintain such existence (in the case of any Subsidiary that is not a Loan
Party) or such rights and franchises (in the case of the Borrower or any of its
Subsidiaries) would not, and would not be reasonably expected to, have a
Material Adverse Effect.
(e) Visitation Rights. At any reasonable time and from time to time, permit
-----------------
any Agent or any of the Lenders or any agents or representatives thereof, to
examine and make copies of and abstracts from the records and books of account
of, and visit the properties of, the Borrower and any of its Subsidiaries, and
to discuss the affairs, finances and accounts of the Borrower and any of its
Subsidiaries with any of their officers or directors and with their independent
certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Significant Subsidiaries
----------------
to keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of the
Borrower and each such Significant Subsidiary in accordance with generally
accepted accounting principles applicable to such Person in effect from time to
time.
(g) Maintenance of Properties, Etc. Take all reasonable action to maintain
------------------------------
and preserve, and cause each of its Subsidiaries to take all reasonable action
to maintain and preserve, all of its properties that are necessary in the
conduct of its business in good working order and condition, ordinary wear and
tear excepted, except where the failure to so maintain and preserve such
properties would not, and would not be reasonably expected to, have a Material
Adverse Effect.
(h) New Material Subsidiaries. Promptly and in any event within 30 days
-------------------------
following the request of the Required Lenders made after either (i) the
organization or acquisition of any new Material Subsidiary or (ii) the delivery
of audited annual financial statements pursuant to Section 5.01(j) that indicate
that a Subsidiary of the Borrower that is not at such time a guarantor
33
is a Material Subsidiary, cause such Material Subsidiary to execute and deliver
an Assumption of Guaranty (as defined in the Guaranty), together with such
documents as the Required Lenders may request evidencing corporate action taken
to authorize such execution and delivery and the incumbency and signatures of
officers of such Material Subsidiary, provided that a Material Subsidiary shall
not be required to become a Guarantor if (A) a guaranty by such Material
Subsidiary would result in materially adverse tax consequences to the Borrower
and its Subsidiaries or shareholders of the Borrower or (B) a guaranty by such
Material Subsidiary is prohibited or limited by regulatory requirements or
applicable law.
(i) Use of Proceeds. Use the proceeds of the Advances solely as provided in
---------------
Section 2.16 and otherwise in accordance with the terms hereof.
(j) Reporting Requirements. Furnish to the Lenders:
----------------------
(i) as soon as available and in any event within 45 days after the end
of each of the first three quarters of each fiscal year of the Borrower,
Consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries as of the end of such quarter and Consolidated and
consolidating statements of income and Consolidated cash flows of the
Borrower and its Subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, duly
certified (subject to year-end audit adjustments) by the chief financial
officer of the Borrower as having been prepared in accordance with
generally accepted accounting principles and certificates of the chief
financial officer of the Borrower as to compliance with the terms of this
Agreement and setting forth in reasonable detail the calculations necessary
to demonstrate compliance with Section 5.03, provided that in the event of
any change in UK GAAP used in the preparation of such financial statements,
the Borrower shall also provide, if necessary for the determination of
compliance with Section 5.03, a statement of reconciliation conforming such
financial statements to UK GAAP;
(ii) as soon as available and in any event within 150 days after the
end of each fiscal year of the Borrower, a copy of the annual audit report
for such year for the Borrower and its Subsidiaries, containing
Consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries as of the end of such fiscal year and Consolidated and
consolidating statements of income and Consolidated cash flows of the
Borrower and its Subsidiaries for such fiscal year, in each case
accompanied by an opinion acceptable to the Required Lenders by Xxxxxx
Xxxxxxxx LLP or other independent public accountants acceptable to the
Required Lenders (as to such Consolidated financial statements), provided
that in the event of any change in UK GAAP used in the preparation of such
financial statements, the Borrower shall also provide, if necessary for the
determination of compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to UK GAAP;
(iii) as soon as possible and in any event within five days after the
occurrence of each Default continuing on the date of such statement, a
statement of the chief financial officer of the Borrower setting forth
details of such Default and the action that the Borrower has taken and
proposes to take with respect thereto;
34
(iv) promptly after the commencement thereof, notice of all actions
and proceedings before any court, governmental agency or arbitrator
affecting the Borrower or any of its Subsidiaries of the type described in
Section 4.01(i);
(v) (A) promptly and in any event within 20 days after any Loan Party
or any ERISA Affiliate knows or has reason to know that (1) any ERISA Event
has occurred which could result in a material liability of any Loan Party
or any ERISA Affiliate, or (2) any Loan Party or any ERISA Affiliate has
incurred or is reasonably expected to incur a material liability under
Section 4064 or 4069 of ERISA, a statement of the chief financial officer
of the Borrower describing such ERISA Event and the circumstances giving
rise to, and the amount of such liability and the action, if any, that such
Loan Party or such ERISA Affiliate has taken and proposes to take with
respect thereto and (B) on the date any records, documents or other
information must be furnished to the PBGC with respect to any Plan pursuant
to Section 4010 of ERISA, a copy of such records, documents and
information;
(vi) promptly and in any event within two Business Days after receipt
thereof by any Loan Party or any ERISA Affiliate, copies of each notice
from the PBGC stating its intention to terminate any Plan or to have a
trustee appointed to administer any Plan;
(vii) promptly upon request from the Funding Agent or any Lender,
copies of each Schedule B (Actuarial Information) to the annual report
(Form 5500 Series) required to be filed with respect to each Plan whose
funded current liability percentage (as defined in Section 302(d)(8) of
ERISA) is less than 100%;
(viii) promptly and in any event within 20 days after receipt thereof
by any Loan Party or any ERISA Affiliate from the sponsor of a
Multiemployer Plan, copies of each notice concerning (A) the imposition on
any Loan Party or any ERISA Affiliate of Withdrawal Liability in a material
amount by any such Multiemployer Plan, (B) the reorganization or
termination, within the meaning of Title IV of ERISA, of any such
Multiemployer Plan or (C) the amount of liability incurred, or that may be
incurred, by any Loan Party or any ERISA Affiliate in connection with any
event described in clause (A) or (B);
(ix) promptly and in any event within five Business Days after the
organization or acquisition of any Material Subsidiary, notice of such
event; and
(x) such other information respecting the Borrower or any of its
Subsidiaries as any Lender through the Funding Agent may from time to time
reasonably request.
Section 5.02. Negative Covenants. So long as any Advance shall remain
------------------
unpaid or any Lender shall have any Commitment hereunder, the Borrower will not,
at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit any of
----------
its Subsidiaries to create, incur, assume or suffer to exist, any Lien on or
with respect to any of its properties of any character (including, without
limitation, accounts) whether now owned or hereafter acquired, or assign, or
permit any of its Subsidiaries to assign, any accounts or other
35
right to receive income, excluding, however, from the operation of the foregoing
restrictions the following:
(i) Permitted Liens;
(ii) Liens on deposit accounts of the Borrower and its Subsidiaries in
respect of their cash pooling operations;
(iii) purchase money Liens upon or in real property or equipment
acquired or held by the Borrower or any of its Subsidiaries in the ordinary
course of business to secure the purchase price of such property or
equipment or to secure Debt incurred solely for the purpose of financing
the acquisition of any such property or equipment, or Liens existing on any
such property or equipment at the time of acquisition (other than any such
Liens created in contemplation of such acquisition that were not incurred
to finance the acquisition of such property), or extensions, renewals or
replacements of any of the foregoing for the same or a lesser amount;
provided, however, that no such Lien shall extend to or cover any
properties of any character other than the property or equipment being
acquired, and no such extension, renewal or replacement shall extend to or
cover any property not theretofore subject to the Lien being extended,
renewed or replaced; and provided further that the aggregate principal
amount of the Debt secured by Liens permitted by this clause (iii) and
clause (iv) below shall not exceed $100,000,000 at any time outstanding;
(iv) Liens on property of a Person existing at the time such Person is
merged into or consolidated with the Borrower or any Subsidiary of the
Borrower or becomes a Subsidiary of the Borrower; provided that such Liens
were not created in contemplation of such merger, consolidation or
investment and do not extend to any assets other than those of the Person
merged into or consolidated with the Borrower or such Subsidiary or
acquired by the Borrower or such Subsidiary; provided, further, that the
aggregate principal amount of the Debt secured by Liens permitted by this
clause (iv) and clause (iii) above shall not exceed $100,000,000 at any
time outstanding;
(v) Liens arising pursuant to one or more securitization programs
permitted pursuant to Section 5.02(d)(ii);
(vi) the replacement, extension or renewal of any Lien permitted by
clauses (iii) through (iv) above upon or in the same property theretofore
subject thereto or the replacement, extension or renewal (without increase
in the amount or addition of any direct or contingent obligor) of the Debt
secured thereby; and
(vii) Liens existing as of the Effective Date as described on Schedule
5.02(a).
(b) Loans. Make or hold, or permit any of its Subsidiaries to make or hold,
-----
loans or advances to any Person other than (i) loans or advances between or
among the Borrower and any of its Subsidiaries, (ii) loans or advances to
Affiliates of the Borrower in an aggregate amount at any one time outstanding
not to exceed $100,000,000 and (iii) loans or advances not otherwise permitted
by clauses (i) and (ii) above in an aggregate amount at any one time outstanding
not to exceed $40,000,000.
(c) Mergers, Etc. Merge into or consolidate with any Person or permit any
------------
Person to merge into it, or permit any of its Subsidiaries to do so, except that
36
(i) any of the Borrower's Subsidiaries may merge into the Borrower,
(ii) any Subsidiary of the Borrower that is not a Restricted
Subsidiary may merge with any other Subsidiary of the Borrower that is not
a Restricted Subsidiary,
(iii) any Subsidiary of a Guarantor may merge with any Guarantor or a
Subsidiary of a Guarantor,
(iv) any Guarantor may merge with any other Subsidiary of the
Borrower, and
(v) mergers in connection with acquisitions of Investments to the
extent not prohibited pursuant to Section 5.02(e);
provided, however, that in each case, immediately after giving effect thereto,
no event shall occur and be continuing that constitutes a Default and, in the
case of any such merger to which the Borrower is a party, the Borrower is the
surviving corporation or, in the case of any merger to which a Guarantor, but
not the Borrower, is a party, the surviving corporation is a Guarantor and is
not (as a result of such merger) subject to any agreement described in Section
5.02(k)(i), (ii) or (iii).
(d) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of,
---------------------
or permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose
of, any assets, or grant any option or other right to purchase, lease or
otherwise acquire any assets, except:
(i) in a transaction authorized by subsection (c) of this Section,
(ii) the sale or other disposition to a third-party investor by the
Borrower or any of its Subsidiaries of its rights to receive distribution
fees and contingent deferred sales charges pursuant to a securitization
program,
(iii) the Borrower and its Subsidiaries may, during any fiscal year of
the Borrower, sell, lease, transfer or otherwise dispose of assets
(including equity securities owned by such Persons) which generated up to,
but not to exceed, twenty percent (20%) of the consolidated revenues of the
Borrower during the immediately preceding fiscal year of the Borrower;
(iv) any Subsidiary of the Borrower that is not a Restricted
Subsidiary may sell, lease, transfer or otherwise dispose of all or
substantially all of its assets to the Borrower or a wholly-owned
Subsidiary of the Borrower that is not a Restricted Subsidiary or a
Guarantor;
(v) any Guarantor or any Subsidiary of a Guarantor may sell, lease,
transfer or otherwise dispose of all or substantially all of its assets to
any other Guarantor or a Subsidiary of a Guarantor; and
(vi) sales or other dispositions of obsolete equipment and furniture.
(e) Investments. Make, or permit any of its Subsidiaries to make, any
-----------
Investment in any Person unless each of the following conditions are satisfied:
(i) after giving effect to such Investment, no Event of Default shall be
continuing; and (ii) if and to the extent such Investment relates to the
purchase or acquisition of all of the capital stock of, or all or substantially
all of the
37
assets of, such Person (A) such Person shall be in substantially similar lines
of business as the Borrower and its Subsidiaries or businesses reasonably
related or complimentary thereto and (B) after giving effect to such Investment,
the Borrower will, on a pro forma basis, be in compliance with the financial
covenants set forth in Section 5.03.
(f) Dividends, Etc. Declare or make any dividend payment or other
--------------
distribution of assets, properties, cash, rights, obligations or securities on
account of any class of shares of capital stock of the Borrower, except that, so
long as no Default shall have occurred and be continuing at the time of any
action described below or would result therefrom, the Borrower may (i) declare
and pay dividends and distributions payable only in ordinary shares and/or
exchangeable shares of the Borrower and (ii) declare and pay cash dividends and
make other distributions to its stockholders solely out of 60% of net income of
the Borrower arising after December 31, 2000 and computed on a cumulative,
Consolidated basis.
(g) Change in Nature of Business. Make, or permit any of its Significant
----------------------------
Subsidiaries to make, any material change in the nature of its business as
carried on at the date hereof.
(h) Charter Amendments. Amend, or permit any of its Significant
------------------
Subsidiaries to amend, its certificate of incorporation or bylaws in a manner
that has a Material Adverse Effect.
(i) Accounting Changes. Make or permit, or permit any of its Significant
------------------
Subsidiaries to make or permit, any material change in accounting policies or
reporting practices, except as required by the generally accepted accounting
principles applicable to the Borrower or such Significant Subsidiary.
(j) Limitation on Subsidiary Dividends, Etc. Enter into or suffer to exist,
---------------------------------------
or permit any of its Subsidiaries to enter into or suffer to exist, any
agreement prohibiting, conditioning or limiting (i) the payment of dividends by
any Subsidiary of the Borrower, (ii) the payment of Debt of a Subsidiary of the
Borrower to the Borrower or other Subsidiaries of the Borrower or (iii) the
ability of any Subsidiary of the Borrower to guaranty Debt of the Borrower,
other than (A) in favor of the Lenders, (B) in connection with any Existing Debt
(but not extensions or refinancings of any such Existing Debt) or (C) as
required by any law or regulation applicable to such Person.
(k) Negative Pledge. Enter into or suffer to exist, or permit any of its
---------------
Subsidiaries to enter into or suffer to exist, any agreement prohibiting or
conditioning the creation or assumption of any Lien upon any of its property or
assets other than (i) in favor of the Lenders, (ii) in connection with any
Existing Debt (but not extensions or refinancings of any such Existing Debt) or
(iii) with respect to purchase money liens, capital leases and operating leases,
but only as to the assets so purchased or leased.
(l) Partnerships, Etc. Become a general partner in any general or limited
-----------------
partnership or joint venture, or permit any of its Subsidiaries to do so, other
than any Subsidiary the sole assets of which consist of its interest in such
partnership or joint venture.
(m) Transactions with Affiliates. Conduct, or permit any of its
----------------------------
Subsidiaries to conduct, transactions with any of their Affiliates except in the
ordinary course of business of and pursuant to the reasonable requirements of
the Borrower's or such Subsidiaries business and upon fair and reasonable terms
that are no less favorable to the Borrower or such Subsidiary, as the case may
be, than those which would be obtained in a comparable arm's-length transaction
with a Person not an Affiliate; provided that the foregoing restrictions shall
not apply to
38
(i) any transaction (A) between any Loan Parties, (B) between any
Subsidiary of the Borrower that is not a Restricted Subsidiary and any
other Subsidiary of the Borrower that is not a Restricted Subsidiary, (C)
between any Guarantor and any of its Subsidiaries, and (D) between the
Borrower or any of its Subsidiaries and their respective employees to make
loans to such employees for purposes of exercising stock options of such
employees and paying tax liabilities of such employees associated
therewith, and
(ii) transactions between the Borrower or any Subsidiary or other
Investment Company sponsored by the Borrower or any Subsidiary or for which
the Borrower or any Subsidiary provides advisory, administrative,
supervisory, management, consulting, underwriting or similar services, that
are otherwise permissible under the Investment Company Act of 1940, the
Investment Advisers Act of 1940 and the applicable management contract.
Section 5.03. Financial Covenants. So long as any Advance shall remain
-------------------
unpaid or any Lender shall have any Commitment hereunder, the Borrower will:
(a) Debt/EBITDA Ratio. Maintain at the end of each fiscal quarter of the
-----------------
Borrower a Debt/EBITDA Ratio of not greater than 3.00:1.00.
(b) Coverage Ratio. Maintain at the end of each fiscal quarter of the
--------------
Borrower a ratio of EBITDA for the four consecutive fiscal quarters of the
Borrower ended on or immediately prior to the date of determination to interest
payable on, and amortization of debt discount in respect of, Adjusted Debt for
such period, of not less than 4.00:1.00.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default. If any of the following events ("Events of
-----------------
Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance when the
same becomes due and payable; or the Borrower shall fail to pay any interest on
any Advance or make any other payment of fees or other amounts payable under
this Agreement or any Note within three days after the same becomes due and
payable; or
(b) Any representation or warranty made by the Borrower or any Loan Party
under any Loan Document or by the Borrower (or any of its officers) in
connection with any Loan Document shall prove to have been incorrect in any
material respect when made; or
(c) (i) The Borrower shall fail to perform or observe any term, covenant or
agreement contained in Section 5.01(d), (e) or (j), 5.02 or 5.03, or (ii) the
Borrower shall fail to perform or observe any other term, covenant or agreement
contained in this Agreement on its part to be performed or observed if such
failure shall remain unremedied for 30 days after written notice thereof shall
have been given to the Borrower by an Agent or any Lender; or
(d) The Borrower or any of its Subsidiaries shall fail to pay any principal
of or premium or interest on any Debt that is outstanding in a principal or
notional amount of at least $50,000,000 (or the equivalent thereof in any other
currencies) in the aggregate (but excluding
39
Debt outstanding hereunder) of the Borrower or such Subsidiary (as the case may
be), when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any such Debt and
shall continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Debt; or any
such Debt shall be declared to be due and payable, or required to be prepaid or
redeemed, purchased or defeased, or an offer to prepay, redeem, purchase or
defease such Debt shall be required to be made, in each case prior to the stated
maturity thereof; or
(e) The Borrower or any of its Significant Subsidiaries shall generally not
pay its debts as such debts become due, or shall admit in writing its inability
to pay its debts generally, or shall make a general assignment for the benefit
of creditors; or any proceeding shall be instituted by or against the Borrower
or any of its Significant Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 45 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur; or
the Borrower or any of its Significant Subsidiaries shall take any corporate
action to authorize any of the actions set forth above in this subsection (e);
or
(f) Any judgment or order for the payment of money in excess of $50,000,000
(or the equivalent thereof in any other currencies) shall be rendered against
the Borrower or any of its Subsidiaries and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order or (ii)
there shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; provided, however, that any such judgment or
order shall not be an Event of Default under this Section 6.01(f) if and for so
long as (i) the amount of such judgment or order in excess of $50,000,000 (or
the equivalent thereof in any other currencies) is covered by a valid and
binding policy of insurance between the defendant and the insurer covering
payment thereof and (ii) such insurer, which shall be rated at least "A" by A.M.
Best Company, has been notified of, and has not disputed the claim made for
payment of, the amount of such excess amount; or
(g) Any non-monetary judgment or order shall be rendered against the
Borrower or any of its Subsidiaries that could be reasonably expected to have a
Material Adverse Effect, and there shall be any period of 30 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(h) (i) Any Person or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934),
directly or indirectly, of Voting Stock of the Borrower (or other securities
convertible into such Voting Stock) representing 33% or
40
more of the combined voting power of all Voting Stock of the Borrower; or (ii)
during any period of up to 24 consecutive months, commencing after the date of
this Agreement, individuals who at the beginning of such 24-month period were
directors of the Borrower shall cease for any reason to constitute a majority of
the board of directors of the Borrower; or
(i) Any ERISA Event shall have occurred with respect to a Plan, or any Loan
Party or any ERISA Affiliate shall have incurred or be reasonably expected to
incur liability under Section 4064 or 4069 of ERISA, and the sum (determined as
of the date of occurrence of such ERISA Event) of the Insufficiency of such Plan
and the Insufficiency of any and all other Plans with respect to which an ERISA
Event shall have occurred and then exist (or the liability of the Loan Parties
and the ERISA Affiliates incurred or expected to be incurred with respect to
Section 4064 or 4069 of ERISA or related to such ERISA Event) exceeds
$25,000,000; or
(j) Any Loan Party or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to
such Multiemployer Plan in an amount that, when aggregated with all other
amounts required to be paid to Multiemployer Plans by the Loan Parties and the
ERISA Affiliates as Withdrawal Liability (determined as of the date of such
notification), exceeds $25,000,000 or requires payments exceeding $5,000,000 per
annum; or
(k) Any Loan Party or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
and as a result of such reorganization or termination the aggregate annual
contributions of the Loan Parties and the ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the plan
years of such Multiemployer Plans immediately preceding the plan year in which
such reorganization or termination occurs by an amount exceeding $25,000,000; or
(l) Any governmental authority or regulatory body shall have enacted,
issued, promulgated, enforced or entered any law, rule, regulation, judgment,
decree, injunction or other order (whether temporary, preliminary or permanent)
which is in effect and which prohibits, enjoins or otherwise restricts the
Borrower or any of its Subsidiaries in a manner that has a Material Adverse
Effect;
then, and in any such event, the Funding Agent (i) shall at the request, or may
with the consent, of the Required Lenders, by notice to the Borrower, declare
the obligation of each Lender to make Advances to be terminated, whereupon the
same shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the Notes,
all interest thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Notes, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to the Borrower under the
Federal Bankruptcy Code, (A) the obligation of each Lender to make Advances
shall automatically be terminated and (B) the Notes, all such interest and all
such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
41
ARTICLE VII
THE AGENTS
Section 7.01. Authorization and Action. Each Lender hereby appoints and
------------------------
authorizes the Funding Agent and the Co-Syndication Agents to take such action
as agent on its behalf and to exercise such powers and discretion under this
Agreement as are delegated to the Funding Agent and the Co-Syndication Agents by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or collection of the
Notes), the Funding Agent and the Co-Syndication Agents shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that neither the Funding Agent nor any Co-Syndication Agent
shall be required to take any action that exposes such Agent to personal
liability or that is contrary to this Agreement or applicable law. The Funding
Agent and each Co-Syndication Agent agree to give to each Lender prompt notice
of each notice given to it by the Borrower pursuant to the terms of this
Agreement.
Section 7.02. Agents' Reliance, Etc. Neither the Funding Agent, any
---------------------
Co-Syndication Agent nor any of their respective directors, officers, agents or
employees shall be liable for any action taken or omitted to be taken by it or
them under or in connection with this Agreement, except for its or their own
gross negligence or willful misconduct. Without limitation of the generality of
the foregoing, each Agent: (i) may treat the payee of any Note as the holder
thereof until the Funding Agent receives and accepts an Assignment and
Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(ii) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iv) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement on the part of the Borrower or
to inspect the property (including the books and records) of the Borrower; (v)
shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; and (vi) shall incur
no liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
Section 7.03. Citibank, Bank of America and Affiliates. With respect to its
----------------------------------------
Commitment, the Advances made by it and the Note issued to it, each of Citibank
and Bank of America shall have the same rights and powers under this Agreement
as any other Lender and may exercise the same as though it were not an Agent;
and the term "Lender" or "Lenders" shall, unless otherwise expressly indicated,
include each of Citibank and Bank of America in its individual capacity. Each of
Citibank and Bank of America and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Borrower, any of its
42
Subsidiaries and any Person who may do business with or own securities of the
Borrower or any such Subsidiary, all as if Citibank and Bank of America were not
Agents and without any duty to account therefor to the Lenders.
Section 7.04. Lender Credit Decision. Each Lender acknowledges that it has,
----------------------
independently and without reliance upon any Agent or any other Lender and based
on the financial statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon any Agent or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement.
Section 7.05. Indemnification. The Lenders agree to indemnify the Funding
---------------
Agent and each Co-Syndication Agent (to the extent not reimbursed by the
Borrower), ratably according to the respective principal amounts of the Notes
then held by each of them (or if no Notes are at the time outstanding, ratably
according to the respective amounts of their Commitments), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against such Agent
in any way relating to or arising out of this Agreement or any action taken or
omitted by such Agent under this Agreement (collectively, the "Indemnified
-----------
Costs"), 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 such Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Funding Agent and each Co-Syndication Agent promptly upon demand
for its ratable share of any out-of-pocket expenses (including counsel fees)
incurred by such Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that such Agent
is not reimbursed for such expenses by the Borrower. In the case of any
investigation, litigation or proceeding giving rise to any Indemnified Costs,
this Section 7.05 applies whether any such investigation, litigation or
proceeding is brought by any Agent, any Lender or a third party.
Section 7.06. Successor Agents. (a) The Funding Agent may resign at any
----------------
time by giving written notice thereof to the Lenders and the Borrower and may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Funding Agent with the consent, so long as no Event of Default has
occurred and is continuing, of the Borrower (which consent shall not be
unreasonably withheld or delayed). If no successor Funding Agent shall have been
so appointed by the Required Lenders, and shall have accepted such appointment,
within 30 days after the retiring Funding Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Funding Agent, then
the retiring Funding Agent may, on behalf of the Lenders, appoint a successor
Funding Agent, which shall be an Eligible Assignee. Upon the acceptance of any
appointment as Funding Agent hereunder by a successor Funding Agent, such
successor Funding Agent shall thereupon succeed to and become vested with all
the rights, powers, discretion, privileges and duties of the retiring Funding
Agent, and the retiring Funding Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Funding Agent's resignation
or removal hereunder as Funding Agent, the provisions of
43
this Article VII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Funding Agent under this Agreement.
(b) Any Co-Syndication Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower.
Section 7.07. Co-Agents. The co-agents shall have no duties or obligations
---------
under this Agreement or the other Loan Documents in their capacities as
co-agents.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Amendments, Etc. No amendment or waiver of any provision of
---------------
this Agreement or the Notes, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Lenders, do any of the following: (a) waive any of
the conditions specified in Section 3.01, (b) increase or extend the Commitments
of the Lenders (other than pursuant to Section 2.05(b) or 2.17) or subject the
Lenders to any additional obligations, (c) reduce the principal of, or interest
on, the Notes or any fees or other amounts payable hereunder, (d) postpone any
date fixed for any payment of principal of, or interest on, the Notes or any
fees or other amounts payable hereunder, (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Notes, or the
number of Lenders, that shall be required for the Lenders or any of them to take
any action hereunder, (f) release any obligations of the Guarantors or (g) amend
this Section 8.01; and provided further that no amendment, waiver or consent
shall, unless in writing and signed by the Funding Agent or any Co-Syndication
Agent (as the case may be) in addition to the Lenders required above to take
such action, affect the rights or duties of the Funding Agent or such
Co-Syndication Agent under this Agreement or any Note.
Section 8.02. Notices, Etc. All notices and other communications provided
------------
for hereunder shall be in writing (including telecopier, telegraphic or telex
communication) and mailed, telecopied, telegraphed, telexed or delivered, if to
the Borrower, at its address at 00 Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx,
Attention: Xxxxxxx X. Xxxxxx, with a copy to 0000 Xxxxxxxxx Xxxxxx X.X., Xxxxx
000, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxx Xxxx; if to any Initial Lender, at
its Domestic Lending Office specified opposite its name on Schedule I hereto; if
to any other Lender, at its Domestic Lending Office specified in the Assumption
Agreement or the Assignment and Acceptance pursuant to which it became a Lender;
and if to the Funding Agent pursuant to Article II, at its address at 000 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxxx Xxxxxx, and if the
Funding Agent pursuant to any provision of this Agreement other than Article II,
at its address at 000 Xxxxxxxxx Xxxxxx X.X., Xxxxxxx, Xxxxxxx 00000, Attention:
Xxxxx Xxxx; or, as to the Borrower or the Funding Agent, at such other address
as shall be designated by such party in a written notice to the other parties
and, as to each other party, at such other address as shall be designated by
such party in a written notice to the Borrower and the Funding Agent. All such
notices and communications shall, when mailed, telecopied, telegraphed or
telexed, be effective when deposited in the mails, telecopied, delivered to the
telegraph company or confirmed by telex answerback, respectively, except that
notices
44
and communications to the Funding Agent pursuant to Article II, III or VII shall
not be effective until received by the Funding Agent. Delivery by telecopier of
an executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of a manually executed counterpart
thereof.
Section 8.03. No Waiver; Remedies. No failure on the part of any Lender,
-------------------
any Co-Syndication Agent or the Funding Agent to exercise, and no delay in
exercising, any right hereunder or under any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
Section 8.04. Costs and Expenses. (a) The Borrower agrees to pay on demand
------------------
all costs and expenses of the Agents in connection with the preparation,
execution, delivery, administration, modification and amendment of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all due diligence, syndication (including
printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Agents with respect thereto and with
respect to advising each Agent as to its rights and responsibilities under this
Agreement. The Borrower further agrees to pay on demand all costs and expenses
of the Agents and the Lenders, if any (including, without limitation, reasonable
counsel fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for each Agent and each Lender in
connection with the enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the Funding Agent,
each Co-Syndication Agent and each Lender and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an "Indemnified
-----------
Party") from and against any and all claims, damages, losses, liabilities and
-----
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation, litigation
or proceeding or preparation of a defense in connection therewith) the Notes,
this Agreement, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Advances, except to the extent such claim,
damage, loss, liability or expense resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an investigation, litigation or
other proceeding to which the indemnity in this Section 8.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by the Borrower, its directors, shareholders or creditors
or an Indemnified Party or any other Person or any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated. The Borrower also agrees not to assert any claim against
the Funding Agent, any Co-Syndication Agent, any Lender, any of their
Affiliates, or any of their respective directors, officers, employees, attorneys
and agents, on any theory of liability, for special, indirect, consequential or
punitive damages arising out of or otherwise relating to the Notes, this
Agreement, any of the transactions contemplated herein or the actual or proposed
use of the proceeds of the Advances.
45
(c) If any payment of principal of, or Conversion of, any Eurocurrency Rate
Advance is made by the Borrower to or for the account of a Lender other than on
the last day of the Interest Period for such Advance, as a result of a payment
or Conversion pursuant to Section 2.08(c) or (d), 2.10 or 2.12, acceleration of
the maturity of the Notes pursuant to Section 6.01 or for any other reason, or
by an Eligible Assignee to a Lender other than on the last day of the Interest
Period for such Advance upon an assignment of rights and obligations under this
Agreement pursuant to Section 8.07 as a result of a demand by the Borrower
pursuant to Section 8.07(a), the Borrower shall, upon demand by such Lender
(with a copy of such demand to the Funding Agent), pay to the Funding Agent for
the account of such Lender any amounts required to compensate such Lender for
any additional losses, costs or expenses that it may reasonably incur as a
result of such payment or Conversion, including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance, less the return such Lender reasonably
expects to receive on its redeployment of funds.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.11, 2.14 and 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
Section 8.05. Right of Set-off. Upon the occurrence and during the
----------------
continuance of any Event of Default, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender or such Affiliate to or for the credit or the
account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under this Agreement and the Note held by such Lender,
whether or not such Lender shall have made any demand under this Agreement or
such Note and although such obligations may be unmatured. Each Lender agrees
promptly to notify the Borrower after any such set-off and application, provided
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Lender and its Affiliates under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender and its Affiliates may
have.
Section 8.06. Binding Effect. This Agreement shall become effective when it
--------------
shall have been executed by the Borrower and the Funding Agent and each
Co-Syndication Agent, the conditions precedent set forth in Section 3.01 shall
have been satisfied and when the Funding Agent shall have been notified by each
Initial Lender that such Initial Lender has executed it and thereafter shall be
binding upon and inure to the benefit of the Borrower, the Funding Agent, each
Co-Syndication Agent and each Lender and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders.
Section 8.07. Assignments and Participations. (a) Each Lender may, with the
------------------------------
consent, not to be unreasonably withheld, of the Funding Agent and, unless an
Event of Default has occurred and is continuing, the Borrower and, if demanded
by the Borrower at a time when no Default has occurred and is continuing
(following a demand by such Lender pursuant to Section 2.11 or 2,14 or a notice
by such Lender pursuant to Section 2.12) upon at least five Business Days'
notice to such Lender and the Funding Agent, will assign to one or more Persons
all or a portion of its rights and obligations under this Agreement (including,
without limitation,
46
all or a portion of its Commitment, the Advances owing to it and the Note or
Notes held by it); provided, however, that (i) each such assignment shall be of
a constant, and not a varying, percentage of all rights and obligations under
this Agreement, (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $15,000,000, (iii)
unless an Event of Default shall have occurred and be continuing, each such
assignment shall be to an Eligible Assignee, (iv) each such assignment made as a
result of a demand by the Borrower pursuant to this Section 8.07(a) shall be
arranged by the Borrower after consultation with the Funding Agent and shall be
either an assignment of all of the rights and obligations of the assigning
Lender under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other such
assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to make
any such assignment as a result of a demand by the Borrower pursuant to this
Section 8.7(a) unless and until such Lender shall have received one or more
payments from either the Borrower or one or more Eligible Assignees in an
aggregate amount at least equal to the aggregate outstanding principal amount of
the Advances owing to such Lender, together with accrued interest thereon to the
date of payment of such principal amount and all other amounts payable to such
Lender under this Agreement, (vi) any demand by the Borrower pursuant to this
Section 8.07(a) shall be made on all Lenders that have made a demand pursuant to
Section 2.11 or 2.14 or given notice pursuant to Section 2.12, as the case may
be, and (vii) the parties to each such assignment shall execute and deliver to
the Funding Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note subject to such assignment and
a processing and recordation fee of $3,500 provided that, in the case of an
assignment of rights and obligations under this Agreement as a result of a
demand by the Borrower, the Borrower shall pay the processing and recordation
fee of $3,500, which fee shall not be payable if the assignee is an existing
Lender; provided further, that the consent of the Funding Agent and the Borrower
shall not be required in the case of any assignment by a Lender to one or more
of such Lender's Affiliates. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(b) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto;
47
(iii) such assignee confirms that it has received a copy of this Agreement,
together with copies of the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and Acceptance;
(iv) such assignee will, independently and without reliance upon the Funding
Agent, any Co-Syndication Agent, such assigning Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Funding Agent and each
Co-Syndication Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to such Agent
by the terms hereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Funding Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Funding Agent in exchange for the surrendered Note a
new Note to the order of such Eligible Assignee in an amount equal to the
Commitment assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained a Commitment hereunder, a new Note to the order of
the assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A hereto.
(d) The Funding Agent shall maintain at its address referred to in Section
8.02 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amount of the Advances owing to, each Lender
from time to time (the "Register"). The entries in the Register shall be
--------
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Funding Agent, each Co-Syndication Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or other
entities (other than the Borrower or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and the
Note or Notes held by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment to the
Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrower, the Funding Agent, each Co-Syndication Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, (v) all amounts payable to a Lender under this Agreement (including,
without limitation, Sections 2.11,
48
2.14 and 8.07) shall be determined as if such Lender had not granted any such
participations and (vi) no participant under any such participation shall have
any right to approve any amendment or waiver of any provision of this Agreement
or any Note, or any consent to any departure by the Borrower therefrom, except
to the extent that such amendment, waiver or consent would reduce the principal
of, or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, or postpone any date
fixed for any payment of principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation.
(f) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 8.07, disclose to
the assignee or participant or proposed assignee or participant, any information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Confidential Information relating to the Borrower
received by it from such Lender by executing a confidentiality letter
substantially in the form of Exhibit K.
(g) Any Lender may at any time, without the consent of the Funding Agent or
the Borrower, create a security interest in all or any portion of its rights
under this Agreement (including, without limitation, the Advances owing to it
and the Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
(h) Any Lender may at any time, without the consent of the Funding Agent or
the Borrower, but with notice to the Funding Agent, assign all or a part of its
rights under this Agreement to any Affiliate of such Lender.
(i) Notwithstanding any other provision of this Agreement, no assignee of a
Lender, which as of the date of any assignment to it pursuant to this Section
8.07 would be entitled to receive any greater payment under Section 2.11 or 2.14
than the assigning Lender would have been entitled to receive as of such date
under such Sections with respect to the rights assigned, shall be entitled to
receive any greater payments than such assigning Lender would have been entitled
to receive unless the Borrower has expressly consented in writing to waive the
benefit of this provision at the time of such assignment.
Section 8.08. Confidentiality. None of the Funding Agent, any
---------------
Co-Syndication Agent nor any Lender shall disclose any Confidential Information
to any other Person without the consent of the Borrower, other than (a) to such
Agent's or such Lender's Affiliates and their officers, directors, employees,
agents and advisors and, as contemplated by Section 8.07(f), to actual or
prospective assignees and participants, and then only on a confidential basis,
(b) as required by any law, rule or regulation or judicial process (provided
that, to the extent practicable and legally permissible, such party shall give
the Borrower prior notice of any such legally required disclosure) and (c) as
requested or required by any state, federal or foreign authority or examiner
regulating banks or banking.
Section 8.09. Governing Law. This Agreement and the Notes shall be governed
-------------
by, and construed in accordance with, the laws of the State of New York.
Section 8.10. Execution in Counterparts. This Agreement may be executed in
-------------------------
any number of counterparts and by different parties hereto in separate
counterparts, each of which
49
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Agreement by telecopier shall be
effective as delivery of a manually executed counterpart of this Agreement.
Section 8.11. Jurisdiction, Etc. (a) Each of the parties hereto hereby
-----------------
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. The Borrower hereby agrees that service of process in any
such action or proceeding brought in any such New York State court or in such
federal court may be made upon the Borrower c/o AVZ Inc. at its offices at 0000
Xxxxxxxxx Xxxxxx X.X., Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attention: General
Counsel (the "Process Agent"), and hereby further agrees that the failure of the
-------------
Process Agent to give any notice of any such service to the Borrower shall not
impair or affect the validity of such service or of any judgment rendered in any
action or proceeding based thereon. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this Agreement
or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the Notes in any New
York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) To the extent that the Borrower has or hereafter may acquire any
immunity from the jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the
Borrower hereby irrevocably waives such immunity in respect of its obligations
under this Agreement and the other Loan Documents.
Section 8.12. Judgment. (a) Rate of Exchange. If, for the purpose of
-------- ----------------
obtaining judgment in any court, it is necessary to convert a sum due hereunder
or under the Notes in another currency into Dollars, the parties hereto agree,
to the fullest extent that they may effectively do so, that the rate of exchange
used shall be that at which, in accordance with normal banking procedures, the
Funding Agent could purchase such other currency with Dollars in New York City,
New York, at the close of business on the Business Day immediately preceding the
day on which final judgment is given, together with any premiums and costs of
exchange payable in connection with such purchase.
(b) Indemnity. The obligation of the Borrower in respect of any sum due
---------
from it to any Agent or any Lender hereunder or under any Note shall,
notwithstanding any judgment in a currency other than Dollars, be discharged
only to the extent that on the Business Day next succeeding receipt by such
Agent or such Lender of any sum adjudged to be so due in such other
50
currency, such Agent or such Lender, as the case may be, may, in accordance with
normal banking procedures, purchase Dollars with such other currency. If the
Dollars so purchased are less than the sum originally due to such Agent or such
Lender in Dollars, the Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Agent or such Lender
against such loss, and if the Dollars so purchased exceed the sum originally due
to any Agent or any Lender in Dollars, such Agent or such Lender agrees to remit
to the Borrower such excess.
Section 8.13. Waiver of Jury Trial. Each of the Borrower, the Funding
--------------------
Agent, the Co-Syndication Agents and the Lenders hereby irrevocably waives all
right to trial by jury in any action, proceeding or counterclaim (whether based
on contract, tort or otherwise) arising out of or relating to this Agreement or
the Notes or the actions of any Agent or any Lender in the negotiation,
administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
AMVESCAP PLC
By /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Title: Chairman and CEO
BANK OF AMERICA, N.A.,
as Funding Agent
By /s/ Xxxx X. X'Xxxxx
--------------------------------------------
Title: Managing Director
Lead Arrangers
--------------
$17,272,727.30 CITIBANK, N.A.
By /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Title: Attorney in Fact
$17,272,727.30 BANK OF AMERICA, N.A.
By /s/ Xxxx X. X'Xxxxx
--------------------------------------------
Title: Managing Director
$17,272,727.30 HSBC BANK PLC
By /s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Title: Head of Fund Managers and
Consumer Finance
51
Lead Agents
-----------
$12,727,272.70 DEUTSCH BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCH
By /s/ Xxxx Xxxxx
--------------------------------------------
Title: Vice President
By /s/ Xxxx X. XxXxxx
--------------------------------------------
Title: Director
$12,727,272.70 SUNTRUST BANK
By /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Title: Director
Managing Agents
---------------
$10,000,000.00 CIBC INC.
By /s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Title: Executive Director
$10,000,000.00 THE CHASE MANHATTAN BANK
By /s/ Xxxxxxxxx X. Xxxxxxx
--------------------------------------------
Title: Managing Director
$10,000,000.00 ROYAL BANK OF CANADA, LONDON
BRANCH
By /s/ Xxxx Xxxxxx
--------------------------------------------
Title: Senior Manager
$10,000,000.00 THE ROYAL BANK OF SCOTLAND PLC
By /s/ Xxxxx XxXxxx
--------------------------------------------
Title: Senior Vice President
$10,000,000.00 WACHOVIA BANK, N.A.
By /s/ Xxxxxxxx Xxxxxx
--------------------------------------------
Title: Senior Vice President
52
Lenders
-------
$8,181,818.20 BANK ONE, NA
By /s/ Xxxxxx Xxxxxxxxx
--------------------------------------------
Title: Director, Capital Markets
$8,181,818.20 THE BANK OF NEW YORK
By /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Title: Senior Vice President
$8,181,818.20 BARCLAYS BANK PLC
By /s/ Xxxxxxx Wechselblat
--------------------------------------------
Title: Vice President
$8,181,818.20 BNP PARIBAS
By /s/ Laurent Vanderzypre/Xxxxxxxxxx X Xxxxx
--------------------------------------------
Title: Vice President/Associate
$8,181,818.20 FLEET NATIONAL BANK
By /s/ Xxxxxx XxXxxxxxxx
--------------------------------------------
Title: Director
$8,181,818.20 MELLON BANK, N.A.
By /s/ Xxxxx X. XxXxxxx
--------------------------------------------
Title: Lending Officer
$8,181,818.20 STATE STREET BANK AND TRUST
COMPANY
By /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Title: Vice President
$8,181,818.20 THE TORONTO-DOMINION BANK
By /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Title: Mgr. Cr. Admin.
53
$7,272,727.30 WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By /s/ Xxxxxxxx Xxxxxx
--------------------------------------------
Title: Associate Director
By /s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Title: Director
$200,000,000 Total of the Commitments
54
SCHEDULE I
LIST OF APPLICABLE LENDING OFFICES
------------------------------------------------------------------------------------------------------------
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
---------------------- ----------------------- -------------------------
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
Bank of America, N.A.
------------------------------------------------------------------------------------------------------------
The Bank of New York One Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx Attn: Xxxxx Xxxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
------------------------------------------------------------------------------------------------------------
Bank One, NA One Bank Xxx Xxxxx Xxx Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx Attn: Xxxxxxx Xxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
------------------------------------------------------------------------------------------------------------
Barclays Bank PLC 222 Broadway 000 Xxxxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Attn:
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
------------------------------------------------------------------------------------------------------------
BNP Paribas 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxx Xxxx, X 00000 Xxx Xxxx, Y 10019
Attn: Laurent Vanderzyppe Attn: Laurent Vanderzyppe
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
------------------------------------------------------------------------------------------------------------
The Chase Manhattan Bank 000 Xxxx Xxxxxx, 00xx Xxxxx 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Elisabeth Schuabe Attn: Elisabeth Schuabe
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
------------------------------------------------------------------------------------------------------------
CIBC Inc. 0000 Xxxxx Xxxxx Xxxx 2727 Paces Ferry Road
Suite 1200 Suite 1200
2 Paces West, Building 2 2 Paces West, Building 2
Atlanta, GA 30339 Xxxxxxx, XX 00000
Attn: Ava Cool Attn: Ava Cool
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
------------------------------------------------------------------------------------------------------------
Citibank, N.A. 000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx Attn: Xxxxxxx Xxxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
------------------------------------------------------------------------------------------------------------
Deutsche Bank AG, New York and/or 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxxxxx Xxxxxxx Branch Mail Stop NYC02-1414 Mail Stop NYC02-1414
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx Attn: Xxxxxx Xxxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
------------------------------------------------------------------------------------------------------------
1
------------------------------------------------------------------------------------------------------------
Fleet National Bank 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
XX XX 00000X MA DE 10010H
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Xxxxxx XxXxxxxxxx Attn: Xxxxxx XxXxxxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
------------------------------------------------------------------------------------------------------------
HSBC Bank PLC 24-32 Poultry 00-00
Xxxxxx XX0X 0XX Xxxxxx XX0X 0XX
Attn: Xxxx Xxxx Attn: Xxxx Xxxx
T: 00 000 0000-0000 T: 00 000 0000-0000
F: 00 000 0000-0000 F: 00 000 0000-0000
------------------------------------------------------------------------------------------------------------
Mellon Bank, N.A. One Mellon Bank Center Xxx Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xx Xxxxx Attn: Xxxxx X. Xx Xxxxx
T: 000 000-0000 T: 412 236-9141
F: 000 000-0000 F: 000 000-0000
------------------------------------------------------------------------------------------------------------
Royal Bank of Canada, London Branch 00 Xxxxx Xxxxxxxx Xxxxxx 00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx XX0X 0XX Xxxxxx, Xxxxxxx XX0X 0XX
Attn: Xxxx Xxxxxx Attn: Xxxx Xxxxxx
T: 44 207 653 4070 T: 44 207 653 4070
F: 44 207 489 1675 F: 44 207 489 1675
------------------------------------------------------------------------------------------------------------
The Royal Bank of Scotland 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxx Attn: Xxxxxx Xxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
------------------------------------------------------------------------------------------------------------
State Street Bank and Trust Company 000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxx Attn: Xxxxxxx Xxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
------------------------------------------------------------------------------------------------------------
Suntrust Bank 00 Xxxx Xxxxx 00 Xxxx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxx Attn: Xxx Xxxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
------------------------------------------------------------------------------------------------------------
Toronto Dominion Bank 000 Xxxxxx Xxxxxx, 00xx Floor 000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx Attn: Xxxxxxx Xxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
------------------------------------------------------------------------------------------------------------
Wachovia Bank, N.A.
------------------------------------------------------------------------------------------------------------
Westdeutsche Landesbank Girozentrale 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
T: 000 000-0000
F: 000 000-0000
------------------------------------------------------------------------------------------------------------
2
EXECUTION COPY
U.S. $200,000,000
364-DAY CREDIT AGREEMENT
Dated as of June 18, 2001
Among
AMVESCAP PLC
as Borrower
-- --------
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
-- ------- -------
and
CITIBANK, N.A.
BANK OF AMERICA, N.A.
and
HSBC BANK PLC
as Co-Syndication Agents
-- -------------- ------
and
BANK OF AMERICA, N.A.
as Funding Agent
-- ------- -----
----------------------------------------------------------
XXXXXXX XXXXX BARNEY INC.
BANC OF AMERICA SECURITIES LLC
and
HSBC SECURITIES (USA) INC.
as Joint Lead Arrangers and Book Managers
-- ----- ---- --------- --- ---- --------
Table of Contents
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS...........................................................................1
Section 1.01. Certain Defined Terms.....................................................................1
Section 1.02. Computation of Time Periods..............................................................13
Section 1.03. Accounting Terms.........................................................................13
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES........................................................................13
Section 2.01. The Advances.............................................................................13
Section 2.02. Making the Advances......................................................................14
Section 2.03. [Intentionally ommitted].................................................................15
Section 2.04. Fees 15
Section 2.05. Termination or Reduction of the Commitments..............................................15
Section 2.06. Repayment of Advances....................................................................15
Section 2.07. Interest on Advances.....................................................................16
Section 2.08. Interest Rate Determination..............................................................16
Section 2.09. Optional Conversion of Advances..........................................................17
Section 2.10. Prepayments of Advances..................................................................18
Section 2.11. Increased Costs..........................................................................19
Section 2.12. Illegality...............................................................................19
Section 2.13. Payments and Computations................................................................20
Section 2.14. Taxes 21
Section 2.15. Sharing of Payments, Etc.................................................................24
Section 2.16. Use of Proceeds..........................................................................24
Section 2.17. Extension of Termination Date............................................................25
ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING.................................................................27
Section 3.01. Conditions Precedent to Effectiveness....................................................27
Section 3.02. Conditions Precedent to Each Borrowing and Each Extension Date...........................29
Section 3.03. Determinations Under Section 3.01........................................................29
ARTICLE IV REPRESENTATIONS AND WARRANTIES...........................................................................29
Section 4.01. Representations and Warranties of the Borrower...........................................29
ARTICLE V COVENANTS OF THE BORROWER.................................................................................32
Section 5.01. Affirmative Covenants....................................................................32
Section 5.02. Negative Covenants.......................................................................35
Section 5.03. Financial Covenants......................................................................39
ARTICLE VI EVENTS OF DEFAULT........................................................................................39
Section 6.01. Events of Default........................................................................39
i
ARTICLE VII THE AGENTS..............................................................................................42
Section 7.01. Authorization and Action.................................................................42
Section 7.02. Agents' Reliance, Etc....................................................................42
Section 7.03. Citibank, Bank of America and Affiliates.................................................42
Section 7.04. Lender Credit Decision...................................................................43
Section 7.05. Indemnification..........................................................................43
Section 7.06. Successor Agents.........................................................................43
Section 7.07. Co-Agents................................................................................44
ARTICLE VIII MISCELLANEOUS..........................................................................................44
Section 8.01. Amendments, Etc..........................................................................44
Section 8.02. Notices, Etc.............................................................................44
Section 8.03. No Waiver; Remedies......................................................................45
Section 8.04. Costs and Expenses.......................................................................45
Section 8.05. Right of Set-off.........................................................................46
Section 8.06. Binding Effect...........................................................................46
Section 8.07. Assignments and Participations...........................................................46
Section 8.08. Confidentiality..........................................................................49
Section 8.09. Governing Law............................................................................49
Section 8.10. Execution in Counterparts................................................................49
Section 8.11. Jurisdiction, Etc........................................................................50
Section 8.12. Judgment ................................................................................50
Section 8.13. Waiver of Jury Trial.....................................................................51
Schedules
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Schedule I - List of Applicable Lending Offices
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Required Authorizations and Approvals
Schedule 4.01(i) - Disclosed Litigation
Schedule 4.01(v) - Existing Debt
Schedule 5.02(a) - Existing Liens
Exhibits
--------
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Assumption Agreement
Exhibit E - Form of Guaranty
ii
Exhibit F - Form of Opinion of New York Counsel for the Borrower
Exhibit G - Form of Opinion of English Counsel for the Borrower
Exhibit H - Form of Confidentiality Letter
Exhibit I - UK Tax Compliance Certificate
iii
