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[EXECUTION COPY]
AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of January 16, 2001
(amending and restating
the Credit Agreement, dated as of September 29, 1999)
among
WEIGHT WATCHERS INTERNATIONAL, INC.,
as a Borrower
WW FUNDING CORP.,
as the SP1 Borrower
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders
CREDIT SUISSE FIRST BOSTON,
as the Syndication Agent,
a Lead Arranger and a Book Manager
BHF (USA) CAPITAL CORPORATION,
as the Documentation Agent
and
THE BANK OF NOVA SCOTIA,
as the Administrative Agent,
a Lead Arranger and a Book Manager
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms.........................................................2
SECTION 1.2. Use of Defined Terms.................................................35
SECTION 1.3. Cross-References.....................................................36
SECTION 1.4. Accounting and Financial Determinations..............................36
SECTION 1.5. Currency Conversions.................................................36
ARTICLE II
CONTINUATION OF CERTAIN EXISTING LOANS, COMMITMENTS, BORROWING AND ISSUANCE
PROCEDURES, NOTES, LETTERS OF CREDIT AND TLC PROVISIONS
SECTION 2.1. Loan Commitments.....................................................36
SECTION 2.1.1. Continuation of Existing Term Loans; Term Loan Commitments...........36
SECTION 2.1.2. Revolving Loan Commitment and Swing Line Loan Commitment.............37
SECTION 2.1.3. Letter of Credit Commitment..........................................38
SECTION 2.1.4. Lenders Not Permitted or Required to Make the Loans..................38
SECTION 2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit..........39
SECTION 2.1.6. Designated Additional Loans..........................................39
SECTION 2.2. Reduction of the Commitment Amounts..................................40
SECTION 2.2.1. Optional.............................................................40
SECTION 2.2.2. Mandatory............................................................40
SECTION 2.3. Borrowing Procedures and Funding Maintenance.........................40
SECTION 2.3.1. Term Loans and Revolving Loans.......................................40
SECTION 2.3.2. Swing Line Loans.....................................................41
SECTION 2.4. Continuation and Conversion Elections................................42
SECTION 2.5. Funding..............................................................43
SECTION 2.6. Issuance Procedures..................................................43
SECTION 2.6.1. Other Lenders' Participation.........................................44
SECTION 2.6.2. Disbursements; Conversion to Revolving Loans.........................44
SECTION 2.6.3. Reimbursement........................................................45
SECTION 2.6.4. Deemed Disbursements.................................................45
SECTION 2.6.5. Nature of Reimbursement Obligations..................................46
SECTION 2.7. Notes................................................................46
SECTION 2.8. Registered Notes.....................................................47
SECTION 2.9. TLC Facility.........................................................47
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application..............................47
SECTION 3.1.1. Repayments and Prepayments...........................................47
SECTION 3.1.2. Application..........................................................52
SECTION 3.2. Interest Provisions..................................................53
SECTION 3.2.1. Rates................................................................53
SECTION 3.2.2. Post-Maturity Rates..................................................53
SECTION 3.2.3. Payment Dates........................................................54
SECTION 3.3. Fees.................................................................54
SECTION 3.3.1. Commitment Fee.......................................................54
SECTION 3.3.2. Administrative Agent's Fee...........................................55
SECTION 3.3.3. Letter of Credit Fee.................................................55
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful...........................................55
SECTION 4.2. Deposits Unavailable.................................................55
SECTION 4.3. Increased LIBO Rate Loan Costs, etc..................................56
SECTION 4.4. Funding Losses.......................................................56
SECTION 4.5. Increased Capital Costs..............................................56
SECTION 4.6. Taxes................................................................57
SECTION 4.7. Payments, Computations, etc..........................................59
SECTION 4.8. Sharing of Payments..................................................60
SECTION 4.9. Setoff...............................................................60
SECTION 4.10. Mitigation...........................................................61
ARTICLE V
CONDITIONS TO EFFECTIVENESS AND TO FUTURE CREDIT EXTENSIONS
SECTION 5.1. Conditions Precedent to the Effectiveness of This Agreement and
Making of Credit Extensions..........................................61
SECTION 5.2. All Credit Extensions................................................61
SECTION 5.2.1. Compliance with Warranties, No Default, etc..........................61
SECTION 5.2.2. Credit Extension Request.............................................62
SECTION 5.2.3. Satisfactory Legal Form..............................................62
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1. Organization, etc....................................................62
SECTION 6.2. Due Authorization, Non-Contravention, etc............................62
SECTION 6.3. Government Approval, Regulation, etc.................................63
SECTION 6.4. Validity, etc........................................................63
SECTION 6.5. Financial Information................................................63
SECTION 6.6. No Material Adverse Change...........................................64
SECTION 6.7. Litigation, Labor Controversies, etc.................................64
SECTION 6.8. Subsidiaries.........................................................64
SECTION 6.9. Ownership of Properties..............................................64
SECTION 6.10. Taxes................................................................64
SECTION 6.11. Pension and Welfare Plans............................................64
SECTION 6.12. Environmental Warranties.............................................65
SECTION 6.13. Regulations U and X..................................................66
SECTION 6.14. Accuracy of Information..............................................66
SECTION 6.15. Seniority of Obligations, etc........................................66
SECTION 6.16. Solvency.............................................................67
SECTION 6.17. Contracts............................................................67
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants................................................67
SECTION 7.1.1. Financial Information, Reports, Notices, etc.........................67
SECTION 7.1.2. Compliance with Laws, etc............................................69
SECTION 7.1.3. Maintenance of Properties............................................69
SECTION 7.1.4. Insurance............................................................69
SECTION 7.1.5. Books and Records....................................................70
SECTION 7.1.6. Environmental Covenant...............................................70
SECTION 7.1.7. Future Subsidiaries..................................................70
SECTION 7.1.8. Future Leased Property and Future Acquisitions of Real Property......71
SECTION 7.1.9. Use of Proceeds, etc.................................................72
SECTION 7.1.10. U.S. Borrower as Pledged Interest Issuer.............................72
SECTION 7.2. Negative Covenants...................................................73
SECTION 7.2.1. Business Activities..................................................73
SECTION 7.2.2. Indebtedness.........................................................73
SECTION 7.2.3. Liens................................................................74
SECTION 7.2.4. Financial Condition..................................................76
SECTION 7.2.5. Investments..........................................................79
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 7.2.6. Restricted Payments, etc.............................................81
SECTION 7.2.7. Capital Expenditures, etc............................................81
SECTION 7.2.8. Consolidation, Merger, etc...........................................82
SECTION 7.2.9. Asset Dispositions, etc..............................................83
SECTION 7.2.10. Modification of Certain Agreements...................................83
SECTION 7.2.11. Transactions with Affiliates.........................................84
SECTION 7.2.12. Negative Pledges, Restrictive Agreements, etc........................85
SECTION 7.2.13. Stock of Subsidiaries................................................85
SECTION 7.2.14. Sale and Leaseback...................................................85
SECTION 7.2.15. Fiscal Year..........................................................86
SECTION 7.2.16. Designation of Senior Indebtedness...................................86
SECTION 7.3. Maintenance of Separate Existence....................................86
ARTICLE VIII
GUARANTY
SECTION 8.1. The Guaranty.........................................................88
SECTION 8.2. Guaranty Unconditional...............................................89
SECTION 8.3. Reinstatement in Certain Circumstances...............................90
SECTION 8.4. Waiver...............................................................90
SECTION 8.5. Postponement of Subrogation, etc.....................................90
SECTION 8.6. Stay of Acceleration.................................................90
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.1. Listing of Events of Default.........................................91
SECTION 9.1.1. Non-Payment of Obligations...........................................91
SECTION 9.1.2. Breach of Warranty...................................................91
SECTION 9.1.3. Non-Performance of Certain Covenants and Obligations.................91
SECTION 9.1.4. Non-Performance of Other Covenants and Obligations...................91
SECTION 9.1.5. Default on Other Indebtedness........................................91
SECTION 9.1.6. Judgments............................................................91
SECTION 9.1.7. Pension Plans........................................................92
SECTION 9.1.8. Change in Control....................................................92
SECTION 9.1.9. Bankruptcy, Insolvency, etc..........................................92
SECTION 9.1.10. Impairment of Security, etc..........................................93
SECTION 9.1.11. Senior Subordinated Notes............................................93
SECTION 9.1.12. Redemption...........................................................93
SECTION 9.2. Action if Bankruptcy, etc............................................93
SECTION 9.3. Action if Other Event of Default.....................................94
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE X
THE AGENTS
SECTION 10.1. Actions..............................................................94
SECTION 10.2. Funding Reliance, etc................................................95
SECTION 10.3. Exculpation..........................................................95
SECTION 10.4. Successor............................................................95
SECTION 10.5. Credit Extensions by each Agent......................................96
SECTION 10.6. Credit Decisions.....................................................96
SECTION 10.7. Copies, etc..........................................................96
SECTION 10.8. Reliance by the Administrative Agent.................................97
SECTION 10.9. Defaults.............................................................97
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc.............................................97
SECTION 11.2. Notices..............................................................99
SECTION 11.3. Payment of Costs and Expenses........................................99
SECTION 11.4. Indemnification......................................................99
SECTION 11.5. Survival............................................................101
SECTION 11.6. Severability........................................................101
SECTION 11.7. Headings............................................................101
SECTION 11.8. Execution in Counterparts...........................................101
SECTION 11.9. Governing Law; Entire Agreement.....................................101
SECTION 11.10. Successors and Assigns..............................................102
SECTION 11.11. Sale and Transfer of Loans and Notes; Participations in Loans,
Notes and TLCs......................................................102
SECTION 11.11.1. Assignments.........................................................102
SECTION 11.11.2. Participations......................................................104
SECTION 11.11.3. Register............................................................106
SECTION 11.12. Other Transactions..................................................107
SECTION 11.13. Forum Selection and Consent to Jurisdiction.........................107
SECTION 11.14. Waiver of Jury Trial................................................107
SECTION 11.15. Confidentiality.....................................................108
SECTION 11.16. Judgment Currency...................................................108
SECTION 11.17. Release of Security Interests.......................................109
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SCHEDULE I - Disclosure Schedule
SCHEDULE II - Commitments and Percentages
SCHEDULE III - Notice Information, Domestic Offices and LIBOR Offices
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Swing Line Note
EXHIBIT A-3 - Form of Term A Note
EXHIBIT A-4 - Form of TLC
EXHIBIT A-5 - Form of Term B-1 Note
EXHIBIT A-6 - Form of Term B-2 Note
EXHIBIT A-7 - Form of Term D Note
EXHIBIT A-8 - Form of Registered Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT B-3 - Form of TLC Purchase Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - [Reserved]
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F-1 - Form of WWI Security Agreement
EXHIBIT F-2 - Form of Australian Security Agreement
EXHIBIT G-1 - Form of WWI Pledge Agreement
EXHIBIT G-2 - Form of ARTAL Pledge Agreement
EXHIBIT G-3 - Form of HJH Pledge Agreement
EXHIBIT G-4 - Form of Australian Pledge Agreement
EXHIBIT H - Form of Subsidiary Guaranty
EXHIBIT H-1 - Form of Australian Guaranty
EXHIBIT I - Form of Intercompany Subordination Agreement
EXHIBIT J - Form of Lender Assignment Agreement
EXHIBIT K - Form of Registration Certificate
EXHIBIT L - Form of TLC Deed Poll
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AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of January 16, 2001
(amending and restating the Credit Agreement, dated as of September 29, 1999),
is among WEIGHT WATCHERS INTERNATIONAL, INC., a Virginia corporation ("WWI"), WW
FUNDING CORP., a Delaware corporation (the "SP1 Borrower", and together with
WWI, the "Borrowers"), the various financial institutions as are or may become
parties hereto (collectively, the "Lenders"), CREDIT SUISSE FIRST BOSTON
("CSFB"), as the syndication agent and as a lead arranger (in such capacities,
the "Syndication Agent" and a "Lead Arranger", respectively), BHF (USA) CAPITAL
CORPORATION ("BHF"), as the documentation agent (in such capacity, the
"Documentation Agent") and THE BANK OF NOVA SCOTIA ("Scotiabank"), as (x) the
administrative agent, paying agent and registration agent for the TLCs (as
defined below) and (y) a lead arranger (in such capacities, the "Administrative
Agent" and a "Lead Arranger", respectively) and as Issuer (as defined below) for
the Lenders.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, dated as of September 29,
1999 (as amended by Amendment No. 1, dated as of December 15, 1999 and as
otherwise amended, supplemented, amended and restated or otherwise modified
prior to the date hereof, the "Existing Credit Agreement"), among the Borrowers,
certain financial institutions and other Persons from time to time party thereto
(the "Existing Lenders") and the Agents, the Existing Lenders committed to make
extensions of credit to the Borrowers on the terms and conditions set forth
therein and
(a) made term A loans (the "Existing Term A Loans"), term B loans (the
"Existing Term B Loans", and together with the Existing Term A Loans, the
"Existing Term Loans"), TLC facilities (the "Existing TLCs"), revolving loans
(the "Existing Revolving Loans"), swing line loans (the "Existing Swing Line
Loans", and collectively with the Existing Term Loans, the Existing TLCs and the
Existing Revolving Loans, the "Existing Loans") to the Borrowers and
(b) issued or participated in letters of credit (the "Existing Letters
of Credit") for the account of the Borrower;
WHEREAS, WWI intends to consummate the acquisition (the "Weighco
Acquisition") of substantially all of the assets and business ("Weighco
Business") of Weighco Enterprises, Inc., a Delaware corporation ("WEI"), Weighco
of Northwest, Inc., a Delaware corporation ("WNI"), and Weighco of Southwest,
Inc., a Delaware corporation ("WSI", and together with WEI and WNI, "Weighco"),
pursuant to the Asset Purchase Agreement (the "Purchase Agreement"), dated
December 11, 2000, among Weighco, WWI and Weight Watchers North America, Inc.
("WWNA") (the "Transaction");
WHEREAS, in connection with the Transaction and the ongoing working
capital and general corporate needs of the Borrowers, the Borrowers desire to,
among other things, continue the Existing Loans as Loans under this Agreement,
to continue the Existing Letters of Credit as Letters of Credit under this
Agreement and maintain and obtain the Commitments to make Credit Extensions set
forth herein;
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WHEREAS, the Borrowers have requested that the Existing Credit Agreement
be amended and restated in its entirety to become effective and binding on the
Borrowers pursuant to the terms of this Agreement and Amendment No.2 to the
Existing Credit Agreement of even date herewith, and the Lenders (including the
Existing Lenders) have agreed (subject to the terms of this Agreement) to amend
and restate the Existing Credit Agreement in its entirety to read as set forth
in this Agreement, and it has been agreed by the parties to the Existing Credit
Agreement that (a) the commitments which the Existing Lenders have agreed to
extend to the Borrower under the Existing Credit Agreement shall be extended or
advanced upon the amended and restated terms and conditions contained in this
Agreement, and (b) the Existing Loans, the Existing Letters of Credit and other
Obligations (as defined in the Existing Credit Agreement) outstanding under the
Existing Credit Agreement shall be governed by and deemed to be outstanding
under the amended and restated terms and conditions contained in this Agreement,
with the intent that the terms of this Agreement shall supersede the terms of
the Existing Credit Agreement (each of which shall hereafter have no further
effect upon the parties thereto, other than as referenced herein and other than
for accrued fees and expenses, and indemnification provisions, accrued and owing
under the terms of the Existing Credit Agreement on or prior to the date hereof
or arising (in the case of an indemnification) under the terms of the Existing
Credit Agreement, in each case to the extent provided for in the Existing Credit
Agreement); provided, that any Rate Protection Agreements with any one or more
Existing Lenders (or their respective Affiliates) shall continue unamended and
in full force and effect;
WHEREAS, all Loans, Reimbursement Obligations and other Obligations
shall continue to be and shall be guaranteed pursuant to the Subsidiary Guaranty
executed and delivered by each Subsidiary party thereto required to do so under
the Existing Credit Agreement and secured pursuant to the Security Agreements
executed and delivered by the Borrowers and the applicable Subsidiaries pursuant
to the Existing Credit Agreement; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including Article V), to maintain such Loans
and to maintain or extend such Commitments and make such Loans to the Borrowers
and issue or maintain (or participate in) Letters of Credit for the account of
the Borrowers;
NOW, THEREFORE, the parties hereto hereby agree to amend and restate the
Existing Credit Agreement, and the Existing Credit Agreement is amended and
restated in its entirety as set forth herein:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Additional Term A Loan" is defined in clause (b) of Section 2.1.1.
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"Additional Term A Loan Commitment" is defined in clause (b) of Section
2.1.1.
"Additional Term A Loan Commitment Amount" means $15,000,000.
"Additional Term A Loan Commitment Termination Date" means the earliest
of:
(a) January 31, 2001, if the Additional Term A Loans have not
been made on or prior to such date;
(b) the date of the making of the Additional Term A Loans
(immediately after the making of such Additional Term A Loans on such
date); and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clauses (b) or (c), the Additional
Term A Loan Commitments shall terminate automatically and without any further
action.
"Additional Term A Loan Lender" means any Lender which has a Percentage
of the Additional Term A Loan Commitment Amount.
"Administrative Agent" is defined in the preamble and includes each
other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to Section 10.4.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
(a) to vote 15% or more of the securities (on a fully diluted
basis) having ordinary voting power for the election of directors or
managing general partners; or
(b) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agents" means, collectively, the Administrative Agent, the
Syndication Agent and the Documentation Agent.
"Agreement" means, on any date, this Credit Agreement, as amended and
restated hereby and as further amended, supplemented, amended and restated, or
otherwise modified from time to time and in effect on such date.
"Alternate Base Rate" means, on any date and with respect to all Base
Rate Loans, a fluctuating rate of interest per annum equal to the higher of
(a) the rate of interest most recently established by the
Administrative Agent at its Domestic Office as its base rate for U.S.
Dollar loans in the United States; and
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(b) the Federal Funds Rate most recently determined by the
Administrative Agent plus 1/2 of 1%.
The Alternate Base Rate is not necessarily intended to be the lowest rate of
interest determined by the Administrative Agent in connection with extensions of
credit. Changes in the rate of interest on that portion of any Loans maintained
as Base Rate Loans will take effect simultaneously with each change in the
Alternate Base Rate. The Administrative Agent will give notice promptly to the
Borrowers and the Lenders of changes in the Alternate Base Rate.
"Applicable Margin" means at all times,
(a) with respect to the unpaid principal amount of Term B Loans
maintained as a
(i) Base Rate Loan, 3.00% per annum; and
(ii) LIBO Rate Loan, 4.00% per annum;
(b) with respect to the unpaid principal amount of Term D Loans
maintained as a
(i) Base Rate Loan, 2.25% per annum; and
(ii) LIBO Rate Loan, 3.25% per annum;
(c) with respect to the unpaid principal amount of each
Revolving Loan and Swing Line Loans and each Term A Loan maintained as a
Base Rate Loan at the applicable percentage per annum set forth below
under the column entitled "Applicable Margin for Base Rate Loans"; and
(d) with respect to the unpaid principal amount of each
Revolving Loan, and Swing Line Loan and each Term A Loan maintained as a
LIBO Rate Loan, at the applicable percentage per annum set forth below
under the column entitled "Applicable Margin for LIBO Rate Loans":
Applicable Margin for Revolving Loans, Swing Line Loans and Term A
Loans:
Applicable Margin Applicable Margin
Debt to EBITDA Ratio for Base Rate Loans for LIBO Rate Loans
-------------------- ------------------- -------------------
Greater than or equal to 4.75 to 1.00 2.250% 3.250%
Less than 4.75 to 1.00 and greater than or 1.875% 2.875%
equal to 4.25 to 1.00
Less than 4.25 to 1.00 and greater than or 1.500% 2.500%
equal to 3.75 to 1.00
Less than 3.75 to 1.00 and greater than or 1.125% 2.125%
equal to 3.25 to 1.00
Less than 3.25 to 1.00 0.750% 1.750%
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The Debt to EBITDA Ratio used to compute the Applicable Margin for
Revolving Loans, Swing Line Loans and Term A Loans shall be the Debt to EBITDA
Ratio set forth in the Compliance Certificate most recently delivered by WWI to
the Administrative Agent pursuant to clause (c) of Section 7.1.1; changes in the
Applicable Margin for Revolving Loans, Swing Line Loans, and Term A Loans
resulting from a change in the Debt to EBITDA Ratio shall become effective upon
delivery by WWI to the Administrative Agent of a new Compliance Certificate
pursuant to clause (c) of Section 7.1.1. If WWI shall fail to deliver a
Compliance Certificate within the number of days after the end of any Fiscal
Quarter as required pursuant to clause (c) of Section 7.1.1 (without giving
effect to any grace period), the Applicable Margin for Revolving Loans, Swing
Line Loans, and Term A Loans from and including the first day after the date on
which such Compliance Certificate was required to be delivered to but not
including the date WWI delivers to the Administrative Agent a Compliance
Certificate shall conclusively equal the highest Applicable Margin for Revolving
Loans, Swing Line Loans, and Term A Loans set forth above.
The Applicable Margin for Designated New Term Loans shall be determined
pursuant to Section 2.1.6.
"ARTAL" means ARTAL Luxembourg S.A., a corporation organized under the
laws of Luxembourg.
"ARTAL Pledge Agreement" means the Pledge Agreement, dated September 29,
1999, by ARTAL, in favor of the Administrative Agent as amended, amended and
restated, supplemented or otherwise modified from time to time pursuant to the
terms thereof.
"Assignee Lender" is defined in Section 11.11.1.
"Australian Dollar" or "A$" means the lawful money of Australia.
"Australian Guaranty" means the Guaranty, dated September 29, 1999, by
WW Australia, FPL and GB in favor of the Administrative Agent, as amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with its terms.
"Australian Pledge Agreement" means the Australian Share Mortgage
Agreement, dated September 29, 1999, by WW Australia and FPL in favor of the
Administrative Agent, together with each Supplement thereto delivered pursuant
to clause (b) of Section 7.1.7, as amended, amended and restated, supplemented
or otherwise modified from time to time pursuant to the terms thereof.
"Australian Security Agreement" means the Security Agreement, dated
September 29, 1999, by WW Australia, FPL and GB in favor of the Administrative
Agent, together with each Supplement thereto delivered pursuant to clause (a) of
Section 7.1.7, as amended, amended and restated, supplemented or otherwise
modified from time to time pursuant to the terms thereof.
"Australian Subsidiary" means any Subsidiary that is organized under the
laws of Australia or any territory thereof.
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"Authorized Officer" means, relative to any Obligor, those of its
officers whose signatures and incumbency shall have been certified to the
Administrative Agent and the Lenders in writing from time to time.
"Average Life" means, as of the date of determination, with respect to
any Indebtedness, the quotient obtained by dividing:
(x) the sum of the products of numbers of years from the date of
determination to the dates of each successive scheduled
principal payment of or redemption or similar payment with
respect to such Indebtedness multiplied by the amount of such
payment
by
(y) the sum of all such payments.
"Base Amount" is defined in Section 7.2.7.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"Borrowers" is defined in the preamble.
"Borrowing" means the Loans of the same type and, in the case of LIBO
Rate Loans, having the same Interest Period made by the relevant Lenders on the
same Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.1.
"Borrowing Request" means a loan request and certificate duly executed
by an Authorized Officer of the applicable Borrower, substantially in the form
of Exhibit B-1 hereto.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New
York City; and
(b) relative to the making, continuing, prepaying or repaying of
any LIBO Rate Loans, any day on which dealings in U.S. Dollars are
carried on in the London interbank market.
"Capital Expenditures" means for any period, the sum, without
duplication, of
(a) the aggregate amount of all expenditures of WWI and its
Subsidiaries for fixed or capital assets made during such period which,
in accordance with GAAP, would be classified as capital expenditures;
and
(b) the aggregate amount of all Capitalized Lease Liabilities
incurred during such period.
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"Capital Securities" means, (i) any and all shares, interests,
participations or other equivalents of or interests in (however designated)
corporate stock, including, without limitation, shares of preferred or
preference stock, (ii) all partnership interests (whether general or limited) in
any Person which is a partnership, (iii) all membership interests or limited
liability company interests in any limited liability company, and (iv) all
equity or ownership interests in any Person of any other type.
"Capitalized Lease Liabilities" means, without duplication, all monetary
obligations of WWI or any of its Subsidiaries under any leasing or similar
arrangement which, in accordance with GAAP, would be classified as capitalized
leases, and, for purposes of this Agreement and each other Loan Document, the
amount of such obligations shall be the capitalized amount thereof, determined
in accordance with GAAP, and the stated maturity thereof shall be the date of
the last payment of rent or any other amount due under such lease prior to the
first date upon which such lease may be terminated by the lessee without payment
of a penalty.
"Cash Equivalent Investment" means, at any time:
(a) any evidence of Indebtedness, maturing not more than one
year after such time, issued or guaranteed by the United States
Government;
(b) commercial paper, maturing not more than nine months from
the date of issue, which is issued by
(i) a corporation (other than an Affiliate of any
Obligor) organized under the laws of any state of the United
States or of the District of Columbia and rated at least A-l by
S&P or P-l by Xxxxx'x, or
(ii) any Lender which is an Eligible Institution (or its
holding company);
(c) any certificate of deposit or bankers acceptance, maturing
not more than one year after such time, which is issued by either
(i) a commercial banking institution that is a member of
the Federal Reserve System and has a combined capital and
surplus and undivided profits of not less than $500,000,000, or
(ii) any Lender;
(d) short-term tax-exempt securities rated not lower than
MIG-1/1+ by either Xxxxx'x or S&P with provisions for liquidity or
maturity accommodations of 183 days or less;
(e) any money market or similar fund the assets of which are
comprised exclusively of any of the items specified in clauses (a)
through (d) above and as to which withdrawals are permitted at least
every 90 days; or
(f) in the case of any Subsidiary of WWI organized in a
jurisdiction outside the United States: (i) direct obligations of the
sovereign nation (or any agency thereof) in
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15
which such Subsidiary is organized and is conducting business or in
obligations fully and unconditionally guaranteed by such sovereign
nation (or any agency thereof), (ii) investments of the type and
maturity described in clauses (a) through (e) above of foreign obligors,
which investments or obligors (or the parents of such obligors) have
ratings described in such clauses or equivalent ratings from comparable
foreign ratings agencies or (iii) investments of the type and maturity
described in clauses (a) through (e) above of foreign obligors (or the
parents of such obligors), which investments or obligors (or the parents
of such obligors) are not rated as provided above but which are, in the
reasonable judgment of WWI, comparable in investment quality to such
investments and obligors (or the parents of such obligors); provided
that the aggregate face amount outstanding at any time of such
investments of all foreign Subsidiaries of WWI made pursuant to this
clause (iii) does not exceed $25,000,000.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change in Control" means
(a) at any time prior to an Initial Public Offering, the failure
of the Permitted ARTAL Investor Group, to directly own, free and clear
of all Liens (other than in favor of the Administrative Agent pursuant
to a Loan Document), 75% of the outstanding voting shares of Capital
Securities of WWI on a fully diluted basis; provided that all owners of
such Capital Securities of WWI (whether a member of the Permitted ARTAL
Investor Group, HJH or any transferee, successor or assign thereof)
shall have executed a pledge agreement in favor of the Administrative
Agent, substantially in the form of Exhibit G-3 hereof provided further,
that WWI Common Shares purchased in connection with a Local Management
Plan need not be pledged;
(b) at any time after an Initial Public Offering, the failure of
the Permitted ARTAL Investor Group to own, directly or indirectly
through any Wholly-owned Subsidiaries, free and clear of all Liens, at
least 51% of the outstanding voting shares of Capital Securities of WWI
on a fully diluted basis;
(c) at any time after an Initial Public Offering, any "person"
or "group" (as such terms are used in Rule 13d-5 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and Sections
13(d) and 14(d) of the Exchange Act) of persons (other than the
Permitted ARTAL Investor Group) becomes, directly or indirectly, in a
single transaction or in a related series of transactions by way of
merger, consolidation, or other business combination or otherwise, the
"beneficial owner" (as such term is used in Rule 13d-3 of the Exchange
Act) of more than 20% of the total voting power in the aggregate of all
classes of Capital Securities of WWI then outstanding entitled to vote
generally in elections of directors of WWI;
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(d) at all times, as applicable, individuals who on September
29, 1999 constituted the Board of Directors of WWI (together with any
new directors whose election to such Board or whose nomination for
election by the stockholders of WWI was approved by a member of the
Permitted ARTAL Investor Group or a vote of 66K% of the directors then
still in office who were either directors at the beginning of such
period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors of WWI then in office;
(e) at all times, as applicable, the failure of WWI to own, free
and clear of all Liens (other than in favor of the Administrative Agent
pursuant to a Loan Document), all of the outstanding shares of Capital
Securities of each of (x) XXXX0, XXXX0 and WW Australia (other than
shares of Capital Securities issued pursuant to a Local Management
Plan), and (y) the SP1 Borrower, in each case on a fully diluted basis;
or
(f) any other event constituting a Change of Control (as defined
in the Senior Subordinated Note Indenture).
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, as the context may require, a Lender's Letter of
Credit Commitment, Revolving Loan Commitment, Swing Line Loan Commitment,
Additional Term A Loan Commitment or Term D Loan Commitment.
"Commitment Amount" means, as the context may require, the Letter of
Credit Commitment Amount, the Revolving Loan Commitment Amount, the Swing Line
Loan Commitment Amount, the Additional Term A Loan Commitment Amount or the Term
D Loan Commitment Amount.
"Commitment Termination Date" means, as the context may require, the
Revolving Loan Commitment Termination Date, the Additional Term A Loan
Commitment Termination Date or the Term D Loan Commitment Termination Date.
"Commitment Termination Event" means
(a) the occurrence of any Event of Default described in clauses
(a) through (d) of Section 9.1.9; or
(b) the occurrence and continuance of any other Event of Default
and either
(i) the declaration of the Loans and the TLCs to be due
and payable pursuant to Section 9.3, or
(ii) in the absence of such declaration, the giving of
notice by the Administrative Agent, acting at the direction of
the Required Lenders, to WWI that the Commitments have been
terminated.
"Compliance Certificate" means a certificate duly completed and executed
by the chief financial Authorized Officer of WWI, substantially in the form of
Exhibit E hereto.
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"Contingent Liability" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other Person.
The amount of any Person's obligation under any Contingent Liability shall
(subject to any limitation set forth therein) be deemed to be the outstanding
principal amount (or maximum principal amount, if larger) of the debt,
obligation or other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
applicable Borrower, substantially in the form of Exhibit C hereto.
"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with WWI, are
treated as a single employer under Section 414(b) or 414(c) of the Code or
Section 4001 of ERISA.
"Copyright Security Agreement" means the Copyright Security Agreement,
dated September 29, 1999, delivered by WWI and each of its U.S. Subsidiaries
party thereto in favor of the Administrative Agent, as amended, supplemented,
amended and restated or otherwise modified.
"Credit Extension" means, as the context may require,
(a) the making of a Loan by a Lender;
(b) the issuance of any Letter of Credit, or the extension of
any Stated Expiry Date of any previously issued Letter of Credit, by the
Issuer; or
(c) the purchase of a TLC by a TLC Lender.
"Credit Extension Request" means, as the context may require, any
Borrowing Request or Issuance Request.
"Current Assets" means, on any date, without duplication, all assets
(other than cash) which, in accordance with GAAP, would be included as current
assets on a consolidated balance sheet of WWI and its Subsidiaries at such date
as current assets (excluding, however, amounts due and to become due from
Affiliates of WWI which have arisen from transactions which are other than
arm's-length and in the ordinary course of its business).
"Current Liabilities" means, on any date, without duplication, all
amounts which, in accordance with GAAP, would be included as current liabilities
on a consolidated balance sheet of WWI and its Subsidiaries at such date,
excluding current maturities of Indebtedness.
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18
"Debt" means the outstanding principal amount of all Indebtedness of WWI
and its Subsidiaries of the type referred to in clauses (a), (b), (c) and (e) of
the definition of "Indebtedness" or any Contingent Liability in respect thereof.
"Debt to EBITDA Ratio" means, as of the last day of any Fiscal Quarter,
the ratio of
(a) Debt outstanding on the last day of such Fiscal Quarter
to
(b) EBITDA computed for the period consisting of such Fiscal
Quarter and each of the three immediately preceding Fiscal Quarters.
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event of
Default.
"Designated Additional Revolving Loan Commitments" is defined in Section
2.1.6.
"Designated Additional Term A Loans" is defined in Section 2.1.6.
"Designated Additional Term B Loans" is defined in Section 2.1.6.
"Designated Additional Term D Loans" is defined in Section 2.1.6.
"Designated New Term Loans" is defined in Section 2.1.6.
"Designated Subsidiary" means The Weight Watchers Foundation, Inc., a
New York not-for-profit corporation.
"Disbursement" is defined in Section 2.6.2.
"Disbursement Date" is defined in Section 2.6.2.
"Disbursement Due Date" is defined in Section 2.6.2.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it may be amended, supplemented or otherwise modified from time
to time by the Borrowers with the written consent of the Required Lenders.
"Disposition" (or correlative words such as "Dispose") means any sale,
transfer, lease contribution or other conveyance (including by way of merger)
of, or the granting of options, warrants or other rights to, any of WWI's or its
Subsidiaries', assets (including accounts receivable and Capital Securities of
Subsidiaries) to any other Person (other than to another Obligor) in a single
transaction or series of transactions.
"Documentation Agent" is defined in the preamble.
"Domestic Office" means, relative to any Lender, the office of such
Lender designated as such on Schedule III hereto or designated in the Lender
Assignment Agreement or such other
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office of a Lender (or any successor or assign of such Lender) within
the United States as may be designated from time to time by notice from
such Lender, as the case may be, to each other Person party hereto.
"EBITDA" means, for any applicable period, the sum (without duplication)
of
(a) Net Income,
plus
(b) the amount deducted, in determining Net Income, representing
amortization of assets (including amortization with respect to goodwill,
deferred financing costs, other non-cash interest and all other
intangible assets),
plus
(c) the amount deducted, in determining Net Income, of all
income taxes (whether paid or deferred) of WWI and its Subsidiaries,
plus
(d) Interest Expense,
plus
(e) the amount deducted, in determining Net Income, representing
depreciation of assets,
plus
(f) an amount equal to all non-cash charges deducted in arriving
at Net Income,
plus
(g) an amount equal to all minority interest charges deducted in
determining Net Income (net of Restricted Payments made in respect of
such minority interest),
plus
(h) an amount equal to the cash royalty payment received
pursuant to the Warnaco Agreement, to the extent not included in the
calculation of Net Income,
plus
(i) the amount deducted, in determining Net Income, due to
foreign currency translation required by FASB 52 arising after June 30,
1997,
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plus
(j) the amount deducted in determining Net Income of expenses
incurred in connection with the Transaction,
minus
(k) an amount equal to the amount of all non-cash credits
included in arriving at Net Income.
"Eligible Institution" means a financial institution that either (a) has
combined capital and surplus of not less than $500,000,000 or its equivalent in
foreign currency, whose long-term certificate of deposit rating or long-term
senior unsecured debt rating is rated "BBB" or higher by S&P and "Baa2" or
higher by Xxxxx'x or an equivalent or higher rating by a nationally recognized
rating agency if both of the two named rating agencies cease publishing ratings
of investments or (b) is reasonably acceptable to the Administrative Agent and
the Issuer.
"Environmental Laws" means all applicable federal, state, local or
foreign statutes, laws, ordinances, codes, rules and regulations (including
consent decrees and administrative orders) relating to public health and safety
and protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Euro" means the single currency of participating member States of the
European Union.
"Event of Default" is defined in Section 9.1.
"Excess Cash Flow" means, for any Fiscal Year (or other period), the
excess (if any), of
(a) EBITDA for such Fiscal Year (or other period)
over
(b) the sum, without duplication for such Fiscal Year (or other
period) of
(i) Interest Expense;
plus
(ii) scheduled payments and optional and mandatory
prepayments (other than such prepayments made under clause (c)
of Section 3.1.1), to the extent actually made, of the principal
amount of the Term Loans and TLCs or any other term Debt
(including Capitalized Lease Liabilities) and mandatory
prepayments of the principal amount of the Revolving Loans
pursuant to clause (e) of Section 3.1.1 in connection with a
reduction of the Revolving Loan Commitment Amount;
plus
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(iii) all federal, state and foreign income taxes
actually paid in cash by WWI and its Subsidiaries;
plus
(iv) Capital Expenditures actually made in such Fiscal
Year (or other period) pursuant to Section 7.2.7 (other than
clause (z) therein) (excluding Capital Expenditures constituting
Capitalized Leases and by way of the incurrence of Indebtedness
to a vendor of any assets permitted to be acquired pursuant to
Section 7.2.8 to finance the acquisition of such assets);
plus
(v) the amount of the net increase (or minus a net
decrease), of Current Assets over Current Liabilities of WWI and
its Subsidiaries from the last day of the immediately preceding
Fiscal Year (or commencement of other period);
plus
(vi) Investments permitted and actually made pursuant to
clauses (d), (g), (h), (i) and (j) of Section 7.2.5;
plus
(vii) Restricted Payments permitted and actually made
pursuant to Section 7.2.6;
plus
(viii) nonrecurring restructuring costs and costs and
expenses incurred in connection with the Transaction, in an
aggregate amount not to exceed $5,000,000;
plus
(ix) the aggregate amount of Permitted Acquisitions
actually made during such Fiscal Year (or other period);
plus
(x) for the 20 month period ending December 31, 2001 the
aggregate consideration for the Transaction in an amount not to
exceed $35,000,000.
"Excluded Equity Proceeds" means any proceeds received by WWI or any of
its Subsidiaries from the sale or issuance by such Person of its Capital Stock
or any warrants or options in respect of any such Capital Stock or the exercise
of any such warrants or options, in each case pursuant to any such sale,
issuance or exercise constituting or resulting from (i) capital contributions
to, or permitted Capital Stock issuances by, WWI (exclusive of any such
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22
contribution or issuance resulting from an Initial Public Offering or a widely
distributed private offering exempted from the registration requirements of
Section 5 of the Securities Act of 1933, as amended), (ii) any subscription
agreement, incentive plan or similar arrangement with any officer, employee or
director of WWI or any of its Subsidiaries pursuant to a Local Management Plan
or (iii) the exercise of any options or warrants issued to any officer, employee
or director described in clause (ii) above.
"Existing Credit Agreement" is defined in the first recital.
"Existing Lenders" is defined in the first recital.
"Existing Letters of Credit" is defined in the first recital.
"Existing Loans" is defined in the first recital.
"Existing Revolving Loans" is defined in the first recital.
"Existing Swing Line Loans" is defined in the first recital.
"Existing Term A Loans" is defined in the first recital.
"Existing Term B Loans" is defined in the first recital.
"Existing Term Loans" is defined in the first recital.
"Existing TLCs" is defined in the first recital.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published for such day (or, if such day is not
a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it.
"Fee Letters" means, collectively, (a) the confidential fee letter,
dated as of July 20, 1999, between Artal International S.A., a Luxembourg
corporation ("AI"), and the Administrative Agent, as assumed by ARTAL, (b) the
confidential fee letter, dated as of July 20, 1999, among AI, the Administrative
Agent and the Syndication Agent, as assumed by ARTAL, and (c) the confidential
fee letter, dated as of December 13, 2000 among the Borrower, the Administrative
Agent and the Syndication Agent.
"Final Termination Date" means the later of:
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(x) the Stated Maturity Date with respect to Term B Loans and
the TLCs, and
(y) the date on which all Obligations are satisfied and paid in
full.
"Fiscal Quarter" means any three-month period ending on a Saturday
closest to March 31, June 30, September 30, or December 31 of any Fiscal Year.
"Fiscal Year" means any year ending on the Saturday closest to December
31 (e.g., the "2000 Fiscal Year" refers to the Fiscal Year ending on December
30, 2000).
"Fixed Charge Coverage Ratio" means, as of the last day of any Fiscal
Quarter, the ratio of, for the period consisting of such Fiscal Quarter and each
of the three immediately preceding Fiscal Quarters,
(a) EBITDA minus Capital Expenditures made during such period
to
(b) (ii) Interest Expense for such period plus (ii) scheduled
repayments of Debt in respect of such period, whether or not paid plus (iii)
dividends paid in cash on the WWI Preferred Shares in respect of such period.
"FNZ" means Weight Watchers New Zealand Unit Trust, a New Zealand trust
which owns and operates the Weight Watchers classroom franchise and business in
New Zealand.
"FNZ Guaranty" means the Guaranty, dated December 16, 1999, made by FNZ
in favor of the Administrative Agent, as amended, supplemented, restated or
otherwise modified from time to time in accordance with its terms.
"FNZ Security Agreement" means the Security Agreement, dated December
16, 1999, by FNZ in favor of the Administrative Agent, together with each
Supplement thereto delivered pursuant to clause (c) of Section 7.1.13, as
amended, amended and restated, supplemented or otherwise modified from time to
time pursuant to the terms thereof.
"Foreign Currency" means any currency other than U.S. Dollars.
"FPL" means Fortuity Pty. Ltd. (ACN 007 148 683), an Australian company
incorporated in the State of Victoria which operates the Weight Watchers
classroom franchise and business in Victoria.
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"GAAP" is defined in Section 1.4.
"GB" means Gutbusters Pty. Ltd. (ACN 059 073 157), an Australian company
incorporated in the State of New South Wales.
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"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local (or the equivalent thereof), and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
"Guaranteed Obligations" is defined in Section 8.1.
"Guaranties" means, collectively, (a) the WWI Guaranty, (b) the
Australian Guaranty, (c) the Subsidiary Guaranty, (d) the FNZ Guaranty and (e)
each other guaranty delivered from time to time pursuant to the terms of this
Agreement.
"Guarantor" means any Person which has or may issue a Guaranty
hereunder.
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA or
equivalent applicable foreign law;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended or equivalent applicable foreign law;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material or substance within the meaning of any other applicable
federal, state or local law, regulation, ordinance or requirement (including
consent decrees and administrative orders) relating to or imposing liability or
standards of conduct concerning any hazardous, toxic or dangerous waste,
substance or material, all as amended or hereafter amended.
"Hedging Obligations" means, with respect to any Person, all liabilities
of such Person under interest rate swap agreements, interest rate cap agreements
and interest rate collar agreements, and all other agreements or arrangements
designed to protect such Person against fluctuations in interest rates or
currency exchange rates, including but not limited to Rate Protection
Agreements.
"herein", "hereof", "hereto", "hereunder" and similar terms contained in
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan Document.
"HJH" means X.X. Xxxxx Company, a Pennsylvania Corporation.
"HJH Pledge Agreement" means the HJH Pledge Agreement, dated September
29, 1999, by HJH in favor of the Administrative Agent, as amended, amended and
restated, supplemented or otherwise modified from time to time pursuant to the
terms thereof.
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"Immaterial Subsidiary" means, at any date of determination, any
Subsidiary or group of Subsidiaries of WWI having assets as at the end of or
EBITDA for the immediately preceding four Fiscal Quarter period for which the
relevant financial information has been delivered pursuant to clause (a) or
clause (b) of Section 7.1.1 of less than 5% of total assets of WWI and its
Subsidiaries or $2,000,000, respectively, individually or in the aggregate.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of any Obligor, any qualification or exception to such opinion or certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of matters
relevant to such financial statement; or
(c) which relates to the treatment or classification of any item
in such financial statement and which, as a condition to its removal,
would require an adjustment to such item the effect of which would be to
cause such Obligor to be in default of any of its obligations under
Section 7.2.4.
"including" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of ejusdem generis
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments for borrowed money in respect thereof;
(b) all obligations, contingent or otherwise, relative to the
face amount of all letters of credit, whether or not drawn, and banker's
acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases which
have been or should be, in accordance with GAAP, recorded as Capitalized
Lease Liabilities;
(d) net liabilities of such Person under all Hedging
Obligations;
(e) whether or not so included as liabilities in accordance with
GAAP, all obligations of such Person to pay the deferred purchase price
of property or services, other than the WWI Preferred Shares, and
indebtedness (excluding prepaid interest thereon and interest not yet
due) secured by a Lien on property owned or being purchased by such
Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall have
been assumed by such Person or is limited in recourse; provided,
however, that, for purposes of determining the
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amount of any Indebtedness of the type described in this clause, if
recourse with respect to such Indebtedness is limited to specific
property financed with such Indebtedness, the amount of such
Indebtedness shall be limited to the fair market value (determined on a
basis reasonably acceptable to the Administrative Agent) of such
property or the principal amount of such Indebtedness, whichever is
less; and
(f) all Contingent Liabilities of such Person in respect of any
of the foregoing;
provided, that, Indebtedness shall not include unsecured Indebtedness incurred
in the ordinary course of business in the nature of accrued liabilities and open
accounts extended by suppliers on normal trade terms in connection with
purchases of goods and services, but excluding the Indebtedness incurred through
the borrowing of money or Contingent Liabilities in connection therewith. For
all purposes of this Agreement, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer (to the extent such Person is liable for
such Indebtedness).
"Indemnified Liabilities" is defined in Section 11.4.
"Indemnified Parties" is defined in Section 11.4.
"Initial Public Offering" means any sale of the Capital Securities of
WWI to the public pursuant to an initial, primary offering registered under the
Securities Act of 1933 and, for purposes of the Change in Control definition
only, pursuant to which no less than 10% of the Capital Securities of WWI
outstanding after giving effect to such offering was sold pursuant to such
offering.
"Intercompany Subordination Agreement" means the Intercompany
Subordination Agreement, dated September 29, 1999, by WWI, the XX0 Xxxxxxxx and
each of the Guarantors in favor of the Administrative Agent.
"Interest Coverage Ratio" means, at the close of any Fiscal Quarter, the
ratio computed (except as set forth in the proviso set forth below) for the
period consisting of such Fiscal Quarter and each of the three immediately prior
Fiscal Quarters of:
(a) EBITDA (for such period)
to
(b) Interest Expense (for such period).
"Interest Expense" means, for any Fiscal Quarter, the aggregate
consolidated cash interest expense (net of interest income) of WWI and its
Subsidiaries for such Fiscal Quarter, as determined in accordance with GAAP,
including the portion of any payments made in respect of Capitalized Lease
Liabilities allocable to interest expense.
"Interest Period" means, relative to any LIBO Rate Loans, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to Section 2.3.1 or
2.4 and shall end on (but exclude) the day which
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numerically corresponds to such date one, two, three or six or, with the consent
of each applicable Lender, nine or twelve months thereafter (or, if such month
has no numerically corresponding day, on the last Business Day of such month),
in either case as WWI may select in its relevant notice pursuant to Section 2.3
or 2.4; provided, however, that
(a) WWI shall not be permitted to select Interest Periods to be
in effect at any one time which have expiration dates occurring on more
than ten different dates;
(b) Interest Periods commencing on the same date for Loans
comprising part of the same Borrowing shall be of the same duration;
(c) if such Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall end on the next
following Business Day (unless such next following Business Day is the
first Business Day of a calendar month, in which case such Interest
Period shall end on the Business Day next preceding such numerically
corresponding day); and
(d) no Interest Period for any Loan may end later than the
Stated Maturity Date for such Loan.
"Investment" means, relative to any Person,
(a) any loan or advance made by such Person to any other Person
(excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business);
(b) any ownership or similar interest held by such Person in any
other Person; and
(c) any purchase or other acquisition of all or substantially
all of the assets of any Person or any division thereof.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and without adjustment
by reason of the financial condition of such other Person) and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property at the time of such transfer or exchange.
"Issuance Request" means a Letter of Credit request and certificate duly
executed by an Authorized Officer of WWI, substantially in the form of Exhibit
B-2 hereto.
"Issuer" means, collectively, Scotiabank in its individual capacity
hereunder as issuer of the Letters of Credit and such other Lender as may be
designated by Scotiabank (and agreed to by WWI and such Lender) in its
individual capacity as the issuer of Letters of Credit.
"Lead Arrangers" means Scotiabank and CSFB.
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"Lender Assignment Agreement" means a Lender Assignment Agreement
substantially in the form of Exhibit J hereto.
"Lenders" is defined in the preamble.
"Lender's Environmental Liability" means any and all losses,
liabilities, obligations, penalties, claims, litigation, demands, defenses,
costs, judgments, suits, proceedings, damages (including consequential damages),
disbursements or expenses of any kind or nature whatsoever (including reasonable
attorneys' fees at trial and appellate levels and experts' fees and
disbursements and expenses incurred in investigating, defending against or
prosecuting any litigation, claim or proceeding) which may at any time be
imposed upon, incurred by or asserted or awarded against the Administrative
Agent, the Syndication Agent, any Lead Arranger, any Lender or any Issuer or any
of such Person's Affiliates, shareholders, directors, officers, employees, and
agents in connection with or arising from:
(a) any Hazardous Material on, in, under or affecting all or any
portion of any property of WWI or any of its Subsidiaries, the
groundwater thereunder, or any surrounding areas thereof to the extent
caused by Releases from WWI or any of its Subsidiaries' or any of their
respective predecessors' properties;
(b) any misrepresentation, inaccuracy or breach of any warranty,
contained or referred to in Section 6.12;
(c) any violation or claim of violation by WWI or any of its
Subsidiaries of any Environmental Laws; or
(d) the imposition of any lien for damages caused by or the
recovery of any costs for the cleanup, release or threatened release of
Hazardous Material by WWI or any of its Subsidiaries, or in connection
with any property owned or formerly owned by WWI or any of its
Subsidiaries.
"Letter of Credit" is defined in Section 2.1.3.
"Letter of Credit Commitment" means, with respect to the Issuer, the
Issuer's obligation to issue Letters of Credit pursuant to Section 2.1.3 and,
with respect to each of the other Lenders that has a Revolving Loan Commitment,
the obligations of each such Lender to participate in such Letters of Credit
pursuant to Section 2.6.1.
"Letter of Credit Commitment Amount" means, on any date, a maximum
amount of $10,000,000, as such amount may be reduced from time to time pursuant
to Section 2.2.
"Letter of Credit Outstandings" means, on any date, an amount equal to
the sum of
(a) the then aggregate amount which is undrawn and available
under all issued and outstanding Letters of Credit,
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plus
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations in respect of such Letters of Credit.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate Loans,
the rate of interest equal to the average (rounded upwards, if necessary, to the
nearest 1/16 of 1%) of the rates per annum at which U.S. Dollar deposits in
immediately available funds are offered to the Administrative Agent's LIBOR
Office in the London interbank market as at or about 11:00 a.m. London time two
Business Days prior to the beginning of such Interest Period for delivery on the
first day of such Interest Period, and in an amount approximately equal to the
amount of the Administrative Agent's LIBO Rate Loan and for a period
approximately equal to such Interest Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest
Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) determined pursuant to the following formula:
LIBO Rate = LIBO Rate
------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be determined by the Administrative Agent on the basis of the LIBOR
Reserve Percentage in effect on, and the applicable rates furnished to and
received by the Administrative Agent from Scotiabank, two Business Days before
the first day of such Interest Period.
"LIBOR Office" means, relative to any Lender, the office of such Lender
designated as such on Schedule III hereto or designated in the Lender Assignment
Agreement or such other office of a Lender as designated from time to time by
notice from such Lender to WWI and the Administrative Agent, whether or not
outside the United States, which shall be making or maintaining LIBO Rate Loans
of such Lender hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period for
LIBO Rate Loans, the reserve percentage (expressed as a decimal) equal to the
maximum aggregate reserve requirements (including all basic, emergency,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements)
specified under regulations issued from time to time by the F.R.S. Board and
then applicable to assets or liabilities consisting of and including
"Eurocurrency Liabilities", as currently defined in Regulation D of the F.R.S.
Board, having a term approximately equal or comparable to such Interest Period.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or
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any filing or recording of any instrument or document in respect of the
foregoing, to secure payment of a debt or performance of an obligation or other
priority or preferential arrangement of any kind or nature whatsoever.
"Loan" means, as the context may require, a Revolving Loan, a Swing Line
Loan, a Term A Loan (including each Additional Term A Loan and Designated
Additional Term A Loan), a Term B Loan (including each Designated Additional
Term B Loan), a Term D Loan (including each Designated Additional Term D Loan)
and each Designated New Term Loan of any type.
"Loan Document" means this Agreement, the Notes, the TLCs, the Letters
of Credit, each Rate Protection Agreement under which that counterpart to such
agreement is (or at the time such Rate Protection Agreement was entered into,
was) a Lender or an Affiliate of a Lender relating to Hedging Obligations of WWI
or any of its Subsidiaries, the Fee Letter, each Pledge Agreement, each
Guaranty, each Security Agreement, the TLC Deed Poll, the Intercompany
Subordination Agreement and each other agreement, document or instrument
delivered in connection with this Agreement or any other Loan Document, whether
or not specifically mentioned herein or therein.
"Local Management Plan" means an equity plan or program for (i) the sale
or issuance of Capital Securities of a Subsidiary in an amount not to exceed 5%
of the outstanding common equity of such Subsidiary to local management or a
plan or program in respect of Subsidiaries of WWI whose principal business is
conducted outside of the United States, (ii) the direct purchase from ARTAL by
WWI management employees, in one transaction or a series of transactions, of not
more than 3% in the aggregate of the WWI Common Shares owned by ARTAL or (iii)
the issuance by WWI to its management employees, in one transaction or a series
of transactions, of stock options to purchase not more than 6% in the aggregate
of the WWI Common Shares on a fully diluted basis.
"Material Adverse Effect" means (a) a material adverse effect on the
financial condition, operations, assets, business or properties of WWI and its
Subsidiaries, taken as a whole, (b) a material impairment other than an event or
set of circumstances described in clause (a) of the ability of any Obligor
(other than any Immaterial Subsidiary) to perform its respective material
obligations under the Loan Documents to which it is or will be a party, or (c)
an impairment of the validity or enforceability of, or a material impairment of
the rights, remedies or benefits available to the Administrative Agent, the
Issuer or the Lenders under, this Agreement or any other Loan Document.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means, collectively, each Mortgage or Deed of Trust executed
and delivered pursuant to the terms of this Agreement, including clause (b) of
Section 7.1.8.
"Net Disposition Proceeds" means, with respect to a Permitted
Disposition of the assets of WWI or any of its Subsidiaries, the excess of
(a) the gross cash proceeds received by WWI or any of its
Subsidiaries from any Permitted Disposition and any cash payments
received in respect of promissory notes or
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other non-cash consideration delivered to WWI or such Subsidiary in
respect of any Permitted Disposition,
less
(b) the sum of
(i) all reasonable and customary fees and expenses with
respect to legal, investment banking, brokerage and accounting
and other professional fees, sales commissions and disbursements
and all other reasonable fees, expenses and charges, in each
case actually incurred in connection with such Permitted
Disposition which have not been paid to Affiliates of WWI,
(ii) all taxes and other governmental costs and expenses
actually paid or estimated by WWI (in good faith) to be payable
in cash in connection with such Permitted Disposition, and
(iii) payments made by WWI or any of its Subsidiaries to
retire Indebtedness (other than the Loans) of WWI or any of its
Subsidiaries where payment of such Indebtedness is required in
connection with such Permitted Disposition;
provided, however, that if, after the payment of all taxes with respect to such
Permitted Disposition, the amount of estimated taxes, if any, pursuant to clause
(b)(ii) above exceeded the tax amount actually paid in cash in respect of such
Permitted Disposition, the aggregate amount of such excess shall be immediately
payable, pursuant to clause (b) of Section 3.1.1, as Net Disposition Proceeds.
Notwithstanding the foregoing, Net Disposition Proceeds shall not include fees
or other amounts paid to WWI or its Subsidiaries in respect of a license of
intellectual property (not related to the classroom business of WWI or its
Subsidiaries) having customary terms and conditions for similar licenses.
"Net Equity Proceeds" means, with respect to the sale or issuance by WWI
to any Person of any stock, warrants or options or the exercise of any such
warrants or options, the excess of:
(a) the gross cash proceeds received by WWI from such sale,
exercise or issuance (other than Excluded Equity Proceeds),
over
(b) all reasonable and customary underwriting commissions and
legal, investment banking, brokerage and accounting and other
professional fees, sales commissions and disbursements and all other
reasonable fees, expenses and charges, in each case actually incurred in
connection with such sale or issuance which have not been paid to
Affiliates of WWI in connection therewith.
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"Net Income" means, for any period, the net income of WWI and its
Subsidiaries for such period on a consolidated basis, excluding extraordinary
gains.
"Netco" means Weight Xxxxxxxx.xxx Inc., a Delaware corporation.
"Non-Excluded Taxes" means any taxes other than (i) net income and
franchise taxes imposed with respect to any Secured Party by a Governmental
Authority under the laws of which such Secured Party is organized or in which it
maintains its applicable lending office and (ii) any taxes imposed on a Secured
Party by any jurisdiction as a result of any former or present connection
between such Secured Party and such jurisdiction other than a connection arising
from a Secured Party entering into this Agreement or making any loan hereunder.
"Non-Guarantor Subsidiary" means the Designated Subsidiary and any other
Subsidiary of WWI other than any Person which has or may issue a Guaranty
hereunder.
"Non-U.S. Lender" means any Lender (including each Assignee Lender) that
is not (i) a citizen or resident of the United States, (ii) a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any state thereof, or (iii) any estate or trust that is subject
to U.S. Federal income taxation regardless of the source of its income.
"Note" means, as the context may require, a Revolving Note, a Swing Line
Note, a Registered Note, a Term A Note, a Term B Note or a Term D Note or any
promissory note representing a Designated New Term Loan.
"Obligations" means all obligations (monetary or otherwise) of the
Borrowers and each other Obligor arising under or in connection with this
Agreement, the Notes, each Letter of Credit and each other Loan Document, and
Hedging Obligations owed to a Lender or an Affiliate thereof (unless the Lender
or such Affiliate otherwise agrees).
"Obligor" means any Borrower or any other Person (other than any Agent,
any Lender or the Issuer) obligated under any Loan Document.
"Organic Document" means, relative to any Obligor, its certificate of
incorporation, its by-laws and all shareholder agreements, voting trusts and
similar arrangements (or the foreign equivalent thereof) applicable to any of
its authorized shares of Capital Securities.
"Other Taxes" means any and all stamp, documentary or similar taxes, or
any other excise or property taxes or similar levies that arise on account of
any payment made or required to be made under any Loan Document or from the
execution, delivery, registration, recording or enforcement of any Loan
Document.
"Participant" is defined in Section 11.11.2.
"Patent Security Agreement" means the Patent Security Agreement, dated
September 29, 1999, by WWI and each of its U.S. Subsidiaries in favor of the
Administrative Agent, as amended, supplemented, amended and restated or
otherwise modified.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
entity.
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"Pension Plan" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which WWI
or any corporation, trade or business that is, along with WWI, a member of a
Controlled Group, has or within the prior six years has had any liability,
including any liability by reason of having been a substantial employer within
the meaning of section 4063 of ERISA at any time during the preceding five
years, or by reason of being deemed to be a contributing sponsor under section
4069 of ERISA.
"Percentage" means, relative to any Lender, the applicable percentage
relating to Additional Term A Loans, Term A Loans, Term B Loans, Term D Loans,
Designated New Term Loans, Swing Line Loans, Revolving Loans or TLCs, as the
case may be, as set forth opposite its name on Schedule II hereto under the
applicable column heading or set forth in Lender Assignment Agreement(s) under
the applicable column heading, as such percentage may be adjusted from time to
time pursuant to Lender Assignment Agreement(s) executed by such Lender and its
Assignee Lender(s) and delivered pursuant to Section 11.11. A Lender shall not
have any Commitment to make a particular Tranche of Loans or purchase TLCs (as
the case may be) if its percentage under the respective column heading is zero
(0%), and no Lender has a Commitment with respect to Existing Term A Loans or
Existing Term B Loans as the Term A Loan Commitments and the Term B Loan
Commitments (each as defined in the Existing Credit Agreement) have been
terminated by the making of the Existing Term A Loans and the Existing Term B
Loans.
"Permitted Acquisition" means an acquisition (whether pursuant to an
acquisition of Capital Securities, assets or otherwise) by any Borrower or any
of the Subsidiaries from any Person of a business in which the following
conditions are satisfied:
(a) immediately before and after giving effect to such
acquisition no Default shall have occurred and be continuing or would
result therefrom (including under Section 7.2.1);
(b) if the acquisition is of Capital Securities of a Person such
Person becomes a Subsidiary;
(c) (i) the consideration for such acquisition is the voting
Capital Securities of WWI or (ii) the aggregate amount of other
consideration (including cash) for all such acquisitions since the date
hereof shall not exceed an amount equal to (x)(i) $25,000,000 in Fiscal
Year 2001 plus (ii) an additional $10,000,000 added at the beginning of
each Fiscal Year thereafter minus (y) the aggregate amount of all such
Permitted Acquisitions made since the date hereof; and
(d) Holdings shall have delivered to the Agents a Compliance
Certificate for the period of four full Fiscal Quarters immediately
preceding such acquisition (prepared in good faith and in a manner and
using such methodology which is consistent with the most recent
financial statements delivered pursuant to Section 7.1.1) giving pro
forma effect to the consummation of such acquisition and evidencing
compliance with the covenants set forth in Section 7.2.4.
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"Permitted ARTAL Investor Group" means ARTAL or any of its direct or
indirect Wholly-owned Subsidiaries and ARTAL Group S.A., a Luxembourg
corporation or any of its direct or indirect Wholly-owned Subsidiaries.
"Permitted Disposition" means a Disposition in accordance with the terms
of clause (b) (other than as permitted by clause (a)) of Section 7.2.9.
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency, limited liability company
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Pledge Agreements" means, collectively, (a) the WWI Pledge Agreement,
(b) the ARTAL Pledge Agreement, (c) the HJH Pledge Agreement, (d) the Australian
Pledge Agreement, (e) the U.K. Pledge Agreement, and (f) each other pledge
agreement delivered from time to time pursuant to clause (b) of Section 7.1.7.
"Purchase Agreement" is defined in the second recital.
"Qualified Assets" is defined in clause (b) of Section 3.1.1.
"Quarterly Payment Date" means the last day of each March, June,
September and December, or, if any such day is not a Business Day, the next
succeeding Business Day.
"Rate Protection Agreements" means, collectively, arrangements entered
into by any Person designed to protect such Person against fluctuations in
interest rates or currency exchange rates, pursuant to the terms of this
Agreement.
"Recapitalization" means those transactions contemplated and undertaken
pursuant to the Recapitalization Agreement.
"Recapitalization Agreement" means that certain Recapitalization and
Stock Purchase Agreement, dated as of July 22, 1999 among WWI, ARTAL and HJH.
"Refinance" means, in respect of any Indebtedness, to refinance, extend,
renew, refund, repay, prepay, redeem, defease or retire, or to issue other
Indebtedness in exchange or replacement for such Indebtedness. "Refinanced" and
"Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances any
Indebtedness of WWI or any of its Subsidiaries existing on September 29, 1999 or
otherwise permitted hereunder, including Indebtedness that Refinances
Refinancing Indebtedness; provided, however, that:
(i) such Refinancing Indebtedness has a Stated Maturity no earlier
than the Stated Maturity of the Indebtedness being Refinanced;
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(ii) such Refinancing Indebtedness has an Average Life at the time
such Refinancing Indebtedness is incurred that is equal to or
greater than the Average Life of the Indebtedness being
Refinanced; and
(iii) such Refinancing Indebtedness has an aggregate principal amount
(or if incurred with original issue discount, an aggregate issue
price) that is equal to or less than the aggregate principal
amount (or if incurred with original issue discount, the
aggregate accreted value) then outstanding or committed (plus
fees and expenses, including any premium and defeasance costs)
under the Indebtedness being Refinanced;
provided further, however, that Refinancing Indebtedness shall not include (A)
Indebtedness of a Subsidiary that Refinances Indebtedness of WWI or (B)
Indebtedness of WWI or a Subsidiary that Refinances Indebtedness of another
Subsidiary.
"Refunded Swing Line Loans" is defined in clause (b) of Section 2.3.2.
"Register" is defined in Section 11.11.3.
"Registered Note" means a promissory note of WWI payable to any
Registered Noteholder, in the form of Exhibit A-8 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of WWI to such Lender resulting from
outstanding Term Loans, and also means all other promissory notes accepted from
time to time in substitution therefor or renewal thereof.
"Registered Noteholder" means any Lender that has been issued a
Registered Note.
"Reimbursement Obligation" is defined in Section 2.6.3.
"Related Fund" means, with respect to any Lender which is a fund that
invests in loans, any other fund that invests in loans and is controlled by the
same investment advisor of such Lender or by an Affiliate of such investment
advisor.
"Release" means a "release", as such term is defined in CERCLA.
"Required Lenders" means, at any time, Lenders holding at least 51% of
the Total Exposure Amount.
"Resource Conservation and Recovery Act" means the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect from time to
time.
"Restricted Payments" is defined in Section 7.2.6.
"Revolving Loan" is defined in clause (a) of Section 2.1.2.
"Revolving Loan Commitment" is defined in clause (a) of Section 2.1.2.
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"Revolving Loan Commitment Amount" means, on any date, $45,000,000, as
such amount may be (i) reduced from time to time pursuant to Section 2.2 or (ii)
increased pursuant to Section 2.1.6.
"Revolving Loan Commitment Termination Date" means the earliest of
(a) September 30, 2005;
(b) the date on which the Revolving Loan Commitment Amount is
terminated in full or reduced to zero pursuant to Section 2.2; and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clauses (b) or (c), the Revolving
Loan Commitments shall terminate automatically and without any further action.
"Revolving Note" means a promissory note of WWI payable to a Lender,
substantially in the form of Exhibit A-1 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of WWI to such Lender resulting from outstanding
Revolving Loans, and also means all other promissory notes accepted from time to
time in substitution therefor or renewal thereof.
"S&P" means Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx,
Inc.
"Scotiabank" is defined in the preamble.
"Secured Parties" means, collectively, the Lenders, the Issuers, the
Administrative Agent, the Syndication Agent, the Lead Arrangers, each
counterparty to a Rate Protection Agreement that is (or at the time such Rate
Protection Agreement was entered into, was) a Lender or an Affiliate thereof and
(in each case) and each of their respective successors, transferees and assigns.
"Security Agreements" means, collectively, (a) the WWI Security
Agreement, (b) the Australian Security Agreement, (c) the U.K. Security
Agreement, (d) the Patent Security Agreements, the Trademark Security Agreements
and the Copyright Security Agreements, (e) the FNZ Security Agreement and (f)
each other security agreement executed and delivered from time to time pursuant
to clause (a) of Section 7.1.7, in each case, as amended, amended and restated,
supplemented or otherwise modified from time to time pursuant to the terms
thereof.
"Senior Debt" means all Debt other than Subordinated Debt.
"Senior Debt to EBITDA Ratio" means, as of the last day of any Fiscal
Quarter, the ratio of
(a) Senior Debt outstanding on the last day of such Fiscal
Quarter
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to
(b) EBITDA computed for the period consisting of such Fiscal
Quarter and each of the three immediately preceding Fiscal Quarters.
"Senior Subordinated Debt" means, collectively, debt of WWI under its
13% Senior Subordinated Notes in an aggregate principal amount of $150,000,000
and its 13% Senior Subordinated Notes in an aggregate principal amount of Euro
100,000,000, issued under the Senior Subordinated Note Indenture pursuant to a
Rule 144A private placement.
"Senior Subordinated Note Indenture" means, collectively, that certain
Senior Subordinated Note Indenture, dated as of September 29, 1999 between WWI
and Norwest Bank Minnesota, National Association, as trustee, related to the
issuance of $150,000,000 Senior Subordinated Notes and that certain Senior
Subordinated Note Indenture, dated as of September 29, 1999, between WWI and
Norwest Bank Minnesota, National Association, as trustee, related to the
issuance of Euro 100,000,000 Senior Subordinated Notes.
"Senior Subordinated Noteholder" means, at any time, any holder of a
Senior Subordinated Note.
"Senior Subordinated Notes" means those certain 13% Senior Subordinated
Notes due 2009, issued pursuant to the Senior Subordinated Note Indenture.
"Solvent" means, with respect to any Person on a particular date, that
on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such
Person, (b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person does
not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person's ability to pay as such debts and liabilities mature, and
(d) such Person is not engaged in business or a transaction, and such person is
not about to engage in business or a transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability.
"Stated Amount" of each Letter of Credit means the total amount
available to be drawn under such Letter of Credit upon the issuance thereof.
"Stated Expiry Date" is defined in Section 2.6.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"Stated Maturity Date" means
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(a) in the case of any Revolving Loan, September 30, 2005;
(b) in the case of any Term A Loan, September 30, 2005;
(c) in the case of any Term B Loan, September 30, 2006;
(d) in the case of any Term D Loan, June 30, 2006;
(e) in the case of any TLC, September 30, 2006; and
(f) in the case of any Designated New Term Loan, as determined
in accordance with Section 2.1.6.
"Subordinated Debt" means, as the context may require, (i) the unsecured
Debt of WWI evidenced by the Senior Subordinated Notes and (ii) to the extent
permitted by the Required Lenders, any other unsecured Debt of WWI subordinated
in right of payment to the Obligations pursuant to documentation containing
maturities, amortization schedules, covenants, defaults, remedies, subordination
provisions and other material terms in form and substance satisfactory to the
Administrative Agent and Required Lenders.
"Subordinated Guaranty" means, collectively, (i) the Guaranty executed
and delivered by certain Subsidiaries of WWI pursuant to Section 4.13 of the
Senior Subordinated Note Indenture and (ii) each other guaranty, if any,
executed from time to time by any Subsidiary of WWI pursuant to which the
guarantor thereunder has any Contingent Liability with respect to any
Subordinated Debt.
"Subordination Provisions" is defined in Section 9.1.11.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other business entity of which more than 50% of the outstanding
Capital Securities (or other ownership interest) having ordinary voting power to
elect a majority of the board of directors, managers or other voting members of
the governing body of such entity (irrespective of whether at the time Capital
Securities (or other ownership interest) of any other class or classes of such
entity shall or might have voting power upon the occurrence of any contingency)
is at the time directly or indirectly owned by such Person, by such Person and
one or more other Subsidiaries of such Person, or by one or more other
Subsidiaries of such Person. Unless the context otherwise specifically requires,
the term "Subsidiary" shall be a reference to a Subsidiary of WWI.
"Subsidiary Guaranty" means the Guaranty, dated September 29, 1999, by
the U.S. Subsidiaries signatory thereto, XXXX0, XXXX0 and WWUK and its
Subsidiaries in favor of the Administrative Agent, as amended, supplemented,
restated or otherwise modified from time to time in accordance with its terms.
"Swing Line Lender" means Scotiabank (or another Lender designated by
Scotiabank with the consent of WWI, if such Lender agrees to be the Swing Line
Lender hereunder), in such Person's capacity as the maker of Swing Line Loans.
"Swing Line Loan" is defined in clause (b) of Section 2.1.2.
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"Swing Line Loan Commitment" means, with respect to the Swing Line
Lender, the Swing Line Lender's obligation pursuant to clause (b) of Section
2.1.2 to make Swing Line Loans and, with respect to each Lender with a
Commitment to make Revolving Loans (other than the Swing Line Lender), such
Lender's obligation to participate in Swing Line Loans pursuant to Section
2.3.2.
"Swing Line Loan Commitment Amount" means, on any date, $5,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
"Swing Line Note" means a promissory note of WWI payable to the Swing
Line Lender, in substantially the form of Exhibit A-2 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of WWI to the Swing Line Lender resulting
from outstanding Swing Line Loans, and also means all other promissory notes
accepted from time to time in substitution therefor or renewal thereof.
"Syndication Agent" is defined in the preamble.
"Term Loans" means, collectively, the Term A Loans, the Term B Loans,
the Designated New Term Loans and the Term D Loans.
"Term A Loan" is defined in clause (a) of Section 2.1.1.
"Term A Loan Lender" means any Lender which has an outstanding Term A
Loan.
"Term A Note" means a promissory note of WWI, payable to the order of
any Lender, in the form of Exhibit A-3 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of WWI to such Lender resulting from outstanding Term A
Loans (including Additional Term A Loans), and also means all other promissory
notes accepted from time to time in substitution therefor or renewal thereof.
"Term B Loan" is defined in clause (a) of Section 2.1.1.
"Term B Loan Lender" means any Lender which has an outstanding Term B
Loan.
"Term B Note" means promissory notes of WWI, payable to the order of any
Lender, in the form of Exhibits A-5 and A-6 hereto (as such promissory note may
be amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of WWI to such Lender resulting from outstanding Term B
Loans, and also means all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"Term D Loan" is defined in clause (c) of Section 2.1.1.
"Term D Loan Commitment" is defined in clause (c) of Section 2.1.1.
"Term D Loan Commitment Amount" means $20,000,000.
"Term D Loan Commitment Termination Date" means the earliest of:
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(a) January 31, 2001, if the Term D Loans have not been made on
or prior to such date;
(b) the date of the making of the Term D Loans (immediately
after the making of such Term D Loans on such date); and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clauses (b) or (c), the Term D
Loan Commitments shall terminate automatically and without any further action.
"Term D Loan Lender" means any Lender which has a Percentage of the Term
D Loan Commitment Amount or, after the making of the Term D Loan, has an
outstanding Term D Loan.
"Term D Note" means a promissory note of WWI, payable to the order of
any Lender, in the form of Exhibit A-7 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of WWI to such Lender resulting from outstanding Term D
Loans, and also means all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"TLC" means an instrument executed by the SP1 Borrower, which
acknowledges the Indebtedness of the SP1 Borrower with respect to any Lender, in
the form of Exhibit A-4 hereto (as such instrument may be amended, endorsed or
otherwise modified from time to time), and also means all other instruments
accepted from time to time in substitution therefor or renewal thereof.
"TLC Commitment" is defined in Section 2.9.
"TLC Deed Poll" means the Deed Poll, dated as of September 29, 1999,
among the SP1 Borrower and each TLC Holder (as defined therein), as amended,
amended and restated, supplemented or otherwise modified from time to time.
"TLC Lender" means any Lender which has an outstanding TLC Loan.
"Total Exposure Amount" means, on any date of determination, the then
outstanding principal amount of all Term Loans, the TLCs and the then effective
Revolving Loan Commitment Amount.
"Trademark Security Agreement" means the Trademark Security Agreement,
dated September 29, 1999, by WWI and each of its U.S. Subsidiaries signatory
thereto in favor of the Administrative Agent, as amended, supplemented, amended
and restated or otherwise modified from time to time.
"Tranche" means, as the context may require, the (a) Loans constituting
Term A Loans, Term B Loans, Term D Loans, Designated New Term Loans, Swing Line
Loans or Revolving Loans or (b) TLCs.
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"Transaction" is defined in the second recital.
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"UCC" means the Uniform Commercial Code as in effect from time to time
in the State of New York.
"UKHC1" means Weight Watchers UK Holding Ltd, a company incorporated
under the laws of England.
"UKHC2" means Weight Watchers International Ltd, a company incorporated
under the laws of England.
"U.K. Pledge Agreement" means, collectively, (i) the Deeds of Charge
executed and delivered by WWI to XXXX0, XXXX0 and WWUK and its Subsidiaries and
(ii) each other pledge agreement delivered pursuant to clause (b) of Section
7.1.7, as amended, amended and restated, supplemented or otherwise modified from
time to time pursuant to the terms thereof.
"U.K. Security Agreement" means, collectively, (i) the Debentures
executed and delivered by XXXX0, XXXX0 and WWUK and each of its Subsidiaries and
(ii) each other security agreement delivered pursuant to clause (a) of Section
7.1.7, as amended, amended and restated, supplemented or otherwise modified from
time to time pursuant to the terms thereof.
"U.K. Subsidiary" means any Subsidiary that is incorporated under the
laws of England.
"United States" or "U.S." means the United States of America, its fifty
States and the District of Columbia.
"U.S. Dollar" and the sign "$" mean lawful money of the United States.
"U.S. Subsidiary" means any Subsidiary that is incorporated or organized
under the laws of the United States or a state thereof or the District of
Columbia.
"Voting Stock" means, with respect to any Person, Capital Securities of
any class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"Waiver" means an agreement in favor of the Administrative Agent for the
benefit of the Lenders and the Issuer in form and substance reasonably
satisfactory to the Administrative Agent.
"Warnaco Agreement" means that certain License Agreement, dated as of
January 8, 1999, between Warnaco Inc., a Delaware corporation, and WWI.
"Weighco Acquisition" is defined in the second recital.
"WEI" is defined in the second recital.
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"WNI" is defined in the second recital.
"WSI" is defined in the second recital.
"Weighco" is defined in the second recital.
"Weighco Business" is defined in the second recital.
"Welfare Plan" means a "welfare plan", as such term is defined in
section 3(1) of ERISA, and to which WWI or any of its Subsidiaries has any
liability.
"Wholly-owned Subsidiary" shall mean, with respect to any Person, any
Subsidiary of such Person all of the Capital Securities (and all rights and
options to purchase such Capital Securities) of which, other than directors'
qualifying shares or shares sold pursuant to Local Management Plans, are owned,
beneficially and of record, by such Person and/or one or more Wholly-owned
Subsidiaries of such Person.
"WW Australia" means Weight Watchers International Pty. Ltd. (ACN 070
836 449), an Australian company incorporated in the State of New South Wales and
resident in Australia and the direct corporate parent of FPL and the SP1
Borrower.
"WWI Common Shares" means shares of common stock of WWI, par value $1.00
per share.
"WWI Guaranty" means the Guaranty made by WWI contained in Article VIII.
"WWI Pledge Agreement" means the Pledge Agreement, dated September 29,
1999, by WWI and its U.S. Subsidiaries signatory thereto in favor of the
Administrative Agent, together with each Supplement thereto delivered pursuant
to clause (b) of Section 7.1.7, as amended, amended and restated, supplemented
or otherwise modified from time to time pursuant to the terms thereof.
"WWI Preferred Shares" means no par value preferred shares of WWI with
an aggregate amount liquidation preference equal to $25,000,000.
"WWI Security Agreement" means the Security Agreement dated September
29, 1999, by WWI and all U.S. Subsidiaries of WWI (other than the Designated
Subsidiary) in favor of the Administrative Agent, together with each Supplement
thereto delivered pursuant to clause (a) of Section 7.1.7, as amended, amended
and restated, supplemented or otherwise modified from time to time pursuant to
the terms thereof.
"WWNA" is defined in the second recital.
"WWUK" means Weight Watchers UK Limited and its Subsidiaries.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Disclosure Schedule and in
each other Loan Document, notice and
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other communication delivered from time to time in connection with this
Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references in
this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder (including under Section 7.2.4) shall be made, and all financial
statements required to be delivered hereunder or thereunder shall be prepared in
accordance with, those generally accepted accounting principles ("GAAP") as in
effect as of April 24, 1999. For purposes of computing the covenants set forth
in Section 7.2.4 (and any financial calculations required to be made or included
within such ratios) as of the end of any Fiscal Quarter, all components of such
ratios for the period of four Fiscal Quarters ending at the end of such Fiscal
Quarter shall include (or exclude), without duplication, such components of such
ratios attributable to any business or assets that have been acquired (or
disposed of) by the Borrower or any of the Subsidiaries (including through
mergers or consolidations) after the first day of such period of four Fiscal
Quarters and prior to the end of such period, on a pro forma basis for such
period of four Fiscal Quarters as if such acquisition or disposition had
occurred on such first day of such period.
SECTION 1.5. Currency Conversions. If it shall be necessary for purposes
of this Agreement to convert an amount in one currency into another currency,
unless otherwise provided herein, the exchange rate shall be determined by
reference to the New York foreign exchange selling rates (such determination to
be made as at the date of the relevant transaction), as determined by the
Administrative Agent (in accordance with its standard practices).
ARTICLE II
CONTINUATION OF CERTAIN EXISTING LOANS, COMMITMENTS, BORROWING AND ISSUANCE
PROCEDURES, NOTES, LETTERS OF CREDIT AND TLC PROVISIONS
SECTION 2.1. Loan Commitments. On the terms and subject to the
conditions of this Agreement (including Article V), the Lenders, the Swing Line
Lender and the Issuer severally agree to the continuation of Existing Loans and
Existing Letters of Credit and to make Credit Extensions as set forth below.
SECTION 2.1.1. Continuation of Existing Term Loans; Term Loan
Commitments. Subject to compliance by the Obligors with the terms of Sections
2.1.4, 5.1 and 5.2:
(a) each of the parties hereto acknowledges and agrees that the
Existing Term A Loans shall continue as Term A Loans (including the
Additional Term A Loans and Designated Additional Term A Loans, being
the "Term A Loans") and the Existing Term B Loans shall continue as Term
B Loans (including any Designated Additional Term B
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Loans, being the "Term B Loans") for all purposes under this Agreement
and the Loan Documents, with each Lender's share of Term A Loans and
Term B Loans being set forth opposite its name on Schedule II hereto
under the Term A Loan column or the Term B Loan column, as applicable,
or set forth in a Lender Assignment Agreement under the Term A column or
the Term B Loan column, as applicable, as such amount may be adjusted
from time to time pursuant to the terms hereof;
(b) in a single Borrowing occurring on or prior to the
Additional Term A Loan Commitment Termination Date, each Lender that has
an Additional Term A Loan Commitment will make loans (relative to such
Lender, its "Additional Term A Loans") to the Borrower in an amount
equal to such Lender's Percentage of the aggregate amount of the
Borrowing of Additional Term A Loans requested by the Borrower to be
made on such day (with the commitment of each such Lender described in
this clause (b) herein referred to as its "Additional Term A Loan
Commitment"); and
(c) in a single Borrowing occurring on or prior to the Term D
Loan Commitment Termination Date, each Lender that has a Term D Loan
Commitment will make loans (relative to such Lender, including any
Designated Additional Term D Loans, its "Term D Loans") to the Borrower
in an amount equal to such Lender's Percentage of the aggregate amount
of the Borrowing of Term D Loans requested by the Borrower to be made on
such day (with the commitment of each such Lender described in this
clause (c) herein referred to as its "Term D Loan Commitment").
No amounts paid or prepaid with respect to Term Loans may be reborrowed.
SECTION 2.1.2. Revolving Loan Commitment and Swing Line Loan Commitment.
Subject to compliance by the Obligors with the terms of Section 2.1.4, Section
5.1 and Section 5.2, the Revolving Loans and Swing Line Loans will be continued
and/or made as set forth below:
(a) From time to time on any Business Day occurring concurrently
with (or after) the making of the Term Loans but prior to the Revolving
Loan Commitment Termination Date, each Lender that has a Revolving Loan
Commitment will make loans (relative to such Lender, its "Revolving
Loans") to WWI in U.S. Dollars, equal to such Lender's Percentage of the
aggregate amount of the Borrowing of the Revolving Loans requested by
such Borrower to be made on such day. The Commitment of each Lender
described in this clause (a) is herein referred to as its "Revolving
Loan Commitment". On the terms and subject to the conditions hereof, any
Borrower may from time to time borrow, prepay and reborrow the Revolving
Loans. All Existing Revolving Loans shall be continued as Revolving
Loans hereunder.
(b) From time to time on any Business Day occurring concurrently
with (or after) the making of the Term Loans, but prior to the Revolving
Loan Commitment Termination Date, the Swing Line Lender will make loans
(relative to the Swing Line Lender, its "Swing Line Loans") to WWI equal
to the principal amount of the Swing Line Loans requested by WWI. On the
terms and subject to the conditions hereof, WWI may
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from time to time borrow, prepay and reborrow such Swing Line Loans. All
Existing Swing Line Loans shall be continued as Swing Line Loans
hereunder.
SECTION 2.1.3. Letter of Credit Commitment. Subject to compliance by the
Obligors with the terms of Section 2.1.5, Section 5.1 and Section 5.2, from time
to time on any Business Day occurring from and after September 29, 1999 but
prior to the Revolving Loan Commitment Termination Date, the Issuer will
(a) issue one or more standby or documentary letters of credit
(each referred to as a "Letter of Credit") for the account of WWI in the
Stated Amount requested by WWI on such day; or
(b) extend the Stated Expiry Date of an existing standby Letter
of Credit previously issued hereunder to a date not later than the
earlier of (x) the Revolving Loan Commitment Termination Date and (y)
one year from the date of such extension.
All Existing Letters of Credit shall be maintained as Letters of Credit
hereunder.
SECTION 2.1.4. Lenders Not Permitted or Required to Make the Loans. No
Lender shall be permitted or required to, and WWI shall not request that any
Lender, make
(a) any Additional Term A Loan or Term D Loan (as the case may
be) if, after giving effect thereto, the aggregate original principal
amount of all the Additional Term A Loans or Term D Loans (as the case
may be):
(i) of all Lenders would exceed the Additional Term A
Loan Commitment Amount (in the case of Additional Term A Loans),
or Term D Loan Commitment Amount (in the case of Term D Loans);
or
(ii) of such Lender would exceed such Lender's
Percentage of the Additional Term A Loan Amount (in the case of
Additional Term A Loans) or the Term D Loan Amount (in the case
of Term D Loans);
(b) any Revolving Loan or Swing Line Loan if, after giving
effect thereto, the aggregate outstanding principal amount of all the
Revolving Loans and Swing Line Loans
(i) of all the Lenders with Revolving Loan Commitments,
together with the aggregate amount of all Letter of Credit
Outstandings, would exceed the Revolving Loan Commitment Amount;
or
(ii) of such Lender with a Revolving Loan Commitment
(other than the Swing Line Lender), together with such Lender's
Percentage of the aggregate amount of all Letter of Credit
Outstandings, would exceed such Lender's Percentage of the
Revolving Loan Commitment Amount; or
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(c) any Swing Line Loan if after giving effect to the making of
such Swing Line Loan, the outstanding principal amount of all Swing Line
Loans would exceed the then existing Swing Line Loan Commitment Amount.
SECTION 2.1.5. Issuer Not Permitted or Required to Issue Letters of
Credit. No Issuer shall be permitted or required to issue any Letter of Credit
if, after giving effect thereto, (a) the aggregate amount of all Letter of
Credit Outstandings would exceed the Letter of Credit Commitment Amount or (b)
the sum of the aggregate amount of all Letter of Credit Outstandings plus the
aggregate principal amount of all Revolving Loans and Swing Line Loans then
outstanding would exceed the Revolving Loan Commitment Amount.
SECTION 2.1.6. Designated Additional Loans. At any time that no Default
has occurred and is continuing, from time to time and on or before September 30,
2004, WWI may notify the Administrative Agent that WWI is requesting that, on
the terms and subject to the conditions contained in this Agreement, the Lenders
and/or other lenders not then a party to this Agreement provide up to an
aggregate amount of $30,000,000 in commitments to provide (i) additional
Revolving Loan Commitments ("Designated Additional Revolving Loan Commitments),
(ii) additional Term A Loans ("Designated Additional Term A Loans"), (iii)
additional Term B Loans ("Designated Additional Term B Loans"), (iv) additional
Term D Loans ("Designated Additional Term D Loans" and/or (v) loans to be
provided under a new tranche of Term Loans ("Designated New Term Loans") which
have terms and conditions, (including interest rate and amortization schedule)
as mutually agreed to by WWI, the Agents and the Lenders providing such new
tranche of Loans. Upon receipt of any such notice, the Administrative Agent
shall use commercially reasonable efforts to arrange for the Lenders or other
Eligible Institutions to provide such additional commitments; provided that the
Administrative Agent will first offer each of the Lenders that then has a
Percentage of the Commitment or Loans of the type proposed to be obtained a pro
rata portion of any such additional commitment. Nothing contained in this
Section 2.1.6 or otherwise in this Agreement is intended to commit any Lender or
any Agent to provide any portion of any such additional commitments. If and to
the extent that any Lenders and/or other lenders agree, in their sole
discretion, to provide any such additional commitments, (i) in the case of
Designated Additional Revolving Loan Commitments, the Revolving Loan Commitment
Amount shall be increased by the amount of the additional Revolving Loan
Commitments agreed to be so provided, (ii) subject to compliance with the terms
of Section 5.2 and such other terms and conditions mutually agreed to among WWI,
the Agents and the Lenders providing any such other commitments, Loans of the
type requested by WWI will be made on the date as agreed among such Persons,
(iii) the Percentages of the respective Lenders in respect of the applicable
Commitment or type of Loan shall be proportionally adjusted (provided that the
Percentage of each Lender shall not be increased without the consent of such
Lender), (iv) in the case of Designated Additional Revolving Loan Commitment at
such time and in such manner as WWI and the Administrative Agent shall agree (it
being understood that WWI and the Agents will use commercially reasonable
efforts to avoid the prepayment or assignment of any LIBO Rate Loan on a day
other than the last day of the Interest Period applicable thereto), the Lenders
shall assign and assume outstanding Revolving Loans and participations in
outstanding Letters of Credit so as to cause the amounts of such Revolving Loans
and participations in Letters of Credit held by each Lender to conform to the
respective Percentages of the Revolving Loan Commitment of the Lenders and (v)
WWI shall execute and deliver any additional Notes or other amendments or
modifications to this Agreement or any other Loan
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Document as the Administrative Agent may reasonably request. Any fees payable in
respect of any commitment provided for in this Section 2.1.6 shall be as agreed
to by WWI and the Administrative Agent. Any designation of a commitment
hereunder (i) shall be irrevocable, (ii) shall reduce the amount of commitments
that may be requested under the Section 2.1.6 pro tanto and (iii) shall be in a
minimum principal amount of $5,000,000 and integral multiples of $1,000,000.
SECTION 2.2. Reduction of the Commitment Amounts. The Commitment Amounts
are subject to reductions from time to time pursuant to this Section 2.2.
SECTION 2.2.1. Optional. WWI may, from time to time on any Business Day
occurring after the time of the initial Credit Extension hereunder, voluntarily
reduce the Swing Line Loan Commitment Amount, the Letter of Credit Commitment
Amount or the Revolving Loan Commitment Amount; provided, however, that all such
reductions shall require at least three Business Days' prior notice to the
Administrative Agent and be permanent, and any partial reduction of any
Commitment Amount shall be in a minimum amount of $1,000,000 and in an integral
multiple of $100,000. Any reduction of the Revolving Loan Commitment Amount
which reduces the Revolving Loan Commitment Amount below the sum of (i) the
Swing Line Loan Commitment Amount and (ii) the Letter of Credit Commitment
Amount shall result in an automatic and corresponding reduction of the Swing
Line Loan Commitment Amount and/or Letter of Credit Commitment Amount (as
directed by WWI in a notice to the Administrative Agent delivered together with
the notice of such voluntary reduction in the Revolving Loan Commitment Amount)
to an aggregate amount not in excess of the Revolving Loan Commitment Amount, as
so reduced, without any further action on the part of the Swing Line Lender or
the Issuer.
SECTION 2.2.2. Mandatory. Following the prepayment in full of the Term
Loans and the TLCs, the Revolving Loan Commitment Amount shall, without any
further action, automatically and permanently be reduced on the date the Term
Loans and the TLCs would otherwise have been required to be prepaid with any Net
Disposition Proceeds, Net Equity Proceeds, or Excess Cash Flow, in an amount
equal to the amount by which the Term Loans and the TLCs would otherwise be
required to be prepaid if Term Loans and the TLCs had been outstanding. Any
reduction of the Revolving Loan Commitment Amount which reduces the Revolving
Loan Commitment Amount below the sum of (i) the Swing Line Loan Commitment
Amount and (ii) the Letter of Credit Commitment Amount shall result in an
automatic and corresponding reduction of the Swing Line Loan Commitment Amount
and/or Letter of Credit Commitment Amount (as directed by WWI in a notice to the
Administrative Agent) to an aggregate amount not in excess of the Revolving Loan
Commitment Amount, as so reduced, without any further action on the part of the
Swing Line Lender or the Issuer.
SECTION 2.3. Borrowing Procedures and Funding Maintenance. Loans shall
be made by the Lenders in accordance with this Section.
SECTION 2.3.1. Term Loans and Revolving Loans. By delivering a Borrowing
Request to the Administrative Agent on or before 12:00 noon, New York time, on a
Business Day, WWI may from time to time irrevocably request, on not less than
one (in the case of Base Rate Loans) and three (in the case of LIBO Rate Loans)
nor more than (in each case) five Business Days'
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notice, that a Borrowing be made, in the case of LIBO Rate Loans, in a minimum
amount of $2,000,000, and an integral multiple of $500,000, and in the case of
Base Rate Loans, in a minimum amount of $500,000 and an integral multiple
thereof or, in either case, in the unused amount of the applicable Commitment.
On the terms and subject to the conditions of this Agreement, each Borrowing
shall be comprised of the type of Loans, and shall be made on the Business Day,
specified in such Borrowing Request. On or before 11:00 a.m., New York time, on
such Business Day each Lender shall deposit with the Administrative Agent same
day funds in an amount equal to such Lender's Percentage of the requested
Borrowing. Such deposit will be made to an account which the Administrative
Agent shall specify from time to time by notice to the Lenders. To the extent
funds are received from the Lenders, the Administrative Agent shall make such
funds available to the applicable Borrower by wire transfer to the accounts such
Borrower shall have specified in its Borrowing Request. No Lender's obligation
to make any Loan shall be affected by any other Lender's failure to make any
Loan.
SECTION 2.3.2. Swing Line Loans.
(a) By telephonic notice, promptly followed (within three
Business Days) by the delivery of a confirming Borrowing Request, to the
Swing Line Lender on or before 11:00 a.m., New York time, on a Business
Day, WWI may from time to time irrevocably request that Swing Line Loans
be made by the Swing Line Lender in an aggregate minimum principal
amount of $200,000 and an integral multiple of $100,000. Each request by
WWI for a Swing Line Loan shall constitute a representation and warranty
by WWI that on the date of such request and (if different) the date of
the making of the Swing Line Loan, both immediately before and after
giving effect to such Swing Line Loan and the application of the
proceeds thereof, the statements made in Section 5.2.1 are true and
correct. All Swing Line Loans shall be made as Base Rate Loans and shall
not be entitled to be converted into LIBO Rate Loans. The proceeds of
each Swing Line Loan shall be made available by the Swing Line Lender,
by its close of business on the Business Day telephonic notice is
received by it as provided in the preceding sentences, to WWI by wire
transfer to the accounts WWI shall have specified in its notice
therefor.
(b) If (i) any Swing Line Loan shall be outstanding for more
than four full Business Days or (ii) after giving effect to any request
for a Swing Line Loan or a Revolving Loan the aggregate principal amount
of Revolving Loans and Swing Line Loans outstanding to the Swing Line
Lender, together with the Swing Line Lender's Percentage of all Letter
of Credit Outstandings, would exceed the Swing Line Lender's Percentage
of the Revolving Loan Commitment Amount, the Swing Line Lender, at any
time in its sole and absolute discretion may request each Lender that
has a Revolving Loan Commitment, and each such Lender, including the
Swing Line Lender hereby agrees, to make a Revolving Loan (which shall
always be initially funded as a Base Rate Loan) in an amount equal to
such Lender's Percentage of the amount of the Swing Line Loans
("Refunded Swing Line Loans") outstanding on the date such notice is
given. On or before 11:00 a.m. (New York time) on the first Business Day
following receipt by each Lender of a request to make Revolving Loans as
provided in the preceding sentence, each such Lender (other than the
Swing Line Lender) shall deposit in an account specified by the
Administrative Agent to the Lenders from time to time the amount so
requested in same day funds, whereupon such funds shall be immediately
delivered to the
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Swing Line Lender (and not WWI) and applied to repay the Refunded Swing
Line Loans. On the day such Revolving Loans are made, the Swing Line
Lender's Percentage of the Refunded Swing Line Loans shall be deemed to
be paid. Upon the making of any Revolving Loan pursuant to this clause,
the amount so funded shall become due under such Lender's Revolving Note
and shall no longer be owed under the Swing Line Note. Each Lender's
obligation to make the Revolving Loans referred to in this clause shall
be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any setoff,
counterclaim, recoupment, defense or other right which such Lender may
have against the Swing Line Lender, WWI or any other Person for any
reason whatsoever; (ii) the occurrence or continuance of any Default;
(iii) any adverse change in the condition (financial or otherwise) of
WWI or any other Obligor, subsequent to the date of the making of a
Swing Line Loan; (iv) the acceleration or maturity of any Loans or the
termination of the Revolving Loan Commitment after the making of any
Swing Line Loan; (v) any breach of this Agreement by WWI, any other
Obligor or any other Lender; or (vi) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing.
(c) In the event that (i) WWI or any Subsidiary is subject to
any bankruptcy or insolvency proceedings as provided in Section 9.1.9 or
(ii) the Swing Line Lender otherwise requests, each Lender with a
Revolving Loan Commitment shall acquire without recourse or warranty an
undivided participation interest equal to such Lender's Percentage of
any Swing Line Loan otherwise required to be repaid by such Lender
pursuant to the preceding clause by paying to the Swing Line Lender on
the date on which such Lender would otherwise have been required to make
a Revolving Loan in respect of such Swing Line Loan pursuant to the
preceding clause, in same day funds, an amount equal to such Lender's
Percentage of such Swing Line Loan, and no Revolving Loans shall be made
by such Lender pursuant to the preceding clause. From and after the date
on which any Lender purchases an undivided participation interest in a
Swing Line Loan pursuant to this clause, the Swing Line Lender shall
distribute to such Lender (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such
Lender's participation interest is outstanding and funded) its ratable
amount of all payments of principal and interest in respect of such
Swing Line Loan in like funds as received; provided, however, that in
the event such payment received by the Swing Line Lender is required to
be returned to WWI, such Lender shall return to the Swing Line Lender
the portion of any amounts which such Lender had received from the Swing
Line Lender in like funds.
(d) Notwithstanding anything herein to the contrary, the Swing
Line Lender shall not be obligated to make any Swing Line Loans if it
has elected after the occurrence of a Default not to make Swing Line
Loans and has notified WWI in writing or by telephone of such election.
The Swing Line Lender shall promptly give notice to the Lenders of such
election not to make Swing Line Loans.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 12:00
noon, New York time, on a Business Day, WWI may from time to time irrevocably
elect, on not less than one (in the case of a conversion of LIBO Rate Loans to
Base Rate Loans) and three (in the case
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of a continuation of LIBO Rate Loans or a conversion of Base Rate Loans into
LIBO Rate Loans) nor more than (in each case) five Business Days' notice that
all, or any portion in an aggregate minimum amount of $2,000,000 and an integral
multiple of $500,000, in the case of the continuation of, or conversion into,
LIBO Rate Loans, or an aggregate minimum amount of $500,000 and an integral
multiple thereof, in the case of the conversion into Base Rate Loans (other than
Swing Line Loans as provided in clause (a) of Section 2.3.2) be, in the case of
Base Rate Loans, converted into LIBO Rate Loans or, in the case of LIBO Rate
Loans, be converted into a Base Rate Loan or continued as a LIBO Rate Loan (in
the absence of delivery of a Continuation/Conversion Notice with respect to any
LIBO Rate Loan at least three Business Days before the last day of the then
current Interest Period with respect thereto, such LIBO Rate Loan shall, on such
last day, automatically convert to a Base Rate Loan); provided, however, that
(x) each such conversion or continuation shall be pro rated among the applicable
outstanding Loans of the relevant Lenders, and (y) no portion of the outstanding
principal amount of any Loans may be continued as, or be converted into, LIBO
Rate Loans when any Default has occurred and is continuing.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan, so long as such
action does not result in increased costs to WWI; provided, however, that such
LIBO Rate Loan shall nonetheless be deemed to have been made and to be held by
such Lender, and the obligation of WWI to repay such LIBO Rate Loan shall
nevertheless be to such Lender for the account of such foreign branch, Affiliate
or international banking facility; and provided further, however, that such
Lender shall cause such foreign branch, Affiliate or international banking
facility to comply with the applicable provisions of clause (b) of Section 4.6
with respect to such LIBO Rate Loan. In addition, WWI hereby consents and agrees
that, for purposes of any determination to be made for purposes of Sections 4.1,
4.2, 4.3 or 4.4, it shall be conclusively assumed that each Lender elected to
fund all LIBO Rate Loans by purchasing U.S. Dollar deposits in its LIBOR
Office's interbank eurodollar market.
SECTION 2.6. Issuance Procedures. By delivering to the Administrative
Agent an Issuance Request on or before 12:00 noon, New York time, on a Business
Day, WWI may, from time to time irrevocably request, on not less than three nor
more than ten Business Days' notice (or such shorter notice as may be acceptable
to the Issuer), in the case of an initial issuance of a Letter of Credit, and
not less than three nor more than ten Business Days' notice (unless a shorter
notice period is acceptable to the Issuer) prior to the then existing Stated
Expiry Date of a Letter of Credit, in the case of a request for the extension of
the Stated Expiry Date of a Letter of Credit, that the Issuer issue, or extend
the Stated Expiry Date of, as the case may be, an irrevocable Letter of Credit
for WWI's account or for the account of any wholly-owned U.S. Subsidiary of WWI
that is a party to the Subsidiary Guaranty and the WWI Security Agreement and
whose outstanding Capital Securities is pledged to the Administrative Agent for
the benefit of the Lenders pursuant to the WWI Pledge Agreement, in such form as
may be requested by WWI and approved by the Issuer, solely for the purposes
described in Section 7.1.9. Notwithstanding anything to the contrary contained
herein or in any separate application for any Letter of Credit, WWI hereby
acknowledges and agrees that it shall be obligated to reimburse the Issuer upon
each Disbursement of a Letter of Credit, and it shall be deemed to be the
obligor for
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purposes of each such Letter of Credit issued hereunder (whether the account
party on such Letter of Credit is WWI or a Subsidiary of WWI). Upon receipt of
an Issuance Request, the Administrative Agent shall promptly notify the Issuer
and each Lender thereof. Each Letter of Credit shall by its terms be stated to
expire on a date (its "Stated Expiry Date") no later than the earlier to occur
of (i) the Revolving Loan Commitment Termination Date or (ii) one year from the
date of its issuance. The Issuer will make available to the beneficiary thereof
the original of each Letter of Credit which it issues hereunder.
SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of each
Letter of Credit issued by the Issuer pursuant hereto (or the continuation of an
Existing Letter of Credit hereunder), and without further action, each Lender
(other than the Issuer) that has a Revolving Loan Commitment shall be deemed to
have irrevocably purchased from the Issuer, to the extent of its Percentage to
make Revolving Loans, and the Issuer shall be deemed to have irrevocably granted
and sold to such Lender a participation interest in such Letter of Credit
(including the Contingent Liability and any Reimbursement Obligation and all
rights with respect thereto), and such Lender shall, to the extent of its
Revolving Loan Commitment Percentage, be responsible for reimbursing promptly
(and in any event within one Business Day) the Issuer for Reimbursement
Obligations which have not been reimbursed by WWI in accordance with Section
2.6.3. In addition, such Lender shall, to the extent of its Percentage to make
Revolving Loans, be entitled to receive a ratable portion of the Letter of
Credit fees payable pursuant to Section 3.3.3 with respect to each Letter of
Credit and of interest payable pursuant to Section 3.2 with respect to any
Reimbursement Obligation. To the extent that any Lender has reimbursed the
Issuer for a Disbursement as required by this Section, such Lender shall be
entitled to receive its ratable portion of any amounts subsequently received
(from WWI or otherwise) in respect of such Disbursement.
SECTION 2.6.2. Disbursements; Conversion to Revolving Loans. The Issuer
will notify WWI and the Administrative Agent promptly of the presentment for
payment of any Letter of Credit issued by the Issuer, together with notice of
the date (the "Disbursement Date") such payment shall be made (each such
payment, a "Disbursement"). Subject to the terms and provisions of such Letter
of Credit and this Agreement, the Issuer shall make such payment to the
beneficiary (or its designee) of such Letter of Credit. Prior to 12:00 noon, New
York time, on the first Business Day following the Disbursement Date (the
"Disbursement Due Date"), WWI will reimburse the Administrative Agent, for the
account of the Issuer, for all amounts which the Issuer has disbursed under such
Letter of Credit, together with interest thereon at the rate per annum otherwise
applicable to Revolving Loans (made as Base Rate Loans) from and including the
Disbursement Date to but excluding the Disbursement Due Date and, thereafter
(unless such Disbursement is converted into a Base Rate Loan on the Disbursement
Due Date), at a rate per annum equal to the rate per annum then in effect with
respect to overdue Revolving Loans (made as Base Rate Loans) pursuant to Section
3.2.2 for the period from the Disbursement Due Date through the date of such
reimbursement; provided, however, that, if no Default shall have then occurred
and be continuing, unless WWI has notified the Administrative Agent no later
than one Business Day prior to the Disbursement Due Date that it will reimburse
the Issuer for the applicable Disbursement, then the amount of the Disbursement
shall be deemed to be a Revolving Loan constituting a Base Rate Loan and
following the giving of notice thereof by the Administrative Agent to the
Lenders, each Lender with a commitment to make Revolving Loans (other than the
Issuer) will deliver to the Issuer on the Disbursement Due Date immediately
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available funds in an amount equal to such Lender's Percentage of such Revolving
Loan. Each conversion of Disbursement amounts into Revolving Loans shall
constitute a representation and warranty by WWI that on the date of the making
of such Revolving Loan all of the statements set forth in Section 5.2.1 are true
and correct.
SECTION 2.6.3. Reimbursement. The obligation (a "Reimbursement
Obligation") of WWI under Section 2.6.2 to reimburse the Issuer with respect to
each Disbursement (including interest thereon) not converted into a Base Rate
Loan pursuant to Section 2.6.2, and, upon the failure of WWI to reimburse the
Issuer and the giving of notice thereof by the Administrative Agent to the
Lenders, each Lender's (to the extent it has a Revolving Loan Commitment)
obligation under Section 2.6.1 to reimburse the Issuer or fund its Percentage of
any Disbursement converted into a Base Rate Loan, shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which WWI or such Lender, as the case may be,
may have or have had against the Issuer or any such Lender, including any
defense based upon the failure of any Disbursement to conform to the terms of
the applicable Letter of Credit (if, in the Issuer's good faith opinion, such
Disbursement is determined to be appropriate) or any non-application or
misapplication by the beneficiary of the proceeds of such Letter of Credit;
provided, however, that after paying in full its Reimbursement Obligation
hereunder, nothing herein shall adversely affect the right of WWI or such
Lender, as the case may be, to commence any proceeding against the Issuer for
any wrongful Disbursement made by the Issuer under a Letter of Credit as a
result of acts or omissions constituting gross negligence or willful misconduct
on the part of the Issuer.
SECTION 2.6.4. Deemed Disbursements. Upon the occurrence and during the
continuation of any Event of Default of the type described in Section 9.1.9 or,
with notice from the Administrative Agent acting at the direction of the
Required Lenders, upon the occurrence and during the continuation of any other
Event of Default,
(a) an amount equal to that portion of all Letter of Credit
Outstandings attributable to the then aggregate amount which is undrawn
and available under all Letters of Credit issued and outstanding shall,
without demand upon or notice to WWI or any other Person, be deemed to
have been paid or disbursed by the Issuer under such Letters of Credit
(notwithstanding that such amount may not in fact have been so paid or
disbursed); and
(b) upon notification by the Administrative Agent to WWI of its
obligations under this Section, WWI shall be immediately obligated to
reimburse the Issuer for the amount deemed to have been so paid or
disbursed by the Issuer.
Any amounts so payable by WWI pursuant to this Section shall be deposited in
cash with the Administrative Agent and held as collateral security for the
Obligations in connection with the Letters of Credit issued by the Issuer. At
such time when the Events of Default giving rise to the deemed disbursements
hereunder shall have been cured or waived, the Administrative Agent shall return
to WWI all amounts then on deposit with the Administrative Agent pursuant to
this Section, together with accrued interest at the Federal Funds Rate, which
have not been applied to the satisfaction of such Obligations.
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SECTION 2.6.5. Nature of Reimbursement Obligations. WWI and, to the
extent set forth in Section 2.6.1, each Lender with a Revolving Loan Commitment,
shall assume all risks of the acts, omissions or misuse of any Letter of Credit
by the beneficiary thereof. The Issuer (except to the extent of its own gross
negligence or willful misconduct) shall not be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any Letter of Credit or any document submitted by any
party in connection with the application for and issuance of a Letter of
Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any instrument transferring or assigning or purporting
to transfer or assign a Letter of Credit or the rights or benefits
thereunder or the proceeds thereof in whole or in part, which may prove
to be invalid or ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex or
otherwise; or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement under a
Letter of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to the Issuer or any Lender with a Revolving Loan
Commitment hereunder. In furtherance and extension and not in limitation or
derogation of any of the foregoing, any action taken or omitted to be taken by
the Issuer in good faith (and not constituting gross negligence or willful
misconduct) shall be binding upon WWI, each Obligor and each such Lender, and
shall not put the Issuer under any resulting liability to WWI, any Obligor or
any such Lender, as the case may be.
SECTION 2.7. Notes. Each Lender's Loans under a Commitment for a Loan
shall be evidenced, if such Lender shall request, by a Note payable to the order
of such Lender in a maximum principal amount equal to such Lender's Percentage
of the original applicable Commitment Amount. All Swing Line Loans made by the
Swing Line Lender shall be evidenced by a Swing Line Note payable to the order
of the Swing Line Lender in a maximum principal amount equal to the Swing Line
Loan Commitment Amount. WWI hereby irrevocably authorizes each Lender to make
(or cause to be made) appropriate notations on the grid attached to such
Lender's Notes (or on any continuation of such grid), which notations, if made,
shall evidence, inter alia, the date of, the outstanding principal of, and the
interest rate and Interest Period applicable to the Loans evidenced thereby.
Such notations shall be conclusive and binding on WWI absent manifest error;
provided, however, that the failure of any Lender to make any such notations
shall not limit or otherwise affect any Obligations of WWI or any other Obligor.
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SECTION 2.8. (a) Registered Notes. Any Non-U.S. Lender that could become
completely exempt from withholding of any taxes in respect of payment of any
interest due to such Non-U.S. Lender under this Agreement if the Notes held by
such Lender were in registered form for U.S. Federal income tax purposes may
request WWI (through the Administrative Agent), and WWI agrees (i) to exchange
for any Notes held by such Lender, or (ii) to issue to such Lender on the date
it becomes a Lender, promissory notes(s) registered as provided in clause (b) of
this Section 2.8 (each a Registered Note). Registered Notes may not be exchanged
for Notes that are not Registered Notes.
(b) The Administrative Agent shall enter, in the Register, the
name of the registered owner of the Non-U.S. Lender Obligation(s)
evidenced by a Registered Note.
(c) The Register shall be available for inspection by WWI and
any Lender at any reasonable time upon reasonable prior notice.
SECTION 2.9. TLC Facility. Each TLC Lender has purchased, on September
29, 1999, TLCs from the XX0 Xxxxxxxx (with the commitment of each such TLC
Lender to purchase TLCs being, its "TLC Commitment") equal to such TLC Lender's
Percentage of the TLC Commitment Amount. No amounts paid or prepaid with respect
to TLCs may be reborrowed.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application.
SECTION 3.1.1. Repayments and Prepayments. The SP1 Borrower and WWI
shall repay in full the unpaid principal amount of each Loan and TLC, as
applicable, upon the Stated Maturity Date therefor. Prior thereto,
(a) any Borrower may, from time to time on any Business Day,
make a voluntary prepayment, in whole or in part, of the outstanding
principal amount of any
(i) Loan (other than Swing Line Loans) or TLC, provided,
however, that
(A) any such prepayment of the Term A Loans or
Term B Loans or Designated New Term Loans or Term D
Loans or TLCs shall be made pro rata among such Term A
Loans or Term B Loans or Designated New Term Loans or
Term D Loans or TLCs of the same type and if applicable,
having the same Interest Period as all Lenders that have
made such Term A Loans or Term B Loans or Designated New
Term Loans or Term D Loans or TLCs, and any such
prepayment of Revolving Loans shall be made pro rata
among the Revolving Loans of the same type and, if
applicable, having the same Interest Period as all
Lenders that have made such Revolving Loans;
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(B) the Borrowers shall comply with Section 4.4
in the event that any LIBO Rate Loan is prepaid on any
day other than the last day of the Interest Period for
such Loan;
(C) all such voluntary prepayments shall require
at least three but no more than five Business Days'
prior written notice to the Administrative Agent; and
(D) all such voluntary partial prepayments shall
be, in the case of LIBO Rate Loans or TLCs bearing
interest with reference to the LIBO Rate, in an
aggregate minimum amount of $2,000,000 and an integral
multiple of $500,000 and, in the case of Base Rate Loans
or TLCs bearing interest with reference to the Base
Rate, in an aggregate minimum amount of $500,000 and an
integral multiple thereof; or
(ii) Swing Line Loans, provided that all such voluntary
prepayments shall require prior telephonic notice to the Swing
Line Lender on or before 1:00 p.m., New York time, on the day of
such prepayment (such notice to be confirmed in writing within
24 hours thereafter);
provided, that in the event such prepayment of Term B Loans or TLCs occurs (x)
after September 29, 1999 and on any day prior to September 29, 2000 thereof, WWI
shall pay to the Administrative Agent for the account of all Term B Lenders or
TLC Lenders, as the case may be, a fee in the amount of 2% of such prepayment
and (y) on and after September 29, 2000 and on or prior to September 29, 2001,
WWI shall pay the Administrative Agent for the account of all Term B Lenders or
TLC Lenders, as the case may be, a fee in the amount of 1% of such prepayment;
(b) the SP1 Borrower and WWI, as the case may be, shall no later
than one Business Day following the receipt by WWI or any of its
Subsidiaries of any Net Disposition Proceeds, deliver to the
Administrative Agent a calculation of the amount of such Net Disposition
Proceeds and, subject to the following proviso, make a mandatory
prepayment of the Term Loans and TLCs in an amount equal to 100% of such
Net Disposition Proceeds, to be applied as set forth in Section 3.1.2;
provided, however, that, at the option of WWI and so long as no Default
shall have occurred and be continuing, WWI may use or cause the
appropriate Subsidiary to use the Net Disposition Proceeds to purchase
assets useful in the business of WWI and its Subsidiaries or to purchase
a majority controlling interest in a Person owning such assets or to
increase any such controlling interest already maintained by it;
provided, that if such Net Disposition Proceeds arise from or are
related to a Disposition of assets of a Guarantor then any such
reinvestment must either be made by or in a Guarantor or a Person which
upon the making of such reinvestment becomes a Guarantor (with such
assets or interests collectively referred to as "Qualified Assets")
within 365 days after the consummation (and with the Net Disposition
Proceeds) of such sale, conveyance or disposition, and in the event WWI
elects to exercise its right to purchase Qualified Assets with the Net
Disposition Proceeds pursuant to this clause, WWI shall deliver a
certificate of an Authorized Officer of WWI to the Administrative Agent
within 30 days following the
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receipt of Net Disposition Proceeds setting forth the amount of the Net
Disposition Proceeds which WWI expects to use to purchase Qualified
Assets during such 365 day period; provided further, that WWI and its
Subsidiaries shall only be permitted to reinvest Net Disposition
Proceeds in Qualified Assets to the extent permitted by Section 7.2.5
over the term of this Agreement. If and to the extent that WWI has
elected to reinvest Net Disposition Proceeds as permitted above, then on
the date which is 365 days (in the case of clause (b)(i) below) and 370
days (in the case of clause (b)(ii) below) after the relevant sale,
conveyance or disposition, WWI shall (i) deliver a certificate of an
Authorized Officer of WWI to the Administrative Agent certifying as to
the amount and use of such Net Disposition Proceeds actually used to
purchase Qualified Assets and (ii) deliver to the Administrative Agent,
for application in accordance with this clause and Section 3.1.2, an
amount equal to the remaining unused Net Disposition Proceeds;
(c) the SP1 Borrower and WWI, as applicable, shall, no later
than 5 Business Days following the delivery of WWI's annual audited
financial reports required pursuant to clause (b) of Section 7.1.1
(beginning with the financial reports delivered in respect of the 2001
Fiscal Year), deliver to the Administrative Agent a calculation of the
Excess Cash Flow for (i) the 2001 Fiscal Year the 20-month period ended
December 31, 2001 and (ii) thereafter for such Fiscal Year and no later
than 5 Business Days following the delivery of such calculation, make a
mandatory prepayment of the Term Loans and TLCs in an aggregate amount
equal to 50% of the Excess Cash Flow (if any) for such period, to be
applied as set forth in Section 3.1.2;
(d) the SP1 Borrower and WWI, as applicable, concurrently with
WWI's receipt of any Net Equity Proceeds, deliver to the Administrative
Agent a calculation of the amount of such Net Equity Proceeds, and no
later than 5 Business Days following the delivery of such calculation,
make a mandatory prepayment of the Term Loans and TLCs in an aggregate
amount equal to 50% of such Net Equity Proceeds, to be applied as set
forth in Section 3.1.2; provided, that all such Net Equity Proceeds
shall be deposited in a cash collateral account with the Administrative
Agent upon receipt pending application to the Loans pursuant to this
clause;
(e) WWI shall, on each date when any reduction in the Revolving
Loan Commitment Amount shall become effective, including pursuant to
Section 2.2 or Section 3.1.2, make a mandatory prepayment of Revolving
Loans and (if necessary) Swing Line Loans, and (if necessary) deposit
with the Administrative Agent cash collateral for Letter of Credit
Outstandings) in an aggregate amount equal to the excess, if any, of the
aggregate outstanding principal amount of all Revolving Loans, Swing
Line Loans and Letters of Credit Outstanding over the Revolving Loan
Commitment Amount as so reduced;
(f) WWI shall, on the Stated Maturity Date and on each Quarterly
Payment Date occurring on or during any period set forth below, make a
scheduled repayment of the aggregate outstanding principal amount, if
any, of all Term A Loans in an amount equal to the amount set forth
below opposite the Stated Maturity Date or such Quarterly Payment Date
(as such amounts may have otherwise been reduced pursuant to this
Agreement), as applicable:
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03/31/00 through (and including)
09/30/04 $3,750,000
10/01/04 through (and including)
06/30/05 $5,312,500
07/01/05 through (and including)
Stated Maturity Date $5,312,500, or the then outstanding
principal amount of all Term A Loans,
if different;
provided, that each remaining amortization amount of Term A Loans
occurring after the date of the making of a Designated Additional Term A Loan
will be increased pro rata by the aggregate principal amount of any Designated
Additional Term A Loan.
(g) WWI shall, on the Stated Maturity Date and on each Quarterly
Payment Date occurring on or during any period set forth below, make a
scheduled repayment of the aggregate outstanding principal amount, if
any, of all Term B Loans in an amount equal to the amount set forth
below opposite the Stated Maturity Date or such Quarterly Payment Date
(as such amounts may have otherwise been reduced pursuant to this
Agreement), as applicable:
03/31/00 through (and including)
09/30/05 $187,500
10/01/05 through (and including)
06/30/06 $17,671,875
07/01/06 through (and including)
Stated Maturity Date $17,671,875, or the then outstanding
principal amount of all Term B Loans,
if different;
provided, that each remaining amortization amount of Term B Loans
occurring after the date of the making of a Designated Additional Term B Loan
will be increased pro rata by the aggregate principal amount of any Designated
Additional Term B Loan.
(h) WWI shall, on the Stated Maturity Date and on each Quarterly
Payment Date occurring on or during any period set forth below, make a
scheduled repayment of the aggregate outstanding principal amount, if
any, of all Term D Loans in an amount equal to the amount set forth
below opposite the Stated Maturity Date or such Quarterly Payment Date
(as such amounts may have otherwise been reduced pursuant to this
Agreement), as applicable:
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03/31/01 through (and including)
09/30/05 $50,000
10/01/05 through (and including)
Stated Maturity Date $6,350,000, or the then outstanding
principal amount of all Term D Loans,
if different;
provided, that each remaining amortization amount of Term D Loans
occurring after the date of the making of a Designated Additional Term D Loan
will be increased pro rata by the aggregate principal amount of any Designated
Additional Term D Loan.
(i) the SP1 Borrower shall, on the Stated Maturity Date and on each
Quarterly Payment Date occurring on or during any period set forth
below, make a scheduled repayment of the aggregate outstanding principal
amount, if any, of all TLCs in an amount equal to the amount set forth
below opposite the Stated Maturity Date or such Quarterly Payment Date,
as applicable (as such amounts may have otherwise been reduced pursuant
to this Agreement):
03/31/00 through (and including)
09/30/05 $217,500
10/01/05 through (and including)
06/30/06 $20,499,375
07/01/06 through (and including)
Stated Maturity Date $20,499,375, or the then outstanding
principal amount of all TLCs, if
different;
(j) the SP1 Borrower and WWI, as the case may be, shall,
immediately upon any acceleration of the Stated Maturity Date of any
Loans or Obligations pursuant to Section 9.2 or Section 9.3, repay all
Loans and TLCs and provide the Administrative Agent with cash collateral
in an amount equal to the Letter of Credit Outstandings, unless,
pursuant to Section 9.3, only a portion of all Loans and TLCs and
Obligations are so accelerated (in which case the portion so accelerated
shall be so prepaid or cash collateralized with the Administrative
Agent);
(k) the SP1 Borrower shall, immediately upon receipt of proceeds
in connection with the repayment of any intercompany loan payable to the
SP1 Borrower, make a mandatory prepayment of the TLCs, to be applied as
set forth in Section 3.1.2, in an amount equal to the sum of such
proceeds, other than (x) scheduled amortization payments thereof and (y)
any other payment to the XX0 Xxxxxxxx which would otherwise result in a
mandatory prepayment under this Section 3.1.1; and
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(l) WWI shall pay the principal amount of the Designated New
Term Loans at such times and in such amounts as determined pursuant to
Section 2.1.6;
provided that in the event such prepayment under clause (b) or (d) of this
Section occurs (x) after September 29, 1999 and on any day prior to September
29, 2000, WWI shall pay to the Administrative Agent for the account of all Term
B Lenders or TLC Lenders, as the case may be, a fee in the amount of 2% of such
prepayment and (y) on and after September 29, 2000 and on or prior to September
29, 2001, WWI shall pay the Administrative Agent for the account of all Term B
Lenders or TLC Lenders, as the case may be, a fee in the amount of 1% of such
prepayment.
Each prepayment of any Loans or TLCs made pursuant to this Section shall
be without premium or penalty, except as may be required by Section 4.4. No
prepayment of principal of any Revolving Loans or Swing Line Loans pursuant to
clauses (a) of Section 3.1.1 shall cause a reduction in the Revolving Loan
Commitment Amount or the Swing Line Loan Commitment Amount, as the case may be.
SECTION 3.1.2. Application.
(a) Subject to clause (b), each prepayment or repayment of the
principal of the Loans or TLCs shall be applied, to the extent of such
prepayment or repayment, first, to the principal amount thereof being
maintained as Base Rate Loans or bearing interest with reference to the
Base Rate, as the case may be, and second, to the principal amount
thereof being maintained as LIBO Rate Loans or bearing interest with
reference to the LIBO Rate, as the case may be.
(b) Each voluntary prepayment of Term Loans or TLCs and each
prepayment of Term Loans and TLCs made pursuant to clauses (b), (c) and
(d) of Section 3.1.1 shall be applied pro rata to a mandatory prepayment
of the outstanding principal amount of all Term Loans and TLCs (with the
amount of such prepayment of the Term Loans or TLCs being applied to the
remaining Term Loan and TLC amortization payments, as the case may be,
required pursuant to clauses (f), (g), (h) and (i) of Section 3.1.1, in
each case pro rata in accordance with the amount of each such remaining
amortization payment), until all such Term Loans and TLCs have been paid
in full; provided, however, that in the case of each prepayment of Term
Loans and TLCs required pursuant to clauses (b), (c), and (d) of Section
3.1.1, any Lender that has Term B Loans, Term D Loans and TLCs
outstanding (at a time when any Term A Loans remain outstanding) may, by
delivering a notice to the Administrative Agent at least one Business
Day prior to the date that such prepayment is to be made, elect not to
have its pro rata share of Term B Loans, Term D Loans or TLCs, as the
case may be, prepaid, and upon any such election the Administrative
Agent shall (x) apply 50% of the amount that otherwise would have
prepaid such Lender's Term B Loans, Term D Loans or TLCs, as the case
may be, to a mandatory prepayment of the Term A Loans (until repaid in
full), and then to a reduction in the Revolving Loan Commitment Amount
and (y) permit the remaining 50% of such amount to be retained by the
applicable Borrower.
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SECTION 3.2. Interest Provisions. Interest on the outstanding principal
amount of Loans shall accrue and be payable in accordance with this Section 3.2.
SECTION 3.2.1. Rates.
(a) Pursuant to an appropriately delivered Borrowing Request or
Continuation/Conversion Notice, WWI may elect that Loans comprising a
Borrowing accrue interest at a rate per annum:
(i) with respect to Revolving Loans and Term A Loans,
(A) on that portion maintained from time to time
as a Base Rate Loan, equal to the sum of the Alternate
Base Rate from time to time in effect plus the
Applicable Margin; and
(B) on that portion maintained as a LIBO Rate
Loan, during each Interest Period applicable thereto,
equal to the sum of the LIBO Rate (Reserve Adjusted) for
such Interest Period plus the Applicable Margin; and
(ii) with respect to Term B Loans, Designated New Term
Loans and Term D Loans,
(A) on that portion maintained from time to time
as a Base Rate Loan, equal to the sum of the Alternate
Base Rate from time to time in effect plus the
Applicable Margin for such Loans; and
(B) on that portion maintained as a LIBO Rate
Loan, during each Interest Period applicable thereto,
equal to the sum of the LIBO Rate (Reserve Adjusted) for
such Interest Period plus the Applicable Margin for such
Loans; and
(iii) with respect to Swing Line Loans, equal to the sum
of the Alternate Base Rate from time to time in effect plus the
Applicable Margin.
All LIBO Rate Loans shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such LIBO Rate Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount
of any Loan shall have become due and payable (whether on the Stated Maturity
Date, upon acceleration or otherwise), or any other monetary Obligation (other
than overdue Reimbursement Obligations which shall bear interest as provided in
Section 2.6.2) of WWI shall have become due and payable, WWI shall pay, but only
to the extent permitted by law, interest (after as well as before judgment) on
such amounts at a rate per annum equal to:
(a) in the case of any overdue principal amount of Loans,
overdue interest thereon, overdue commitment fees or other overdue
amounts owing in respect of Loans
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or other obligations (or the related Commitments) under a particular
Tranche, the rate that would otherwise be applicable to Base Rate Loans
under such Tranche pursuant to Section 3.2.1 plus 2%; and
(b) in the case of overdue monetary Obligations (other than as
described in clause (a)), the Alternate Base Rate plus 4%.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or in
part, of principal outstanding on such Loan;
(c) with respect to Base Rate Loans, in arrears on each
Quarterly Payment Date occurring after the date of the initial Borrowing
hereunder;
(d) with respect to LIBO Rate Loans, the last day of each
applicable Interest Period (and, if such Interest Period shall exceed
three months, on the third month anniversary of such Interest Period);
(e) with respect to any Base Rate Loans converted into LIBO Rate
Loans on a day when interest would not otherwise have been payable
pursuant to clause (c), on the date of such conversion; and
(f) on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to Section 9.2 or Section 9.3, immediately
upon such acceleration.
Interest accrued on Loans, Reimbursement Obligations or other monetary
Obligations (other than TLCs) arising under this Agreement or any other Loan
Document after the date such amount is due and payable (whether on the Stated
Maturity Date, upon acceleration or otherwise) shall be payable upon demand.
SECTION 3.3. Fees. The Borrowers agree to pay the fees set forth in this
Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Commitment Fee. WWI agrees to pay to the Administrative
Agent for the account of each Lender that has a Revolving Loan Commitment, for
the period (including any portion thereof when any of the Lender's Commitments
are suspended by reason of any Borrower's inability to satisfy any condition of
Article V) commencing on September 29, 1999 and continuing through the Revolving
Loan Commitment Termination Date, a commitment fee at the rate of .50% per annum
of the average daily unused portion of the Revolving Loan Commitment Amount.
Such commitment fees shall be payable by WWI in arrears on each Quarterly
Payment Date, and on the Revolving Loan Commitment Termination Date. The making
of Swing Line Loans by the Swing Line Lender shall constitute the usage of the
Revolving Loan Commitment with respect to the Swing Line Lender only and the
commitment
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fees to be paid by WWI to the Lenders (other than the Swing Line Lender) shall
be calculated and paid accordingly.
SECTION 3.3.2. Administrative Agent's Fee. Each of the Borrowers agrees
to pay to the Administrative Agent, for its own account, the non-refundable fees
in the amounts and on the dates set forth in the Fee Letter.
SECTION 3.3.3. Letter of Credit Fee. WWI agrees to pay to the
Administrative Agent, for the pro rata account of the Issuer and each other
Lender that has a Revolving Loan Commitment, a Letter of Credit fee in an amount
equal to the Applicable Margin per annum for Revolving Loans that are maintained
as LIBO Rate Loans, multiplied by the aggregate Stated Amount of all outstanding
Letters of Credit, such fees being payable quarterly in arrears on each
Quarterly Payment Date. WWI further agrees to pay to the Issuer for its own
account an issuance fee in an amount as agreed to by WWI and the Issuer.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to WWI and the Lenders, be
conclusive and binding on WWI) that the introduction of or any change in or in
the interpretation of any law makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for such Lender to make,
continue or maintain any Loan as, or to convert any Loan into, a LIBO Rate Loan,
the obligations of such Lender to make, continue, maintain or convert any Loans
as LIBO Rate Loans shall, upon such determination, forthwith be suspended until
such Lender shall notify the Administrative Agent that the circumstances causing
such suspension no longer exist (with the date of such notice being the
"Reinstatement Date"), and (i) all LIBO Rate Loans previously made by such
Lender shall automatically convert into Base Rate Loans at the end of the then
current Interest Periods with respect thereto or sooner, if required by such law
or assertion and (ii) all Loans thereafter made by such Lender and outstanding
prior to the Reinstatement Date shall be made as Base Rate Loans, with interest
thereon being payable on the same date that interest is payable with respect to
corresponding Borrowing of LIBO Rate Loans made by Lenders not so affected.
SECTION 4.2. Deposits Unavailable. If the Administrative Agent shall
have determined that
(a) U.S. Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to the Administrative Agent
in its relevant market; or
(b) by reason of circumstances affecting the Administrative
Agent's relevant market, adequate means do not exist for ascertaining
the interest rate applicable hereunder to LIBO Rate Loans,
then, upon notice from the Administrative Agent to WWI and the Lenders, the
obligations of all Lenders under Section 2.3 and Section 2.4 to make or continue
any Loans as, or to convert any
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Loans into, LIBO Rate Loans shall forthwith be suspended until the
Administrative Agent shall notify WWI and the Lenders that the circumstances
causing such suspension no longer exist.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. WWI agrees to
reimburse each Lender for any increase in the cost to such Lender of, or any
reduction in the amount of any sum receivable by such Lender in respect of,
making, continuing or maintaining (or of its obligation to make, continue or
maintain) any Loans as, or of converting (or of its obligation to convert) any
Loans into, LIBO Rate Loans (excluding any amounts, whether or not constituting
taxes, referred to in Section 4.6) arising after the date of any change in, or
the introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other Governmental Authority that results in such increase in cost or
reduction in amounts receivable, except for such changes with respect to
increased capital costs and taxes which are governed by Sections 4.5 and 4.6,
respectively. Such Lender shall promptly notify the Administrative Agent and WWI
in writing of the occurrence of any such event, such notice to state, in
reasonable detail, the reasons therefor and the additional amount required fully
to compensate such Lender for such increased cost or reduced amount. Such
additional amounts shall be payable by WWI directly to such Lender within five
days of its receipt of such notice, and such notice shall, in the absence of
manifest error, be conclusive and binding on WWI.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a LIBO
Rate Loan) as a result of
(a) any conversion or repayment or prepayment of the principal
amount of any LIBO Rate Loans on a date other than the scheduled last
day of the Interest Period applicable thereto, whether pursuant to
Section 3.1 or otherwise;
(b) any Loans not being made as LIBO Rate Loans in accordance
with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into, LIBO
Rate Loans in accordance with the Continuation/Conversion Notice
therefor,
then, upon the written notice of such Lender to WWI (with a copy to the
Administrative Agent), WWI shall, within five days of its receipt thereof, pay
directly to such Lender such amount as will (in the reasonable determination of
such Lender) reimburse such Lender for such loss or expense. Such written notice
(which shall include calculations in reasonable detail) shall, in the absence of
manifest error, be conclusive and binding on WWI.
SECTION 4.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other Governmental Authority affects or would affect the amount of capital
required or expected to be maintained by any Lender or any Person controlling
such Lender, and such
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Lender determines (in its sole and absolute discretion) that the rate of return
on its or such controlling Person's capital as a consequence of its Commitments,
participation in Letters of Credit or the Loans made or continued by such Lender
is reduced to a level below that which such Lender or such controlling Person
could have achieved but for the occurrence of any such circumstance, then, in
any such case upon notice from time to time by such Lender to WWI shall
immediately pay directly to such Lender additional amounts sufficient to
compensate such Lender or such controlling Person for such reduction in rate of
return. A statement of such Lender as to any such additional amount or amounts
(including calculations thereof in reasonable detail) shall, in the absence of
manifest error, be conclusive and binding on WWI. In determining such amount,
such Lender may use any method of averaging and attribution that it (in its sole
and absolute discretion) shall deem applicable.
SECTION 4.6. Taxes. The Borrowers covenant and agree as follows with
respect to taxes:
(a) Unless required by law, any and all payments made by the
Borrowers under this Agreement and each other Loan Document shall be
made without setoff, counterclaim or other defense, and free and clear
of, and without deduction or withholding for or on account of, any
taxes. In the event that any taxes are required by law to be deducted or
withheld from any payment required to be made by any Borrower to or on
behalf of any Secured Party under any Loan Document, then:
(i) subject to clause (f) below, if such taxes are
Non-Excluded Taxes, the relevant Borrower shall together with
such payment pay an additional amount so that each Secured Party
receives free and clear of any Non-Excluded Taxes, the full
amount which it would have received if no such deduction or
withholding of such Non-Excluded Taxes had been required; and
(ii) the relevant Borrower shall pay to the relevant
Governmental Authority imposing such taxes the full amount of
the deduction or withholding made by it.
(b) In addition, the Borrowers shall pay any and all Other Taxes
imposed to the relevant Governmental Authority imposing such Other Taxes
in accordance with applicable law.
(c) As promptly as practicable after the payment of any taxes or
Other Taxes, and in any event within 45 days of any such payment being
due, the applicable Borrower shall furnish to the Administrative Agent a
copy of an official receipt (or a certified copy thereof), evidencing
the payment of such taxes or Other Taxes. The Administrative Agent shall
make copies thereof available to any Lender upon request therefor.
(d) Subject to clause (f) below, the Borrowers shall indemnify
each Secured Party for any Non-Excluded Taxes and Other Taxes levied,
imposed or assessed on (and whether or not paid directly by) such
Secured Party that have not been paid previously by the Borrowers
(whether or not such Non-Excluded Taxes or Other Taxes are correctly or
legally asserted by the relevant Governmental Authority). Promptly upon
having
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knowledge that any such Non-Excluded Taxes or Other Taxes have been
levied, imposed or assessed, and promptly upon notice thereof by any
Secured Party, the applicable Borrower shall pay such Non-Excluded Taxes
or Other Taxes directly to the relevant Governmental Authority
(provided, however, that no Secured Party shall be under any obligation
to provide any such notice to any Borrower). In addition, provided that
the Borrowers have been notified promptly by a relevant Secured Party
which has determined in its sole discretion that a Non-Excluded Tax or
Other Tax has been levied, imposed or assessed against such Secured
Party, each Borrower shall indemnify each Secured Party for any
incremental taxes that may become payable by such Secured Party as a
result of any failure of any Borrower to pay any taxes when due to the
appropriate Governmental Authority or to deliver to the Administrative
Agent, pursuant to clause (c) above, documentation evidencing the
payment of taxes or Other Taxes. With respect to indemnification for
Non-Excluded Taxes and Other Taxes actually paid by any Secured Party or
the indemnification provided in the immediately preceding sentence, such
indemnification shall be made within 30 days after the date such Secured
Party makes written demand therefor. Each Borrower acknowledges that any
payment made to any Secured Party or to any Governmental Authority in
respect of the indemnification obligations of the Borrowers provided in
this clause shall constitute a payment in respect of which the
provisions of clause (a) above and this clause shall apply.
(e) Each Non-U.S. Lender, on or prior to the date on which such
Non-U.S. Lender becomes a Lender hereunder (and from time to time
thereafter upon the request of any Borrower or the Administrative Agent,
but only for so long as such Non-U.S. Lender is legally entitled to do
so), shall deliver to such Borrower and the Administrative Agent either
(i) (x) two duly completed copies of either (A) Internal
Revenue Service Form W-8BEN or (B) Internal Revenue Service Form
W-8EC1, or in either case an applicable successor form,
establishing, in either case, a complete exemption from United
States federal withholding taxes, and (y) for periods prior to
January 1, 2001, a duly completed copy of Internal Revenue
Service Form W-8 or W-9 or applicable successor form; or
(ii) in the case of a Non-U.S. Lender that is not
legally entitled to deliver either form listed in clause
(e)(i)(x) above, (x) a certificate of a duly authorized officer
of such Non-U.S. Lender to the effect that such Non-U.S. Lender
is not (A) a "bank" within the meaning of Section 881(c)(3)(A)
of the Code, (B) a "10 percent shareholder" of WWI within the
meaning of Section 881(c)(3)(B) of the Code, or (C) a controlled
foreign corporation receiving interest from a related person
within the meaning of Section 881(c)(3)(C) of the Code (such
certificate, an "Exemption Certificate") and (y) two duly
completed copies of Internal Revenue Service Form W-8 or
applicable successor form.
(f) None of the Borrowers shall be obligated to gross up any
payments to any Lender pursuant to clause (a) above, or to indemnify any
Lender pursuant to clause (d) above, in respect of United States federal
withholding taxes to the extent imposed as a result of (i) the failure
of such Lender to deliver to the applicable Borrower the form or
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forms and/or an Exemption Certificate, as applicable to such Lender,
pursuant to clause (e), (ii) such form or forms and/or Exemption
Certificate not establishing a complete exemption from U.S. federal
withholding tax or the information or certifications made therein by the
Lender being untrue or inaccurate on the date delivered in any material
respect, or (iii) the Lender designating a successor lending office at
which it maintains its Loans which has the effect of causing such Lender
to become obligated for tax payments in excess of those in effect
immediately prior to such designation; provided, however, that a
Borrower shall be obligated to gross up any payments to any such Lender
pursuant to clause (a) above, and to indemnify any such Lender pursuant
to clause (d) above, in respect of United States federal withholding
taxes if (i) any such failure to deliver a form or forms or an Exemption
Certificate or the failure of such form or forms or Exemption
Certificate to establish a complete exemption from U.S. federal
withholding tax or inaccuracy or untruth contained therein resulted from
a change in any applicable statute, treaty, regulation or other
applicable law or any interpretation of any of the foregoing occurring
after the date hereof, which change rendered such Lender no longer
legally entitled to deliver such form or forms or Exemption Certificate
or otherwise ineligible for a complete exemption from U.S. federal
withholding tax, or rendered the information or certifications made in
such form or forms or Exemption Certificate untrue or inaccurate in a
material respect, (ii) the redesignation of the Lender's lending office
was made at the request of any of the Borrowers or (iii) the obligation
to gross up payments to any such Lender pursuant to clause (a) above or
to indemnify any such Lender pursuant to clause (d) is with respect to
an Assignee Lender that becomes an Assignee Lender as a result of an
assignment made at the request of any Borrower.
(g) If a Secured Party determines in its sole discretion that it
has received a refund in respect of Non-Excluded Taxes that were paid by
the Borrowers, it shall pay the amount of such refund, together with any
other amounts paid by the Borrowers in connection with such refunded
Non-Excluded Taxes, to the Borrowers, net of any out-of-pocket expenses
incurred by such Secured Party in obtaining such refund, provided,
however, that the Borrowers agree to promptly return the amount of such
refund to such Secured Party to the extent that such Secured Party is
required to repay such refund to the IRS or any other tax authority.
SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
provided, all payments by or on behalf of any Borrower pursuant to this
Agreement, the Notes, each Letter of Credit, the TLCs or any other Loan Document
shall be made by such Borrower to the Administrative Agent for the pro rata
account of the Lenders entitled to receive such payment. All such payments
required to be made to the Administrative Agent shall be made, without setoff,
deduction or counterclaim, not later than 12:00 noon, New York time, on the date
due, in same day or immediately available funds, to such account as the
Administrative Agent shall specify from time to time by notice to the applicable
Borrower. Funds received after that time shall be deemed to have been received
by the Administrative Agent on the next succeeding Business Day. The
Administrative Agent shall promptly remit in same day funds to each Lender its
share, if any, of such payments received by the Administrative Agent for the
account of such Lender. All interest and fees shall be computed on the basis of
the actual number of days (including the first day but excluding the last day)
occurring during the period for which such interest or fee is payable over a
year comprised of 360 days (or, in the case of interest on a Base
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Rate Loan, 365 days or, if appropriate, 366 days). Whenever any payment to be
made shall otherwise be due on a day which is not a Business Day, such payment
shall (except as otherwise required by clause (c) of the definition of the term
"Interest Period") be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees, if any, in
connection with such payment.
SECTION 4.8. Sharing of Payments. If any Lender shall obtain any payment
or other recovery (whether voluntary, involuntary, by application of setoff or
otherwise) on account of any Loan, TLC or Reimbursement Obligation (other than
pursuant to the terms of Sections 4.3, 4.4 and 4.5) in excess of its pro rata
share of payments then or therewith obtained by all Lenders entitled thereto,
such Lender shall purchase from the other Lenders such participation in Credit
Extensions made by them as shall be necessary to cause such purchasing Lender to
share the excess payment or other recovery ratably with each of them; provided,
however, that if all or any portion of the excess payment or other recovery is
thereafter recovered from such purchasing Lender, the purchase shall be
rescinded and each Lender which has sold a participation to the purchasing
Lender shall repay to the purchasing Lender the purchase price to the ratable
extent of such recovery together with an amount equal to such selling Lender's
ratable share (according to the proportion of
(a) the amount of such selling Lender's required repayment to
the purchasing Lender
to
(b) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. Each Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section may,
to the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 4.9) with respect to such participation as fully
as if such Lender were the direct creditor of such Borrower in the amount of
such participation. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights
of the Lenders entitled under this Section to share in the benefits of any
recovery on such secured claim.
SECTION 4.9. Setoff. Each Lender shall, upon the occurrence of any
Default described in clauses (a) through (d) of Section 9.1.9 or, with the
consent of the Required Lenders, upon the occurrence of any other Event of
Default, have the right to appropriate and apply to the payment of the
Obligations owing to it (whether or not then due), and (as security for such
Obligations) each Borrower hereby grants to each Lender a continuing security
interest in, any and all balances, credits, deposits, accounts or moneys of such
Borrower then or thereafter maintained with or otherwise held by such Lender;
provided, however, that any such appropriation and application shall be subject
to the provisions of Section 4.8. Each Lender agrees promptly to notify the
applicable Borrower and the Administrative Agent after any such setoff and
application made by such Lender; provided, however, that the failure to give
such notice shall
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not affect the validity of such setoff and application. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff under applicable law or otherwise) which such
Lender may have.
SECTION 4.10. Mitigation. Each Lender agrees that if it makes any demand
for payment under Sections 4.3, 4.4, 4.5, or 4.6, or if any adoption or change
of the type described in Section 4.1 shall occur with respect to it, it will use
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions and so long as such efforts would not be disadvantageous to it, as
determined in its sole discretion) to designate a different lending office if
the making of such a designation would reduce or obviate the need for WWI to
make payments under Sections 4.3, 4.4, 4.5, or 4.6, or would eliminate or reduce
the effect of any adoption or change described in Section 4.1.
ARTICLE V
CONDITIONS TO EFFECTIVENESS AND TO FUTURE CREDIT EXTENSIONS
SECTION 5.1. Conditions Precedent to the Effectiveness of This Agreement
and Making of Credit Extensions. The conditions to effectiveness of this
Agreement and the obligations of the Lenders to continue Existing Loans as Loans
under this Agreement, to continue Existing Letters of Credit as Letters of
Credit under this Agreement, to increase the Revolving Loan Commitment and to
make the Additional Term A Loans and the Term D Loans were satisfied in full on
January 16, 2001.
SECTION 5.2. All Credit Extensions. The obligation of each Lender and
the Issuer to make any Credit Extension (but subject to clauses (b) and (c) of
Section 2.3.2) shall be subject to the satisfaction of each of the conditions
precedent set forth in this Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both before
and after giving effect to any Credit Extension the following statements shall
be true and correct:
(a) both before and after giving effect to the Transaction, the
representations and warranties set forth in Article VI and in each other
Loan Document shall, in each case, be true and correct in all material
respects with the same effect as if then made (unless stated to relate
solely to an earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of such
earlier date);
(b) no material adverse development shall have occurred in any
litigation, action, proceeding, labor controversy, arbitration or
governmental investigation disclosed pursuant to Section 6.7;
(c) the sum of (x) the aggregate outstanding principal amount of
all Revolving Loans and Swing Line Loans and (y) all Letter of Credit
Outstandings does not exceed the Revolving Loan Commitment Amount; and
(d) no Default shall have then occurred and be continuing.
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SECTION 5.2.2. Credit Extension Request. The Administrative Agent shall
have received a Borrowing Request, if Loans (other than Swing Line Loans) are
being requested, or an Issuance Request, if a Letter of Credit is being issued
or extended or a TLC Purchase Request if TLCs are to be issued. Each of the
delivery of a Borrowing Request, Issuance Request or TLC Purchase Request and
the acceptance by any Borrower of the proceeds of such Credit Extension shall
constitute a representation and warranty by the applicable Borrower that on the
date of such Credit Extension (both immediately before and after giving effect
to such Credit Extension and the application of the proceeds thereof) the
statements made in Section 5.2.1 are true and correct.
SECTION 5.2.3. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of WWI or any of its Subsidiaries or
any other Obligors shall be reasonably satisfactory in form and substance to the
Administrative Agent and its counsel; the Administrative Agent and its counsel
shall have received all information, as the Administrative Agent or its counsel
may reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuer and the Administrative Agent
to enter into this Agreement, continue the Existing Loans as Loans hereunder and
the Existing Letters of Credit as Letters of Credit hereunder and to make Credit
Extensions hereunder, each of the Borrowers, jointly and severally, represents
and warrants unto the Administrative Agent, the Issuer and each Lender as set
forth in this Article VI.
SECTION 6.1. Organization, etc. WWI and each of its Subsidiaries (a) is
a corporation validly organized and existing and in good standing under the laws
of the jurisdiction of its incorporation (other than as listed in Item 6.1
("Good Standing") on Schedule I hereto), is duly qualified to do business and is
in good standing as a foreign corporation in each jurisdiction where the nature
of its business requires such qualification, except to the extent that the
failure to qualify would not reasonably be expected to result in a Material
Adverse Effect, and (b) has full power and authority and holds all requisite
governmental licenses, permits and other approvals to (x) enter into and perform
its Obligations in connection with the Transaction and under this Agreement, the
Notes and each other Loan Document to which it is a party and (y) own and hold
under lease its property and to conduct its business substantially as currently
conducted by it except, in the case of this clause (b)(y), where the failure
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by each Borrower of this Agreement, the Notes, the TLCs
and each other Loan Document executed or to be executed by it, and the
execution, delivery and performance by each other Obligor of each Loan Document
executed or to be executed by it and the Borrowers and, where applicable, each
such other Obligor's participation in the consummation of the Transaction are
within each such Obligor's corporate powers, have been duly authorized by all
necessary corporate action, and do not
(a) contravene any such Obligor's Organic Documents;
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(b) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting any such
Obligor, where such contravention, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect; or
(c) result in, or require the creation or imposition of, any
Lien on any of the Obligor's properties, except pursuant to the terms of
a Loan Document.
SECTION 6.3. Government Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person, is required for the due execution,
delivery or performance by any Obligor of this Agreement, the Notes, the TLCs or
any other Loan Document to which it is a party, or for each Obligor's
participation in the consummation of the Transaction, except as have been duly
obtained or made and are in full force and effect or those which the failure to
obtain or make could not reasonably be expected to have a Material Adverse
Effect. Neither WWI nor any of its Subsidiaries is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, or a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
SECTION 6.4. Validity, etc. This Agreement constitutes, and the Notes
and TLCs and each other Loan Document executed by any Obligor will, on the due
execution and delivery thereof, constitute, the legal, valid and binding
obligations of such Obligor enforceable in accordance with their respective
terms; in each case with respect to this Section 6.4 subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing.
SECTION 6.5. Financial Information. The
(a) audited combined balance sheets and the related combined
statements of income, comprehensive income and parent company's
investment and cash flows of the Borrower and its Subsidiaries as at
April 29, 2000, April 24, 1999 and April 25, 1998 and the related
consolidated statements of earnings and cash flow of the Borrower; and
(b) unaudited interim condensed financial information of the
Borrower as of the period ended October 28, 2000;
copies of which have been furnished to the Administrative Agent and each Lender,
have, in each case, been prepared in accordance with GAAP consistently applied
(in the case of clause (a)) and, in the case of clause (b), on a basis
substantially comparable to the basis used to prepare the financial statements
referred to in clause (a), and present fairly the consolidated financial
condition of the corporations covered thereby as at the dates thereof and the
results of their operations for the periods then ended, subject, in the case of
clause (b), to normal year end audit adjustments.
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SECTION 6.6. No Material Adverse Change. Since April 29, 2000, there has
been no material adverse change in the financial condition, operations, assets,
business or properties of WWI and its Subsidiaries, taken as a whole.
SECTION 6.7. Litigation, Labor Controversies, etc. There is no pending
or, to the knowledge of any Borrower, threatened litigation, action, proceeding,
labor controversy arbitration or governmental investigation affecting any
Obligor, or any of their respective properties, businesses, assets or revenues,
which (a) could reasonably be expected to result in a Material Adverse Effect,
or (b) purports to affect the legality, validity or enforceability of the
issuance of the Senior Subordinated Notes, this Agreement, the Notes or any
other Loan Document, except as disclosed in Item 6.7 ("Litigation") of the
Disclosure Schedule.
SECTION 6.8. Subsidiaries. WWI has no Subsidiaries, except (after giving
effect to the Transaction) those Subsidiaries
(a) which are identified in Item 6.8 ("Existing Subsidiaries")
of the Disclosure Schedule; or
(b) which are permitted to have been acquired in accordance with
Section 7.2.5 or 7.2.8.
SECTION 6.9. Ownership of Properties. WWI and each of its Subsidiaries
(both before and after giving effect to the Transaction) own good title to all
of their properties and assets (other than insignificant properties and assets),
real and personal, tangible and intangible, of any nature whatsoever (including
patents, trademarks, trade names, service marks and copyrights), free and clear
of all Liens or material claims (including material infringement claims with
respect to patents, trademarks, copyrights and the like) except as permitted
pursuant to Section 7.2.3.
SECTION 6.10. Taxes. WWI and each of its Subsidiaries has filed all
Federal, State, foreign and other material tax returns and reports required by
law to have been filed by it and has paid all taxes and governmental charges
thereby shown to be owing, except any such taxes or charges which are being
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books.
SECTION 6.11. Pension and Welfare Plans. No Pension Plan has been
terminated that has resulted in a liability to any Borrower of more than
$5,000,000, and no contribution failure has occurred with respect to any Pension
Plan sufficient to give rise to a Lien under section 302(f) of ERISA in excess
of $5,000,000. No condition exists or event or transaction has occurred with
respect to any Pension Plan which could reasonably be expected to result in the
incurrence by any Borrower of any material liability, fine or penalty other than
such condition, event or transaction which would not reasonably be expected to
have a Material Adverse Effect. Except as disclosed in Item 6.11 ("Employee
Benefit Plans") of the Disclosure Schedule, since the date of the last financial
statement of WWI, WWI has not materially increased any contingent liability with
respect to any post-retirement benefit under a Welfare Plan, other than
liability for continuation coverage described in Part 6 of Subtitle B of Title I
of ERISA.
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SECTION 6.12. Environmental Warranties. Except as set forth in Item 6.12
("Environmental Matters") of the Disclosure Schedule or as, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect:
(a) all facilities and property (including underlying
groundwater) owned or leased by WWI or any of its Subsidiaries have
been, and continue to be, owned or leased by WWI and its Subsidiaries in
compliance with all Environmental Laws;
(b) there have been no past, and there are no pending or
threatened
(i) written claims, complaints, notices or requests for
information received by WWI or any of its Subsidiaries with
respect to any alleged violation of any Environmental Law, or
(ii) written complaints, notices or inquiries to WWI or
any of its Subsidiaries regarding potential liability under any
Environmental Law;
(c) to the best knowledge of WWI, there have been no Releases of
Hazardous Materials at, on or under any property now or previously owned
or leased by WWI or any of its Subsidiaries;
(d) WWI and its Subsidiaries have been issued and are in
compliance with all permits, certificates, approvals, licenses and other
authorizations relating to environmental matters and necessary or
desirable for their businesses;
(e) no property now or previously owned or leased by WWI or any
of its Subsidiaries is listed or, to the knowledge of WWI or any of its
Subsidiaries, proposed for listing (with respect to owned property only)
on the National Priorities List pursuant to CERCLA, on the CERCLIS or on
any similar state list of sites requiring investigation or clean-up;
(f) to the best knowledge of WWI, there are no underground
storage tanks, active or abandoned, including petroleum storage tanks,
on or under any property now or previously owned or leased by WWI or any
of its Subsidiaries;
(g) WWI and its Subsidiaries have not directly transported or
directly arranged for the transportation of any Hazardous Material to
any location (i) which is listed or to the knowledge of WWI or any of
its Subsidiaries, proposed for listing on the National Priorities List
pursuant to CERCLA, on the CERCLIS or on any similar state list, or (ii)
which is the subject of federal, state or local enforcement actions or
other investigations;
(h) to the best knowledge of WWI, there are no polychlorinated
biphenyls or friable asbestos present in a manner or condition at any
property now or previously owned or leased by WWI or any of its
Subsidiaries; and
(i) to the best knowledge of WWI, no conditions exist at, on or
under any property now or previously owned or leased by WWI or any of
its Subsidiaries which,
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with the passage of time, or the giving of notice or both, would give
rise to liability under any Environmental Law.
SECTION 6.13. Regulations U and X. No Obligor is engaged in the business
of extending credit for the purpose of purchasing or carrying margin stock, and
no proceeds of any Credit Extensions will be used to purchase or carry margin
stock or otherwise for a purpose which violates, or would be inconsistent with,
F.R.S. Board Regulation U or Regulation X. Terms for which meanings are provided
in F.R.S. Board Regulation U or Regulation X or any regulations substituted
therefor, as from time to time in effect, are used in this Section with such
meanings.
SECTION 6.14. Accuracy of Information. All material factual information
concerning the financial condition, operations or prospects of WWI and its
Subsidiaries heretofore or contemporaneously furnished by or on behalf of the
Borrowers in writing to the Administrative Agent, the Issuer or any Lender for
purposes of or in connection with this Agreement or any transaction contemplated
hereby or with respect to the Transaction is, and all other such factual
information hereafter furnished by or on behalf of the Borrowers to the
Administrative Agent, the Issuer or any Lender will be, true and accurate in
every material respect on the date as of which such information is dated or
certified and such information is not, or shall not be, as the case may be,
incomplete by omitting to state any material fact necessary to make such
information not misleading.
Any term or provision of this Section to the contrary notwithstanding,
insofar as any of the factual information described above includes assumptions,
estimates, projections or opinions, no representation or warranty is made herein
with respect thereto; provided, however, that to the extent any such
assumptions, estimates, projections or opinions are based on factual matters,
each of the Borrowers has reviewed such factual matters and nothing has come to
its attention in the context of such review which would lead it to believe that
such factual matters were not or are not true and correct in all material
respects or that such factual matters omit to state any material fact necessary
to make such assumptions, estimates, projections or opinions not misleading in
any material respect.
SECTION 6.15. Seniority of Obligations, etc. WWI has the power and
authority to incur the Indebtedness evidenced by the Senior Subordinated Notes
as provided for under the Senior Subordinated Note Indenture and has duly
authorized, executed and delivered the Senior Subordinated Note Indenture. WWI
has issued, pursuant to due authorization, the Senior Subordinated Notes under
the Senior Subordinated Note Indenture. The Senior Subordinated Note Indenture
constitutes the legal, valid and binding obligation of WWI enforceable against
WWI in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing. The subordination provisions of
the Senior Subordinated Notes and contained in the Senior Subordinated Note
Indenture are enforceable against the holders of the Senior Subordinated Notes
by the holder of any Senior Debt (or similar term referring to the Obligations,
as applicable) in the Senior Subordinated Note Indenture, which has not
effectively waived the benefits thereof. All monetary Obligations, including
those to pay principal of and interest (including post-petition interest,
whether or not
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permitted as a claim) on the Loans and Reimbursement Obligations, and fees and
expenses in connection therewith, constitute Senior Debt (or similar term
referring to the Obligations, as applicable) in the Senior Subordinated Note
Indenture, and all such Obligations are entitled to the benefits of the
subordination created by the Senior Subordinated Note Indenture. WWI
acknowledges that the Administrative Agent and each Lender is entering into this
Agreement, and is extending its Commitments, in reliance upon the subordination
provisions of (or to be contained in) the Senior Subordinated Note Indenture,
the Senior Subordinated Notes and this Section.
SECTION 6.16. Solvency. The Transaction (including the incurrence of the
related Credit Extensions hereunder, the incurrence by the Borrowers of the
Indebtedness represented by the Notes and the execution and delivery by the
Guaranties by the Obligors parties thereto), will not involve or result in any
fraudulent transfer or fraudulent conveyance under the provisions of Section 548
of the Bankruptcy Code (11 U.S.C. Section 101 et seq., as from time to time
hereafter amended, and any successor or similar statute) or any applicable state
law respecting fraudulent transfers or fraudulent conveyances. After giving
effect to the Transaction, WWI and each of its Subsidiaries is Solvent.
SECTION 6.17. Contracts. No termination provision in any material
contract under which WWI or any of its Subsidiaries are obligated, shall be
triggered by the consummation of the Transaction.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. Each of the Borrowers, jointly and
severally, agrees with the Administrative Agent, the Issuer and each Lender
that, until all Commitments have terminated, all Letters of Credit have
terminated or expired and all Obligations have been paid and performed in full,
each Borrower will perform its obligations set forth below.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. WWI will
furnish to each Lender, the Issuer and the Administrative Agent copies of the
following financial statements, reports, notices and information:
(a) as soon as available and in any event within 60 days after
the end of each Fiscal Quarter of each Fiscal Year of WWI (or, if WWI is
required to file such information on a Form 10-Q with the Securities and
Exchange Commission, promptly following such filing), a consolidated
balance sheet of WWI and its Subsidiaries as of the end of such Fiscal
Quarter, together with the related consolidated statement of earnings
and cash flow for such Fiscal Quarter and for the period commencing at
the end of the previous Fiscal Year and ending with the end of such
Fiscal Quarter (it being understood that the foregoing requirement may
be satisfied by delivery of WWI's report to the Securities and Exchange
Commission on Form 10-Q), certified by the chief financial Authorized
Officer of WWI;
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(b) as soon as available and in any event within 120 days after
the end of each Fiscal Year of WWI (or, if WWI is required to file such
information on a Form 10-K with the Securities and Exchange Commission,
promptly following such filing), a copy of the annual audit report for
such Fiscal Year for WWI and its Subsidiaries, including therein a
consolidated balance sheet for WWI and its Subsidiaries as of the end of
such Fiscal Year, together with the related consolidated statement of
earnings and cash flow of WWI and its Subsidiaries for such Fiscal Year
(it being understood that the foregoing requirement may be satisfied by
delivery of WWI's report to the Securities and Exchange Commission on
Form 10-K), in each case certified (without any Impermissible
Qualification) by PricewaterhouseCoopers LLP or another "Big Five" firm,
together with a certificate from such accountants to the effect that, in
making the examination necessary for the signing of such annual report
by such accountants, they have not become aware of any Default that has
occurred and is continuing, or, if they have become aware of such
Default, describing such Default and the steps, if any, being taken to
cure it;
(c) together with the delivery of the financial information
required pursuant to clauses (a) and (b), a Compliance Certificate, in
substantially the form of Exhibit E, executed by the chief financial
Authorized Officer of WWI, showing (in reasonable detail and with
appropriate calculations and computations in all respects satisfactory
to the Administrative Agent) compliance with the financial covenants set
forth in Section 7.2.4;
(d) as soon as possible and in any event within three Business
Days after obtaining knowledge of the occurrence of each Default, a
statement of the chief financial Authorized Officer of WWI setting forth
details of such Default and the action which WWI has taken and proposes
to take with respect thereto;
(e) as soon as possible and in any event within five Business
Days after (x) the occurrence of any material adverse development with
respect to any litigation, action, proceeding, or labor controversy
described in Section 6.7 and the action which WWI has taken and proposes
to take with respect thereto or (y) the commencement of any labor
controversy, litigation, action, proceeding of the type described in
Section 6.7, notice thereof and of the action which WWI has taken and
proposes to take with respect thereto;
(f) promptly after the sending or filing thereof, copies of all
reports and registration statements which WWI or any of its Subsidiaries
files with the Securities and Exchange Commission or any national
securities exchange or any foreign equivalent;
(g) as soon as practicable after the chief financial officer or
the chief executive officer of WWI or a member of WWI's Controlled Group
becomes aware of (i) formal steps in writing to terminate any Pension
Plan or (ii) the occurrence of any event with respect to a Pension Plan
which, in the case of (i) or (ii), could reasonably be expected to
result in a contribution to such Pension Plan by (or a liability to) WWI
or a member of WWI's Controlled Group in excess of $5,000,000, (iii) the
failure to make a required contribution to any Pension Plan if such
failure is sufficient to give rise to a Lien under section 302(f) of
ERISA, (iv) the taking of any action with respect to a Pension Plan
which could reasonably be expected to result in the requirement that WWI
furnish a bond
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to the PBGC or such Pension Plan or (v) any material increase in the
contingent liability of WWI with respect to any post-retirement Welfare
Plan benefit, notice thereof and copies of all documentation relating
thereto;
(h) promptly when available and in any event within 60 days
following the last day of each Fiscal Year of WWI, financial projections
for the current Fiscal Year, prepared in reasonable detail by the chief
accounting, financial or executive Authorized Officer of WWI;
(i) promptly following the delivery or receipt, as the case may
be, of any material written notice or communication pursuant to or in
connection with the Senior Subordinated Note Indenture or any of the
Senior Subordinated Notes, a copy of such notice or communication; and
(j) such other information respecting the condition or
operations, financial or otherwise, of WWI or any of its Subsidiaries as
any Lender or the Issuer may from time to time reasonably request.
SECTION 7.1.2. Compliance with Laws, etc. WWI will, and will cause each
of its Subsidiaries to, comply in all material respects with all applicable
laws, rules, regulations and orders, such compliance to include (without
limitation):
(a) the maintenance and preservation of its corporate existence
and qualification as a foreign corporation, except where the failure to
so qualify could not reasonably be expected to have a Material Adverse
Effect; and
(b) the payment, before the same become delinquent, of all
material taxes, assessments and governmental charges imposed upon it or
upon its property except to the extent being contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books.
SECTION 7.1.3. Maintenance of Properties. WWI will, and will cause each
of its Subsidiaries to, maintain, preserve, protect and keep its properties
(other than insignificant properties) in good repair, working order and
condition (ordinary wear and tear excepted), and make necessary and proper
repairs, renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all times unless WWI determines in good
faith that the continued maintenance of any of its properties is no longer
economically desirable.
SECTION 7.1.4. Insurance. WWI will, and will cause each of its
Subsidiaries to,
(a) maintain insurance on its property with financially sound
and reputable insurance companies against loss and damage in at least
the amounts (and with only those deductibles) customarily maintained,
and against such risks as are typically insured against in the same
general area, by Persons of comparable size engaged in the same or
similar business as the Borrower and its Subsidiaries; and
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(b) maintain all worker's compensation, employer's liability
insurance or similar insurance as may be required under the laws of any
state or jurisdiction in which it may be engaged in business.
Without limiting the foregoing, all insurance policies required pursuant to this
Section shall (i) name the Administrative Agent on behalf of Secured Parties as
mortgagee (in the case of property insurance) or additional insured (in the case
of liability insurance), as applicable, and provide that no cancellation or
modification of the policies will be made without thirty days' prior written
notice to the Administrative Agent and (ii) be in addition to any requirements
to maintain specific types of insurance contained in the other Loan Documents.
SECTION 7.1.5. Books and Records. WWI will, and will cause each
of its Subsidiaries to, keep books and records which accurately reflect
in all material respects all of its business affairs and transactions
and permit the Administrative Agent, the Issuer and each Lender or any
of their respective representatives, at reasonable times and intervals,
and upon reasonable notice, to visit all of its offices, to discuss its
financial matters with its officers and independent public accountant
(and WWI hereby authorizes such independent public accountant to discuss
the Borrowers' financial matters with the Issuer and each Lender or its
representatives whether or not any representative of WWI is present) and
to examine, and photocopy extracts from, any of its books or other
corporate records.
SECTION 7.1.6. Environmental Covenant. WWI will, and will cause each of
its Subsidiaries to,
(a) use and operate all of its facilities and properties in
compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in compliance therewith, and
handle all Hazardous Materials in compliance with all applicable
Environmental Laws, in each case except where the failure to comply with
the terms of this clause could not reasonably be expected to have a
Material Adverse Effect;
(b) promptly notify the Administrative Agent and provide copies
of all written claims, complaints, notices or inquiries relating to the
condition of its facilities and properties or compliance with
Environmental Laws which relate to environmental matters which would
have, or would reasonably be expected to have, a Material Adverse
Effect, and promptly cure and have dismissed with prejudice any material
actions and proceedings relating to compliance with Environmental Laws,
except to the extent being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP have been set aside on their books; and
(c) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to
evidence compliance with this Section 7.1.6.
SECTION 7.1.7. Future Subsidiaries. Upon any Person becoming a
Subsidiary of WWI, or upon WWI or any of its Subsidiaries acquiring additional
Capital Securities of any existing Subsidiary, WWI shall notify the
Administrative Agent of such acquisition, and
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(a) WWI shall promptly cause such Subsidiary to execute and
deliver to the Administrative Agent, with counterparts for each Lender,
(i) if such Subsidiary is a U.S. Subsidiary or a U.K. Subsidiary, a
supplement to the Subsidiary Guaranty or, if such Subsidiary is an
Australian Subsidiary, a supplement to the Australian Guaranty, (ii) if
such a Subsidiary is a U.S. Subsidiary, a supplement to the WWI Security
Agreement or, if such Subsidiary is an Australian Subsidiary, a
supplement to the Australian Security Agreement or if such Subsidiary is
a U.K. Subsidiary, a security agreement substantially in the form of the
U.K. Security Agreement and (iii) if such Subsidiary is a U.S.
Subsidiary, a U.K. Subsidiary or an Australian Subsidiary and owns any
real property having a value as determined in good faith by the
Administrative Agent in excess of $2,000,000, a Mortgage, together with
acknowledgment copies of Uniform Commercial Code financing statements
(form UCC-1) executed and delivered by the Subsidiary naming the
Subsidiary as the debtor and the Administrative Agent as the secured
party, or other similar instruments or documents, filed under the
Uniform Commercial Code and any other applicable recording statutes, in
the case of real property, of all jurisdictions as may be necessary or,
in the opinion of the Administrative Agent, desirable to perfect the
security interest of the Administrative Agent pursuant to the applicable
Security Agreement or a Mortgage, as the case may be; and
(b) WWI shall promptly deliver, or cause to be delivered, to the
Administrative Agent under a supplement to the WWI Pledge Agreement (or,
if such Subsidiary is an Australian Subsidiary, a supplement to the
Australian Pledge Agreement or if such Subsidiary is a U.K. Subsidiary,
a pledge agreement substantially in the form of the U.K. Pledge
Agreement), certificates (if any) representing all of the issued and
outstanding shares of Capital Securities of such Subsidiary (to the
extent required to be delivered pursuant to the applicable Pledge
Agreement) owned by WWI or any of its Subsidiaries, as the case may be,
along with undated stock powers for such certificates, executed in
blank, or, if any securities subject thereto are uncertificated
securities, confirmation and evidence satisfactory to the Administrative
Agent that appropriate book entries have been made in the relevant books
or records of a financial intermediary or the issuer of such securities,
as the case may be, under applicable law resulting in the perfection of
the security interest granted in favor of the Administrative Agent
pursuant to the terms of the applicable Pledge Agreement; provided, that
notwithstanding anything to the contrary herein or in any Loan Document,
in no event shall more than 65% of the Capital Securities of any
non-Guarantor be required to be pledged and in no event shall
non-Guarantors (other than the XX0 Xxxxxxxx) be required to pledge
Capital Securities of their Subsidiaries, together, in each case, with
such opinions, in form and substance and from counsel satisfactory to
the Administrative Agent, as the Administrative Agent may reasonably
require.
SECTION 7.1.8. Future Leased Property and Future Acquisitions of Real
Property.
(a) Prior to entering into any new lease of real property or
renewing any existing lease of real property, WWI shall, and shall cause
each of its U.S. Subsidiaries and each of the other Guarantor's to, use
its (and their) best efforts (which shall not require the expenditure of
cash or the making of any material concessions under the relevant lease)
to deliver to the Administrative Agent a Waiver executed by the lessor
of any real
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property that is to be leased by WWI or any of its U.S. Subsidiaries or any of
the other Guarantors for a term in excess of one year in any state which by
statute grants such lessor a "landlord's" (or similar) Lien which is superior to
the Administrative Agent's, to the extent the value of any personal property of
WWI or its U.S. Subsidiaries or any of the other Guarantors to be held at such
leased property exceeds (or it is anticipated that the value of such personal
property will, at any point in time during the term of such leasehold term,
exceed) $5,000,000.
(b) In the event that WWI or any of its U.S. Subsidiaries or any
of the other Guarantors shall acquire any real property having a value
as determined in good faith by the Administrative Agent in excess of
$2,000,000, WWI or the applicable Subsidiary shall, promptly after such
acquisition, execute a Mortgage and provide the Administrative Agent
with
(i) evidence of the completion (or satisfactory
arrangements for the completion) of all recordings and filings
of such Mortgage as may be necessary or, in the reasonable
opinion of the Administrative Agent, desirable effectively to
create a valid, perfected first priority Lien, subject to Liens
permitted by Section 7.2.3, against the properties purported to
be covered thereby;
(ii) mortgagee's title insurance policies in favor of
the Administrative Agent and the Lenders in amounts and in form
and substance and issued by insurers, reasonably satisfactory to
the Administrative Agent, with respect to the property purported
to be covered by such Mortgage, insuring that title to such
property is marketable and that the interests created by the
Mortgage constitute valid first Liens thereon free and clear of
all defects and encumbrances other than as approved by the
Administrative Agent, and such policies shall also include a
revolving credit endorsement and such other endorsements as the
Administrative Agent shall request and shall be accompanied by
evidence of the payment in full of all premiums thereon; and
(iii) such other approvals, opinions, or documents as
the Administrative Agent may reasonably request.
SECTION 7.1.9. Use of Proceeds, etc. The proceeds of the Credit
Extensions shall be applied by the Borrowers as follows:
(a) the proceeds of the Additional Term A Loans and Term D Loans
shall be applied by WWI to fund the Transaction; and
(b) the proceeds of all Revolving Loans, Swing Line Loans and
any Term Loans incurred pursuant to Section 2.1.6, and the issuance of
Letters of Credit from time to time, shall be used to fund the
Transaction and for working capital and general corporate purposes of
WWI and its U.S. Subsidiaries.
SECTION 7.1.10. U.S. Borrower as Pledged Interest Issuer. WWI covenants
and agrees that, in its capacity as Pledged Interest Issuer under (and as
defined in) the ARTAL Pledge Agreement and the HJH Pledge Agreement, WWI agrees
that it will cooperate in all reasonable
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respects necessary to enable the Administrative Agent to exercise its rights and
remedies under the terms of the ARTAL Pledge Agreement and HJH Pledge Agreement
and agrees to comply with the last sentence of Section 4.2 of the ARTAL Pledge
Agreement and the last sentence of Section 4.2 of the HJH Pledge Agreement.
SECTION 7.2. Negative Covenants. Each of the Borrowers agrees with the
Administrative Agent, the Issuer and each Lender that, until all Commitments
have terminated, all Letters of Credit have terminated or expired and all
Obligations have been paid and performed in full, each of the Borrowers will
perform the obligations set forth in this Section 7.2.
SECTION 7.2.1. Business Activities. Each of the Borrowers will not, and
will not permit any of its respective Subsidiaries to, engage in any business
activity, except business activities of the type in which WWI and its
Subsidiaries are engaged on September 29, 1999 and such activities as may be
incidental, similar or related thereto. The SP1 Borrower shall not engage in any
business other than as permitted under Section 7.3.
SECTION 7.2.2. Indebtedness. Each of the Borrowers will not, and will
not permit any of its respective Subsidiaries to, create, incur, assume or
suffer to exist or otherwise become or be liable in respect of any Indebtedness,
other than, without duplication, the following:
(a) Indebtedness in respect of the Credit Extensions and other
Obligations;
(b) [intentionally omitted];
(c) Indebtedness existing as of September 29, 1999 which is
identified in Item 7.2.2(c) ("Ongoing Indebtedness") of the Disclosure
Schedule, and any Refinancing Indebtedness, but only in amounts not in
excess of the outstanding amounts on the date of such refinancing (which
shall not exceed the committed amount on September 29, 1999);
(d) to the extent not prohibited in whole or in part by the
terms of the Senior Subordinated Note Indenture, Indebtedness incurred
by WWI or any of its Subsidiaries (other than the XX0 Xxxxxxxx) (i) (x)
to any Person providing financing for the acquisition of any assets
permitted to be acquired pursuant to Section 7.2.8 to finance its
acquisition of such assets and (y) in respect of Capitalized Lease
Liabilities (but only to the extent otherwise permitted by Section
7.2.7) in an aggregate amount for clauses (x) and (y) not to exceed
$5,000,000 at any time and (ii) from time to time for general corporate
purposes in a maximum aggregate amount of all Indebtedness incurred
pursuant to this clause (ii) not at any time to exceed $15,000,000 less
the then aggregate outstanding Indebtedness of Subsidiaries which are
not Guarantors permitted under clause (f)(iii) below;
(e) Hedging Obligations of WWI or any of its Subsidiaries;
(f) intercompany Indebtedness of WWI owing to any of its
Subsidiaries or any Subsidiary of WWI (other than the SP1 Borrower or
the Designated Subsidiary) owing to WWI or any other Subsidiary of WWI
or of WWI to any Subsidiary of WWI, which Indebtedness
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(i) if between Guarantors shall be evidenced by one or
more promissory notes in form and substance satisfactory to the
Administrative Agent which have been duly executed and delivered
to (and endorsed to the order of) the Administrative Agent in
pledge pursuant to a supplement to the applicable Pledge
Agreement;
(ii) if between Guarantors (other than Indebtedness
incurred by WWI) shall, except in the case of Indebtedness of
WWI owing to any of its Subsidiaries, not be forgiven or
otherwise discharged for any consideration other than payment in
cash in the currency in which such Indebtedness was loaned or
advanced unless the Administrative Agent otherwise consents; and
(iii) owing by Subsidiaries which are not Guarantors to
Guarantors shall not exceed $15,000,000 in the aggregate at any
time outstanding;
(g) unsecured Subordinated Debt of WWI owing to the Senior
Subordinated Noteholders in an initial aggregate outstanding principal
amount not to exceed the sum of $150,000,000 and Euro 100,000,000;
(h) Indebtedness of Non-Guarantor Subsidiaries to Guarantors to
the extent permitted as Investments under clause (h) of Section 7.2.5;
(i) the Subordinated Guaranty; and
(j) (i) guarantees by WWI or any Guarantor of any Indebtedness
of WWI or any Guarantor and (ii) guarantees by any Subsidiary that is
not a Guarantor of any Indebtedness of any other Subsidiary that is not
a Guarantor and (iii) guarantees by WWI or any Guarantor of any
unsecured Indebtedness of any Subsidiary that is not a Guarantor
incurred pursuant to clause (d) (ii) of this Section; provided, that in
each case, the Indebtedness being guaranteed is otherwise permitted by
this Section;
provided, however, that no Indebtedness otherwise permitted by clause (d) or (f)
(as such clause relates to Loans made by WWI to its Subsidiaries) may be
incurred if, after giving effect to the incurrence thereof, any Default shall
have occurred and be continuing.
SECTION 7.2.3. Liens. Each of the Borrowers will not, and will not
permit any of its respective Subsidiaries to, create, incur, assume or suffer to
exist any Lien upon any of its property, revenues or assets, whether now owned
or hereafter acquired, except:
(a) Liens securing payment of the Obligations, granted pursuant
to any Loan Document;
(b) [intentionally omitted];
(c) Liens granted prior to September 29, 1999 to secure payment
of Indebtedness of the type permitted and described in clause (c) of
Section 7.2.2;
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(d) Liens granted by WWI or any of its Subsidiaries (other than
the XX0 Xxxxxxxx) to secure payment of Indebtedness of the type
permitted and described in (x) clause (d)(i) of Section 7.2.2; provided,
that the obligations secured thereby do not exceed in the aggregate
$5,000,000 at any time outstanding and (y) clause (d)(ii) of Section
7.2.2 owed by Subsidiaries which are not Guarantors to non-Affiliates;
provided that the obligations secured thereby do not exceed $7,500,000
in the aggregate at any one time outstanding;
(e) Liens for taxes, assessments or other governmental charges
or levies, including Liens pursuant to Section 107(l) of CERCLA or other
similar law, not at the time delinquent or thereafter payable without
penalty or being contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set
aside on its books;
(f) Liens of carriers, warehousemen, mechanics, repairmen,
materialmen and landlords or other like liens incurred by WWI or any of
its Subsidiaries (other than the XX0 Xxxxxxxx) in the ordinary course of
business for sums not overdue for a period of more than 30 days or being
diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set
aside on its books;
(g) Liens incurred by WWI or any of its Subsidiaries (other than
the XX0 Xxxxxxxx) in the ordinary course of business in connection with
workmen's compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of tenders,
statutory obligations, insurance obligations, leases and contracts
(other than for borrowed money) entered into in the ordinary course of
business or to secure obligations on surety or appeal bonds;
(h) judgment Liens in existence less than 30 days after the
entry thereof or with respect to which execution has been stayed or the
payment of which is covered in full by a bond or (subject to a customary
deductible) by insurance maintained with responsible insurance
companies;
(i) Liens with respect to recorded minor imperfections of title
and easements, rights-of-way, restrictions, reservations, permits,
servitudes and other similar encumbrances on real property and fixtures
which do not materially detract from the value or materially impair the
use by WWI or any such Subsidiary in the ordinary course of their
business of the property subject thereto;
(j) leases or subleases granted by WWI or any of its
Subsidiaries (other than the XX0 Xxxxxxxx) to any other Person in the
ordinary course of business; and
(k) Liens in the nature of trustees' Liens granted pursuant to
any indenture governing any Indebtedness permitted by Section 7.2.2, in
each case in favor of the trustee under such indenture and securing only
obligations to pay compensation to such trustee, to reimburse its
expenses and to indemnify it under the terms thereof.
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SECTION 7.2.4. Financial Condition.
(a) Fixed Charge Coverage Ratio. WWI will not permit the Fixed
Charge Coverage Ratio, at any time during any period set forth below, to
be less than the amount set forth opposite such period:
Fixed Charge
Period Coverage Ratio
------ --------------
4th Fiscal Quarter of Fiscal Year 2000 1.15 to 1.00
1st Fiscal Quarter of Fiscal Year 2001 1.20 to 1.00
2nd Fiscal Quarter of Fiscal Year 2001 1.20 to 1.00
3rd Fiscal Quarter of Fiscal Year 2001 1.20 to 1.00
4th Fiscal Quarter of Fiscal Year 2001 1.20 to 1.00
1st Fiscal Quarter of Fiscal Year 2002 1.30 to 1.00
2nd Fiscal Quarter of Fiscal Year 2002 1.30 to 1.00
3rd Fiscal Quarter of Fiscal Year 2002 1.30 to 1.00
4th Fiscal Quarter of Fiscal Year 2002 1.30 to 1.00
1st Fiscal Quarter of Fiscal Year 2003 1.40 to 1.00
2nd Fiscal Quarter of Fiscal Year 2003 1.40 to 1.00
3rd Fiscal Quarter of Fiscal Year 2003 1.40 to 1.00
4th Fiscal Quarter of Fiscal Year 2003 1.40 to 1.00
1st Fiscal Quarter of Fiscal Year 2004 1.50 to 1.00
2nd Fiscal Quarter of Fiscal Year 2004 1.50 to 1.00
3rd Fiscal Quarter of Fiscal Year 2004 1.50 to 1.00
4th Fiscal Quarter of Fiscal Year 2004 1.50 to 1.00
1st Fiscal Quarter of Fiscal Year 2005 1.60 to 1.00
2nd Fiscal Quarter of Fiscal Year 2005 1.60 to 1.00
3rd Fiscal Quarter of Fiscal Year 2005 1.60 to 1.00
4th Fiscal Quarter of Fiscal Year 2005 0.45 to 1.00
and each Fiscal Quarter thereafter
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(b) Debt to EBITDA Ratio. WWI will not permit the Debt to EBITDA
Ratio as of the end of any Fiscal Quarter occurring during any period
set forth below to be greater than the ratio set forth opposite such
period:
Debt to
Period EBITDA Ratio
------ ------------
4th Fiscal Quarter of Fiscal Year 2000 5.75 to 1.00
1st Fiscal Quarter of Fiscal Year 2001 5.00 to 1.00
2nd Fiscal Quarter of Fiscal Year 2001 5.00 to 1.00
3rd Fiscal Quarter of Fiscal Year 2001 5.00 to 1.00
4th Fiscal Quarter of Fiscal Year 2001 5.00 to 1.00
1st Fiscal Quarter of Fiscal Year 2002 4.50 to 1.00
2nd Fiscal Quarter of Fiscal Year 2002 4.50 to 1.00
3rd Fiscal Quarter of Fiscal Year 2002 4.50 to 1.00
4th Fiscal Quarter of Fiscal Year 2002 4.50 to 1.00
1st Fiscal Quarter of Fiscal Year 2003 4.00 to 1.00
2nd Fiscal Quarter of Fiscal Year 2003 4.00 to 1.00
3rd Fiscal Quarter of Fiscal Year 2003 4.00 to 1.00
4th Fiscal Quarter of Fiscal Year 2003 4.00 to 1.00
1st Fiscal Quarter of Fiscal Year 2004 3.50 to 1.00
2nd Fiscal Quarter of Fiscal Year 2004 3.50 to 1.00
3rd Fiscal Quarter of Fiscal Year 2004 3.50 to 1.00
4th Fiscal Quarter of Fiscal Year 2004 3.50 to 1.00
1st Fiscal Quarter of Fiscal Year 2005 3.00 to 1.00
2nd Fiscal Quarter of Fiscal Year 2005 3.00 to 1.00
3rd Fiscal Quarter of Fiscal Year 2005 3.00 to 1.00
4th Fiscal Quarter of Fiscal Year 2005 3.00 to 1.00
1st Fiscal Quarter of Fiscal Year 2006 2.50 to 1.00
and each Fiscal Quarter thereafter
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(c) Interest Coverage Ratio. WWI will not permit the Interest
Coverage Ratio as of the end of any Fiscal Quarter occurring during any
period set forth below to be less than the ratio set forth opposite such
period:
Interest
Period Coverage Ratio
------ --------------
4th Fiscal Quarter of Fiscal Year 2000 1.45 to 1.00
1st Fiscal Quarter of Fiscal Year 2001 1.60 to 1.00
2nd Fiscal Quarter of Fiscal Year 2001 1.60 to 1.00
3rd Fiscal Quarter of Fiscal Year 2001 1.60 to 1.00
4th Fiscal Quarter of Fiscal Year 2001 1.60 to 1.00
1st Fiscal Quarter of Fiscal Year 2002 1.75 to 1.00
2nd Fiscal Quarter of Fiscal Year 2002 1.75 to 1.00
3rd Fiscal Quarter of Fiscal Year 2002 1.75 to 1.00
4th Fiscal Quarter of Fiscal Year 2002 1.75 to 1.00
1st Fiscal Quarter of Fiscal Year 2003 1.90 to 1.00
2nd Fiscal Quarter of Fiscal Year 2003 1.90 to 1.00
3rd Fiscal Quarter of Fiscal Year 2003 1.90 to 1.00
4th Fiscal Quarter of Fiscal Year 2003 1.90 to 1.00
1st Fiscal Quarter of Fiscal Year 2004 2.10 to 1.00
2nd Fiscal Quarter of Fiscal Year 2004 2.10 to 1.00
3rd Fiscal Quarter of Fiscal Year 2004 2.10 to 1.00
4th Fiscal Quarter of Fiscal Year 2004 2.10 to 1.00
1st Fiscal Quarter of Fiscal Year 2005 2.30 to 1.00
2nd Fiscal Quarter of Fiscal Year 2005 2.30 to 1.00
3rd Fiscal Quarter of Fiscal Year 2005 2.30 to 1.00
4th Fiscal Quarter of Fiscal Year 2005 2.30 to 1.00
1st Fiscal Quarter of Fiscal Year 2006 2.50 to 1.00
and each Fiscal Quarter thereafter
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(d) Senior Debt to EBITDA Ratio. WWI will not permit the Senior
Debt to EBITDA Ratio, as of the end of any Fiscal Quarter occurring
during any period set forth below, to be greater than the ratio set
forth opposite such period:
Senior Debt to
Period EBITDA Ratio
------ ------------
4th Fiscal Quarter of Fiscal Year 2000 3.50 to 1.00
1st Fiscal Quarter of Fiscal Year 2001 3.00 to 1.00
2nd Fiscal Quarter of Fiscal Year 2001 3.00 to 1.00
3rd Fiscal Quarter of Fiscal Year 2001 3.00 to 1.00
4th Fiscal Quarter of Fiscal Year 2001 3.00 to 1.00
1st Fiscal Quarter of Fiscal Year 2002 2.50 to 1.00
2nd Fiscal Quarter of Fiscal Year 2002 2.50 to 1.00
3rd Fiscal Quarter of Fiscal Year 2002 2.50 to 1.00
4th Fiscal Quarter of Fiscal Year 2002 2.50 to 1.00
1st Fiscal Quarter of Fiscal Year 2003 2.00 to 1.00
2nd Fiscal Quarter of Fiscal Year 2003 2.00 to 1.00
3rd Fiscal Quarter of Fiscal Year 2003 2.00 to 1.00
4th Fiscal Quarter of Fiscal Year 2003 2.00 to 1.00
1st Fiscal Quarter of Fiscal Year 2004 1.50 to 1.00
and each Fiscal Quarter thereafter
SECTION 7.2.5. Investments. Each of the Borrowers will not, and will not
permit any of its respective Subsidiaries to, make, incur, assume or suffer to
exist any Investment in any other Person, except:
(a) Investments existing on the date hereof and identified in
Item 7.2.5(a) ("Ongoing Investments") of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as Indebtedness
pursuant to Section 7.2.2;
(d) without duplication, Investments permitted as Capital
Expenditures pursuant to Section 7.2.7;
(e) Investments by WWI in any of its Subsidiaries which have
executed Guaranties, or by any such Subsidiary (other than the XX0
Xxxxxxxx) in any of its Subsidiaries, by way of contributions to
capital;
(f) Investments made by WWI or any of its Subsidiaries (other
than the XX0 Xxxxxxxx), solely with proceeds which have been
contributed, directly or indirectly, to such Subsidiary as cash equity
from holders of WWI's common stock for the purpose of making an
Investment identified in a notice to the Administrative Agent on or
prior to the date that such capital contribution is made;
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(g) Investments by WWI or any of its Subsidiaries (other than
the XX0 Xxxxxxxx) to the extent the consideration received pursuant to
clause (b)(i) of Section 7.2.9 is not all cash;
(h) Investments by WWI or any of its Subsidiaries in Weight
Watchers Sweden AB Vikt-Vaktarna and Weight Watchers Suomi Oy to the
extent that such Investments are for the purpose of acquiring any
Capital Securities of such Subsidiaries not owned by WWI and its
Subsidiaries on September 29, 1999, in an aggregate amount not to exceed
$10,000,000;
(i) other Investments (not constituting Capital Expenditures
attributable to the expenditure of Base Amounts) made by WWI or any of
the Guarantors (other than the XX0 Xxxxxxxx) in an aggregate amount, not
to exceed $30,000,000;
(j) other Investments made by any Non-Guarantor Subsidiary in
another Non-Guarantor Subsidiary;
(k) other Investments made by WWI or any Subsidiary in Qualified
Assets, to the extent permitted under clause (b) of Section 3.1.1;
(l) Investments made by WWI in the Designated Subsidiary in an
aggregate amount not to exceed $1,500,000;
(m) Investments permitted under Section 7.2.6(b)(ii)
(n) Investments by the Borrower or any Subsidiary constituting
Permitted Acquisitions; and
(o) the Transaction;
provided, however, that
(i) any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent
Investment" may continue to be held notwithstanding that such
Investment if made thereafter would not comply with such
requirements;
(ii) the Investments permitted above shall only be
permitted to be made to the extent not prohibited in whole or in
part by the terms of the Senior Subordinated Note Indenture;
(iii) no Investment otherwise permitted by clause (e),
(f), (g) or (i) shall be permitted to be made if, immediately
before or after giving effect thereto, any Default shall have
occurred and be continuing; and
(iv) except as permitted under clause (a) above, no more
than $2,000,000 of Investments may be made in the Designated
Subsidiary unless the Designated Subsidiary shall have taken the
actions set forth in Section 7.1.7.
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SECTION 7.2.6. Restricted Payments, etc. On and at all times after
September 29, 1999.
(a) WWI will not declare, pay or make any dividend or
distribution (in cash, property or obligations) on any shares of any
class of Capital Securities (now or hereafter outstanding) of WWI or on
any warrants, options or other rights with respect to any shares of any
class of Capital Securities (now or hereafter outstanding) of WWI (other
than dividends or distributions payable in its common stock or warrants
to purchase its common stock or splits or reclassifications of its stock
into additional or other shares of its common stock) or apply, or permit
any of its Subsidiaries to apply, any of its funds, property or assets
to the purchase, redemption, sinking fund or other retirement of, or
agree or permit any of its Subsidiaries to purchase or redeem, any
shares of any class of Capital Securities (now or hereafter outstanding)
of WWI, or warrants, options or other rights with respect to any shares
of any class of Capital Securities (now or hereafter outstanding,
including but not limited to the WWI Preferred Shares) of WWI
(collectively, "Restricted Payments"); provided, that (x) WWI may make
dividend payments under the WWI Preferred Shares so long as no Default
has occurred under this Agreement or the Senior Subordinated Note
Indenture or would result therefrom, (y) WWI may use 50% of Net Equity
Proceeds retained by WWI or its Subsidiaries under clause (d) of Section
3.1.1, solely for the redemption, in whole or in part, of such WWI
Preferred Shares and (z) WWI may repurchase its stock held by employees
constituting management, in an amount not to exceed $1,000,000 in any
Fiscal Year and an aggregate amount of $4,000,000 (amounts unused in any
Fiscal Year may be used in the immediately succeeding Fiscal Year);
(b) WWI will not, and will not permit any of its Subsidiaries to
(i) make any payment or prepayment of principal of, or
interest on, any Senior Subordinated Notes (A) on any day other
than, in the case of interest only, the stated, scheduled date
for such payment of interest set forth in the applicable Senior
Subordinated Notes or in the Senior Subordinated Note Indenture,
or (B) which would violate the terms of this Agreement or the
subordination provisions of the Senior Subordinated Note
Indenture; or
(ii) redeem, purchase or defease, any Senior
Subordinated Notes, unless, so long as, both before and after
giving effect to any such redemption, purchase or defeasance,
(x) the Borrower's Senior Debt to EBITDA Ratio is less than 2.0
to 1.0, (y) the Borrower's Debt to EBITDA Ratio is less than 3.5
to 1.0 and (z) the Borrower shall at the time of any such
redemption, purchase or defeasance (unless otherwise consented
to by the Required Lenders) maintain at least $30 million of
unused Revolving Loan Commitments; and
(c) WWI will not, and will not permit any Subsidiary to, make
any deposit for any of the foregoing purposes (except in connection with
any permitted expenditure described in clauses (a) and (b) above).
SECTION 7.2.7. Capital Expenditures, etc. Each of the Borrowers will
not, and will not permit any of its respective Subsidiaries to, make or commit
to make Capital Expenditures (other
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than (w) Permitted Acquisitions, (x) investments under (1) clause (j) of Section
7.2.5 and (2) clause (i) of Section 7.2.5 to the extent, in the case of this
clause (2), that the aggregate amount of such investments does not exceed
$30,000,000 (it being understood that Capital Expenditures may be made pursuant
to this clause (x) whether or not constituting "Investments", but shall be
treated as such for the purposes of said Sections), (y) nonrecurring
restructuring costs and Transaction and related expenses and (z) proceeds of
capital contributions used for Capital Expenditures in any Fiscal Year by WWI
and its Subsidiaries (other than the XX0 Xxxxxxxx), except, to the extent not
prohibited in whole or in part by the terms of the Senior Subordinated Note
Indenture, Capital Expenditures which do not aggregate in excess of the amount
set forth below opposite such Fiscal Year:
Maximum Capital
Fiscal Year Expenditures
----------- ------------
2000 $5,000,000
2001 $7,500,000
2002 $8,000,000
2003 $8,500,000
2004 $9,000,000
2005 and thereafter $9,500,000
provided, however, that (i) to the extent the amount of Capital Expenditures
permitted to be made in any Fiscal Year pursuant to the table set forth above
without giving effect to this clause (i) (the "Base Amount") exceeds the
aggregate amount of Capital Expenditures actually made during such Fiscal Year,
such excess amount may be carried forward to (but only to) the next succeeding
Fiscal Year (any such amount to be certified by WWI to the Administrative Agent
in the Compliance Certificate delivered for the last Fiscal Quarter of such
Fiscal Year, and any such amount carried forward to a succeeding Fiscal Year
shall be deemed to be used prior to WWI and its Subsidiaries using the Base
Amount for such succeeding Fiscal Year, without giving effect to such
carry-forward).
SECTION 7.2.8. Consolidation, Merger, etc. Each of the Borrowers will
not, and will not permit any of its respective Subsidiaries to, liquidate or
dissolve, consolidate with, or merge into or with, any other corporation, or
purchase or otherwise acquire all or substantially all of the assets of any
Person (or of any division thereof) except
(a) any such Subsidiary (other than the XX0 Xxxxxxxx) may
liquidate or dissolve voluntarily into, and may merge with and into, WWI
(so long as WWI is the surviving corporation of such combination or
merger) or any other Subsidiary (other than the XX0 Xxxxxxxx), and the
assets or stock of any Subsidiary may be purchased or otherwise acquired
by WWI or any other Subsidiary (other than the XX0 Xxxxxxxx); provided,
that notwithstanding the above, (i) a Subsidiary may only liquidate or
dissolve into, or merge with and into, another Subsidiary of WWI (other
than the XX0 Xxxxxxxx) if, after giving effect to such combination or
merger, WWI continues to own (directly or indirectly), and
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the Administrative Agent continues to have pledged to it pursuant to a
supplement to the WWI Pledge Agreement, a percentage of the issued and
outstanding shares of Capital Securities (on a fully diluted basis) of
the Subsidiary surviving such combination or merger that is equal to or
in excess of the percentage of the issued and outstanding shares of
Capital Securities (on a fully diluted basis) of the Subsidiary that
does not survive such combination or merger that was (immediately prior
to the combination or merger) owned by WWI or pledged to the
Administrative Agent and (ii) if such Subsidiary is a Guarantor the
surviving corporation must be a Guarantor;
(b) so long as no Default has occurred and is continuing or
would occur after giving effect thereto, WWI or any of their
Subsidiaries (other than the XX0 Xxxxxxxx) may make Investments
permitted under Section 7.2.5 (including any Permitted Acquisition); and
(c) a Subsidiary may merge with another Person in a transaction
permitted by clause (b) of Section 7.2.9.
SECTION 7.2.9. Asset Dispositions, etc. Subject to the definition of
Change of Control, each of the Borrowers will not, and will not permit any of
its respective Subsidiaries to, Dispose of all or any part of its assets,
whether now owned or hereafter acquired (including accounts receivable and
Capital Securities of Subsidiaries) to any Person, unless
(a) such Disposition is made by WWI or any of its Subsidiaries
(other than the XX0 Xxxxxxxx) and is (i) in the ordinary course of its
business (and does not constitute a Disposition of all or a substantial
part of WWI or such Subsidiary's assets) or is of obsolete or worn out
property or (ii) permitted by clause (a) or (b) of Section 7.2.8;
(b) (i) such Disposition (other than of Capital Securities) is
made by WWI or any of its Subsidiaries (other than the XX0 Xxxxxxxx) and
is for fair market value and the consideration consists of no less than
75% in cash, (ii) the Net Disposition Proceeds received from such
Disposition, together with the Net Disposition Proceeds of all other
assets sold, transferred, leased, contributed or conveyed pursuant to
this clause (b) since September 29, 1999, does not exceed (individually
or in the aggregate) $20,000,000 over the term of this Agreement and
(iii) the Net Disposition Proceeds generated from such Disposition not
theretofore reinvested in Qualified Assets in accordance with clause (b)
of Section 3.1.1 (with the amount permitted to be so reinvested in
Qualified Assets in any event not to exceed $7,500,000 over the term of
this Agreement) is applied as Net Disposition Proceeds to prepay the
Loans pursuant to the terms of clause (b) of Section 3.1.1 and Section
3.1.2; or
(c) such Disposition is made pursuant to a Local Management
Plan.
SECTION 7.2.10. Modification of Certain Agreements.
(a) Each of the Borrowers will not, and will not permit any of
its respective Subsidiaries to, consent to any amendment, supplement,
amendment and restatement, waiver or other modification of any of the
terms or provisions contained in, or applicable to, the Recapitalization
Agreement or the Purchase Agreement or any schedules, exhibits
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or agreements related thereto, in each case which would adversely affect
the rights or remedies of the Lenders, or WWI's or any Subsidiary's
ability to perform hereunder or under any Loan Document or which would
increase the purchase price with respect to the Transaction.
(b) Except as otherwise permitted pursuant to the terms of this
Agreement, without the prior written consent of the Required Lenders,
WWI will not consent to any amendment, supplement or other modification
of any of the terms or provisions contained in, or applicable to, any
Subordinated Debt (including the Senior Subordinated Note Indenture or
any of the Senior Subordinated Notes), or any guarantees delivered in
connection with any Subordinated Debt (including any Subordinated
Guaranty) (collectively, the "Restricted Agreements"), or make any
payment in order to obtain an amendment thereof or change thereto, if
the effect of such amendment, supplement, modification or change is to
(i) increase the principal amount of, or increase the interest rate on,
or add or increase any fee with respect to such Subordinated Debt or any
such Restricted Agreement, advance any dates upon which payments of
principal or interest are due thereon or change any of the covenants
with respect thereto in a manner which is more restrictive to WWI or any
of its Subsidiaries or (ii) change any event of default or condition to
an event of default with respect thereto, change the redemption,
prepayment or defeasance provisions thereof, change the subordination
provisions thereof, or change any collateral therefor (other than to
release such collateral), if (in the case of this clause (b)(ii)), the
effect of such amendment or change, individually or together with all
other amendments or changes made, is to increase the obligations of the
obligor thereunder or to confer any additional rights on the holders of
such Subordinated Debt, or any such Restricted Agreement (or a trustee
or other representative on their behalf).
SECTION 7.2.11. Transactions with Affiliates. Each of the Borrowers will
not, and will not permit any of its respective Subsidiaries to, enter into, or
cause, suffer or permit to exist any arrangement or contract with any of their
other Affiliates (other than any Obligor)
(a) unless (i) such arrangement or contract is fair and
equitable to WWI or such Subsidiary and is an arrangement or contract of
the kind which would be entered into by a prudent Person in the position
of the Borrowers or such Subsidiary with a Person which is not one of
their Affiliates; (ii) if such arrangement or contract involves an
amount in excess of $5,000,000, the terms of such arrangement or
contract are set forth in writing and a majority of directors of WWI
have determined in good faith that the criteria set forth in clause (i)
are satisfied and have approved such arrangement or contract as
evidenced by appropriate resolutions of the board of directors of WWI or
the relevant Subsidiary; or (iii) if such arrangement or contract
involves an amount in excess of $25,000,000, the board of directors
shall also have received a written opinion from an investment banking,
accounting or appraisal firm of national prominence that is not an
Affiliate of WWI to the effect that such arrangement or contract is
fair, from a financial standpoint, to WWI and its Subsidiaries; and
(b) except that, so long as no Default or Event of Default has
occurred and is continuing or would be caused thereby, WWI and its
Subsidiaries may pay (i) annual management, consulting, monitoring and
advisory fees to The Invus Group, Ltd. in an
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aggregate total amount in any Fiscal Year not to exceed the greater of
(x) $1,000,000 and (y) 1.0% of EBITDA for the relevant period, and any
related out-of-pocket expenses and (ii) fees to The Invus Group, Ltd.
and its Affiliates in connection with any acquisition or divestiture
transaction entered into by WWI or any Subsidiary; provided, however,
that the aggregate amount of fees paid to The Invus Group, Ltd. and its
Affiliates in respect of any acquisition or divestiture transaction
shall not exceed 1% of the total amount of such transaction.
SECTION 7.2.12. Negative Pledges, Restrictive Agreements, etc. Each of
the Borrowers will not, and will not permit any of its respective Subsidiaries
to, enter into any agreement (excluding (i) any restrictions existing under the
Loan Documents or, in the case of clauses (a)(i) and (b), any other agreements
in effect on the date hereof, (ii) in the case of clauses (a)(i) and (b), any
restrictions with respect to a Subsidiary imposed pursuant to an agreement which
has been entered into in connection with the sale or disposition of all or
substantially all of the Capital Securities or assets of such Subsidiary
pursuant to a transaction otherwise permitted hereby, (iii) in the case of
clause (a), restrictions in respect of Indebtedness secured by Liens permitted
by Section 7.2.3, but only to the extent such restrictions apply to the assets
encumbered thereby, (iv) in the case of clause (a), restrictions under the
Senior Subordinated Note Indenture or (v) any restrictions existing under any
agreement that amends, refinances or replaces any agreement containing the
restrictions referred to in clause (i), (ii) or (iii) above; provided, that the
terms and conditions of any such agreement referred to in clause (i), (ii) or
(iii) are not materially less favorable to the Lenders or materially more
restrictive to any Obligor a party thereto than those under the agreement so
amended, refinanced or replaced) prohibiting
(a) the (i) creation or assumption of any Lien upon its
properties, revenues or assets, whether now owned or hereafter acquired,
or (ii) ability of WWI or any other Obligor to amend or otherwise modify
this Agreement or any other Loan Document; or
(b) the ability of any Subsidiary to make any payments, directly
or indirectly, to the Borrowers by way of dividends, advances,
repayments of loans or advances, reimbursements of management and other
intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the
ability of any such Subsidiary to make any payment, directly or
indirectly, to the Borrowers.
SECTION 7.2.13. Stock of Subsidiaries. Each of the Borrowers will not
(other than WWI in connection with a Permitted Acquisition or an Investment),
and will not permit any of its respective Subsidiaries to issue any Capital
Securities (whether for value or otherwise) to any Person other than WWI or
another Wholly-owned Subsidiary of WWI except in connection with a Local
Management Plan; provided, that, WW Australia shall at all times be the record
and beneficial direct owner of all of the issued and outstanding Capital
Securities of the SP1 Borrower.
SECTION 7.2.14. Sale and Leaseback. Each of the Borrowers will not, and
will not permit any of its respective Subsidiaries to, enter into any agreement
or arrangement with any other Person providing for the leasing by WWI or any of
its Subsidiaries of real or personal property which has been or is to be sold or
transferred by WWI or any of its Subsidiaries to such
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other Person or to any other Person to whom funds have been or are to be
advanced by such Person on the security of such property or rental obligations
of WWI or any of its Subsidiaries.
SECTION 7.2.15. Fiscal Year. Each of the Borrowers will not and will not
permit any of its respective Subsidiaries to change its Fiscal Year.
SECTION 7.2.16. Designation of Senior Indebtedness. WWI will not
designate any Indebtedness as "Designated Senior Indebtedness" pursuant to
clause (1) of the definition of such term in the Senior Subordinated Note
Indenture, without the consent of the Required Lenders.
SECTION 7.3. Maintenance of Separate Existence. The SP1 Borrower
covenants and agrees with the Administrative Agent, the Issuer and each Lender
as follows:
(a) Other Business. It will not engage in any business or
enterprise or enter into any transaction other than the borrowing of
Loans under the Agreement, and the incurrence and payment of ordinary
course operating expenses, and as otherwise contemplated by the Loan
Documents.
(b) Maintenance of Separate Existence. In order to maintain its
corporate existence separate and apart from that of WWI, any Subsidiary
of WWI and any Affiliates thereof and any other Person, it will perform
all necessary acts to maintain such separation, including without
limitation,
(i) practicing and adhering to corporate formalities,
such as maintaining appropriate corporate books and records;
(ii) complying with Article Sixth of its certificate of
incorporation;
(iii) owning or leasing (including through shared
arrangements with Affiliates) all office furniture and equipment
necessary to operate its business;
(iv) refraining from (A) guaranteeing or otherwise
becoming liable for any obligations of any of its Affiliates or
any other Person, (B) having its Obligations guaranteed by its
Affiliates or any other Person (except as otherwise contemplated
by the Loan Documents), (C) holding itself out as responsible
for debts of any of its Affiliates or any other Person or for
decisions or actions with respect to the affairs of any of its
Affiliates or any other Person, and (D) being directly or
indirectly named as a direct or contingent beneficiary or loss
payee on any insurance policy of any Affiliate;
(v) maintaining its deposit and other bank accounts and
all of its assets separate from those of any other Person;
(vi) maintaining its financial records separate and
apart from those of any other Person;
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(vii) compensating all its employees, officers,
consultants and agents for services provided to it by such
Persons, or reimbursing any of its Affiliates in respect of
services provided to it by employees, officers, consultants and
agents of such Affiliate, out of its own funds;
(viii) maintaining any owned or leased office space
separate and apart from that of any of its Affiliates (even if
such office space is subleased from or is on or near premises
occupied by any of its Affiliates);
(ix) accounting for and managing all of its liabilities
separately from those of any of its Affiliates and any other
Person, including, without limitation, payment directly by the
SP1 Borrower of all payroll, accounting and other administrative
expenses and taxes;
(x) allocating, on an arm's-length basis, all shared
corporate operating services, leases and expenses, including,
without limitation, those associated with the services of shared
consultants and agents and shared computer and other office
equipment and software;
(xi) refraining from filing or otherwise initiating or
supporting the filing of a motion in any bankruptcy or other
insolvency proceeding involving it, WWI, any Subsidiary of WWI,
any Affiliate thereof or any other Person to substantively
consolidate it with WWI, any Subsidiary of WWI, any Affiliate
thereof or any other Person;
(xii) remaining solvent;
(xiii) conducting all of its business (whether written
or oral) solely in its own name;
(xiv) refraining from commingling its assets with those
of any of its Affiliates or any other Person;
(xv) maintaining an arm's-length relationship with all
of its Affiliates;
(xvi) refraining from acquiring obligations or
securities of WWI, any Subsidiary of WWI or any Affiliate
thereof;
(xvii) refraining from pledging its assets for the
benefit of any of its Affiliates or any other Person or making
any loans or advances to any of its Affiliates or any other
Person (in each case, except as otherwise permitted pursuant to
the Loan Documents); and
(xviii) correcting any known misunderstanding regarding
its separate identity.
(c) Independent Directors. It will not cause or allow its board
of directors to take any action requiring the unanimous affirmative vote
of 100% of the members of its board
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of directors unless the Independent Director(s) (as defined in the
certificate of incorporation of the XX0 Xxxxxxxx) shall have
participated in such vote, and it shall comply in all respects with
Article Seventh of its certificate of incorporation.
(d) Unanimous Consent Required for Certain Actions. It shall
not, without the unanimous consent of all of the members of its board of
directors, including its independent director(s), (i) file, or authorize
or consent to the filing of, a bankruptcy or insolvency petition or
otherwise institute insolvency proceedings with respect to itself or to
any other entity in which it has a direct or indirect legal or
beneficial ownership interest, (ii) dissolve, liquidate, consolidate,
merge, or sell all or substantially all of its assets or any other
entity in which it has a direct or indirect legal or beneficial
ownership interest, (iii) engage in any other business activity or (iv)
amend Articles Third, Sixth and Seventh of its Certificate of
Incorporation.
(e) No Powers of Attorney. The SP1 Borrower shall not grant any
powers of attorney to any Person for any purposes except (i) for the
purpose of permitting any Person to perform any ministerial or
administrative functions on behalf of the XX0 Xxxxxxxx which are not
inconsistent with the terms of the Loan Documents, (ii) to the
Administrative Agent for the purposes of the Security Agreements, Pledge
Agreements and Guaranties, or (iii) where otherwise provided or
permitted by the Loan Documents.
ARTICLE VIII
GUARANTY
SECTION 8.1. The Guaranty. WWI hereby unconditionally and irrevocably
guarantees the full and prompt payment when due, whether at stated maturity, by
acceleration or otherwise (including all amounts which would have become due but
for the operation of the automatic stay under Section 362(a) of the Federal
Bankruptcy Code, 11 U.S.C. 362(a), and the operation of Sections 502(b) and
506(b) of the United States Bankruptcy Code, 11 U.S.C. Section 502(b) and
Section 506(b)), of the following (collectively, the "Guaranteed Obligations"),
(a) all Obligations of the SP1 Borrower and each other Obligor
to the Administrative Agent and each of the Lenders now or hereafter
existing under this Agreement and each other Loan Document, whether for
principal, interest, fees, expenses or otherwise; and
(b) all other Obligations to the Administrative Agent and each
of the Lenders now or hereafter existing under any of the Loan
Documents, whether for principal, interest, fees, expenses or otherwise.
The obligations of WWI under this Article VIII constitute a guaranty of payment
when due and not of collection, and WWI specifically agrees that it shall not be
necessary or required that the Administrative Agent, any Lender or any holder of
any Note exercise any right, assert any claim or demand or enforce any remedy
whatsoever against the SP1 Borrower or any other Obligor (or any other Person)
before or as a condition to the obligations of WWI under this Article VIII.
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SECTION 8.2. Guaranty Unconditional. The obligations of WWI under this
Article VIII shall be construed as a continuing, absolute, unconditional and
irrevocable guaranty of payment and shall remain in full force and effect until
the Final Termination Date. WWI guarantees that the Guaranteed Obligations will
be paid strictly in accordance with the terms of the agreement, instrument or
document under which they arise, regardless of any law, regulation or order now
or hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Administrative Agent or any of the Lenders with respect thereto.
The liability of WWI hereunder shall be absolute and unconditional irrespective
of:
(a) any lack of validity, legality or enforceability of this
Agreement, the Notes, the TLCs, any Rate Protection Agreement with a
Lender or any other Loan Document or any other agreement or instrument
relating to any thereof;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations, or any
compromise, renewal, extension, acceleration or release with respect
thereto, or any other amendment or waiver of or any consent to departure
from this Agreement, the Notes, the TLCs, any Rate Protection Agreement
with a Lender or any other Loan Document;
(c) any addition, exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(d) the failure of the Administrative Agent or any Lender
(i) to assert any claim or demand or to enforce any
right or remedy against the SP1 Borrower, any other Obligor or
any other Person (including any other guarantor) under the
provisions of this Agreement, any Note, any TLC, any Rate
Protection Agreement with a Lender or any other Loan Document or
otherwise, or
(ii) to exercise any right or remedy against any other
guarantor of, or collateral securing, any of the Guaranteed
Obligations;
(e) any amendment to, rescission, waiver, or other modification
of, or any consent to departure from, any of the terms of this
Agreement, any Note, any TLC, any Rate Protection Agreement with a
Lender or any other Loan Document;
(f) any defense, setoff or counterclaim which may at any time be
available to or be asserted by any Obligor against the Administrative
Agent or any Lender;
(g) any reduction, limitation, impairment or termination of the
Guaranteed Obligations for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject
to (and WWI hereby waives any right to or claim of) any defense or
setoff, counterclaim, recoupment or termination whatsoever by reason of
the invalidity, illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting, the
Guaranteed Obligations or otherwise; or
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(h) any other circumstance which might otherwise constitute a defense
available to, or a legal or equitable discharge of, WWI, any other
Obligor or any surety or guarantor.
SECTION 8.3. Reinstatement in Certain Circumstances. If at any time any
payment in whole or in part of any of the Guaranteed Obligations is rescinded or
must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of WWI, any other Obligor or otherwise, WWI's obligations under
this Article VIII with respect to such payment shall be reinstated as though
such payment had been due but not made at such time.
SECTION 8.4. Waiver. WWI irrevocably waives promptness, diligence,
notice of acceptance hereof, presentment, demand, protest and any other notice
with respect to any of the Guaranteed Obligations, as well as any requirement
that at any time any action be taken by any Person against the SP1 Borrower or
any other Person.
SECTION 8.5. Postponement of Subrogation, etc. WWI will not exercise any
rights which it may acquire by way of rights of subrogation by any payment made
hereunder or otherwise, prior to the Final Termination Date. Any amount paid to
WWI on account of any such subrogation rights prior to Final Termination Date
shall be held in trust for the benefit of the Lenders and each holder of a Note
and/or TLC and shall immediately be paid to the Administrative Agent and
credited and applied against the Guaranteed Obligations, whether matured or
unmatured, in accordance with the terms of this Agreement; provided, however,
that if
(a) WWI has made payment to the Lenders and each holder of a
Note of all or any part of the Guaranteed Obligations, and
(b) the Final Termination Date has occurred,
each Lender and each holder of a Note agrees that, at WWI's request, the
Administrative Agent, on behalf of the Lenders and the holders of the Notes,
will execute and deliver to WWI appropriate documents (without recourse and
without representation or warranty) necessary to evidence the transfer by
subrogation to WWI of an interest in the Guaranteed Obligations resulting from
such payment by WWI. In furtherance of the foregoing, at all times prior to the
Final Termination Date, WWI shall refrain from taking any action or commencing
any proceeding against the SP1 Borrower (or its successors or assigns, whether
in connection with a bankruptcy proceeding or otherwise) to recover any amounts
in the respect of payments to any Lender or any holder of a Note and/or TLC;
provided, however, that WWI may make any necessary filings solely to preserve
its claims against the SP1 Borrower.
SECTION 8.6. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by the SP1 Borrower under this Agreement or any
Note or TLC is stayed upon the occurrence of any event referred to in Section
9.1.9 with respect to the SP1 Borrower, all such amounts otherwise subject to
acceleration under the terms of this Agreement shall nonetheless be payable by
WWI hereunder forthwith.
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ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.1. Listing of Events of Default. Each of the following events
or occurrences described in this Section 9.1 shall constitute an "Event of
Default".
SECTION 9.1.1. Non-Payment of Obligations. Any Borrower shall default in
the payment or prepayment of any Reimbursement Obligation (including pursuant to
Sections 2.6 and 2.6.2) on the applicable Disbursement Due Date or any deposit
of cash for collateral purposes on the date required pursuant to Section 2.6.4
or any principal of any Loan when due, or any Obligor (including WWI and the XX0
Xxxxxxxx) shall default (and such default shall continue unremedied for a period
of three Business Days) in the payment when due of any interest or commitment
fee or of any other monetary Obligation.
SECTION 9.1.2. Breach of Warranty. Any representation or warranty of any
Borrower or any other Obligor made or deemed to be made hereunder or in any
other Loan Document executed by it or any other writing or certificate furnished
by or on behalf of the Borrowers or any other Obligor to the Administrative
Agent, the Issuer or any Lender for the purposes of or in connection with this
Agreement or any such other Loan Document (including any certificates delivered
pursuant to Article V) is or shall be incorrect when made in any material
respect.
SECTION 9.1.3. Non-Performance of Certain Covenants and Obligations. Any
Borrower shall default in the due performance and observance of any of its
obligations under Section 7.1.9 or Section 7.2.
SECTION 9.1.4. Non-Performance of Other Covenants and Obligations. Any
Obligor shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days after notice
thereof shall have been given to WWI by the Administrative Agent at the
direction of the Required Lenders.
SECTION 9.1.5. Default on Other Indebtedness. A default shall occur (i)
in the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness, other than Indebtedness
described in Section 9.1.1, of WWI or any of its Subsidiaries or any other
Obligor having a principal amount, individually or in the aggregate, in excess
of $1,000,000, or (ii) a default shall occur in the performance or observance of
any obligation or condition with respect to such Indebtedness having a principal
amount, individually or in the aggregate, in excess of $5,000,000 if the effect
of such default is to accelerate the maturity of any such Indebtedness or such
default shall continue unremedied for any applicable period of time sufficient
to permit the holder or holders of such Indebtedness, or any trustee or agent
for such holders, to cause such Indebtedness to become due and payable prior to
its expressed maturity.
SECTION 9.1.6. Judgments. Any judgment or order for the payment of money
in excess of $1,000,000 (not covered by insurance from a responsible insurance
company that is not
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denying its liability with respect thereto) shall be rendered against WWI or any
of its Subsidiaries or any other Obligor and remain unpaid and either
(a) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order; or
(b) there shall be any period of 60 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect.
SECTION 9.1.7. Pension Plans. Any of the following events shall occur
with respect to any Pension Plan:
(a) the termination of any Pension Plan if, as a result of such
termination, WWI or any Subsidiary would be required to make a
contribution to such Pension Plan, or would reasonably expect to incur a
liability or obligation to such Pension Plan, in excess of $5,000,000;
or
(b) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under section 302(f) of ERISA in
an amount in excess of $5,000,000.
SECTION 9.1.8. Change in Control. Any Change in Control shall occur.
SECTION 9.1.9. Bankruptcy, Insolvency, etc. WWI or any of its
Subsidiaries (other than any Immaterial Subsidiary or the Designated Subsidiary)
or any other Obligor shall
(a) become insolvent or generally fail to pay, or admit in
writing its inability or unwillingness to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for WWI or any of its
Subsidiaries or any other Obligor or any property of any thereof, or
make a general assignment for the benefit of creditors;
(c) in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for WWI or any of its Subsidiaries or
any other Obligor or for a substantial part of the property of any
thereof, and such trustee, receiver, sequestrator or other custodian
shall not be discharged within 60 days, provided that WWI or each
Subsidiary and each other Obligor hereby expressly authorizes the
Administrative Agent, the Issuer and each Lender to appear in any court
conducting any relevant proceeding during such 60-day period to
preserve, protect and defend their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or proceeding
under any bankruptcy or insolvency law, or any dissolution, winding up
or liquidation proceeding, in respect of WWI or any of its Subsidiaries
or any other Obligor, and, if any such case or proceeding is not
commenced by WWI or such Subsidiary or such other Obligor, such case or
proceeding shall be consented to or acquiesced in by WWI or such
Subsidiary or such
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other Obligor or shall result in the entry of an order for relief or
shall remain for 60 days undismissed, provided that WWI, each Subsidiary
and each other Obligor hereby expressly authorizes the Administrative
Agent, the Issuer and each Lender to appear in any court conducting any
such case or proceeding during such 60-day period to preserve, protect
and defend their rights under the Loan Documents; or
(e) take any action (corporate or otherwise) authorizing, or in
furtherance of, any of the foregoing.
SECTION 9.1.10. Impairment of Security, etc. Any Loan Document, or any
Lien granted thereunder, shall (except in accordance with its terms), in whole
or in part, terminate, cease to be in full force and effect or cease to be the
legally valid, binding and enforceable obligation of any Obligor party thereto;
any Borrower or any other Obligor shall, directly or indirectly, contest in any
manner the effectiveness, validity, binding nature or enforceability thereof; or
any Lien securing any Obligation shall, in whole or in part, cease to be a
perfected first priority Lien, subject only to those exceptions expressly
permitted by such Loan Document, except to the extent any event referred to
above (a) results from the failure of the Administrative Agent to maintain
possession of certificates representing securities pledged under the WWI Pledge
Agreement or to file continuation statements under the Uniform Commercial Code
of any applicable jurisdiction or (b) is covered by a lender's title insurance
policy and the relevant insurer promptly after the occurrence thereof shall have
acknowledged in writing that the same is covered by such title insurance policy.
SECTION 9.1.11. Senior Subordinated Notes. The subordination provisions
relating to the Senior Subordinated Note Indenture (the "Subordination
Provisions") shall fail to be enforceable by the Lenders (which have not
effectively waived the benefits thereof) in accordance with the terms thereof,
or the principal or interest on any Loan, Reimbursement Obligation or other
monetary Obligations shall fail to constitute Senior Debt, or the same (or any
other similar term) used to define the monetary Obligations.
SECTION 9.1.12. Redemption. Any Senior Subordinated Noteholder of any
Subordinated Debt shall file an action seeking the rescission thereof or damages
or injunctive relief relating thereto; or any event shall occur which, under the
terms of any agreement or indenture relating to Subordinated Debt, shall require
WWI or any of its Subsidiaries to purchase, redeem or otherwise acquire or offer
to purchase, redeem or otherwise acquire all or any portion of the principal
amount of the Subordinated Debt (other than as provided under Section 7.2.6); or
WWI or any of its Subsidiaries shall for any other reason purchase, redeem or
otherwise acquire or offer to purchase, redeem or otherwise acquire, or make any
other payments in respect of the principal amount of any such Subordinated Debt
(other than as provided under Section 7.2.6).
SECTION 9.2. Action if Bankruptcy, etc. If any Event of Default
described in clauses (a) through (d) of Section 9.1.9 shall occur with respect
to WWI, any Subsidiary or any other Obligor, the Commitments (if not theretofore
terminated) shall automatically terminate and the outstanding principal amount
of all outstanding Loans and all other Obligations shall automatically be and
become immediately due and payable, without notice or demand.
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SECTION 9.3. Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in clauses (a) through (d) of Section
9.1.9 with respect to WWI or any Subsidiary or any other Obligor) shall occur
for any reason, whether voluntary or involuntary, and be continuing, the
Administrative Agent, upon the direction of the Required Lenders, shall by
notice to WWI declare all or any portion of the outstanding principal amount of
the Loans and other Obligations to be due and payable, require the Borrowers to
provide cash collateral to be deposited with the Administrative Agent in an
amount equal to the Stated Amount of all issued Letters of Credit and/or declare
the Commitments (if not theretofore terminated) to be terminated, whereupon the
full unpaid amount of such Loans and other Obligations which shall be so
declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, the Borrowers shall deposit with
the Administrative Agent cash collateral in an amount equal to the Stated Amount
of all issued Letters of Credit and/or, as the case may be, the Commitments
shall terminate.
ARTICLE X
THE AGENTS
SECTION 10.1. Actions. Each Lender hereby appoints Scotiabank as its
Administrative Agent and as a Lead Agent and Book Manager under and for purposes
of this Agreement, the Notes and each other Loan Document. Each Lender
authorizes the Administrative Agent to act on behalf of such Lender under this
Agreement, the Notes, the TLCs, and each other Loan Document and, in the absence
of other written instructions from the Required Lenders received from time to
time by the Administrative Agent (with respect to which the Administrative Agent
agrees that it will comply, except as otherwise provided in this Section or as
otherwise advised by counsel), to exercise such powers hereunder and thereunder
as are specifically delegated to or required of the Administrative Agent by the
terms hereof and thereof, together with such powers as may be reasonably
incidental thereto. Each Lender hereby appoints CSFB as the Syndication Agent
and as a Lead Agent and Book Manager. Each Lender hereby indemnifies (which
indemnity shall survive any termination of this Agreement) each Agent, ratably
in accordance with their respective Term Loans and TLCs outstanding and
Commitments (or, if no Term Loans, TLCs or Commitments are at the time
outstanding and in effect, then ratably in accordance with the principal amount
of Term Loans or, as the case may be, TLCs held by such Lender, and their
respective Commitments as in effect in each case on the date of the termination
of this Agreement), from and against any and all liabilities, obligations,
losses, damages, claims, costs or expenses of any kind or nature whatsoever
which may at any time be imposed on, incurred by, or asserted against, the
Agents in any way relating to or arising out of this Agreement, the Notes, the
TLCs and any other Loan Document, including reasonable attorneys' fees, and as
to which any Agent is not reimbursed by the Borrowers or any other Obligor (and
without limiting the obligation of the Borrowers or any other Obligor to do so);
provided, however, that no Lender shall be liable for the payment of any portion
of such liabilities, obligations, losses, damages, claims, costs or expenses
which are determined by a court of competent jurisdiction in a final proceeding
to have resulted solely from an Agent's gross negligence or willful misconduct.
The Agents shall not be required to take any action hereunder, under the Notes,
the TLCs or under any other Loan Document, or to prosecute or defend any suit in
respect of this Agreement, the Notes, the TLCs or any other Loan Document,
unless it is indemnified hereunder to its satisfaction. If any indemnity in
favor of the Agents shall be or
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become, in any Agent's determination, inadequate, any Agent may call for
additional indemnification from the Lenders and cease to do the acts indemnified
against hereunder until such additional indemnity is given. Notwithstanding the
foregoing, the Lead Arrangers and Book Managers shall have no duties,
obligations or liabilities under any Loan Document.
SECTION 10.2. Funding Reliance, etc. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
5:00 p.m., New York time, on the day prior to a Borrowing that such Lender will
not make available the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent and,
in reliance upon such assumption, make available to the applicable Borrower a
corresponding amount. If and to the extent that such Lender shall not have made
such amount available to the Administrative Agent, such Lender severally agrees
and the Borrowers jointly and severally agree to repay the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date the Administrative Agent made such amount available
to the applicable Borrower to the date such amount is repaid to the
Administrative Agent, at the interest rate applicable at the time to Loans
comprising such Borrowing (in the case of any Borrower) and (in the case of a
Lender), at the Federal Funds Rate (for the first two Business Days after which
such amount has not been repaid, and thereafter at the interest rate applicable
to Loans comprising such Borrowing.
SECTION 10.3. Exculpation. Neither any Agent nor any of their respective
directors, officers, employees or agents shall be liable to any Lender for any
action taken or omitted to be taken by it under this Agreement or any other Loan
Document, or in connection herewith or therewith, except for its own willful
misconduct or gross negligence, nor responsible for any recitals or warranties
herein or therein, nor for the effectiveness, enforceability, validity or due
execution of this Agreement or any other Loan Document, nor for the creation,
perfection or priority of any Liens purported to be created by any of the Loan
Documents, or the validity, genuineness, enforceability, existence, value or
sufficiency of any collateral security, nor to make any inquiry respecting the
performance by the Borrowers of their obligations hereunder or under any other
Loan Document. Any such inquiry which may be made by any Agent shall not
obligate it to make any further inquiry or to take any action. The Agents shall
be entitled to rely upon advice of counsel concerning legal matters and upon any
notice, consent, certificate, statement or writing which the Agents believe to
be genuine and to have been presented by a proper Person.
SECTION 10.4. Successor. The Syndication Agent may resign as such upon
one Business Day's notice to WWI and the Administrative Agent. The
Administrative Agent may resign as such at any time upon at least 30 days prior
notice to WWI and all Lenders. If the Administrative Agent at any time shall
resign, the Required Lenders may, with the prior consent of WWI (which consent
shall not be unreasonably withheld), appoint another Lender as a successor
Administrative Agent which shall thereupon become the Administrative Agent
hereunder. If no successor Administrative Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent's giving notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S. (or any State
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thereof) or a U.S. branch or agency of a commercial banking institution, and
having a combined capital and surplus of at least $250,000,000; provided,
however, that if, such retiring Administrative Agent is unable to find a
commercial banking institution which is willing to accept such appointment and
which meets the qualifications set forth in above, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall assume and perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
as provided for above. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall be entitled to receive from the retiring
Administrative Agent such documents of transfer and assignment as such successor
Administrative Agent may reasonably request, and shall thereupon succeed to and
become vested with all rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring
Administrative Agent's resignation hereunder as the Administrative Agent, the
provisions of
(a) this Article X shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Administrative Agent
under this Agreement; and
(b) Section 11.3 and Section 11.4 shall continue to inure to its
benefit.
SECTION 10.5. Credit Extensions by each Agent. Each Agent shall have the
same rights and powers with respect to (x) the Credit Extensions made by it or
any of its Affiliates, and (y) the Notes or TLCs held by it or any of its
Affiliates as any other Lender and may exercise the same as if it were not an
Agent. Each Agent and its respective Affiliates may accept deposits from, lend
money to, and generally engage in any kind of business with any Borrower or any
Subsidiary or Affiliate of WWI, as if such Agent were not an Agent hereunder.
SECTION 10.6. Credit Decisions. Each Lender acknowledges that it has,
independently of each Agent and each other Lender, and based on such Lender's
review of the financial information of the Borrowers, this Agreement, the other
Loan Documents (the terms and provisions of which being satisfactory to such
Lender) and such other documents, information and investigations as such Lender
has deemed appropriate, made its own credit decision to extend its Commitments.
Each Lender also acknowledges that it will, independently of each Agent and each
other Lender, and based on such other documents, information and investigations
as it shall deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time any rights and
privileges available to it under this Agreement or any other Loan Document.
SECTION 10.7. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by any Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by such Borrower). The
Administrative Agent will distribute to each Lender each document or instrument
received for its account and copies of all other communications received by the
Administrative Agent from any Borrower for distribution to the Lenders by the
Administrative Agent in accordance with the terms of this Agreement.
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SECTION 10.8. Reliance by the Administrative Agent. The Administrative
Agent shall be entitled to rely upon any certification, notice or other
communication (including any thereof by telephone, telecopy, telegram or cable)
believed by it to be genuine and correct and to have been signed or sent by or
on behalf of the proper Person, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Administrative Agent.
As to any matters not expressly provided for by this Agreement or any other Loan
Document, the Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder or thereunder in accordance with
instructions given by the Required Lenders or all of the Lenders as is required
in such circumstance, and such instructions of such Lenders and any action taken
or failure to act pursuant thereto shall be binding on all of the Lenders. For
purposes of applying amounts in accordance with this Section, the Administrative
Agent shall be entitled to rely upon any Secured Party that has entered into a
Rate Protection Agreement with any Obligor for a determination (which such
Secured Party agrees to provide or cause to be provided upon request of the
Administrative Agent) of the outstanding Secured Obligations owed to such
Secured Party under any Rate Protection Agreement. Unless it has actual
knowledge evidenced by way of written notice from any such Secured Party and any
Borrower to the contrary, the Administrative Agent, in acting hereunder and
under each other Loan Document, shall be entitled to assume that no Rate
Protection Agreements or Obligations in respect thereof are in existence or
outstanding between any Secured Party and any Obligor.
SECTION 10.9. Defaults. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of a Default unless the
Administrative Agent has received notice from a Lender or any Borrower
specifying such Default and stating that such notice is a "Notice of Default".
In the event that the Administrative Agent receives such a notice of the
occurrence of a Default, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall (subject to Section 11.1)
take such action with respect to such Default as shall be directed by the
Required Lenders; provided, that unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interest of the Lenders
except to the extent that this Agreement expressly requires that such action be
taken, or not be taken, only with the consent or upon the authorization of the
Required Lenders or all Lenders.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc. The provisions of this Agreement
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
by the Borrowers and the Required Lenders; provided, however, that no such
amendment, modification or waiver shall:
(a) modify this Section 11.1 without the consent of all Lenders;
(b) increase the aggregate amount of any Lender's Percentage of
any Commitment Amount, increase the aggregate amount of any Loans or
TLCs required to be made or purchased by a Lender pursuant to its
Commitments, extend the final
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Commitment Termination Date of Credit Extensions made (or participated
in) by a Lender or reduce any fees described in Article III payable to
any Lender without the consent of such Lender;
(c) extend the final Stated Maturity Date for any Lender's Loan
or TLC, or reduce the principal amount of or rate of interest on any
Lender's Loan or TLC or extend the date on which scheduled payments of
principal, or payments of interest or fees are payable in respect of any
Lender's Loans or TLCs, in each case, without the consent of such Lender
(it being understood and agreed, however, that any vote to rescind any
acceleration made pursuant to Section 9.2 and Section 9.3 of amounts
owing with respect to the Loans, TLCs and other Obligations shall only
require the vote of the Required Lenders);
(d) reduce the percentage set forth in the definition of
"Required Lenders" or any requirement hereunder that any particular
action be taken by all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit or extend
the Stated Expiry Date of any Letter of Credit to a date which is
subsequent to the Revolving Loan Commitment Termination Date, in each
case, unless consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in this Agreement or
another Loan Document, release (i) any Guarantor from its obligations
under a Guaranty other than in connection with a Disposition of all or
substantially all of the Capital Securities of such Guarantor in a
transaction permitted by Section 7.2.9 as in effect from time to time or
(ii) all or substantially all of the collateral under the Loan
Documents, in either case without the consent of all Lenders;
(g) change any of the terms of clause (c) of Section 2.1.4 or
Section 2.3.2 without the consent of the Swingline Lender; or
(h) affect adversely the interests, rights or obligations of the
Administrative Agent (in its capacity as the Administrative Agent), the
Syndication Agent (in its capacity as the Syndication Agent) or any
Issuer (in its capacity as Issuer), unless consented to by the
Administrative Agent, the Syndication Agent or such Issuer, as the case
may be.
No failure or delay on the part of the Administrative Agent, the Syndication
Agent, any Issuer or any Lender in exercising any power or right under this
Agreement or any other Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power or right preclude any
other or further exercise thereof or the exercise of any other power or right.
No notice to or demand on any Borrower or any other Obligor in any case shall
entitle it to any notice or demand in similar or other circumstances. No waiver
or approval by the Administrative Agent, the Syndication Agent, any Issuer or
any Lender under this Agreement or any other Loan Document shall, except as may
be otherwise stated in such waiver or approval, be applicable to subsequent
transactions. No waiver or approval hereunder shall require any similar or
dissimilar waiver or approval thereafter to be granted hereunder.
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SECTION 11.2. Notices. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party at
its address or facsimile number set forth on Schedule III hereto or set forth in
the Lender Assignment Agreement or at such other address or facsimile number as
may be designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid or if properly addressed and
sent by pre-paid courier service, shall be deemed given when received; any
notice, if transmitted by facsimile, shall be deemed given when transmitted
(telephonic confirmation in the case of facsimile).
SECTION 11.3. Payment of Costs and Expenses. The Borrowers jointly and
severally agree to pay on demand all reasonable expenses of the Administrative
Agent (including the reasonable fees and out-of-pocket expenses of Xxxxx, Xxxxx
& Xxxxx, special New York counsel to the Administrative Agent and of local
counsel, if any, who may be retained by counsel to the Administrative Agent) in
connection with:
(a) the syndication by the Agents of the Loans, the TLCs, the
negotiation, preparation, execution and delivery of this Agreement and
of each other Loan Document, including schedules and exhibits, and any
amendments, waivers, consents, supplements or other modifications to
this Agreement or any other Loan Document as may from time to time
hereafter be required, whether or not the transactions contemplated
hereby are consummated;
(b) the filing, recording, refiling or rerecording of each
Mortgage, each Pledge Agreement and each Security Agreement and/or any
Uniform Commercial Code financing statements or other instruments
relating thereto and all amendments, supplements and modifications to
any thereof and any and all other documents or instruments of further
assurance required to be filed or recorded or refiled or rerecorded by
the terms hereof or of such Mortgage, Pledge Agreement or Security
Agreement; and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrowers further jointly and severally agree to pay, and to save each
Agent, the Issuer and the Lenders harmless from all liability for, any stamp or
other similar taxes which may be payable in connection with the execution or
delivery of this Agreement, the Credit Extensions made hereunder, or the
issuance of the Notes, the TLCs and Letters of Credit or any other Loan
Documents. The Borrowers also agree to reimburse the Administrative Agent, the
Issuer and each Lender upon demand for all reasonable out-of-pocket expenses
(including attorneys' fees and legal expenses) incurred by the Administrative
Agent, the Issuer or such Lender in connection with (x) the negotiation of any
restructuring or "work-out", whether or not consummated, of any Obligations and
(y) the enforcement of any Obligations.
SECTION 11.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Borrowers hereby jointly and severally indemnify, exonerate and hold the
Administrative Agent, the Syndication Agent, the Issuer and each Lender and each
of their respective Affiliates, and each of their respective
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partners, officers, directors, employees and agents, and each other Person
controlling any of the foregoing within the meaning of either Section 15 of the
Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act
of 1934, as amended (collectively, the "Indemnified Parties"), free and harmless
from and against any and all actions, causes of action, suits, losses, costs,
liabilities and damages, and expenses actually incurred in connection therewith
(irrespective of whether any such Indemnified Party is a party to the action for
which indemnification hereunder is sought), including reasonable attorneys' fees
and disbursements (collectively, the "Indemnified Liabilities"), incurred by the
Indemnified Parties or any of them as a result of, or arising out of, or
relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Credit Extension;
(b) the entering into and performance of this Agreement and any
other Loan Document by any of the Indemnified Parties (including any
action brought by or on behalf of any Borrower as the result of any
determination by the Required Lenders pursuant to Article V not to make
any Credit Extension);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by WWI or any of its Subsidiaries of
all or any portion of the stock or assets of any Person, whether or not
the Administrative Agent, the Syndication Agent, the Issuer or such
Lender is party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to the
protection of the environment or the Release by WWI or any of its
Subsidiaries of any Hazardous Material;
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by WWI or any Subsidiary thereof of any
Hazardous Material present on or under such property in a manner giving
rise to liability at or prior to the time WWI or such Subsidiary owned
or operated such property (including any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any
Environmental Law), regardless of whether caused by, or within the
control of, WWI or such Subsidiary; or
(f) each Lender's Environmental Liability (the indemnification
herein shall survive repayment of the Notes and the TLCs and any
transfer of the property of WWI or any of its Subsidiaries by
foreclosure or by a deed in lieu of foreclosure for any Lender's
Environmental Liability, regardless of whether caused by, or within the
control of, WWI or such Subsidiary);
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or willful misconduct. WWI, the Borrowers and their permitted
successors and assigns hereby waive, release and agree not to make any claim, or
bring any cost recovery action against, the Administrative Agent, the
Syndication Agent, the Issuer or any Lender under CERCLA or any state
equivalent, or any similar law now existing or hereafter enacted, except to the
extent arising out of the gross
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negligence or willful misconduct of any Indemnified Party. It is expressly
understood and agreed that to the extent that any of such Persons is strictly
liable under any Environmental Laws, any Borrower's obligation to such Person
under this indemnity shall likewise be without regard to fault on the part of
such Borrower with respect to the violation or condition which results in
liability of such Person. If and to the extent that the foregoing undertaking
may be unenforceable for any reason, each of the Borrowers hereby jointly and
severally agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.
SECTION 11.5. Survival. The obligations of the Borrowers under Sections
4.3, 4.4, 4.5, 4.6, 11.3 and 11.4, and the obligations of the Lenders under
Sections 4.8 and 10.1, shall in each case survive any termination of this
Agreement, the payment in full of all Obligations, the termination or expiration
of all Letters of Credit and the termination of all Commitments. The
representations and warranties made by the Borrowers and each other Obligor in
this Agreement and in each other Loan Document shall survive the execution and
delivery of this Agreement and each such other Loan Document.
SECTION 11.6. Severability. Any provision of this Agreement or any other
Loan Document which is prohibited or unenforceable in any jurisdiction shall, as
to such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such Loan Document or affecting the validity or enforceability
of such provision in any other jurisdiction.
SECTION 11.7. Headings. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 11.8. Execution in Counterparts. This Agreement may be executed
by the parties hereto in several counterparts each of which shall be deemed to
be an original and all of which shall constitute together but one and the same
agreement.
SECTION 11.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE
NOTES, THE TLCS AND EACH OTHER LOAN DOCUMENT (OTHER THAN THE LETTERS OF CREDIT,
TO THE EXTENT SPECIFIED BELOW AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN A
LOAN DOCUMENT), INCLUDING PROVISIONS WITH RESPECT TO INTEREST, LOAN CHARGES AND
COMMITMENT FEES, SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE
SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK). EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO LAWS OR
RULES ARE DESIGNATED, THE INTERNATIONAL STANDBY PRACTICES (ISP98--INTERNATIONAL
CHAMBER OF COMMERCE PUBLICATION NUMBER 590 (THE "ISP RULES")) AND, AS TO MATTERS
NOT GOVERNED BY THE ISP RULES, THE INTERNAL LAWS OF THE STATE OF NEW
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YORK. This Agreement and the other Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter hereof
and thereof and supersede any prior agreements, written or oral, with respect
thereto.
SECTION 11.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
(a) none of the Borrowers may assign or transfer its rights or
obligations hereunder without the prior written consent of the
Administrative Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders
are subject to Section 11.11.
SECTION 11.11. Sale and Transfer of Loans and Notes; Participations in
Loans, Notes and TLCs. Each Lender may assign, or sell participations in, its
Loans, its TLCs, Letters of Credit and Commitments to one or more other Persons,
on a non pro rata basis, in accordance with this Section 11.11.
SECTION 11.11.1. Assignments. Any Lender,
(a) with the written consents of WWI and the Administrative
Agent (which consents shall not be unreasonably delayed or withheld and
which consent, in the case of WWI, shall be deemed to have been given in
the absence of a written notice delivered by WWI to the Administrative
Agent, on or before the fifth Business Day after receipt by WWI of such
Lender's request for such consent), may at any time assign and delegate
to one or more commercial banks or other financial institutions; and
(b) with notice to WWI and the Administrative Agent, but without
the consent of any Borrower or the Administrative Agent, may assign and
delegate to any of its Affiliates, Related Fund or to any other Lender,
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "Assignee Lender"), all or any fraction of such Lender's total Loans,
TLCs, participations in Letters of Credit and Letter of Credit Outstandings with
respect thereto and Commitments in a minimum aggregate amount of (x) $1,000,000
(if such assignment and delegation is to a then existing Lender or a Related
Fund or group of Related Funds) or (y) $5,000,000 (if such assignment and
delegation is to a Person not then a Lender; unless otherwise agreed to by the
Administrative Agent and the Borrower) or the then remaining amount of a
Lender's type of Loan or Commitment; provided, however, that (i) with respect to
assignments of Revolving Loans, the assigning Lender must assign a pro rata
portion of each of its Revolving Loan Commitments, Revolving Loans and interest
in Letters of Credit Outstandings and (ii) the Administrative Agent, in its own
discretion, or by instruction from the Issuer, may refuse acceptance of an
assignment of Revolving Loans and Revolving Loan Commitments to a Person not
satisfying long-term certificate of deposit ratings published by S&P or Xxxxx'x,
of at least BBB- or Baa3, respectively, or (unless otherwise agreed to by the
Issuer), if such assignment would, pursuant to any applicable laws,
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rules or regulations, be binding on the Issuer, result in a reduced rate of
return to the Issuer or require the Issuer to set aside capital in an amount
that is greater than that which is required to be set aside for other Lenders
participating in the Letters of Credit; provided, further, that any such
Assignee Lender will comply, if applicable, with the provisions contained in
Section 4.6 and the Borrowers, each other Obligor and the Administrative Agent
shall be entitled to continue to deal solely and directly with such Lender in
connection with the interests so assigned and delegated to an Assignee Lender
until
(i) written notice of such assignment and delegation,
together with payment instructions, addresses and related
information with respect to such Assignee Lender, shall have
been given to the Borrowers and the Administrative Agent by such
Lender and such Assignee Lender;
(ii) such Assignee Lender shall have executed and
delivered to the Borrowers and the Administrative Agent a Lender
Assignment Agreement, accepted by the Administrative Agent; and
(iii) the processing fees described below shall have
been paid.
From and after the date that the Administrative Agent accepts such Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Within ten Business Days after its receipt of notice that the
Administrative Agent has received an executed Lender Assignment Agreement, the
applicable Borrower shall execute and deliver to the Administrative Agent (for
delivery to the relevant Assignee Lender) new Notes or TLCs, as the case may be,
evidencing such Assignee Lender's assigned Loans, TLCs, TLC Commitments and
Commitments and, if the assignor Lender has retained Loans, TLCs, TLC
Commitments and Commitments hereunder, replacement Notes or TLCs, as the case
may be, in the principal amount of the Loans or TLCs, as the case may be, and
TLC Commitments or Commitments, as the case may be, retained by the assignor
Lender hereunder (such Notes or TLCs, as the case may be, to be in exchange for,
but not in payment of, those Notes or TLCs, as the case may be, then held by
such assignor Lender). Each such Note or TLC, as the case may be, shall be dated
the date of the predecessor Notes or TLCs, as the case may be. The assignor
Lender shall xxxx the predecessor Notes or TLCs, as the case may be, "exchanged"
and deliver them to the applicable Borrower. Accrued interest on that part of
the predecessor Notes or TLCs, as the case may be, evidenced by the new Notes or
TLCs, as the case may be, and accrued fees, shall be paid as provided in the
Lender Assignment Agreement. Accrued interest on that part of the predecessor
Notes or TLCs, as the case may be, evidenced by the replacement Notes or TLCs,
as the case may be, shall be paid to the assignor Lender. Accrued interest and
accrued fees shall be paid at the same time or times provided in the predecessor
Notes or TLCs, as the case may be, and in this Agreement. Such assignor Lender
or such Assignee Lender must also pay a processing fee to the Administrative
Agent upon delivery of any Lender Assignment Agreement,
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in the amount of $3,500, unless such assignment and delegation is by a Lender to
its Affiliate (which shall not include a Related Fund) or if such assignment and
delegation is by a Lender to the Federal Reserve Bank, as provided below. Any
attempted assignment and delegation not made in accordance with this Section
11.11.1 shall be null and void.
Notwithstanding any other term of this Section 11.11.1, the agreement of the
Swing Line Lender to provide the Swing Line Loan Commitment shall not impair or
otherwise restrict in any manner the ability of the Swing Line Lender to make
any assignment of its Loans or Commitments, it being understood and agreed that
the Swing Line Lender may terminate its Swing Line Loan Commitment, to the
extent such Swing Line Commitment would exceed its Revolving Loan Commitment
after giving effect to such assignment, in connection with the making of any
assignment. Nothing contained in this Section 11.11.1 shall prevent or prohibit
any Lender from pledging its rights (but not its obligations to make Loans)
under this Agreement and/or its Loans and/or its Notes hereunder to a Federal
Reserve Bank (or in the case of a Lender which is a fund, to the trustee of, or
other Eligible Institution affiliated with, such fund for the benefit of its
investors) in support of borrowings made by such Lender from such Federal
Reserve Bank.
In the event that S&P or Xxxxx'x shall, after the date that any Lender with a
Commitment to make Revolving Loans or participate in Letters of Credit or Swing
Line Loans becomes a Lender, downgrade the long-term certificate of deposit
rating or long-term senior unsecured debt rating of such Lender, and the
resulting rating shall be below BBB- or Baa3, then each of the Issuer and (if
different) the Swing Line Lender shall have the right, but not the obligation,
upon notice to such Lender and the Administrative Agent, to replace such Lender
with an Assignee Lender in accordance with and subject to the restrictions
contained in this Section, and such Lender hereby agrees to transfer and assign
without recourse (in accordance with and subject to the restrictions contained
in this Section) all its interests, rights and obligations in respect of its
Revolving Loan Commitment under this Agreement to such Assignee Lender;
provided, however, that (i) no such assignment shall conflict with any law, rule
and regulation or order of any governmental authority and (ii) such Assignee
Lender shall pay to such Lender in immediately available funds on the date of
such assignment the principal of and interest and fees (if any) accrued to the
date of payment on the Loans made, and Letters of Credit participated in, by
such Lender hereunder and all other amounts accrued for such Lender's account or
owed to it hereunder.
SECTION 11.11.2. Participations.
(a) Any Lender may at any time sell to one or more commercial
banks or other Persons (each of such commercial banks and other Persons
being herein called a "Participant") participating interests in any of
the Loans, TLCs, Commitments, or other interests of such Lender
hereunder; provided, however, that
(i) no participation contemplated in this Section shall
relieve such Lender from its Commitments or its other
obligations hereunder or under any other Loan Document;
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112
(ii) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations;
(iii) each Borrower and each other Obligor and the
Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
obligations under this Agreement and each of the other Loan
Documents;
(iv) no Participant, unless such Participant is an
Affiliate of such Lender, or Related Fund or is itself a Lender,
shall be entitled to require such Lender to take or refrain from
taking any action hereunder or under any other Loan Document,
except that such Lender may agree with any Participant that such
Lender will not, without such Participant's consent, take any
action of the type described in clause (a), (b), (f) or, to the
extent requiring the consent of each Lender, clause (c) of
Section 11.1; and
(v) the Borrowers shall not be required to pay any
amount under this Agreement that is greater than the amount
which it would have been required to pay had no participating
interest been sold.
The Borrowers acknowledge and agree, subject to clause (v) above, that each
Participant, for purposes of Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 11.3 and
11.4, shall be considered a Lender. Each Participant shall only be indemnified
for increased costs pursuant to Section 4.3, 4.5 or 4.6 if and to the extent
that the Lender which sold such participating interest to such Participant
concurrently is entitled to make, and does make, a claim on any Borrower for
such increased costs. Any Lender that sells a participating interest in any
Loan, TLC, Commitment or other interest to a Participant under this Section
shall indemnify and hold harmless each Borrower and the Administrative Agent
from and against any taxes, penalties, interest or other costs or losses
(including reasonable attorneys' fees and expenses) incurred or payable by any
Borrower or the Administrative Agent as a result of the failure of such Borrower
or the Administrative Agent to comply with its obligations to deduct or withhold
any taxes from any payments made pursuant to this Agreement to such Lender or
the Administrative Agent, as the case may be, which taxes would not have been
incurred or payable if such Participant had been a Non-U.S. Lender that was
entitled to deliver to such Borrower, the Administrative Agent or such Lender,
and did in fact so deliver, a duly completed and valid Form 1001 or 4224 (or
applicable successor form) entitling such Participant to receive payments under
this Agreement without deduction or withholding of any United States federal
taxes.
(b) Each Lender agrees and represents with and for the benefit
of the SP1 Borrower and WW Australia that it:
(i) has not (directly or indirectly) offered by
subscription or purchase or issued invitations to subscribe for
or buy nor has it sold the TLCs;
(ii) will not (directly or indirectly) offer for
subscription or purchase or issue invitations to subscribe for
or buy nor will it sell the TLCs; and
-105-
113
(iii) has not distributed and will not distribute any
draft, preliminary or definitive offering memorandum,
advertisements or other offering material relating to the TLCs,
in the Commonwealth of Australia, its territories or possessions, unless (x) the
consideration is payable by each offeree or invitee in a minimum amount of
A$500,000 or the offer or invitation is otherwise an excluded offer or excluded
invitation for the purposes of the Australian Corporations Law and the
Corporations Regulations made under the Australian Corporations Law, and (y) the
offer, invitation or distribution complies with all applicable laws, regulations
and directives and does not require any document to be lodged with, or
registered by, the ASIC.
(c) Each Lender agrees and represents with and for the benefit
of the SP1 Borrower and WW Australia that it has not sold and will not
sell the TLCs to any person if, at the time of such sale, the employees
of the Lender aware of, or involved in, the sale knew or had reasonable
grounds to suspect that, as a result of such sale, any TLCs or an
interest in any TLCs were being, or would later be, acquired (directly
or indirectly) by an associate of the SP1 Borrower or WW Australia for
the purposes of section 128F(5) of the Income Tax Assessment Xxx 0000 of
Australia.
(d) The SP1 Borrower holds the benefit of the agreements and
representations in paragraphs (b) and (c) in trust for WW Australia.
SECTION 11.11.3. Register. The Borrowers hereby designate the
Administrative Agent to serve as the Borrowers' agent, solely for the purpose of
this Section, to maintain a register (the "Register") on which the
Administrative Agent will record each Lender's Commitment, the Loans made by
each Lender and the Notes evidencing such Loans and the TLCs, and each repayment
in respect of the principal amount of the Loans and the TLCs of each Lender and
annexed to which the Administrative Agent shall retain a copy of each Lender
Assignment Agreement delivered to the Administrative Agent pursuant to this
Section. Failure to make any recordation, or any error in such recordation,
shall not affect any Borrower's or any other Obligor's Obligations in respect of
such Loans or Notes or TLCs. The entries in the Register shall be conclusive, in
the absence of manifest error, and WWI, the Borrowers, the Administrative Agent
and the Lenders shall treat each Person in whose name a Loan and related Note or
TLC is registered as the owner thereof for all purposes of this Agreement,
notwithstanding notice or any provision herein to the contrary. A Lender's
Commitment and the Loans made pursuant thereto and the Notes evidencing such
Loans or TLCs may be assigned or otherwise transferred in whole or in part only
by registration of such assignment or transfer in the Register. Any assignment
or transfer of a Lender's Commitment or the Loans or the Notes evidencing such
Loans or TLCs made pursuant thereto shall be registered in the Register only
upon delivery to the Administrative Agent of a Lender Assignment Agreement duly
executed by the assignor thereof. No assignment or transfer of a Lender's
Commitment or the Loans made pursuant thereto or the Notes evidencing such Loans
or TLCs shall be effective unless such assignment or transfer shall have been
recorded in the Register by the Administrative Agent as provided in this
Section. No Assignment and Assumption Agreement shall be effective until
recorded in the Register.
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114
SECTION 11.12. Other Transactions. Nothing contained herein shall
preclude the Administrative Agent, the Issuer or any other Lender from engaging
in any transaction, in addition to those contemplated by this Agreement or any
other Loan Document, the Borrowers or any of their Affiliates in which any
Borrower or such Affiliate is not restricted hereby from engaging with any other
Person.
SECTION 11.13. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE
AGENT, THE SYNDICATION AGENT, THE LENDERS, ANY ISSUER OR THE BORROWERS IN
CONNECTION HEREWITH OR THEREWITH SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN
THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH OF THE BORROWERS IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR
NOTICES SPECIFIED IN SECTION 11.2. EACH OF THE BORROWERS HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY OF
WWI OR THE BORROWERS HAVE OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, EACH OF WWI AND THE BORROWERS
HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW SUCH IMMUNITY
IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 11.14. Waiver of Jury Trial. THE ADMINISTRATIVE AGENT, THE
SYNDICATION AGENT, EACH LENDER, EACH ISSUER AND EACH BORROWER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ANY
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON,
OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE SYNDICATION AGENT,
SUCH LENDER, SUCH
-107-
115
ISSUER OR ANY BORROWER IN CONNECTION HEREWITH OR THEREWITH. EACH OF THE
BORROWERS ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN
DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE ADMINISTRATIVE AGENT, THE SYNDICATION AGENT, EACH LENDER AND
EACH ISSUER ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
SECTION 11.15. Confidentiality. The Lenders shall hold all non-public
information obtained pursuant to or in connection with this Agreement or
obtained by such Lender based on a review of the books and records of WWI or any
of its Subsidiaries in accordance with their customary procedures for handling
confidential information of this nature, but may make disclosure to any of their
examiners, Affiliates, outside auditors, counsel and other professional advisors
or to any direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees to
be bound by the provisions of this Section) in connection with this Agreement or
as reasonably required by any potential bona fide transferee, participant or
assignee, or in connection with the exercise of remedies under a Loan Document,
or as requested by any governmental agency or representative thereof or pursuant
to legal process; provided, however, that
(a) unless specifically prohibited by applicable law or court
order, each Lender shall notify WWI of any request by any governmental
agency or representative thereof (other than any such request in
connection with an examination of the financial condition of such Lender
by such governmental agency) for disclosure of any such non-public
information prior to disclosure of such information;
(b) prior to any such disclosure pursuant to this Section 11.15,
each Lender shall require any such bona fide transferee, participant and
assignee receiving a disclosure of non-public information to agree in
writing
(i) to be bound by this Section 11.15; and
(ii) to require such Person to require any other Person
to whom such Person discloses such non-public information to be
similarly bound by this Section 11.15; and
(c) except as may be required by an order of a court of
competent jurisdiction and to the extent set forth therein, no Lender
shall be obligated or required to return any materials furnished by WWI
or any Subsidiary.
SECTION 11.16. Judgment Currency. If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum due hereunder, under any
Note, TLC or under any other Loan Document in another currency into U.S. Dollars
or into a Foreign Currency, as the case may be, the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which, in accordance with normal banking procedures, the
-108-
116
applicable Secured Party could purchase such other currency with U.S. Dollars or
with such Foreign Currency, as the case may be, in New York City, at the close
of business on the Business Day immediately preceding the day on which final
judgment is given, together with any premiums and costs of exchange payable in
connection with such purchase.
SECTION 11.17. Release of Security Interests.
(a) Notwithstanding anything to the contrary contained herein or
in any other Loan Document, the Administrative Agent is hereby
irrevocably authorized by each Lender (without requirement of notice to
or consent of any Lender except as expressly required by Section 11.1)
to take any action requested by the Borrowers having the effect of
releasing any collateral or guarantee obligations (i) to the extent
necessary to permit consummation of any transaction expressly permitted
by any Loan Document or that has been consented to in accordance with
Section 11.1 or (ii) under the circumstances described in paragraph (b)
below.
(b) At such time as the Loans, the Reimbursement Obligations and
the other obligations under the Loan Documents shall have been paid in
full, the Commitments have been terminated and no letters of Credit
shall be outstanding, the collateral shall be released from the Liens
created by the Security Agreements, and the Security Agreements and all
obligations (other than those expressly stated to survive such
termination) of the Administrative Agent and each Obligor under the
Security Agreements shall terminate, all without delivery of any
instrument or performance of any act by any Person.
-109-
117
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
BORROWERS
WEIGHT WATCHERS INTERNATIONAL, INC.
By:
--------------------------------
Name:
Title:
WW FUNDING CORP.
By:
--------------------------------
Name:
Title:
118
AGENTS
CREDIT SUISSE FIRST BOSTON
as the Syndication Agent
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
as the Administrative Agent
By:
--------------------------------
Name:
Title:
ISSUER
THE BANK OF NOVA SCOTIA
as the Issuer
By:
--------------------------------
Name:
Title:
000
XXXXXXX
XXX XXXX XX XXXX XXXXXX
By:
--------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
120
CAPTIVA II FINANCE LTD.
By:
--------------------------------
Name:
Title:
121
ANNEX II
WEIGHCO ENTERPRISES, INC.
Loan Balances at December 31, 2000
NOTEHOLDER ORIGINAL AMOUNT BALANCE AT 12/31/000 SECURED UNSECURED
(1) PNC BANK $ 2,855,000.00 $ 1,688,337.00 X
(2) PNC BANK $ 2,700,000.00 $ 1,575,000.00 X
(3) PNC BANK $ 2,100,000.00 $ 1,825,000.00 X
(4) PNC BANK $ 1,200,000.00 $ 200,000.00 X
(5) PNC BANK $12,900,000.00 $10,589,708.00 X
(6) PNC BANK $ 2,250,000.00 $ 1,828,892.00 X
(7) PNC BANK $ 2,350,000.00 $ 2,081,400.00 X
(8) HEINZ $ 2,265,000.00 $ 2,015,000.00 X
(9) XXXX X. XXXX $ 3,480,000.00 $ 3,480,000.00 X
122
SCHEDULE I
DISCLOSURE SCHEDULE
ITEM 5.1.9 Lien Search Jurisdictions.
ITEM 6.1 Good Standing.
ITEM 6.7 Litigation.
Description of Proceeding Action or Claim Sought
ITEM 6.8 Existing Subsidiaries.
ITEM 6.11 Employee Benefit Plans.
ITEM 6.12 Environmental Matters.
ITEM 7.2.2(c) Ongoing Indebtedness.
Creditor Outstanding Principal Amount
ITEM 7.2.5(a) Ongoing Investments.
123
New York State Subsidiaries Good Standing
ITEM 6.1 TO THE DISCLOSURE SCHEDULE
NONE.
124
Litigation
ITEM 6.7 OF THE DISCLOSURE SCHEDULE
1. Independent Weight Watchers Franchisees v. WWI, demand for Arbitration
July 14, 1999, American Arbitration Association, 50T1140026999. Alleged
breach of contract regarding franchisee profit sharing fund and sources
of income and computations for that fund (settled with approximately 70%
of Franchisees 12/1/00). Decision of Panel found revenues from licensing
Weight Watchers brand on Rose should be included in fund calculations
but those from licensing brand on line of shapewear and activewear need
not be. Issues concerning rights to conduct At Home pursuant to existing
franchise agreements are still pending. Additional discovery may be
ordered. No hearing date set.
2. Weight Watchers International, Inc. v. Weight Watchers of Philadelphia,
Inc., et al., American Arbitration Association, 50T1330000596. Suit
against several franchisees alleging trademark infringement and breach
of contract arising out of franchisee's establishment of Internet web
sites. In discovery phase.
125
Additional WWI Subsidiaries
ATTACHMENT TO
ITEM 6.8 TO THE DISCLOSURE SCHEDULE
NAME JURISDICTION
---- ------------
WEIGHT WATCHERS OPERATIONS FRANCE S.A.R.L. FRANCE
WEIGHT WATCHERS EUROPEAN HOLDING, AB SWEDEN
WEIGHT WATCHERS DENMARK APS DENMARK
WEIGHT WATCHERS OPERATIONS DENMARK APS DENMARK
WEIGHT WATCHERS SPAIN S.L. SPAIN
WEIGHT WATCHERS OPERATIONS SPAIN S.L. SPAIN
126
Employee Benefit Plans
ITEM 6.11 TO THE DISCLOSURE SCHEDULE
NONE.
127
Environmental Matters
ITEM 6.12 TO THE DISCLOSURE SCHEDULE
NONE.
128
Ongoing Indebtedness
ITEM 7.2.2(c) TO THE DISCLOSURE SCHEDULE
NONE.
129
Ongoing Investments
ITEM 7.2.5(a) TO THE DISCLOSURE SCHEDULE
1. 35% INTEREST IN WEIGHT WATCHERS DO BRASIL PROGRAMAS ALIMENTARES, LTD.
2. 35% INTEREST IN VIGILANTES DO PESO MARKETING, LTDA.
3. 35% INTEREST IN XXXXXXXXXXXXXX.XXX, INC.
4. 50% INTEREST IN WW FOODS, LLC.
5. WEIGHT WATCHERS SUOMI OY - NOTE FROM MINORITY SHAREHOLDER FOR $203,514.
6. 100% INTEREST IN WEIGHT WATCHERS MAGAZINE.
7. ACQUIRED MINORITY INTEREST OF WEIGHT WATCHERS SWEDEN AB.
130
SCHEDULE II
COMMITMENTS AND PERCENTAGES
131
SCHEDULE II
COMMITMENTS AND PERCENTAGES
------------------------------------------- ------------------ ------------------- ------------------ ------------------
ADDITIONAL TERM
A LOANS TERM A LOANS TERM B LOANS TERM D LOANS
LENDER COMMITMENT % COMMITMENT % COMMITMENT % COMMITMENT %
------------------------------------------- ------------------ ------------------- ------------------ ------------------
THE BANK OF NOVA SCOTIA 16.00000% 17.00000% 0.000000 77.50000%
------------------------------------------- ------------------ ------------------- ------------------ ------------------
CREDIT SUISSE FIRST BOSTON 13.33333% 16.40553% 0.000000 12.50000%
------------------------------------------- ------------------ ------------------- ------------------ ------------------
BANK ONE, NA (MAIN OFFICE CHICAGO) 0.000000 11.52074% 0.000000 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
BALANCED HIGH YIELD FUND I, LTD. 0.000000 0.000000 0.000000 5.00000%
------------------------------------------- ------------------ ------------------- ------------------ ------------------
BALANCED HIGH YIELD FUND II, LTD. 0.000000 0.000000 6.17284% 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
BHF (USA) CAPITAL CORPORATION 0.000000 11.52074% 3.08642% 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
CARLYLE HIGH YIELD PARTNERS II, LTD. 0.000000 0.000000 0.97930% 0.00000%
------------------------------------------- ------------------ ------------------- ------------------ ------------------
THE CHASE MANHATTAN BANK 16.66667% 3.22581% 0.000000 0.00000%
------------------------------------------- ------------------ ------------------- ------------------ ------------------
XXXXXXX XXXX 0000 LTD. 0.000000 6.14439% 0.000000 0.00000%
------------------------------------------- ------------------ ------------------- ------------------ ------------------
CREDIT LYONNAIS NEW YORK BRANCH 0.000000 0.000000 20.00000% 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
FIRST DOMINION FUNDING II 0.000000 0.000000 0.000000 0.00000%
------------------------------------------- ------------------ ------------------- ------------------ ------------------
FORTIS (USA) FINANCE LLC 0.000000 23.04147% 0.000000 0.00000%
------------------------------------------- ------------------ ------------------- ------------------ ------------------
CARLYLE HIGH YIELD PARTNERS, L.P. 0.000000 0.000000 0.000000 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
METROPOLITAN LIFE INSURANCE COMPANY 0.000000 0.000000 6.17284% 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
------------------------------------------- -------------------- ------------------ ------------------ -------------------
DESIGNATED NEW ADDITIONAL
TERM LOANS SWING LINE LOANS REVOLVING LOAN REVOLVING LOANS
LENDER COMMITMENT % COMMITMENT % COMMITMENT % COMMITMENT %
------------------------------------------- -------------------- ------------------ ------------------ -------------------
THE BANK OF NOVA SCOTIA 0.000000 100.00000% 30.00000% 27.14286%
------------------------------------------- -------------------- ------------------ ------------------ -------------------
CREDIT SUISSE FIRST BOSTON 0.000000 0.000000 26.66667% 20.31746%
------------------------------------------- -------------------- ------------------ ------------------ -------------------
BANK ONE, NA (MAIN OFFICE CHICAGO) 0.000000 0.000000 0.000000 9.52381%
------------------------------------------- -------------------- ------------------ ------------------ -------------------
BALANCED HIGH YIELD FUND I, LTD. 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
BALANCED HIGH YIELD FUND II, LTD. 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
BHF (USA) CAPITAL CORPORATION 0.000000 0.000000 0.000000 9.52381%
------------------------------------------- -------------------- ------------------ ------------------ -------------------
CARLYLE HIGH YIELD PARTNERS II, LTD. 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
THE CHASE MANHATTAN BANK 0.000000 0.000000 16.66667% 5.55556%
------------------------------------------- -------------------- ------------------ ------------------ -------------------
XXXXXXX XXXX 0000 LTD. 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
CREDIT LYONNAIS NEW YORK BRANCH 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
FIRST DOMINION FUNDING II 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
FORTIS (USA) FINANCE LLC 0.000000 0.000000 0.000000 19.04762%
------------------------------------------- -------------------- ------------------ ------------------ -------------------
CARLYLE HIGH YIELD PARTNERS, L.P. 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
METROPOLITAN LIFE INSURANCE COMPANY 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
------------------------------------------- ------------------
LENDER TLCs COMMITMENT %
------------------------------------------- ------------------
THE BANK OF NOVA SCOTIA 0.000000
------------------------------------------- ------------------
CREDIT SUISSE FIRST BOSTON 0.000000
------------------------------------------- ------------------
BANK ONE, NA (MAIN OFFICE CHICAGO) 0.000000
------------------------------------------- ------------------
BALANCED HIGH YIELD FUND I, LTD. 0.000000
------------------------------------------- ------------------
BALANCED HIGH YIELD FUND II, LTD. 6.17284%
------------------------------------------- ------------------
BHF (USA) CAPITAL CORPORATION 3.08642%
------------------------------------------- ------------------
CARLYLE HIGH YIELD PARTNERS II, LTD. 4.32099%
------------------------------------------- ------------------
THE CHASE MANHATTAN BANK 0.000000
------------------------------------------- ------------------
CITADEL HILL 2000 LTD. 0.000000
------------------------------------------- ------------------
CREDIT LYONNAIS NEW YORK BRANCH 0.000000
------------------------------------------- ------------------
FIRST DOMINION FUNDING II 5.74713%
------------------------------------------- ------------------
FORTIS (USA) FINANCE LLC 0.000000
------------------------------------------- ------------------
CARLYLE HIGH YIELD PARTNERS, L.P. 5.39510%
------------------------------------------- ------------------
METROPOLITAN LIFE INSURANCE COMPANY 6.17284%
------------------------------------------- ------------------
1
132
------------------------------------------- ------------------ ------------------- ------------------ ------------------
ADDITIONAL TERM
A LOANS TERM A LOANS TERM B LOANS TERM D LOANS
LENDER COMMITMENT % COMMITMENT % COMMITMENT % COMMITMENT %
------------------------------------------- ------------------ ------------------- ------------------ ------------------
JHW CASH FLOW FUND I, L.P. 0.000000 0.000000 1.82716% 0.00000%
------------------------------------------- ------------------ ------------------- ------------------ ------------------
NATIONAL CITY BANK 53.33333% 10.32258% 0.000000 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
NUVEEN FLOATING RATE FUND 0.000000 0.000000 0.000000 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
NUVEEN SENIOR INCOME TRUST 0.000000 0.000000 0.000000 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
SPYGLASS FUNDING TRUST 0.000000 0.000000 4.32099% 5.00000%
------------------------------------------- ------------------ ------------------- ------------------ ------------------
PRINCIPAL LIFE INSURANCE COMPANY 0.000000 0.000000 9.25926% 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
LONG LANE MASTER TRUST IV 0.000000 0.000000 0.62278% 0.00000%
------------------------------------------- ------------------ ------------------- ------------------ ------------------
SEABOARD CLO 2000 LTD 0.000000 0.000000 4.31549% 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
LIBERTY-XXXXX XXX ADVISOR FLOATING RATE
ADVANTAGE FUND 0.000000 0.000000 0.000000 0.00000%
------------------------------------------- ------------------ ------------------- ------------------ ------------------
SRF 2000 LLC 0.000000 0.000000 0.000000 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
SRF TRADING, INC. 0.000000 0.000000 1.85185% 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
XXXXX XXX FLOATING RATE LIMITED LIABILITY
COMPANY 0.000000 0.000000 0.61728% 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
XXXXX XXX & XXXXXXX CLO I LTD. 0.000000 0.000000 3.70370% 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
CAPTIVA II FINANCE LTD. 0.000000 0.000000 0.88272% 0.00000%
------------------------------------------- ------------------ ------------------- ------------------ ------------------
CONTINENTAL ASSURANCE COMPANY 0.000000 0.000000 0.35309% 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
------------------------------------------- -------------------- ------------------ ------------------ -------------------
DESIGNATED NEW ADDITIONAL
TERM LOANS SWING LINE LOANS REVOLVING LOAN REVOLVING LOANS
LENDER COMMITMENT % COMMITMENT % COMMITMENT % COMMITMENT %
------------------------------------------- -------------------- ------------------ ------------------ -------------------
JHW CASH FLOW FUND I, L.P. 0.00000% 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
NATIONAL CITY BANK 0.000000 0.000000 26.66667% 8.88889%
------------------------------------------- -------------------- ------------------ ------------------ -------------------
NUVEEN FLOATING RATE FUND 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
NUVEEN SENIOR INCOME TRUST 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
SPYGLASS FUNDING TRUST 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
PRINCIPAL LIFE INSURANCE COMPANY 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
LONG LANE MASTER TRUST IV 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
SEABOARD CLO 2000 LTD 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
LIBERTY-XXXXX XXX ADVISOR FLOATING RATE
ADVANTAGE FUND 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
SRF 2000 LLC 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
SRF TRADING, INC. 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
XXXXX XXX FLOATING RATE LIMITED LIABILITY
COMPANY 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
XXXXX XXX & XXXXXXX CLO I LTD. 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
CAPTIVA II FINANCE LTD. 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
CONTINENTAL ASSURANCE COMPANY 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
------------------------------------------- ------------------
LENDER TLCs COMMITMENT %
------------------------------------------- ------------------
JHW CASH FLOW FUND I, L.P. 6.47084%
------------------------------------------- ------------------
NATIONAL CITY BANK 0.000000
------------------------------------------- ------------------
NUVEEN FLOATING RATE FUND 1.72414%
------------------------------------------- ------------------
NUVEEN SENIOR INCOME TRUST 4.94253%
------------------------------------------- ------------------
SPYGLASS FUNDING TRUST 4.32099%
------------------------------------------- ------------------
PRINCIPAL LIFE INSURANCE COMPANY 9.2596%
------------------------------------------- ------------------
LONG LANE MASTER TRUST IV 0.63357%
------------------------------------------- ------------------
SEABOARD CLO 2000 LTD 4.30470%
------------------------------------------- ------------------
LIBERTY-XXXXX XXX ADVISOR FLOATING RATE
ADVANTAGE FUND 2.29885%
------------------------------------------- ------------------
SRF 2000 LLC 5.74713%
------------------------------------------- ------------------
SRF TRADING, INC. 1.85185%
------------------------------------------- ------------------
XXXXX XXX FLOATING RATE LIMITED LIABILITY
COMPANY 4.06556%
------------------------------------------- ------------------
XXXXX XXX & XXXXXXX CLO I LTD. 3.70370%
------------------------------------------- ------------------
CAPTIVA II FINANCE LTD. 2.11260%
------------------------------------------- ------------------
CONTINENTAL ASSURANCE COMPANY 0.84504%
------------------------------------------- ------------------
2
133
------------------------------------------- ------------------ ------------------- ------------------ ------------------
ADDITIONAL TERM
A LOANS TERM A LOANS TERM B LOANS TERM D LOANS
LENDER COMMITMENT % COMMITMENT % COMMITMENT % COMMITMENT %
------------------------------------------- ------------------ ------------------- ------------------ ------------------
KZH CRESCENT LLC 0.000000 0.000000 0.88272% 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
KZH CRESCENT-2 LLC 0.000000 0.000000 1.23580% 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
KZH CRESENT-3 LLC 0.000000 0.000000 0.88272% 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
SEQUILS I, LTD 0.000000 0.000000 2.47160% 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
SEQUILS IV LTD 0.000000 0.000000 3.34169% 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
UNITED OF OMAHA LIFE INSURANCE COMPANY 0.000000 0.000000 0.35309% 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
XXX XXXXXX CLO I, LIMITED 0.000000 0.000000 6.66667% 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
XXX XXXXXX CLO II, LIMITED 0.000000 0.000000 6.66667% 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
XXX XXXXXX PRIME RATE INCOME TRUST 0.000000 0.000000 13.33333% 0.000000
------------------------------------------- ------------------ ------------------- ------------------ ------------------
TOTAL PERCENTAGES: 100.00000% 100.00000% 100.00000% 100.00000%
------------------------------------------- ------------------ ------------------- ------------------ ------------------
------------------------------------------- -------------------- ------------------ ------------------ -------------------
DESIGNATED NEW ADDITIONAL
TERM LOANS SWING LINE LOANS REVOLVING LOAN REVOLVING LOANS
LENDER COMMITMENT % COMMITMENT % COMMITMENT % COMMITMENT %
------------------------------------------- -------------------- ------------------ ------------------ -------------------
KZH CRESCENT LLC 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
KZH CRESCENT-2 LLC 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
KZH CRESENT-3 LLC 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
SEQUILS I, LTD 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
SEQUILS IV LTD 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
UNITED OF OMAHA LIFE INSURANCE COMPANY 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
XXX XXXXXX CLO I, LIMITED 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
XXX XXXXXX CLO II, LIMITED 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
XXX XXXXXX PRIME RATE INCOME TRUST 0.000000 0.000000 0.000000 0.000000
------------------------------------------- -------------------- ------------------ ------------------ -------------------
TOTAL PERCENTAGES: 0.000000 100.00000% 100.00000% 100.00000%
------------------------------------------- -------------------- ------------------ ------------------ -------------------
------------------------------------------- ------------------
LENDER TLCs COMMITMENT %
------------------------------------------- ------------------
KZH CRESCENT LLC 2.11260%
------------------------------------------- ------------------
KZH CRESCENT-2 LLC 2.95764%
------------------------------------------- ------------------
KZH CRESENT-3 LLC 2.11260%
------------------------------------------- ------------------
SEQUILS I, LTD 5.91528%
------------------------------------------- ------------------
SEQUILS IV LTD 2.88077%
------------------------------------------- ------------------
UNITED OF OMAHA LIFE INSURANCE COMPANY 0.84504%
------------------------------------------- ------------------
XXX XXXXXX CLO I, LIMITED 0.000000
------------------------------------------- ------------------
XXX XXXXXX CLO II, LIMITED 0.000000
------------------------------------------- ------------------
XXX XXXXXX PRIME RATE INCOME TRUST 0.000000
------------------------------------------- ------------------
TOTAL PERCENTAGES: 100.00000%
------------------------------------------- ------------------
3
134
SCHEDULE III
NOTICE INFORMATION,
DOMESTIC OFFICES AND LIBOR OFFICES
135
SCHEDULE III
NOTICE INFORMATION,
DOMESTIC OFFICES AND LIBOR OFFICES
--------------------------------------------------------------------------------------------------------------------
THE BANK OF NOVA SCOTIA
--------------------------------------------------------------------------------------------------------------------
NOTICE INFORMATION DOMESTIC OFFICE LIBOR OFFICE
------------------ --------------- ------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
CREDIT SUISSE FIRST BOSTON
--------------------------------------------------------------------------------------------------------------------
NOTICE INFORMATION DOMESTIC OFFICE LIBOR OFFICE
------------------ --------------- ------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
BANK ONE, NA (MAIN OFFICE CHICAGO)
--------------------------------------------------------------------------------------------------------------------
NOTICE INFORMATION DOMESTIC OFFICE LIBOR OFFICE
------------------ --------------- ------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
BALANCED HIGH YIELD FUND I, LTD.
BALANCED HIGH YIELD FUND II, LTD.
BHF (USA) CAPITAL CORPORATION
--------------------------------------------------------------------------------------------------------------------
NOTICE INFORMATION DOMESTIC OFFICE LIBOR OFFICE
------------------ --------------- ------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
THE CHASE MANHATTAN BANK
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
136
--------------------------------------------------------------------------------------------------------------------
NOTICE INFORMATION DOMESTIC OFFICE LIBOR OFFICE
------------------ --------------- ------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
CITADEL HILL 2000 LTD.
--------------------------------------------------------------------------------------------------------------------
NOTICE INFORMATION DOMESTIC OFFICE LIBOR OFFICE
------------------ --------------- ------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
CARLYLE HIGH YIELD PARTNERS III, LTD.
--------------------------------------------------------------------------------------------------------------------
NOTICE INFORMATION DOMESTIC OFFICE LIBOR OFFICE
------------------ --------------- ------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
CREDIT LYONNAIS NEW YORK BRANCH
--------------------------------------------------------------------------------------------------------------------
NOTICE INFORMATION DOMESTIC OFFICE LIBOR OFFICE
------------------ --------------- ------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
FIRST DOMINION FUNDING II
--------------------------------------------------------------------------------------------------------------------
NOTICE INFORMATION DOMESTIC OFFICE LIBOR OFFICE
------------------ --------------- ------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
FORTIS (USA) FINANCE LLC
--------------------------------------------------------------------------------------------------------------------
NOTICE INFORMATION DOMESTIC OFFICE LIBOR OFFICE
------------------ --------------- ------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
137
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
KZH HIGHLAND-2 LLC
PAMCO CAYMAN LTD.
--------------------------------------------------------------------------------------------------------------------
NOTICE INFORMATION DOMESTIC OFFICE LIBOR OFFICE
------------------ --------------- ------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
IDM
--------------------------------------------------------------------------------------------------------------------
NOTICE INFORMATION DOMESTIC OFFICE LIBOR OFFICE
------------------ --------------- ------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
JHW CASH FLOW FUND I, L.P.
--------------------------------------------------------------------------------------------------------------------
NOTICE INFORMATION DOMESTIC OFFICE LIBOR OFFICE
------------------ --------------- ------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
MADISON AVENUE CDO I, LIMITED
--------------------------------------------------------------------------------------------------------------------
NOTICE INFORMATION DOMESTIC OFFICE LIBOR OFFICE
------------------ --------------- ------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
NATIONAL CITY BANK
--------------------------------------------------------------------------------------------------------------------
NOTICE INFORMATION DOMESTIC OFFICE LIBOR OFFICE
------------------ --------------- ------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
138
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
NUVEEN FLOATING RATE FUND
NUVEEN SENIOR INCOME TRUST
--------------------------------------------------------------------------------------------------------------------
NOTICE INFORMATION DOMESTIC OFFICE LIBOR OFFICE
------------------ --------------- ------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
SPYGLASS FUNDING TRUST
--------------------------------------------------------------------------------------------------------------------
NOTICE INFORMATION DOMESTIC OFFICE LIBOR OFFICE
------------------ --------------- ------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
PRINCIPAL LIFE INSURANCE COMPANY
--------------------------------------------------------------------------------------------------------------------
NOTICE INFORMATION DOMESTIC OFFICE LIBOR OFFICE
------------------ --------------- ------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
THE PROVIDENT BANK
--------------------------------------------------------------------------------------------------------------------
NOTICE INFORMATION DOMESTIC OFFICE LIBOR OFFICE
------------------ --------------- ------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
LONG LANE MASTER TRUST IV
SEABOARD CLO 2000 LTD.
SEABOARD FUND LIMITED
--------------------------------------------------------------------------------------------------------------------
NOTICE INFORMATION DOMESTIC OFFICE LIBOR OFFICE
------------------ --------------- ------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
139
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
LIBERTY-XXXXX XXX ADVISOR FLOATING RATE ADVANTAGE FUND
SRF 2000 LLC
SRF TRADING, INC.
XXXXX XXX FLOATING RATE LIMITED LIABILITY COMPANY
XXXXX XXX & XXXXXXX CLO I LTD.
--------------------------------------------------------------------------------------------------------------------
NOTICE INFORMATION DOMESTIC OFFICE LIBOR OFFICE
------------------ --------------- ------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
CAPTIVA II FINANCE LTD.
CONTINENTAL ASSURANCE COMPANY
KZH CRESCENT LLC
KZH CRESCENT-2 LLC
KZH CRESCENT-3 LLC
SEQUILS I, LTD.
SEQUILS IV LTD
UNITED OF OMAHA LIFE INSURANCE COMPANY
--------------------------------------------------------------------------------------------------------------------
NOTICE INFORMATION DOMESTIC OFFICE LIBOR OFFICE
------------------ --------------- ------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
XXX XXXXXX CLO I, LIMITED
XXX XXXXXX CLO II, LIMITED
XXX XXXXXX PRIME RATE INCOME TRUST
--------------------------------------------------------------------------------------------------------------------
NOTICE INFORMATION DOMESTIC OFFICE LIBOR OFFICE
------------------ --------------- ------------
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
