AMENDMENT TO NOTE PURCHASE AGREEMENT
THIS AMENDMENT dated as of November 20, 1998 (the "Amendment") to the
separate Note Purchase Agreements dated as of March 9, 1998, is among NFO
Worldwide, Inc. (the "Company") and each of the institutions which is a
signatory to this Amendment (collectively, the "Noteholders").
RECITALS:
A. The Company and each of the Noteholders have heretofore entered into
separate Note Purchase Agreements dated as of March 9, 1998 (collectively, as in
effect immediately prior to this Amendment, the "Note Purchase Agreement"). The
Company has heretofore issued $40,000,000 aggregate principal amount of its
6.43% Senior Notes due March 1, 2008 (the "Notes") pursuant to the Note Purchase
Agreement. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Purchase Agreement unless herein defined or the
context shall otherwise require.
B. The Company and the Noteholders now desire to amend the Note
Purchase Agreement in the respects, but only in the respects, hereinafter set
forth.
C. All requirements of law have been fully complied with and all other
acts and things necessary to make this First Amendment a legal, valid and
binding instrument according to its terms for the purposes herein expressed have
been done or performed.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the Company and the Noteholders do
hereby agree as follows:
SECTION 1. AMENDMENTS.
1.1 Each reference in the Note Purchase Agreement and the Notes to
"6.43%" is hereby deleted and there is inserted in lieu thereof "6.83%".
Interest on the Notes shall accrue at the rate of 6.43% PER ANNUM through
November 20, 1998 and shall accrue at the rate of 6.83% PER ANNUM commencing on
and including November 20, 1998. The Notes that are currently outstanding shall
bear interest at the new interest
rate without any need to surrender or exchange such Notes for new Notes bearing
the new interest rate; PROVIDED, however, that the form of any Note issued after
November 20, 1998 shall reflect the new interest rate of 6.83% PER ANNUM.
1.2 "FINANCIAL AND BUSINESS INFORMATION - ERISA MATTERS," Section
7.1(e)(i), is hereby amended by replacing the reference to "section 4043(b)"
with "section 4043(c)."
1.3 "INFORMATION AS TO COMPANY" Section 7.1(h) is hereby amended by
adding the following after "the Company or any of its Subsidiaries":
(including, without limitation, information regarding the impact of the
occurrence of the year 2000 on the Company and its Subsidiaries and
plans of the Company to address any such impact)
1.4 "OFFICER'S CERTIFICATE - COVENANT COMPLIANCE," Section 7.2(a), is
hereby amended by adding "and Section 10.14 through Section 10.16, inclusive,"
after the words "requirements of Sections 10.1 through 10.12, inclusive," and by
deleting the words ",other than Section 10.8.".
1.5 "NO OTHER OPTIONAL PREPAYMENTS OR PURCHASE OF NOTES" Section 8.5 is
hereby amended in its entirety to read as follows:
The Company will not prepay (whether directly or indirectly by
purchase, redemption or other acquisition) any of the outstanding Notes
except (a) upon the payment or prepayment of the Notes in accordance
with the terms of this Section 8 or upon an acceleration of the
maturity of the Notes pursuant to Section 12 or (b) pursuant to an
offer to purchase made by the Company pro rata to the holders of all
Notes at the time outstanding upon the same terms and conditions
(except for such differences in the offering price that may be
attributable to the calculation of the Make-Whole Amount or the payment
of accrued interest, it being understood that such differences will
arise solely from the different amortization schedules and interest
rates applicable to the two Series of Notes). Any such offer (i) need
not comply with the other provisions of this Section 8 (including,
without limitation, the requirement to pay any Make-Whole Amount), (ii)
shall provide each holder with sufficient information
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to enable it to make an informed decision with respect to such offer,
and (iii) shall remain open for at least 10 Business Days. The Company
will promptly cancel all Notes acquired by it or any Affiliate pursuant
to any payment, prepayment or purchase of Notes pursuant to any
provision of this Section 8 and no Notes may be issued in substitution
or exchange for any such Notes.
1.6 The following shall be added as a new Section 9.7 of the Note
Purchase Agreement:
9.7 ADDITIONAL GUARANTY AGREEMENTS; RELEASE OF GUARANTY
AGREEMENTS.
(A) ADDITIONAL GUARANTIES. The Company will cause each
Subsidiary that at any time becomes liable in respect of any Guaranty
of any of the Company's obligations under the Fleet/Chase Debt Facility
on or after November 20, 1998 to become (simultaneously or prior to
becoming liable in respect of such Guaranty of any of the obligations
under the Fleet/Chase Debt Facility) a Guarantor in respect of this
Agreement, the Other Agreements and the Notes by executing and
delivering to each holder of Notes a Guaranty Agreement in the form set
out in Exhibit 9.7(a).
(B) RELEASE OF GUARANTIES. Simultaneously with the release of
any Subsidiary's Guaranty of the Company's obligations under the
Fleet/Chase Debt Facility, such Subsidiary's Guaranty of the Notes
shall be deemed to have been released, it being understood that such
Subsidiary's Guaranties of the Company's obligations under the
Subordinated Notes and the Adjustable Rate Notes shall be released at
the same time. The holders of the Notes shall take such action as shall
be reasonably requested by the Company to effect such release.
Annex 1 is hereby added to the Note Purchase Agreement as Exhibit 9.7(a).
1.7 "SENIOR FUNDED DEBT," Section 10.1 is hereby amended by adding
"(and without duplication)" to the first paragraph thereof after the words
"giving effect thereto and to the application of the proceeds thereof".
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1.8 "SUBORDINATED FUNDED DEBT," Section 10.2, is hereby amended by
amending in its entirety the language preceding clause (a) of such Section as
follows:
The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume,
guarantee, or otherwise become directly or indirectly liable with
respect to, any Subordinated Funded Debt, other than Existing
Subordinated Funded Debt, the Subordinated Notes, Inter-Company Debt
and Swaps, unless, immediately after giving effect thereto and to the
application of the proceeds thereof (and without duplication),
In addition, the following paragraph is hereby added to the end of
Section 10.2:
The Company will not directly or indirectly, without the
written consent of the Required Holders, (i) amend, modify, supplement,
waive compliance with, or assent to noncompliance with, any term,
provision or condition of Section 13 of the Subordinated Note Purchase
Agreement, (ii) increase the interest rate, or change the amortization
schedule, applicable to the Subordinated Notes as in effect immediately
after the consummation of the sale thereof or (iii) repurchase, redeem
or voluntarily prepay in whole or in part, any principal, interest or
other amounts payable in respect of the Subordinated Notes, or take any
action, or set aside any reserve, in furtherance of the foregoing, it
being understood that (subject to said Section 13) the foregoing shall
not prohibit any scheduled or other required payment of principal or
interest. Notwithstanding the foregoing, the Company may, without the
consent of any holder of Notes, voluntarily prepay the Subordinated
Notes with the proceeds of a Capital Stock offering at any time before
May 19, 2000. This paragraph shall also apply to equivalent actions
proposed to be taken in connection with any Funded Debt issued in
satisfaction of the Junior Financing Condition.
1.9 "INTEREST COVERAGE RATIO," Section 10.4, is hereby amended in its
entirety to read as follows:
The Company will not permit the ratio of (x) Pro Forma EBITDA
for any period of four consecutive fiscal quarters of the Company to
(y) Pro Forma Consolidated Interest Expense for such period to be less
than 2.5 to 1.0.
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1.10 "LIENS," Section 10.5 is hereby amended by deleting the words "the
Closing Date" and inserting in lieu thereof the words "November 20, 1998."
1.11 "LIENS," Section 10.5, is hereby amending in its entirety
paragraph (d) thereof to read as follows:
(d) (i) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other similar Liens,
in each case incurred in the ordinary course of business for
sums not yet due and payable or the payment of which is not at
the time required by Section 9.4, and
(ii) Liens arising solely by virtue of any statutory
or common law provisions or, in the case of Infratest or any
of its subsidiaries, Liens arising by virtue of any deposit
agreement, in each case relating to bankers' Liens, rights of
set-off or similar rights and remedies as to deposit accounts
or other funds maintained with a creditor depository
institution, PROVIDED that such deposit account is not a
dedicated cash collateral account and is not subject to
restrictions against access by the Company or any Restricted
Subsidiary in excess of those set forth by regulations
promulgated by the Federal Reserve Board (or, in the case of
Infratest, applicable German statutes or regulations);
1.12 "LIENS," Section 10.5, is hereby amended by amending in its
entirety paragraph (h) thereof to read as follows:
(h) any Lien existing on property of a Person immediately
prior to its being consolidated with or merged into the Company or a
Restricted Subsidiary, or immediately prior to its becoming a
Restricted Subsidiary, or any Lien existing on any property acquired by
the Company or any Restricted Subsidiary at the time such property is
so acquired (whether or not the Debt secured thereby shall have been
assumed), PROVIDED that (i) no such Lien shall
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have been created or assumed in contemplation of such consolidation or
merger or such acquisition of property, and (ii) each such Lien shall
extend solely to the item or items of property so acquired;
1.13 "LIENS," Section 10.5, is hereby amended by amending clause (ii)
of paragraph (j) in its entirety to read as follows:
(ii) the aggregate amount of unsecured Debt of all
Restricted Subsidiaries, including, without limitation, the
IBH Debt, (other than any such Debt owing to the Company or
other Restricted Subsidiaries) shall not exceed 15% of
Consolidated Total Capitalization.
1.14 "RESTRICTED SUBSIDIARY DEBT," Section 10.6 is hereby amended in
its entirety to read:
The Company will not at any time permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume,
guarantee, or otherwise be or become directly or indirectly liable with
respect to, any Debt, other than (x) Debt owing to any other Restricted
Subsidiary or to the Company (including any Guaranty of any Debt of any
Restricted Subsidiary) and (y) the Excluded Guaranties, unless (without
duplication)
(a) the aggregate amount of unsecured Debt of all
Restricted Subsidiaries, including, without limitation, the
IBH Debt outstanding at such time (other than (i) any such
Debt owing to the Company or Restricted Subsidiaries and (ii)
the Excluded Guaranties), outstanding at such time, PLUS
(b) the aggregate amount of obligations secured by
Liens permitted pursuant to Section 10.5(j) outstanding at
such time,
does not exceed 15% of Consolidated Total Capitalization determined at
such time.
1.15 "CONSOLIDATED NET WORTH," Section 10.7, is hereby amended in its
entirety to read as follows:
The Company will not, at any time, permit Consolidated Net
Worth to be less than the sum of (a) $95,000,000 PLUS (b) an aggregate
amount equal to 50% of Consolidated Net Income (but only if a positive
number) for each completed fiscal quarter as of such time beginning
with the fiscal quarter ending December 31, 1998.
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1.16 "SALE-AND-LEASEBACK TRANSACTIONS," Section 10.8, is hereby amended
in its entirety to read as follows:
The Company will not, and will not permit any Restricted
Subsidiary to, enter into any Sale-and- Leaseback Transaction, unless,
immediately after giving effect thereto, the aggregate amount of all
Attributable Debt of the Company and the Restricted Subsidiaries,
determined on a consolidated basis, would not exceed $5,000,000.
1.17 "SALE OF ASSETS, ETC.," Section 10.11, is hereby amended by
deleting the words "occurring in the period of 12 consecutive calendar months
then most recently ended" in paragraph (a)(iii) and replacing them with the
words "occurring in the period of 365 days ending with and including the date of
such Asset Disposition", and by adding the words "(c) hereof, but excluding any
transaction permitted by Section 10.10(b)" to Section 10.11(b) immediately
following the words "consolidation or other transaction specified in Section
10.10".
This Section is further amended by adding the following paragraph at
the end of Section 10.11:
(C) RELEASE OF GUARANTEES OF SUBSIDIARIES. If, with respect
to any Subsidiary that is a Guarantor,
(i) all of the Company's and any Restricted
Subsidiary's Capital Stock or other equity ownership interests
in such Guarantor is Transferred (including by way of a
merger) to a Person other than the Company or a Restricted
Subsidiary in accordance with the requirements of this Section
10.11,
(ii) such Guarantor engages in a transaction
permitted by Section 10.10(c) with any such Person and the
surviving Person or transferee is not a Subsidiary, or
(iii) such Guarantor sells all or substantially all
of its assets to another
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Subsidiary or the Company and, in the case of a sale to
another Subsidiary, such other Subsidiary becomes a Guarantor
by executing a Guaranty Agreement,
then the Company may elect to cause the withdrawal of the Guaranty
Agreement of such Guarantor. Such election may be exercised if (A) no
Default or Event of Default exists, and (B) such Guarantor has no
Guaranty obligation in respect of any Debt under the Fleet/Chase Debt
Facility, the Adjustable Rate Notes or the Subordinated Notes (except
any such obligation which is being released simultaneously with the
release of such Guaranty Agreement), and if a Senior Financial Officer
of the Company certifies in writing to each holder of Notes that the
conditions specified in the foregoing clauses (A) and (B) have been
satisfied. Thereafter, the Guaranty Agreement of such Guarantor shall
be terminated, null and void and without effect, and, upon request of
the Company and in reliance on the accuracy of the Company's written
certification, each holder of Notes shall acknowledge such termination.
1.18 "TRANSACTIONS WITH AFFILIATES," Section 10.13 is hereby amended by
deleting the first word of the Section and inserting in its place "Except as set
forth in Schedule 10.13, the". Annex 2 attached hereto is hereby added to the
Note Purchase Agreement as Schedule 10.13.
1.19 The following shall be added as a new Section 10.14 of the Note
Purchase Agreement:
10.14 LEVERAGE RATIOS.
(A) SENIOR LEVERAGE RATIO. The Company will not permit the
ratio of (x) Consolidated Senior Funded Debt, determined at the end of
any fiscal quarter of the Company, to (y) Pro Forma EBITDA for the
period of four consecutive fiscal quarters of the Company ending with,
and including, such fiscal quarter to be greater than (i) 3.50 to 1.0
at any time of determination on or before the first to occur of
satisfaction of the Junior Financing Condition or September 29, 1999
and (ii) 3.25 to 1.0 at any time of determination after the first to
occur of such event or date.
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(B) TOTAL LEVERAGE RATIO. The Company will not permit the
ratio of (x) Consolidated Funded Debt, determined at the end of any
fiscal quarter of the Company, to (y) Pro Forma EBITDA for the period
of four consecutive fiscal quarters of the Company ending with, and
including, such fiscal quarter to be greater than (i) 3.75 to 1.0 at
any time on or before December 31, 1999 and (ii) 3.50 to 1.0 at any
time thereafter."
1.20 The following shall be added as a new Section 10.15 of the Note
Purchase Agreement:
10.15. LIMIT ON ACQUISITIONS.
The Company will not, and will not permit any Restricted
Subsidiary to, make any Acquisition (other than the Bangladesh
Acquisition) until the first to occur of satisfaction of the Junior
Financing Condition or October 1, 1999. Thereafter, the Company will
not, and will not permit any Restricted Subsidiary to, make any
Acquisition, unless:
(a) no Default or Event of Default exists or would
result from such Acquisition;
(b) the Person or assets acquired, as the case may
be, involve substantially the same or a similar line of
business as that engaged in by the Company and its Restricted
Subsidiaries;
(c) the Company demonstrates that, on a consolidated
basis with the Person and/or assets to be acquired, in
accordance with GAAP, the Company would have been in
compliance with Sections 10.4, 10.7, 10.14(a) and 10.14(b) on
a trailing four quarters PRO FORMA basis as of the last day of
the then most recently completed fiscal quarter of the
Company; and
(d) the aggregate amount expended by the Company and
its Restricted Subsidiaries, whether in cash, Securities or
other property, for all Acquisitions permitted hereunder
within any one calendar year does not exceed $20,000,000 or
its equivalent in other currencies.
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1.21 The following shall be added as a new Section 10.16 of the Note
Purchase Agreement:
10.16. IBH DEBT.
The Company will not permit the IBH Debt to be renewed,
replaced, extended or refinanced and shall not permit the maximum
aggregate principal amount thereof which may be outstanding at any time
to exceed the sum of (x) 68,000,000 Deutsche Marks and (y) $10,000,000
(or the equivalent thereof in other currencies).
1.22 "EVENTS OF DEFAULT," Section 11(c), is hereby amended by adding
after the words "any of Sections 10.1 through 10.12, inclusive," the words
"Section 10.14 through Section 10.16, inclusive,".
1.23 "EVENTS OF DEFAULT," Section 11(f), is hereby amended by (a)
deleting "$1,000,000" in each place that it appears and replacing it with
"$2,000,000", (ii) replacing "; or" with ", or" at the end of clause (f)(iii),
and adding a new clause (iv) to read as follows:
"(iv) the Company is in default in the performance of or
compliance with any term of the Indebtedness evidenced by the
Subordinated Notes or of the Subordinated Note Purchase Agreements, or
of any other agreement relating thereto or any other condition exists,
and as a consequence of such default or condition such Indebtedness has
become, or has been declared, due and payable before its stated
maturity or before its regularly scheduled dates of payment; or"
1.24 "EVENTS OF DEFAULT," Section 11(i), is hereby amended by deleting
"$500,000" and replacing it with "$1,000,000".
1.25 "EVENTS OF DEFAULT," Section 11(j) is hereby amended in its
entirety as follows:
(j) except as otherwise specifically permitted by this
Agreement (including, without limitation, Sections 9.7(c) and 10.11(c))
or the Guaranty Agreement,
(i) any of the Guaranty Agreements shall cease to be
in full force and effect or shall be
10
declared by a court or Governmental Authority of competent
jurisdiction to be void or unenforceable against the Guarantor
thereunder,
(ii) the validity or enforceability of any of the
Guaranty Agreements against the Guarantor thereunder shall be
contested by such Guarantor, the Company or any Person owning,
directly or indirectly, a majority of the common stock of the
Company, or
(iii) any Guarantor, the Company or any such Person
identified in clause (ii) of this Section 11(j) shall deny
that such Guarantor has any further liability or obligation
under such Guarantor's Guaranty Agreement; or
1.26 "EVENTS OF DEFAULT," Section 11(k)(iii) is hereby amended by
deleting the sum of "$5,000,000" and replacing it with "$6,000,000."
1.27 "REQUIREMENTS," Section 17.1, is hereby amended by adding at the
end thereof the following paragraph:
Notwithstanding the provisions of the immediately preceding
paragraph, you and each Other Purchaser agrees, and each other holder
of Notes by its acceptance of any Note shall be deemed to have agreed,
to grant its written consent, promptly following the receipt of a
written request by the Company for such consent, to any amendment of,
or waiver with respect to (prospectively only), clause (ii) of Section
10.14(b), Section 10.15 or Section 10.16 in a manner consistent with
any one or more amendments of, or waivers with respect to, the
covenants in the Fleet/Chase Debt Facility that correspond to clause
(ii) of Section 10.14(b), Section 10.15 or Section 10.16, as the case
may be (the "Fleet/Chase Debt Equivalent Provisions"); PROVIDED that
(A) the Company shall have delivered to each holder of Notes a copy of
such amendment or waiver relating to the Fleet/Chase Debt Facility,
together with a certificate of a Responsible Officer of the Company to
the effect that such copy is true and complete and that such amendment
or waiver relating to the Fleet/Chase Debt Facility has become
effective in accordance with the terms of the
11
Fleet/Chase Debt Facility and (B) the effect of the requested amendment
or waiver relating to clause (ii) of Section 10.14(b), Section 10.15 or
Section 10.16, as the case may be, shall be no less favorable (and no
more onerous) to the holders of Notes than the corresponding amendment
or waiver relating to the Fleet/Chase Debt Facility is to the banks
that are parties thereto. In addition, if any or all of the Fleet/Chase
Equivalent Provisions are deleted from the Fleet/Chase Debt Facility,
or such facility is terminated and not replaced by a substantially
similar facility containing provisions equivalent to the Fleet/Chase
Equivalent Provisions, then one or more of clause (ii) of Section
10.14(b), Section 10.15 and Section 10.16, whichever shall correspond
to the provisions eliminated from the Fleet/Chase Debt Facility (or
both such Sections if the Fleet/Chase Debt Facility shall be terminated
and not replaced, as stated above), shall be deemed to have been
automatically deleted from this Agreement without the need for any
action by the Company or the holders of the Notes.
1.28 The definition of "BUSINESS DAY" in Schedule B to the Note
Purchase Agreement is hereby amended by deleting the word "Wisconsin" and
replacing it with "New York or the state in which you are located".
1.29 The definition of "EXISTING DEBT" in Schedule B to the Note
Purchase Agreement is hereby amended in its entirety to read as follows:
"EXISTING DEBT" means,
(a) Debt of the Company or any Restricted Subsidiary
outstanding on November 20, 1998 and identified on Schedule 5.15 (or
included in the aggregate amount set forth in Section 5.15), and any
renewal, refinancing or replacement thereof so long as there shall be
no increase in the principal amount of such Debt outstanding at the
time of such renewal, refinancing or replacement;
(b) Debt incurred pursuant to a Debt Facility identified in
Schedule 5.15 to which the Company or any Restricted Subsidiary is a
party on November 20, 1998 (regardless of whether any Debt was
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outstanding thereunder on November 20, 1998), so long as the aggregate
amount of Debt so incurred at any time is not in excess of the maximum
amount of Debt permitted to be incurred thereunder on November 20, 1998
(assuming satisfaction of all funding conditions on such date); and
(c) the Excluded Guaranties.
Schedule 5.15 to the Note Purchase Agreement is hereby amended in its entirety
to read as set forth in Annex 3 hereto.
1.30 The definition of "FUNDED DEBT" in Schedule B to the Note Purchase
Agreement is hereby amended in its entirety to read as follows:
"FUNDED DEBT" means, with respect to any Person, all Debt of
such Person which by its terms or by the terms of any instrument or
agreement relating thereto matures, or which is otherwise payable or
unpaid, one year or more from, or is directly or indirectly renewable
or extendible at the option of the obligor in respect thereof to a date
one year or more (including, without limitation, an option of such
obligor under a revolving credit or similar agreement obligating the
lender or lenders to extend credit over a period of one year or more)
from, the date of the creation thereof. The amount of Funded Debt
outstanding under any such revolving credit or similar agreement
(including the Fleet/Chase Debt Facility) on any date shall be deemed
to be the average daily amount outstanding under such facility during
the period of 365 consecutive days ending on and including such date,
and not the actual amount outstanding on such date; PROVIDED, HOWEVER,
that, as used in the definitions of "Consolidated Senior Funded Debt"
and "Consolidated Funded Debt," but only as such terms are used in
Section 10.14, the amount of Funded Debt outstanding under any such
revolving credit or similar agreement (including the Fleet/Chase Debt
Facility) on any date shall be the actual amount outstanding on such
date.
1.31 The definition of "RESTRICTED INVESTMENTS" in Schedule B to the
Note Purchase Agreement is hereby amended by deleting the word "corporation" in
subsection (c) and replacing it with the word "Person," and by adding the words
"of issuers" after the words "Investments in debt obligations" in subsection (g)
thereof. This definition is further
13
amended by (1) deleting the subsection headings (f), (g), (h), (i), (j), (k),
and (l) which currently follow subsection (d) thereof, and replacing them with
subsections (e), (f), (g), (h), (i), (j), and (k), respectively and (2) amending
subsection (k) to read in its entirety as follows:
(k) to the extent not included in the foregoing clauses (a) to
(j), inclusive, cash and cash equivalents.
1.32 The definition of "SUBORDINATED FUNDED DEBT" in Schedule B to the
Note Purchase Agreement is hereby amended in its entirety to read as follows:
"SUBORDINATED FUNDED DEBT" means (x) the Subordinated Notes
and any renewal, refinancing or replacement thereof on terms and
conditions satisfactory to the Required Holders (as evidenced by their
written acknowledgement) so long as there shall be no increase in the
principal amount thereof outstanding at the time of such renewal,
refinancing or replacement, (y) any unsecured Funded Debt issued in
satisfaction of the Junior Financing Condition, and (z) any unsecured
Funded Debt that is subordinated in right of payment or security to the
Debt evidenced by the Notes on terms and conditions satisfactory to the
Required Holders (as evidenced by their written acknowledgment).
1.33 The following definitions are hereby added, in the appropriate
alphabetical order, to Schedule B to the Note Purchase Agreement:
"ACQUISITION" means any transaction (including any merger or
consolidation, but not including the formation of new Subsidiaries
after November 20, 1998) pursuant to which the Company or any of its
Restricted Subsidiaries (a) acquires equity Securities (or warrants,
options or other rights to acquire such Securities) of any Person other
than the Company or any Person which is then a Subsidiary, pursuant to
a solicitation of tenders therefor, or in one or more negotiated block,
market or other transactions not involving a tender offer, or a
combination of any of the foregoing, or (b) makes any Person (other
than a Subsidiary of the Company) a Restricted Subsidiary, or causes
any such Person to be merged into or consolidated with the Company or
any of its Restricted Subsidiaries, in any case
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pursuant to a merger, a purchase of assets or any reorganization
providing for the delivery or issuance to the holders of such Person's
then outstanding Securities, in exchange for such Securities, of cash
or Securities of the Company or any of its Restricted Subsidiaries, or
a combination thereof, or (c) purchases all or substantially all of the
business or assets of any Person (other than a Subsidiary of the
Company).
"ACQUISITION AGREEMENT" means the Stock Purchase Agreement
dated as of November 10, 1998 by and among the Company, NFO-Europe
(Deutschland), GMBH & Co. KG, a German limited partnership, as buyer,
and the stockholders of Infratest, as sellers.
"ADJUSTABLE RATE NOTES" means the Company's Adjustable Rate
Series A Senior Notes due November 15, 2005 and Adjustable Rate Series
B Senior Notes due November 15, 2008 (as amended, supplemented or
restated from time to time).
"ATTRIBUTABLE DEBT" means, as to any particular lease relating
to a Sale-and-Leaseback Transaction, the present value of all Long Term
Lease Rentals required to be paid by the Company or any Subsidiary
under such lease during the remaining term thereof (determined in
accordance with generally accepted financial practice using a discount
factor equal to the interest rate implicit in such lease if known or,
if not known, of 7% PER ANNUM).
"BANGLADESH ACQUISITION" means the acquisition by the Company
or one of its Subsidiaries, for an aggregate consideration not in
excess of $225,000, of a 35% interest in the share capital of Xxxxx
Limited, a Bangladesh corporation.
"DOLLARS" OR "$" means lawful currency of the United States of
America.
"EXCLUDED GUARANTIES" means (i) the Guaranties of the
Restricted Subsidiaries issued on November 20, 1998 in respect of the
Notes, the Adjustable Rate Notes, the
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Subordinated Notes and the Debt under the Fleet/Chase Debt Facility,
(ii) any other Guaranties of Subsidiaries issued thereafter in respect
of the Debt identified in the foregoing clause (i), (iii) Guaranties of
any refinancing, replacement or renewal of such Debt so long as the
aggregate principal amount of such Debt is not in excess of that
outstanding or, in the case of the Fleet/Chase Debt Facility, the
commitment amount, immediately after giving effect to the sale of the
Notes and the Subordinated Notes on November 20, 1998 and the holders
of such Debt (other than any holders of Subordinated Funded Debt) are
parties to the Sharing Agreement, and (iv) any Guaranties of
Subsidiaries of the Adjustable Rate Notes, the Subordinated Notes or
the obligations of the Company under the Fleet/Chase Debt Facility if
Guaranties of such Subsidiaries shall also have been issued in respect
of the Notes pursuant to Section 9.7(a).
"EXISTING SUBORDINATED FUNDED DEBT" means Existing Debt which
is Subordinated Funded Debt.
"GUARANTOR" means, at any time, each Person (including,
without limitation, each of the Initial Guarantors) that at such time
is a Guarantor under a Guaranty Agreement.
"GUARANTY AGREEMENTS" shall mean each of the Guaranty
Agreements executed by the Initial Guarantors pursuant to Section 4.14,
and each of the other Guaranty Agreements executed and delivered from
time to time, pursuant to Section 9.7, in each case as amended or
supplemented from time to time.
"IBH DEBT" means Debt of Infratest up to the maximum amount
that may be incurred under the credit facilities to which Infratest is
a party as of November 20, 1998.
"INFRATEST" means Infratest Xxxxx Aktiengesellschaft Holding,
a German Aktiengesellschaft (stock corporation).
"INFRATEST ACQUISITION" means the purchase and
sale of all of the issued and outstanding shares of
16
common stock of Infratest as contemplated by the Acquisition Agreement.
"INITIAL GUARANTORS" means each of Xxxxxxxx/Xxxxxx Associates,
Inc., NFO Research, Inc., Plog Research Inc., Prognostics Corp., PSI
Holding Corp., and Xxxx-Xxxxxx-Xxxx, Inc., each a Delaware corporation.
"JUNIOR FINANCING CONDITION" means the receipt by the Company
of net proceeds of at least $25,000,000 on or after November 20, 1998
from any combination of any one or more of (x) sales of the Company's
Capital Stock, (y) sales of the Subordinated Notes, and (z) incurrence
of Subordinated Funded Debt by the Company (i) with terms and
conditions satisfactory to the Required Holders (as evidenced by their
written acknowledgment) or (ii) with subordination provisions identical
to those set forth in the Subordinated Note Purchase Agreement (except
for minor language changes which do not have any substantive effect),
and with a maturity no earlier, and a weighted average life to maturity
no shorter, than the maturity and weighted average life to maturity of
the Subordinated Notes).
"LONG TERM LEASE RENTALS" means, for a lease (other than a
Capital Lease) arising from a Sale-and- Leaseback Transaction having a
term (including terms of renewal or extension at the option of the
lessor or the lessee, whether or not such option has been exercised)
expiring more than two (2) years after the commencement of the initial
term thereof, the sum of the minimum amount of rental and other
obligations required to be paid during such period by the Company or
any Subsidiary as lessee, EXCLUDING any amounts required to be paid by
the lessee (whether or not therein designated as rental or additional
rental) (a) which are on account of maintenance and repairs, insurance,
taxes, assessments, water rates and similar charges, or (b) which are
based on profits, revenues or sales realized by the lessee from the
leased property or otherwise based on the performance of the lessee.
"SHARING AGREEMENT" means the Sharing Agreement, dated as of
17
November 20 1998, among the holders of the Notes, the Adjustable Rate
Notes, and the banks party to the Fleet/Chase Debt Facility.
"SUBORDINATED NOTE PURCHASE AGREEMENT" means the Note Purchase
Agreement, dated as of November 20, 1998, among the Company and the
purchasers of the promissory notes issued thereunder (as amended,
supplemented or restated from time to time in accordance with the last
paragraph of Section 10.2).
"SUBORDINATED NOTE PURCHASERS" means the purchasers of the
Subordinated Notes.
"SUBORDINATED NOTES" means the promissory notes issued under
the Subordinated Note Purchase Agreement, as such notes may be amended,
supplemented or restated from time to time (in accordance with the last
paragraph of Section 10.2) other than any amendment that would increase
the principal amount thereof above the principal amount outstanding as
of the day of any such amendment.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce the Noteholders to execute and deliver this Amendment (which
representations shall survive the execution and delivery of this Amendment), the
Company represents and warrants to the Noteholders that:
(a) this Amendment has been duly authorized, executed and
delivered by it and this Amendment constitutes the legal, valid and
binding obligation, contract and agreement of the Company enforceable
against it in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws or equitable principles relating to or limiting creditors'
rights generally;
(b) the Note Purchase Agreement, as amended by this Amendment,
constitutes the legal, valid and binding obligation, contract and
agreement of the Company enforceable against it in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or
18
equitable principles relating to or limiting creditors' rights
generally;
(c) the execution, delivery and performance by the Company of
this Amendment (i) has been duly authorized by all requisite corporate
action and, if required, shareholder action, (ii) does not require the
consent or approval of any governmental or regulatory body or agency,
and (iii) will not (A) violate (1) any provision of law, statute, rule
or regulation or its certificate of incorporation or bylaws, (2) any
order of any court or any rule, regulation or order of any other agency
or government binding upon it, or (3) any provision of any material
indenture, agreement or other instrument to which it is a party or by
which its properties or assets are or may be bound, including, without
limitation, the Fleet/Chase Debt Facility, or (B) result in a breach of
or constitute (alone or with due notice or lapse of time or both) a
default under any indenture, agreement or other instrument referred to
in clause (iii)(A)(3) of this paragraph (c); and
(d) as of the date hereof and after giving effect to this
Amendment, no Default or Event of Default has occurred which is
continuing.
SECTION 3. PAYMENT OF NOTEHOLDERS' COUNSEL FEES AND EXPENSES.
The Company agrees to pay upon demand the reasonable fees and expenses
of Xxxx & Xxxxxx, counsel to the Noteholders, in connection with the
negotiation, preparation, approval, execution and delivery of this Amendment.
SECTION 4. DELIVERY OF GUARANTY AGREEMENT.
The Company agrees to deliver to each of the Noteholders, concurrently
with the effectiveness of this Amendment, a counterpart of each of the Guaranty
Agreements, duly executed and delivered by each of the Initial Guarantors,
substantially in the form of Annex 1 to this Amendment, and such Guaranty
Agreements shall be in full force and effect.
SECTION 5. MISCELLANEOUS.
5.1 This Amendment shall be construed in connection with and as part of
the Note Purchase Agreement, and except as modified and expressly amended by
this Amendment, all
19
terms, conditions and covenants contained in the Note Purchase Agreement and the
Notes are hereby ratified and shall be and remain in full force and effect.
5.2 The descriptive headings of the various Sections of parts of this
Amendment are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
5.3 This Amendment shall be governed by and construed in accordance
with the law of the State of New York.
[The remainder of this page is intentionally left blank]
20
5.4 This Amendment constitutes a contract between us for the uses and
purposes hereinabove set forth, and may be executed in any number of
counterparts, each executed counterpart constituting an original, but all
together only one agreement.
NFO WORLDWIDE, INC.
By:
-------------------
Name:
Title:
Accepted and Agreed to:
XXXXXXX NATIONAL LIFE INSURANCE COMPANY
BY: PPM AMERICA, INC., AS ATTORNEY IN FACT,
ON BEHALF OF XXXXXXX NATIONAL LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxx
----------------------
Name: Xxxxx X. Xxxxx
Title: MD
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
BY CIGNA INVESTMENTS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
CIGNA PROPERTY AND CASUALTY INSURANCE COMPANY
BY CIGNA INVESTMENTS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
21
CONNECTICUT GENERAL LIFE INSURANCE COMPANY, ON
BEHALF OF ONE OR MORE SEPARATE ACCOUNTS
BY CIGNA INVESTMENTS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
LIFE INSURANCE COMPANY OF NORTH AMERICA
BY CIGNA INVESTMENTS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
TMG LIFE INSURANCE COMPANY
By: /s/ Xxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Director, Private Placements
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
BERKSHIRE LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Investment Officer
22
ANNEX 1
EXHIBIT 9.7(A)
FORM OF GUARANTY AGREEMENT
GUARANTY AGREEMENT
GUARANTY AGREEMENT (this "Guaranty Agreement") dated as of November 20,
1998 made by the undersigned (the "Guarantor"), in favor of the holders of the
following promissory notes issued by NFO Worldwide, Inc. (the "Company"): (i)
the 6.83% Senior Notes due March 1, 2008 (the "6.83% Notes") issued pursuant to
the several Note Purchase Agreements, dated as of March 9, 1998 (as amended from
time to time, collectively, the "March Note Purchase Agreement"), and (ii) (a)
the Adjustable Rate Series A Senior Notes due November 15, 2005 (the "Series A
Notes") and (b) the Adjustable Rate Series B Senior Notes due November 15, 2008
(the "Series B Notes" and, together with the Series A Notes and the 6.83% Notes,
the "Notes"), each such series being issued pursuant to the several Note
Purchase Agreements, dated as of November 20, 1998 (as amended from time to
time, collectively, the "November Note Purchase Agreement" and, together with
the March Note Purchase Agreement, the "Note Purchase Agreements").
PRELIMINARY STATEMENTS:
WHEREAS, the terms used herein have the respective meanings ascribed
thereto in the March Note Purchase Agreement and the November Note Purchase
Agreement (unless otherwise defined herein);
WHEREAS, the November Note Purchase Agreement provides, INTER ALIA, for
the Company to obtain unsecured Funded Debt in order to acquire a new Subsidiary
pursuant to the terms of the documents heretofore delivered to the November Note
purchasers in connection with the Infratest Acquisition;
WHEREAS, the March Note Purchase Agreement is being amended (the "March
Note Purchase Agreement Amendment"), contemporaneously with the closing under
the November Note Purchase Agreement, in order to conform the covenants in both
note purchase agreements;
WHEREAS, the Guarantor is a Subsidiary of the Company and is
financially interested in its affairs and it is a condition to (i) the
purchasers of the Series A Notes and the Series B Notes entering into the
November Note Purchase Agreement, and (ii) the holders of the 6.83% Notes
entering into the March Note Purchase Agreement Amendment (such purchasers and
holders being referred to, collectively, as the "Noteholders"), that this
Guaranty is being executed and delivered to the Noteholders.
NOW, THEREFORE, in consideration of the foregoing, the Guarantor agrees
as follows:
SECTION 1. GUARANTY OF PAYMENT.
The Guarantor absolutely, unconditionally and irrevocably guarantees to
the Noteholders the punctual payment of all sums now owing or which may in the
future be owing by the Company under the Note Purchase Agreements and the Notes,
when the same are due and payable, whether on demand, at stated maturity, by
acceleration or otherwise, and whether for principal, interest, fees, expenses,
indemnification or otherwise (all of the foregoing sums being the "Guaranteed
Obligations"). The Guaranteed Obligations include, without limitation, interest
accruing after the commencement of a proceeding under bankruptcy, insolvency or
similar laws of any jurisdiction at the rate or rates provided in the Note
Purchase Agreements and the Notes. This Guaranty is a guaranty of payment and
not of collection only. None of the Noteholders shall be required to exhaust any
right or remedy or take any action against the Company or any other person or
entity or any collateral. The Guarantor agrees that, as between the Guarantor
and the Noteholders, the Guaranteed Obligations may be declared to be due and
payable for the purposes of this Guaranty, notwithstanding any stay, injunction
or other prohibition which may prevent, delay or vitiate any declaration as
regards the Company and that, in the event of a declaration or attempted
declaration, the Guaranteed Obligations shall immediately become due and payable
by the Guarantor for the purposes of this Guaranty.
SECTION 2. GUARANTY ABSOLUTE.
The Guarantor guarantees that the Guaranteed Obligations shall be paid
strictly in accordance with the terms of the Note Purchase Agreements and the
Notes. The liability of the Guarantor under this Guaranty is absolute,
irrevocable
2
and unconditional irrespective of: (a) any changes in the time, manner or place
of payment of, or in any other term of, all or any of the Note Purchase
Agreements, the Notes or Guaranteed Obligations, or any other amendment or
waiver of or any consent to departure from any of the terms of any of the Note
Purchase Agreements, the Notes or the Guaranteed Obligations; (b) any release or
amendment or waiver of, or consent to departure from, any other guaranty or
support document, or any exchange, release or non-perfection of any security
interest, for all or any of the Note Purchase Agreements, the Notes or the
Guaranteed Obligations; (c) any present or future law, regulation or order of
any jurisdiction (whether of right or in fact) or of any agency thereof
purporting to reduce, amend, restructure or otherwise affect any term of any of
the Note Purchase Agreements, the Notes or the Guaranteed Obligations; (d)
without being limited by the foregoing, any lack of validity or enforceability
of any of the Note Purchase Agreements, the Notes or the Guaranteed Obligations;
or (e) any other defense whatsoever which might constitute a defense available
to, or discharge of, the Company or a guarantor (other than that the Guaranteed
Obligations have been Fully Satisfied, as defined below).
SECTION 3. GUARANTY IRREVOCABLE.
This Guaranty is a continuing guaranty and shall remain in full force
and effect until the Guaranteed Obligations have been Fully Satisfied. For
purposes of this Guaranty, "Fully Satisfied" shall mean, as of any date, that,
on or before such date, (a) the principal of, Make-Whole Amount in respect of,
and interest accrued to such date on any Guaranteed Obligations shall have been
paid in full in cash and (b) all fees, expenses and other amounts then due and
payable which constituted Guaranteed Obligations shall have been paid in full in
cash.
SECTION 4. REINSTATEMENT.
Notwithstanding anything contained herein to the contrary, this
Guaranty shall continue to be effective or be reinstated, as the case may be, if
at any time any payment of any of the Guaranteed Obligations is rescinded or
must otherwise be returned by any Noteholders on the insolvency, bankruptcy, or
reorganization of the Company or otherwise, all as though such payment had not
been made.
SECTION 5. SUBROGATION.
3
The Guarantor shall not exercise any rights which it may acquire by way
of subrogation, by any payment made under this Guaranty or otherwise, until all
the liabilities have been Fully Satisfied. If any amount is paid to the
Guarantor on account of subrogation rights under this Guaranty at any time when
all the Guaranteed Obligations have not been Fully Satisfied, the amount shall
be held in trust for the benefit of the Noteholders and shall be promptly paid
to the Noteholders to be credited and applied to the Guaranteed Obligations,
whether matured or unmatured or absolute or contingent, in accordance with the
terms of the Note Purchase Agreements. If the Guarantor makes payment to the
Noteholders of all or any part of the Guaranteed Obligations and all the
Guaranteed Obligations have been Fully Satisfied, the Noteholders shall, at the
Guarantor's request, execute and deliver to the Guarantor appropriate documents,
without recourse and without representation or warranty, necessary to evidence
the transfer by subrogation to the Guarantor of any interest in the Guaranteed
Obligations resulting from the payment.
SECTION 6. SUBORDINATION.
Without limiting the Noteholders' rights under any other agreement, any
liabilities owed by the Company to the Guarantor in connection with any
extension of credit or financial accommodation by the Guarantor to or for the
account of the Company, including but not limited to interest accruing at the
agreed contract rate after the commencement of a bankruptcy or similar
proceeding, are hereby subordinated to the Guaranteed Obligations, and such
liabilities of the Company to the Guarantor, if the Required Holders so request
upon the occurrence or continuation of a Default or an Event of Default, shall
be collected, enforced and received by the Guarantor as trustee for the
Noteholders and shall be paid over to the Noteholders on account of the
Guaranteed Obligations but without reducing or affecting in any manner the
liability of the Guarantor under the other provisions of this Guaranty.
SECTION 7. REPRESENTATIONS AND WARRANTIES.
The Guarantor hereby represents and warrants that:
(a) INCORPORATION, GOOD STANDING AND DUE QUALIFICATION. The
Guarantor is duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power and
4
authority to own its assets and to transact the business in which it is now
engaged or proposed to be engaged, and is duly qualified as a foreign
corporation and in good standing under the laws of each other jurisdiction in
which such qualification is required, except where the failure to so qualify has
not had, and is not reasonably expected to have, a Material Adverse Effect or to
materially adversely affect the ability of the Guarantor to perform its
obligations under this Guaranty Agreement.
(b) CORPORATE POWER AND AUTHORITY; NO CONFLICTS. The
execution, delivery and performance by the Guarantor of this Guaranty Agreement
have been duly authorized by all necessary corporate action and do not and will
not: (i) require any consent or approval of its stockholders; (ii) contravene
its charter or by-laws; (iii) violate any provision of, or require any filing,
registration, consent or approval under, any law, rule, regulation (including,
without limitation, Regulation U), order, writ, judgment, injunction, decree,
determination or award presently in effect having applicability to the Guarantor
or any of its subsidiaries; (iv) result in a breach of or constitute a default
or require any consent under any indenture or loan or credit agreement or any
other agreement, lease or instrument to which the Guarantor is a party or by
which it or its properties may be bound or affected; (v) result in, or require,
the creation or imposition of any Lien upon or with respect to any of the
properties now owned or hereafter acquired by the Guarantor; or (vi) cause the
Guarantor or any subsidiary to be in default under any such law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award or
any such indenture, agreement, lease or instrument, except where such
contravention, violation, breach, default or Lien is not reasonably expected to
have a Material Adverse Effect or to materially adversely affect the ability of
the Guarantor to perform its obligations under this Guaranty Agreement.
(c) LEGALLY ENFORCEABLE AGREEMENTS. This Guaranty Agreement is
a legal, valid and binding obligation of the Guarantor enforceable against the
Guarantor in accordance with its terms, except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency and other
similar laws affecting creditors' rights generally and by equitable principles
relating to availability of equitable remedies.
5
(d) LITIGATION. There are no actions, suits or proceedings
pending or, to the knowledge of the Guarantor, threatened, against or affecting
the Guarantor or any of its subsidiaries before any court, governmental agency
or arbitrator, which in any one case or in the aggregate, is reasonably expected
to have a Material Adverse Effect or to materially adversely affect the ability
of the Guarantor to perform its obligations under this Guaranty Agreement.
(e) SOLVENCY.
(i) The present fair saleable value of the assets of
the Guarantor before giving effect to all the transactions contemplated
by the November Note Purchase Agreement exceeds the amount that will be
required to be paid on or in respect of the existing debts and other
liabilities (including contingent liabilities) of the Guarantor as they
mature.
(ii) The property of the Guarantor does not
constitute unreasonably small capital for the Guarantor to carry out
its business as now conducted and as proposed to be conducted,
including the capital needs of the Guarantor.
(iii) The Guarantor does not intend to, nor does it
believe that it will, incur debts beyond its ability to pay such debts
as they mature (taking into account the timing and amounts of cash to
be received by the Guarantor, and of amounts to be payable on or in
respect of debt of the Guarantor.)
SECTION 8. REMEDIES GENERALLY.
The remedies provided in this Guaranty Agreement are cumulative and not
exclusive of any remedies provided by law.
SECTION 9. SETOFF.
Upon the occurrence and during the continuance of any Event of Default,
the Guarantor agrees that, in addition to (and without limitation of) any right
of setoff, banker's lien or counterclaim the Noteholders may otherwise have, the
Noteholders shall be entitled at their option, to offset balances (general or
special, time or demand, provisional or final) held
6
by them for the account of the Guarantor at any of their respective offices, in
U.S. dollars or in any other currency, against any amount payable by the
Guarantor under this Guaranty Agreement which is not paid when due following any
applicable notice and cure periods (regardless of whether such balances are then
due to the Guarantor), in which case the Noteholders taking such action shall
promptly notify the Guarantor thereof; provided that the failure of any
Noteholder to give such notice shall not affect the validity of such action.
SECTION 10. WAIVERS OR PRESENTMENT, NOTICE OF DISHONOR, ETC.
The Guarantor waives presentment, notice of dishonor, protest, notice
of acceptance of this Guaranty Agreement or incurrence of the Guaranteed
Obligations and any other formality with respect to any of the Guaranteed
Obligations or this Guaranty Agreement.
SECTION 11. AMENDMENTS AND WAIVERS.
No amendments or waiver of any provision of this Guaranty Agreement,
nor consent to any departure by the Guarantor therefrom, shall be effective
unless it is in writing and signed by all of the Noteholders, and then the
waiver of consent shall be effective only in the specific instance and for the
specific purpose for which given. No failure on the part of any Noteholder to
exercise, and no delay in exercising, any right under this Guaranty shall
operate as a waiver or preclude any other or further exercise thereof or the
exercise of any other right. This Guaranty Agreement shall be automatically
released in the circumstances set forth in Section 9.7(b) and in Section
10.11(c) of the Note Purchase Agreement.
SECTION 12. EXPENSES.
The Guarantor shall reimburse each Noteholder on demand for all costs,
expenses and charges (including, without limitation, reasonable fees and charges
of external legal counsel for the Noteholders) incurred by such Noteholder in
connection with the performance or enforcement of this Guaranty Agreement. The
obligations of the Guarantor under this Section shall survive the termination of
this Guaranty Agreement.
SECTION 13. ASSIGNMENT.
7
This Guaranty Agreement shall be binding on, and shall inure to the
benefit of, the Guarantor, the Noteholders and their respective successors and
assigns; provided that the Guarantor may not assign or transfer its rights or
obligations under this Guaranty Agreement. Without limiting the generality of
the foregoing, each Noteholder may assign or otherwise transfer its rights under
the Note Purchase Agreements and the Notes to any other person or entity in
accordance with the relevant Note Purchase Agreement, and such assignee or
transferee shall then become vested with all the rights granted to such
Noteholders in this Guaranty Agreement or otherwise.
SECTION 14. CAPTIONS.
The headings and captions in this Guaranty Agreement are for
convenience only and shall not affect the interpretation or construction of this
Guaranty Agreement.
SECTION 15. GOVERNING LAW, ETC.
THIS GUARANTY SHALL BE GOVERNED BY THE LAW OF THE STATE OF CONNECTICUT.
THE GUARANTOR CONSENTS TO THE NON-EXCLUSIVE JURISDICTION AND VENUE OF THE STATE
OR FEDERAL COURTS LOCATED IN THE STATE OF CONNECTICUT. SERVICE OF PROCESS BY ANY
NOTEHOLDER IN CONNECTION WITH ANY SUCH DISPUTE SHALL BE BINDING ON THE GUARANTOR
IF SENT TO THE GUARANTOR BY REGISTERED MAIL AT THE ADDRESS SPECIFIED BELOW OR AS
OTHERWISE SPECIFIED BY THE GUARANTOR FROM TIME TO TIME. THE GUARANTOR WAIVES ANY
RIGHT THE GUARANTOR MAY HAVE TO JURY TRIAL. TO THE EXTENT THAT THE GUARANTOR HAS
OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER FROM SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OF A JUDGMENT, EXECUTION OR OTHERWISE), THE
GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF THE GUARANTEED
OBLIGATIONS UNDER THIS GUARANTY.
SECTION 16. COMMERCIAL WAIVER.
THE GUARANTOR ACKNOWLEDGES THAT THE GUARANTEED OBLIGATIONS ARE FOR
COMMERCIAL PURPOSES AND WAIVES ANY RIGHT TO NOTICE AND HEARING UNDER SECTIONS
52-278a THROUGH 52-278n OF THE
8
CONNECTICUT GENERAL STATUTES AS NOW OR HEREAFTER AMENDED AND AUTHORIZES THE
ATTORNEY OF ANY NOTEHOLDER, OR ANY SUCCESSOR THERETO, TO ISSUE A WRIT OF
PREJUDGMENT REMEDY WITHOUT COURT ORDER. FURTHER, THE GUARANTOR HEREBY WAIVES, TO
THE EXTENT PERMITTED BY LAW, THE BENEFITS OF ALL VALUATION, APPRAISEMENTS,
HOMESTEAD, EXEMPTION, STAY, REDEMPTION AND MORATORIUM LAWS NOW IN FORCE OR WHICH
MAY HEREAFTER BECOME LAWS. THE GUARANTOR ACKNOWLEDGES THAT IT MAKES THESE
WAIVERS AND THE WAIVERS CONTAINED IN SECTION 15 KNOWINGLY AND VOLUNTARILY AND
ONLY AFTER EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS OF THESE WAIVERS WITH
ITS ATTORNEYS.
SECTION 17. SAVINGS CLAUSE.
(a) It is the intent of the Guarantor and the Noteholders that
the Guarantor's maximum obligations hereunder shall be equal to, but
not in excess of:
(i) in a case or proceeding commenced by or against
the Guarantor under the Bankruptcy Code of the United States
of America (the "Bankruptcy Code"), the maximum amount which
would not otherwise cause the Guaranteed Obligations (or any
other obligations of the Guarantor to any Noteholder) to be
avoidable or unenforceable against the Guarantor under (A)
Section 548 of the Bankruptcy Code or (B) any state fraudulent
transfer or fraudulent conveyance act or statute applied in
such case or proceeding by virtue of Section 544 of the
Bankruptcy Code; or
(ii) in a case or proceeding commenced by or against
the Guarantor under any law, statute or regulation other than
the Bankruptcy Code (including, without limitation, any other
bankruptcy, reorganization, arrangement, moratorium,
readjustment of debt, dissolution, liquidation or similar
debtor relief laws), the maximum amount which would not
otherwise cause the Guaranteed Obligations (or any other
obligations of the Guarantor to any Noteholder) to be
avoidable or unenforceable against the Guarantor under such
law, statute or regulation including without limitation, any
state fraudulent transfer or fraudulent
9
conveyance act or statute applied in any such case or
proceeding.
(The substantive laws under which the possible avoidance or
unenforceability of the Guaranteed Obligations (or any other
obligations of the Guarantor to any Noteholder) shall be determined in
any such case or proceeding shall hereinafter be referred to as the
"Avoidance Provisions").
(b) To the end set forth in Section 17(a), but only to the
extent that the Guaranteed Obligations would otherwise be subject to
avoidance under the Avoidance Provisions if the Guarantor is not deemed
to have received valuable consideration, fair value or reasonably
equivalent value for the Guaranteed Obligations, or if the Guaranteed
Obligations would render the Guarantor insolvent, or leave the
Guarantor with unreasonably small capital to conduct its business, or
cause the Guarantor to have incurred debts (or to have intended to have
incurred debts) beyond its ability to pay such debts as they mature, in
each case as of the time any of the Guaranteed Obligations are deemed
to have been incurred under the Avoidance Provisions and after giving
effect to contribution as among the Guarantor and other guarantors, the
maximum Guaranteed Obligations for which the Guarantor shall be liable
hereunder shall be reduced to that amount which, after giving effect
thereto, would not cause the Guaranteed Obligations (or any other
obligations of the Guarantor to any Noteholder), as so reduced, to be
subject to avoidance under the Avoidance Provisions. This Section 17 is
intended solely to preserve the rights of the Noteholders hereunder to
the maximum extent that would not cause the Guaranteed Obligations of
the Guarantor to be subject to avoidance under the Avoidance
Provisions, and neither the Guarantor nor any other Person shall have
any right or claim under this Section 17 as against any Noteholder that
would not otherwise be available to such Person under the Avoidance
Provisions.
SECTION 18. JUDGMENT CURRENCY.
(a) The obligations of the Guarantor under this Guaranty and
the Note Purchase Agreements to make payments in Dollars or in any
Alternative
10
Currency (the "Obligation Currency") shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment expressed
in or converted into any currency other than the Obligation Currency,
except to the extent that such tender or recovery results in the
effective receipt by the Noteholders of the full amount of the
Obligation Currency expressed to be payable to them hereunder. If for
the purpose of obtaining or enforcing judgment against the Guarantor in
any court or in any jurisdiction, it becomes necessary to convert into
or from any currency other than the Obligation Currency (such other
currency being hereinafter referred to as the "Judgment Currency") an
amount due in the Obligation Currency, the conversion shall be made, at
the Alternative Currency Equivalent or Dollar Equivalent, in the case
of any Alternative Currency or Dollars, and, in the case of other
currencies, the rate of exchange (as quoted by the Required Holders or
if the Required Holders do not quote a rate of exchange on such
currency, by a known dealer in such currency designated by the
Noteholders) determined, in each case, as on the Banking Day
immediately preceding the day on which the judgment is given (such
Banking Day being hereinafter referred to as the "Judgment Currency
Conversion Date").
(b) If there is a change in the rate of exchange prevailing
between the Judgment Currency Conversion Date and the date of actual
payment of the amount due, the Guarantors, jointly and severally,
covenant and agree to pay such additional amounts, if any (but in any
event not a lesser amount), as may be necessary to ensure that the
amount paid in the Judgment Currency, when converted at the rate of
exchange prevailing on the date of payment, will produce the amount of
the Obligation Currency which could have been purchased with the amount
of Judgment Currency stipulated in the judgment or judicial award at
the rate of exchange prevailing on the Judgment Currency Conversion
Date.
(c) For the purposes of determining the Alternative Currency
Equivalent or Dollar Equivalent or rate of exchange for this Section,
such amount
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shall include any premium and costs payable in connection with the
purchase of the Obligation Currency.
SECTION 19. DEFINED TERMS.
"ALTERNATIVE CURRENCY" means British Pounds, French Francs, German
Deutschmarks, Japanese Yen, Hong Kong Dollars, Canadian Dollars, New Zealand
Dollars, Australian Dollars, Euro (or the applicable unit of combined currency
determined by the European economic community when available) or such other
currency other than Dollars that the Company may reasonably request from time to
time, which the Noteholders are able to reasonably accommodate.
"ALTERNATIVE CURRENCY EQUIVALENT" means, with respect to an amount of
Dollars on any date in relation to any specified Alternative Currency, the
amount of such specified Alternative Currency that may be purchased with such
amount of Dollars at the Spot Exchange Rate with respect to Dollars on such
date.
"BANKING DAY" means any day on which commercial banks are not
authorized or required by law to close in New York, New York.
"DOLLAR EQUIVALENT" means, with respect to an amount of any Alternative
Currency on any date in relation to Dollars, the amount of Dollars that may be
purchased with such amount of such Alternative Currency at the Spot Exchange
Rate with respect to such Alterative Currency on such date.
"SPOT EXCHANGE RATE" means, on any date of determination thereof, (a)
with respect to any Alternative Currency, the spot rate at which Dollars are
offered for such Alternative Currency on such day by the principal branch of the
Fleet National Bank at approximately 11:00 a.m. (Boston, Massachusetts time),
and (b) with respect to Dollars in relation to any specified Alternative
Currency, the spot rate at which such specified Alternative Currency is offered
on such date by the principal branch of the Fleet National Bank for Dollars at
approximately 11:00 a.m. (Boston, Massachusetts time).
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IN WITNESS WHEREOF, the Guarantor has duly executed and delivered this
Guaranty.
[NAME OF GUARANTOR]
By:___________________________
Name:
Title:
Address:
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