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EXHIBIT b
CONFORMED COPY
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CREDIT AGREEMENT
dated as of
July 16, 1999
Among
GARTNER GROUP, INC.
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
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CHASE SECURITIES INC. and
CREDIT SUISSE FIRST BOSTON,
as Co-arrangers
CREDIT SUISSE FIRST BOSTON,
as Syndication Agent
FLEET NATIONAL BANK,
as Documentation Agent
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TABLE OF CONTENTS
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms......................................................... 1
SECTION 1.02. Classification of Loans and Borrowings................................ 22
SECTION 1.03. Terms Generally ...................................................... 22
SECTION 1.04. Accounting Terms; GAAP................................................ 23
ARTICLE II
The Credits
SECTION 2.01. Commitments........................................................... 24
SECTION 2.02. Loans and Borrowings.................................................. 24
SECTION 2.03. Requests for Borrowings............................................... 25
SECTION 2.04. Funding of Borrowings................................................. 26
SECTION 2.05. Interest Elections.................................................... 26
SECTION 2.06. Termination and Reduction of Commitments............................. 28
SECTION 2.07. Repayment of Loans; Evidence of Debt.................................. 29
SECTION 2.08. Amortization of Term Loans............................................ 30
SECTION 2.09. Prepayment of Loans................................................... 31
SECTION 2.10. Fees.................................................................. 33
SECTION 2.11. Interest.............................................................. 33
SECTION 2.12. Alternate Rate of Interest............................................ 34
SECTION 2.13. Increased Costs....................................................... 35
SECTION 2.14. Break Funding Payments................................................ 36
SECTION 2.15. Taxes................................................................. 37
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Setoffs............ 38
SECTION 2.17. Mitigation Obligations; Replacement of Lenders........................ 40
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ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers.................................................. 41
SECTION 3.02. Authorization; Enforceability......................................... 42
SECTION 3.03. Governmental Approvals; No Conflicts.................................. 42
SECTION 3.04. Financial Condition; No Material Adverse Change......................
42
SECTION 3.05. Properties............................................................ 43
SECTION 3.06. Litigation and Environmental Matters.................................. 44
SECTION 3.07. Compliance with Laws and Agreements................................... 44
SECTION 3.08. Investment and Holding Company Status................................. 44
SECTION 3.09. Taxes................................................................. 45
SECTION 3.10. ERISA................................................................. 45
SECTION 3.11. Disclosure............................................................ 45
SECTION 3.12. Subsidiaries.......................................................... 45
SECTION 3.13. Insurance............................................................. 45
SECTION 3.14. Year 2000............................................................. 46
ARTICLE IV
Conditions
SECTION 4.01. Effective Date........................................................ 46
SECTION 4.02. Each Credit Event..................................................... 48
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information............................ 49
SECTION 5.02. Notices of Material Events............................................ 50
SECTION 5.03. Existence; Conduct of Business........................................ 51
SECTION 5.04. Payment of Obligations................................................ 51
SECTION 5.05. Maintenance of Properties............................................. 51
SECTION 5.06. Insurance............................................................. 51
SECTION 5.07. Books and Records; Inspection and Audit Rights........................ 51
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SECTION 5.08. Compliance with Laws.................................................. 52
SECTION 5.09. Use of Proceeds ...................................................... 52
SECTION 5.10. Additional Subsidiaries; Significant Subsidiaries..................... 52
SECTION 5.11. Federal Reserve Regulations........................................... 53
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness.......................................................... 53
SECTION 6.02. Liens................................................................. 54
SECTION 6.03. Fundamental Changes................................................... 55
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions............ 56
SECTION 6.05 Asset Sales........................................................... 58
SECTION 6.06. Sale and Leaseback Transactions....................................... 58
SECTION 6.07. Hedging Agreements.................................................... 59
SECTION 6.08. Restricted Payments................................................... 59
SECTION 6.09. Transactions with Affiliates.......................................... 59
SECTION 6.10. Restrictive Agreements................................................ 60
SECTION 6.11. Amendment of Material Documents....................................... 60
SECTION 6.12. Interest Expense Coverage Ratio....................................... 60
SECTION 6.13. Total Balance Sheet Indebtedness to EBITDA............................ 61
SECTION 6.14. Annualized Contract Value to Total Balance Sheet Indebtedness......... 61
SECTION 6.15. Minimum Annualized Contract Value..................................... 61
SECTION 6.16. Certain Indemnity Obligations......................................... 61
ARTICLE VII
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Events of Default................................................... 61
ARTICLE VIII
The Administrative Agent............................................ 65
ARTICLE IX
Miscellaneous
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices............................................................... 67
SECTION 9.02. Waivers; Amendments................................................... 68
SECTION 9.03. Expenses; Indemnity; Damage Waiver.................................... 70
SECTION 9.04. Successors and Assigns................................................ 71
SECTION 9.05. Survival.............................................................. 75
SECTION 9.06. Counterparts; Integration; Effectiveness............................. 76
SECTION 9.07. Severability.......................................................... 76
SECTION 9.08. Right of Setoff....................................................... 76
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process............ 77
SECTION 9.10. WAIVER OF JURY TRIAL.................................................. 78
SECTION 9.11. Headings.............................................................. 78
SECTION 9.12. Confidentiality....................................................... 78
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SECTION 9.13. Interest Rate Limitation.............................................. 79
SCHEDULES:
Schedule 2.01 -- Commitments
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Opinion of Borrower's Counsel
Exhibit C -- Form of Guarantee Agreement
Exhibit D -- Form of Indemnity, Subrogation and Contribution Agreement
Exhibit E -- Form of Pledge Agreement
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CREDIT AGREEMENT dated as of July 16, 1999,
among GARTNER GROUP, INC., a Delaware corporation
(the "Borrower"), the LENDERS party hereto (the
"Lenders"), and THE CHASE MANHATTAN BANK, a New York
banking corporation, as Administrative Agent (the
"Administrative Agent").
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16th of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
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"Alternate Base Rate" means, for any day, a rate per annum
equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Base
CD Rate in effect on such day plus 1% and (c) the Federal Funds Effective Rate
in effect on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due
to a change in the Prime Rate, the Base CD Rate or the Federal Funds Effective
Rate shall be effective from and including the effective date of such change in
the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate,
respectively.
"Annualized Contract Value" means, for any date, the
annualized value of all advisory and measurement contracts of the Borrower and
its Subsidiaries in effect on such date, without regard to the duration of such
contracts, as calculated in the manner used to calculate "Contract Value" in the
Borrower's most recent annual report on Form 10-K filed with the Securities and
Exchange Commission; provided that any material changes to the method of
calculating "Annualized Contract Value" hereunder from the method used in
calculating "Contract Value" in the Borrower's annual report on Form 10-K for
the fiscal year ended September 30, 1998 shall require the consent of the
Required Lenders.
"Applicable Percentage" means, with respect to any Revolving
Lender, the percentage of the total Revolving Commitments represented by such
Lender's Revolving Commitment. If the Revolving Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
"Applicable Rate" means, for any day with respect to any Loan,
or with respect to the commitment fees payable hereunder, as the case may be,
the applicable rate per annum set forth below under the caption "ABR Spread",
"Eurodollar Spread" or "Commitment Fee Rate", as the case may be, based upon the
Leverage Ratio as of the most recent determination date; provided that until the
Borrower has delivered financial statements pursuant to Section 5.01(a) or (b)
covering the first two fiscal quarters that end after the date hereof, the
"Applicable Rate" shall be the applicable rate per annum set forth below in
Category 2:
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ABR Eurodollar Commitment Fee
Leverage Ratio: Spread Spread Rate
--------------- ------ ------ ----
Category 1
$2.25x 0.50% 1.75% 0.35%
Category 2
$1.75x but 0.25% 1.50% 0.30%
<2.25x
Category 3
$1.25x but 0% 1.25% 0.30%
<1.75x
Category 4
$1.00x but 0% 1.00% 0.30%
<1.25x
Category 5
<1.00x 0% 0.75% 0.25%
For purposes of the foregoing, (a) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's fiscal year
based upon the Borrower's consolidated financial statements delivered pursuant
to Section 5.01(a) or (b) and (b) each change in the Applicable Rate resulting
from a change in the Leverage Ratio shall be effective during the period
commencing on and including the date of delivery to the Administrative Agent of
such consolidated financial statements indicating such change and ending on the
date immediately preceding the effective date of the next such change; provided
that the Leverage Ratio shall be deemed to be in Category 1 at the option of the
Administrative Agent or at the request of the Required Lenders (i) at any time
that an Event of Default has occurred and is continuing or (ii) if the Borrower
fails to deliver the consolidated financial statements required to be delivered
by it pursuant to Section 5.01(a) or (b), during the period from the expiration
of the time for delivery thereof until such consolidated financial statements
are delivered.
"Assessment Rate" means, for any day, the annual assessment
rate in effect on such day that is payable by a member of the Bank Insurance
Fund classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in dollars at the
offices
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of such member in the United States; provided that if, as a result of any change
in any law, rule or regulation, it is no longer possible to determine the
Assessment Rate as aforesaid, then the Assessment Rate shall be such annual rate
as shall be determined by the Administrative Agent to be representative of the
cost of such insurance to the Lenders.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Attributable Debt" means, on any date, in respect of any
lease of the Borrower or any Subsidiary entered into as part of a sale and
leaseback transaction subject to Section 6.06, (i) if such lease is a Capital
Lease Obligation, the capitalized amount thereof that would appear on a balance
sheet of such Person prepared as of such date in accordance with GAAP, and (ii)
if such lease is not a Capital Lease Obligation, the capitalized amount of the
remaining lease payments under such lease that would appear on a balance sheet
of such Person prepared as of such date in accordance with GAAP if such lease
were accounted for as a Capital Lease Obligation.
"Base CD Rate" means the sum of (a) the Three-Month Secondary
CD Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means Gartner Group, Inc., a Delaware corporation.
"Borrowing" means Loans of the same Class and Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect.
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"Borrowing Request" means a request by the Borrower for a
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of Rule 13d-5 under the Securities Exchange Act of 1934 as
in effect on the date hereof), other than, prior to the Recapitalization, IMS,
of shares representing more than 35% of the aggregate ordinary voting power
represented by the issued and outstanding Common Stock; or (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the
Borrower by Persons who were neither (i) nominated by the board of directors of
the Borrower nor (ii) appointed by directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.13(b), by any lending office of such Lender or by such
Lender's holding
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company, if any) with any request, guideline or directive (whether or not having
the force of law) of any Governmental Authority made or issued after the date of
this Agreement.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans or Term Loans and, when used in reference to any Commitment,
refers to whether such Commitment is a Revolving Commitment or Term Commitment.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means a Revolving Commitment or Term Commitment,
or any combination thereof (as the context requires).
"Common Stock" means common stock of the Borrower.
"Consolidated Cash Interest Expense" means, for any period,
(a) the sum of (i) the interest expense (including imputed interest expense in
respect of Capital Lease Obligations) of the Borrower and the Subsidiaries for
such period, determined on a consolidated basis in accordance with GAAP, (ii)
any interest accrued during such period in respect of Indebtedness of the
Borrower or any Subsidiary that is required to be capitalized rather than
included in consolidated interest expense for such period in accordance with
GAAP, plus (iii) any cash payments made during such period in respect of
obligations referred to in clause (b)(ii) below that were amortized or accrued
in a previous period, minus (b) the sum of (i) to the extent included in such
consolidated interest expense for such period, noncash amounts attributable to
amortization of financing costs paid in a previous period, plus (ii) to the
extent included in such consolidated interest expense for such period, noncash
amounts attributable to amortization of debt discounts or accrued interest
payable in kind for such period.
"Consolidated EBITDA" means, for any period, Consolidated Net
Income for such period plus (a) without
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duplication and to the extent deducted in determining such Consolidated Net
Income, the sum of (i) consolidated interest expense for such period, (ii)
consolidated income tax expense for such period, (iii) all amounts attributable
to depreciation and amortization for such period, (iv) any extraordinary noncash
charges for such period and (v) any noncash nonrecurring charges for such
period, and minus (b) without duplication and to the extent included in
determining such Consolidated Net Income, any extraordinary gains and
nonrecurring gains for such period, all determined on a consolidated basis in
accordance with GAAP.
"Consolidated Funded Debt" means, at any time, the sum,
without duplication of (i) the long-term obligations of the Borrower and its
Subsidiaries (excluding current maturities) plus (ii) all Indebtedness of the
Borrower and its Subsidiaries which matures one year or less from the date of
determination but is extendable or renewable at the sole option of the Borrower
or any Subsidiary in such a manner that it may become payable more than one year
from the date of determination, in each case on a consolidated basis in
accordance with GAAP.
"Consolidated Net Income" means, for any period, the net
income or loss of the Borrower and the Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income of SIV at any time when SIV is not a wholly-owned
Subsidiary, except to the extent of the amount of dividends or other
distributions actually paid to the Borrower or any of the Subsidiaries by SIV
during such period, and (b) the income or loss of any Person accrued prior to
the date it becomes a Subsidiary or is merged into or consolidated with the
Borrower or any Subsidiary or the date that such Person's assets are acquired by
the Borrower or any Subsidiary.
"Consolidated Net Tangible Assets" means, at any time, the
aggregate amount of assets (less applicable accumulated depreciation, depletion
and amortization and other reserves and other properly deductible items) of the
Borrower and its Subsidiaries, minus (a) all current
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liabilities of the Borrower and its Subsidiaries (excluding (i) liabilities that
by their terms are extendable or renewable at the option of the obligor to a
date more than 12 months after the date of determination and (ii) current
maturities of long-term debt) and (b) all goodwill, trade names, trademarks,
patents, unamortized debt discount and expense and other intangible assets of
the Borrower and its Subsidiaries, all as set forth in the most recent
consolidated balance sheet of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any act, event or condition which constitutes
an Event of Default or which upon notice, lapse of time or both would, unless
cured or waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 3.06 to the Disclosure
Letter.
"Disclosure Letter" means the letter dated the date hereof
delivered by the Borrower to the Administrative Agent and designated as the
"Disclosure Letter".
"Distribution Agreement" means the Distribution Agreement
dated as of June 17, 1999, between the Borrower and IMS, as the same may be
amended from time to time in accordance with the terms hereof.
"Dividend" means a one-time dividend in the approximate
aggregate amount of $125 million to be paid by the Borrower to the holders of
Common Stock as part of the Recapitalization.
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"dollars" or "$" refers to lawful money of the United States
of America.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or health and safety matters, as now or hereafter in effect.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of
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Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) income or franchise
taxes
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imposed on (or measured by) its net income by the United States of America, or
by the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which
its applicable lending office is located; (b) any branch profits taxes imposed
by the United States of America or any similar tax imposed by any other
jurisdiction described in clause (a) above; and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.17(b)), any withholding tax that (i) is in effect and would apply to
amounts payable to such Foreign Lender at the time such Foreign Lender becomes a
party to this Agreement (or designates a new lending office), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to any withholding tax
pursuant to Section 2.15(a), or (ii) is attributable to such Foreign Lender's
failure to comply with Section 2.15(e).
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100th of 1%) of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100th of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer, assistant treasurer, controller or
assistant controller of the Borrower.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this
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definition, the United States of America, each State thereof and the District of
Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized
under the laws of a jurisdiction other than the United States of America or any
State thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, 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.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
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"Guarantee Agreement" means the Guarantee Agreement,
substantially in the form of Exhibit C, among the Subsidiary Loan Parties and
the Administrative Agent, for the benefit of the Lenders.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"IFSC" means the wholly-owned Subsidiary to be formed under
the laws of Ireland and used in connection with the Borrower's corporate
treasury functions, including intra-group factoring and lending, cash pooling
and netting and liquidity management.
"IMS" means IMS Health Incorporated, a Delaware corporation.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding accounts
payable incurred in the ordinary course of business and not more than 60 days
past due), (f) all Indebtedness of others
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secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h)
all Capital Lease Obligations of such Person, (i) all obligations, contingent or
otherwise, of such Person as an account party or applicant in respect of letters
of credit and letters of guaranty and (j) all obligations, contingent or
otherwise, of such Person in respect of bankers' acceptances. The Indebtedness
of any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor; provided, that,
for the avoidance of doubt, the Share Forward Purchase Agreements shall not
constitute Indebtedness.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnity, Subrogation and Contribution Agreement" means the
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit D, among the Borrower, the Subsidiary Loan Parties and the
Administrative Agent, for the benefit of the Lenders.
"Information Memorandum" means the Confidential Information
Memorandum dated June, 1999 relating to the Borrower and the Transactions.
"Insignificant Subsidiary" means any Subsidiary that is not a
Significant Subsidiary.
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing or Term Borrowing in accordance with
Section 2.05.
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"Interest Payment Date" means (a) with respect to any ABR
Loan, the last day of each March, June, September and December and (b) with
respect to any Eurodollar Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period.
"Interest Period" means, with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect; provided that (a) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (b) any
Interest Period that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Lenders" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"Leverage Ratio" means, on any date, the ratio of (a) Total
Balance Sheet Indebtedness as of such date to (b) Consolidated EBITDA for the
period of four consecutive fiscal quarters of the Borrower ended on such date
(or, if
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such date is not the last day of a fiscal quarter, ended on the last day
of the fiscal quarter of the Borrower most recently ended prior to such date).
"LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate appearing on Page 3750 of the Dow Xxxxx Market
Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "LIBO Rate"
with respect to such Eurodollar Borrowing for such Interest Period shall be the
rate at which dollar deposits of $5 million and for a maturity comparable to
such Interest Period are offered by the principal London office of the entity
serving as Administrative Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement, the Indemnity,
Subrogation and Contribution Agreement, the
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Pledge Agreement and the Guarantee Agreement (including any supplements
thereto).
"Loan Parties" means the Borrower and the Subsidiary Loan
Parties.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Margin Stock" means "Margin Stock" (as defined in Regulation
U of the Board).
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations, prospects, financial condition or
contractual arrangements of the Borrower and the Subsidiaries taken as a whole,
(b) the ability of any Loan Party to perform any of its obligations under any
Loan Document or (c) the rights of or benefits available to the Lenders under
any Loan Document.
"Material Indebtedness" means Indebtedness (other than the
Loans), or obligations in respect of one or more Hedging Agreements, of any one
or more of the Borrower and the Subsidiaries in an aggregate principal amount
exceeding $30 million. For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of the Borrower or any Subsidiary in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that the Borrower or such
Subsidiary would be required to pay if such Hedging Agreement were terminated at
such time.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event, (a) the cash
proceeds received in respect of such event including any cash received in
respect of any noncash proceeds, but only as and when received, net of (b) all
reasonable fees and out-of-pocket expenses paid by the
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Borrower and the Subsidiaries to third parties (other than Affiliates, to the
extent such fees and expenses are greater than those that would have been
obtained on an arms'-length basis) in connection with such event.
"Other Taxes" means any and all present or future recording,
stamp, documentary, excise, transfer, sales, property or similar taxes, charges
or levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Permitted Acquisitions" means any acquisition of any assets
or capital stock of another Person; provided that the Borrower's ratio of Total
Balance Sheet Indebtedness to Consolidated EBITDA is lower than 2.25 to 1.00
after giving effect to such acquisition on a pro forma basis as if such
acquisition occurred immediately prior to the first day of the period of four
consecutive fiscal quarters most recently ended prior to such acquisition.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 60 days or are being contested in compliance with
Section 5.04;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
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(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of the Borrower or any
Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from
Moody's;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within one year from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
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(i) any commercial bank organized under the laws of the United States
of America or any State thereof which has a combined capital and
surplus and undivided profits of not less than $500 million or (ii) any
other commercial bank that has a rating of at least AA by S&P or Aa by
Moody's (or an equivalent rating by Fitch IBCA if neither S&P nor
Moody's provides such a rating);
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c) above;
(e) direct obligations of, or obligations the principal and
interest of which are unconditionally guaranteed by, any State of the
United States or any foreign state having, at the date of its
acquisition by the Borrower or a Subsidiary, a rating of at least AA by
S&P or Aa by Moody's, in each case maturing within one year from the
date of the acquisition;
(f) money market funds organized under the laws of the United
States or any State thereof that invest solely in the foregoing
investments; and
(g) municipal and corporate auction rate preferred stock with
reset periods of no longer than 49 days.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
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"Pledge Agreement" means the pledge agreement dated the date
hereof between the Borrower and the Administrative Agent for the benefit of the
Lenders, substantially in the form of Exhibit E.
"Prepayment Event" means the incurrence by the Borrower or any
Subsidiary Loan Party of any Indebtedness, other than Indebtedness permitted by
clauses (a) through (h) of Section 6.01.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by The Chase Manhattan Bank as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective from and including the date such change is publicly announced
as being effective.
"Recapitalization" means the planned recapitalization pursuant
to which (a) the Borrower will pay the Dividend, (b) the Common Stock will be
reclassified into Class A Common Stock and Class B Common Stock, (c) IMS will
exchange all but approximately 7,000,000 shares of Common Stock held by it for
an equal number of newly issued shares of Class B Common Stock and will
distribute such shares to its stockholders in a tax-free distribution, (d)
promptly after such reclassification, the Borrower will repurchase approximately
15% of its outstanding shares of Common Stock pursuant to the Tender Offer and
(e) thereafter, the Borrower will effect open market repurchases of
approximately 5% of its shares of Common Stock outstanding as of the date
hereof.
"Recapitalization Documents" means the Distribution Agreement
and the Agreement and Plan of Merger dated June 17, 1999 and any other documents
entered into by the Borrower or any Subsidiary in connection with the
Recapitalization.
"Register" has the meaning set forth in Section 9.04.
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"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having
Revolving Exposures, Term Loans and unused Commitments representing more than
50% of the sum of the total Revolving Exposures, outstanding Term Loans and
unused Commitments at such time.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in the Borrower or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancelation or
termination of any Equity Interests in the Borrower or any Subsidiary or any
option, warrant or other right to acquire any such Equity Interests in the
Borrower or any Subsidiary.
"Revolving Availability Period" means the period from and
including the Effective Date to but excluding the earlier of the Revolving
Maturity Date and the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans hereunder during the
Revolving Availability Period, expressed as an amount representing the maximum
aggregate amount of such Lender's Revolving Exposure hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.06 and (b)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04. The initial amount of each Lender's Revolving
Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Revolving Commitment, as
applicable. The initial aggregate amount of the Lenders' Revolving Commitments
is $150 million.
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"Revolving Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans at such time.
"Revolving Lender" means a Lender with a Revolving Commitment
or, if the Revolving Commitments have terminated or expired, a Lender with
Revolving Exposure.
"Revolving Loan" means a Loan made pursuant to clause (b) of
Section 2.01.
"Revolving Maturity Date" means July 16, 2004.
"Sale-Leaseback Transaction" means any arrangement whereby the
Borrower or a Subsidiary shall sell or transfer any property, real or personal,
used or useful in its business, whether now owned or hereinafter acquired, and
thereafter rent or lease such property or other property that it intends to use
for substantially the same purpose or purposes as the property sold or
transferred.
"Share Forward Purchase Agreements" means those certain letter
agreements entered into on May 8, 1997, between the Borrower and Deutsche Xxxxxx
Xxxxxxxx, in respect of the Borrower's Common Stock.
"Significant Subsidiary" means (a) any Subsidiary that is
identified as significant on Schedule 3.12 to the Disclosure Letter so long as
it has not been designated as insignificant by the Borrower in accordance with
Section 5.10 and (b) such other Subsidiaries as the Borrower may designate as
significant to the Administrative Agent in accordance with Section 5.10;
provided that at all times (i) the book value of the total assets of the
Borrower and all Significant Subsidiaries shall exceed 90% of the book value of
all assets of the Borrower and its Subsidiaries and (ii) the total revenue of
the Borrower and all Significant Subsidiaries shall exceed 90% of the total
revenue of the Borrower and its Subsidiaries, in each case for the fiscal year
most recently ended.
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"SIV" means SI Venture Fund L.L.C. (which is expected to
change its name to SI Venture Associates L.L.C.), a limited liability company
formed under the laws of Delaware.
"S&P" means Standard & Poor's Ratings Services.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the entity serving as
Administrative Agent is subject (a) with respect to the Base CD Rate, for new
negotiable nonpersonal time deposits in dollars of over $100,000 with maturities
approximately equal to three months and (b) with respect to the Adjusted LIBO
Rate, for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D. Eurodollar Loans shall be
deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D or
any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as
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of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Loan Party" means (a) any Significant Subsidiary
that is not a Foreign Subsidiary and (b) any Subsidiary (other than a Foreign
Subsidiary) that directly or indirectly owns any capital stock of any Subsidiary
Loan Party; provided, that "Subsidiary Loan Party" shall not include SIV.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Tender Offer" means a tender offer pursuant to which the
Borrower will repurchase up to 15% (plus or minus 2%) of the shares of Common
Stock outstanding as of the date hereof.
"Term Availability Period" means the period from and including
the Effective Date to but excluding the earlier of the Term Commitment
Termination Date and the date of termination of the Term Commitments.
"Term Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make a Term Loan hereunder during the Term
Availability Period, expressed as an amount representing the maximum principal
amount of Term Loans that may be made by such Lender hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.06 and (b)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04. The initial amount of each Lender's Term
Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Term Commitment, as
applicable. The initial aggregate amount of the Lenders' Term Commitments is
$350 million.
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"Term Commitment Termination Date" means July 15, 2000.
"Term Lender" means a Lender with a Term Commitment or an
outstanding Term Loan.
"Term Loan" means a Loan made pursuant to clause (a) of
Section 2.01.
"Term Maturity Date" means July 16, 2004.
"Three-Month Secondary CD Rate" means, for any day, the
secondary market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day is not a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day) or, if such rate is not so reported on such
day or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York City received at approximately 10:00 a.m., New York City time, on
such day (or, if such day is not a Business Day, on the next preceding Business
Day) by the Administrative Agent from three negotiable certificate of deposit
dealers of recognized standing selected by it.
"Total Balance Sheet Indebtedness" means, at any date, all
Indebtedness of the Borrower and its Subsidiaries on such date that would be
reflected as a liability on a consolidated balance sheet of the Borrower and its
Subsidiaries prepared as of such date in accordance with GAAP.
"Transactions" means (a) the Recapitalization and (b) the
execution, delivery and performance by the Borrower and the Subsidiary Loan
Parties of the Loan Documents, the borrowing of Loans and the use of proceeds
thereof.
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"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class
and Type (e.g., a "Eurodollar Revolving Loan"). Borrowings also may be
classified and referred to by Class (e.g., a "Revolving Borrowing") or by Type
(e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar
Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
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construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP. (a) Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
(b) All pro forma computations required to be made hereunder
giving effect to any acquisition, investment, sale, disposition, merger or
similar event shall reflect on a pro forma basis such event and, to the extent
applicable, the historical earnings and cash flows associated with the assets
acquired or disposed of and any related incurrence or reduction of Indebtedness,
but shall not take into account any projected synergies or similar benefits
expected to be realized as a result of such event.
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ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions
set forth herein, each Lender agrees (a) to make Term Loans to the Borrower
during the Term Availability Period in a principal amount not exceeding its Term
Commitment, and (b) to make Revolving Loans to the Borrower from time to time
during the Revolving Availability Period in an aggregate principal amount that
will not result in such Lender's Revolving Exposure exceeding such Lender's
Revolving Commitment. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans. Amounts repaid in respect of Term Loans may not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be
made as part of a Borrowing consisting of Loans of the same Class and Type made
by the Lenders ratably in accordance with their respective Commitments of the
applicable Class. The failure of any Lender to make any Loan required to be made
by it shall not relieve any other Lender of its obligations hereunder; provided
that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.12, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith. Each Lender at its option may make
any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided that any exercise of such option shall
not affect the obligation of the Borrower to repay such Loan in accordance with
the terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1 million
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and not less than $5 million. At the time that each ABR Borrowing is made, such
Borrowing shall be in an aggregate amount that is an integral multiple of $1
million and not less than $5 million; provided that an ABR Borrowing may be in
an aggregate amount that is equal to the entire unused balance of the total
Commitments of the relevant Class. Borrowings of more than one Type and Class
may be outstanding at the same time; provided that there shall not at any time
be more than a total of 10 Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Revolving Maturity Date or the Term Maturity Date, as applicable.
SECTION 2.03. Requests for Borrowings. To request a Revolving
Borrowing or Term Borrowing, the Borrower shall notify the Administrative Agent
of such request by telephone (a) in the case of a Eurodollar Borrowing, not
later than 9:00 a.m., New York City time, three Business Days before the date of
the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than
10:00 a.m., New York City time, on the Business Day of the proposed Borrowing.
Each such telephonic Borrowing Request shall be irrevocable and shall be
confirmed promptly by hand delivery or facsimile transmission to the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving
Borrowing or Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business
Day;
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(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.04.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed
to have selected an Interest Period of one month's duration. Promptly following
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Funding of Borrowings. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon (or 3:00 p.m. in the case
of an ABR Loan), New York City time, to the account of the Administrative Agent
most recently designated by it for such purpose by notice to the Lenders. The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent in New York City and designated by the
Borrower in the applicable Borrowing Request.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such
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Lender has made such share available on such date in accordance with paragraph
(a) of this Section and may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available
to the Borrower to but excluding the date of payment to the Administrative
Agent, at (i) in the case of such Lender, the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation or (ii) in the case of the
Borrower, the interest rate applicable to ABR Loans. If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing as of the date of such Borrowing.
SECTION 2.05. Interest Elections. (a) Each Revolving Borrowing
and Term Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the
Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest
Periods therefor, all as provided in this Section. The Borrower may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the Borrower
were requesting a Revolving Borrowing of the Type resulting from
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such election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be confirmed
promptly by hand delivery or facsimile transmission to the Administrative Agent
of a written Interest Election Request in a form approved by the Administrative
Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
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(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long
as an Event of Default is continuing (i) no outstanding Borrowing may be
converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each
Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
SECTION 2.06. Termination and Reduction of Commitments. (a)
Unless previously terminated, (i) the Term Commitments shall terminate at 5:00
p.m., New York City time, on the Term Commitment Termination Date and (ii) the
Revolving Commitments shall terminate on the Revolving Maturity Date.
(b) The Borrower may at any time terminate, or from time to
time reduce, the Revolving Commitments; provided that (i) each reduction of the
Revolving Commitments shall be in an amount that is an integral multiple of $1
million and not less than $5 million and (ii) the Borrower shall not terminate
or reduce the Revolving Commitments if, after giving effect to any concurrent
prepayment of the Revolving Loans in accordance with Section 2.09, the sum of
the Revolving Exposures would exceed the total Revolving Commitments.
(c) On the date six months after the date hereof, the Term
Commitments shall automatically and permanently reduce by the amount, if any,
necessary so that the remaining undrawn Term Commitments are no greater than
$100 million.
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(d) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section, at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Revolving Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice
to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments of
any Class shall be permanent. Each reduction of the Commitments of any Class
shall be made ratably among the Lenders in accordance with their respective
Commitments of such Class.
SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan of such Lender on the Revolving Maturity Date and (ii) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Term Loan of such Lender as provided in Section 2.08.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and
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payable or to become due and payable from the Borrower to each Lender hereunder
and (iii) the amount of any sum received by the Administrative Agent hereunder
for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement or the
obligations of the Lenders to make Loans or give credit for repayments.
(e) Any Lender may request that Loans of any Class made by it
be evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.08. Amortization of Term Loans. (a) Subject to
adjustment pursuant to paragraph (c) of this Section, the Borrower shall repay
Term Borrowings on each date set forth below in the percentage of the aggregate
principal amount outstanding at the end of the Term Availability Period set
forth opposite such date:
Date Amount
---- ------
January 16, 2001 12.5%
July 16, 2001 12.5%
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January 16, 2002 12.5%
July 16, 2002 12.5%
January 16, 2003 12.5%
July 16, 2003 12.5%
January 16, 2004 12.5%
July 16, 2004 12.5%
(b) To the extent not previously paid, all Term Loans shall be
due and payable on the Term Maturity Date.
(c) Any prepayment of a Term Borrowing shall be applied to
reduce the subsequent scheduled repayments of the Term Borrowings to be made
pursuant to this Section in the inverse order of maturity.
(d) Prior to any repayment of any Term Borrowings hereunder,
the Borrower shall select the Borrowing or Borrowings to be repaid and shall
notify the Administrative Agent by telephone (confirmed by facsimile
transmission) of such selection not later than 11:00 a.m., New York City time,
three Business Days before the scheduled date of such repayment, and the
Administrative Agent shall promptly notify the Lenders of such selection. Each
repayment of a Term Borrowing shall be applied ratably to the Loans included in
the repaid Borrowing. Repayments of Term Borrowings shall be accompanied by
accrued interest on the amount repaid.
SECTION 2.09. Prepayment of Loans. (a) The Borrower shall have
the right at any time and from time to time to prepay any Borrowing in whole or
in part, subject to the requirements of this Section and Section 2.14.
(b) In the event and on such occasion that the sum of the
Revolving Exposures exceeds the total Revolving Commitments, the Borrower shall
prepay Revolving Borrowings in an aggregate amount equal to such excess.
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(c) In the event and on each occasion that any Net Proceeds
are received by or on behalf of the Borrower or any Subsidiary in respect of any
Prepayment Event, the Borrower shall, within three Business Days after Net
Proceeds in an aggregate cumulative amount (since the last payment under this
paragraph (c)) of at least $5,000,000 are received, prepay Term Borrowings in an
aggregate amount equal to: (a) 50% of such Net Proceeds, if, on a pro forma
basis after giving effect to such Prepayment Event and the prepayment pursuant
to this clause (c), the Borrower's Leverage Ratio as of the most recent fiscal
quarter for which financial statements have been delivered pursuant to Section
5.01 would have been less than 2.25 to 1.00, or (b) 100% of such Net Proceeds,
in all other cases.
(d) Prior to any optional or mandatory prepayment of
Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings to
be prepaid and shall specify such selection in the notice of such prepayment
pursuant to paragraph (e) of this Section.
(e) The Borrower shall notify the Administrative Agent by
telephone (confirmed by facsimile transmission) of any prepayment hereunder (i)
in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m.,
New York City time, three Business Days before the date of prepayment or (ii) in
the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York
City time, one Business Day before the date of prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date, the principal amount
of each Borrowing or portion thereof to be prepaid and, in the case of a
mandatory prepayment, a reasonably detailed calculation of the amount of such
prepayment; provided that, if a notice of optional prepayment is given in
connection with a conditional notice of termination of the Revolving Commitments
as contemplated by Section 2.06, then such notice of prepayment may be revoked
if such notice of termination is revoked in accordance with Section 2.06(d).
Promptly following receipt of any such notice, the Administrative Agent shall
advise the Lenders of the contents thereof. Each partial prepayment of any
Borrowing shall be in an amount that would
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be permitted in the case of an advance of a Borrowing of the same Type as
provided in Section 2.02, except as necessary to apply fully the required amount
of a mandatory prepayment. Each prepayment of a Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.11.
(f) In the event the amount of any prepayment required to be
made pursuant to Section 2.09(c) shall exceed the aggregate principal amount of
the applicable outstanding ABR Term Loans (the amount of any such excess being
called the "Excess Amount"), the Borrower shall have the right, in lieu of
making such prepayment in full, to prepay all the outstanding ABR Term Loans and
to deposit an amount equal to the Excess Amount with the Administrative Agent in
a cash collateral account maintained (pursuant to documentation satisfactory to
the Administrative Agent) by and in the sole dominion and control of the
Administrative Agent. Any amounts so deposited shall be held by the
Administrative Agent as collateral for the Borrower's obligations hereunder and
applied to the prepayment of the applicable Eurodollar Loans, in the order
instructed by the Borrower, at the end of the current Interest Periods
applicable thereto, during which Interest Periods interest shall continue to
accrue pursuant to Section 2.11. On any Business Day on which (x) collected
amounts remain on deposit in or to the credit of such cash collateral account
after giving effect to the payments made on such day pursuant to Section 2.09(c)
and (y) the Borrower shall have delivered to the Administrative Agent a written
request or a telephonic request (which shall be promptly confirmed in writing)
that such remaining collected amounts be invested in the Permitted Investments
specified in such request, the Administrative Agent shall use its reasonable
efforts to invest such remaining collected amounts in such Permitted
Investments; provided, however, that the Administrative Agent shall have
continuous dominion and full control over any such investments (and over any
interest that accrues thereon) to the same extent that it has dominion and
control over such cash collateral account and no Permitted Investment shall
mature after the end of the Interest Period in respect of which it is to be
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applied. The Borrower shall not have the right to withdraw any amount from such
cash collateral account until the applicable Eurodollar Loans and accrued
interest thereon are paid in full, at which time the remaining funds shall be
paid to the Borrower unless a Default then exists or would result.
SECTION 2.10. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Rate on the average daily unused amount of each
Commitment of such Lender during the period from and including the date hereof
to but excluding the date on which such Commitment terminates. Accrued
commitment fees shall be payable in arrears (i) in the case of commitment fees
in respect of the Revolving Commitments, on the last day of March, June,
September and December of each year and on the date on which the Revolving
Commitments terminate, commencing on the first such date to occur after the date
hereof, and (ii) in the case of commitment fees in respect of the Term
Commitments, on the Term Availability Termination Date or any earlier date on
which such Commitments terminate. All commitment fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(b) The Borrower agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent.
(c) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent for distribution, in
the case of commitment fees, to the Lenders entitled thereto. Fees paid shall
not be refundable under any circumstances.
SECTION 2.11. Interest. (a) The Loans comprising each ABR
Borrowing shall bear interest at the Alternate Base Rate plus the Applicable
Rate.
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(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section or (ii) in the case of any other amount, 2%
plus the rate applicable to ABR Revolving Loans as provided in paragraph (a) of
this Section.
(d) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Revolving Commitments; provided that (i) interest
accrued pursuant to paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Revolving
Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base
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Rate or Adjusted LIBO Rate shall be determined by the Administrative Agent, and
such determination shall be prima facie evidence absent demonstrative error.
SECTION 2.12. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be prima facie evidence absent demonstrative error) that adequate
and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders that the Adjusted LIBO Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders of making or
maintaining their Loans included in such Borrowing for such Interest
Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or facsimile transmission as promptly as practicable
thereafter and, until the Administrative Agent notifies the Borrower and the
Lenders that the circumstances giving rise to such notice no longer exist, (i)
any Interest Election Request that requests the conversion of any Borrowing to,
or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.13. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement to the extent reflected in the Adjusted LIBO Rate);
or
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(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurodollar Loans made by
such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal, interest or
otherwise), then within 10 Business Days after demand the Borrower will pay to
such Lender, such additional amount or amounts as will compensate such Lender
for such additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement or the Loans made by such Lender, to a
level below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or its holding company, as the case
may be, as specified in paragraph (a) or (b) of this Section shall be delivered
to the Borrower and shall be prima facie evidence absent demonstrative error.
The Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 Business Days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the Borrower shall not
be
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required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than 180 days prior to the date that such
Lender notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 180-day period referred
to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.14. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Term Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.09(f) and is revoked in accordance therewith), or (d)
the assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.17, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
equal an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the last
day of the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue, for the period that would have been the Interest
Period for such Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market. A
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certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Borrower within 180 days of the event giving rise to such loss, cost or expense
and shall be prima facie evidence absent demonstrative error. The Borrower shall
pay such Lender the amount shown as due on any such certificate within 10
Business Days after receipt thereof.
SECTION 2.15. Taxes. (a) Any and all payments by or on account
of any obligation of the Borrower hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes; provided that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent or the applicable Lender (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions, (iii) the Borrower shall pay
the full amount deducted to the relevant Governmental Authority in accordance
with applicable law and (iv) the Borrower shall have the right to contest any
such Taxes and/or receive any refunds paid or payable with respect to the same.
(b) In addition, but without duplication of clause (a), the
Borrower shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
(c) The Borrower shall indemnify and reimburse the
Administrative Agent and each Lender within 10 Business Days after written
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
paid by the Administrative Agent or such Lender, as the case may be, on or with
respect to any payment by or on account of any obligation of the Borrower
hereunder or under any other Loan Document (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
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Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered
to the Borrower by a Lender or by the Administrative Agent on its own behalf or
on behalf of a Lender shall be prima facie evidence absent demonstrative error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate, provided that such Foreign Lender
has received written notice from the Borrower or the Administrative Agent
advising it of the availability of such exemption or reduction and supplying all
applicable documentation.
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing
of Setoffs. (a) The Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest or
fees, or of amounts payable under Section 2.13, 2.14 or 2.15, or otherwise)
prior to the time expressly required hereunder or under such other Loan Document
for such payment
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(or, if no such time is expressly required, prior to 2:00 p.m., New York City
time), on the date when due, in immediately available funds, without setoff or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, except that payments pursuant to Sections 2.13,
2.14, 2.15 and 9.03 shall be made directly to the Persons entitled thereto and
payments pursuant to other Loan Documents shall be made to the Persons specified
therein. The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment under any Loan Document shall be due
on a day that is not a Business Day, the date for payment shall be extended to
the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
All payments under each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied (i) first,
towards payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, towards payment of principal then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal then due to such parties.
(c) If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or Term Loans resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans or Term Loans and accrued interest thereon than the proportion
received by any other
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Lender, then the Lender receiving such greater proportion shall purchase (for
cash at face value) participations in the Revolving Loans and Term Loans of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans and
Term Loans; provided that (i) if any such participations are purchased and all
or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest (except to the extent that such purchasing
Lender is ordered by a court of competent jurisdiction to pay interest on such
recovered payment), and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this paragraph
shall apply). The Borrower consents to the foregoing and agrees, to the extent
it may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of setoff and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that the Borrower
will not make such payment, the Administrative Agent may assume that the
Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders the amount due. In such
event, if the Borrower has not in fact made such payment, then each of the
Lenders severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender with interest thereon, for
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each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.04(b), 2.16(d) or 9.03(c), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.17. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.13, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.15, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.13 or 2.15, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.13, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
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Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation under
Section 2.13 or payments required to be made pursuant to Section 2.15, such
assignment will result in a material reduction in such compensation or payments.
A Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
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SECTION 3.01. Organization; Powers. Each of the Borrower and
its Subsidiaries is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and to own and lease its
properties as now owned or leased, and is qualified to do business in, and is in
good standing in, every jurisdiction where such qualification or such good
standing is required, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.02. Authorization; Enforceability. The Transactions
to be entered into by each Loan Party are within such Loan Party's corporate
powers and have been duly authorized by all necessary corporate and, if
required, stockholder action. This Agreement has been duly executed and
delivered by the Borrower and constitutes, and each other Loan Document to which
any Loan Party is to be a party, when executed and delivered by such Loan Party,
will constitute, a legal, valid and binding obligation of the Borrower or such
Loan Party (as the case may be), enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of its Subsidiaries or any order
of any Governmental Authority, (c) will not violate or result in a default under
any material indenture, agreement or other instrument binding upon the Borrower
or any of its Subsidiaries or its assets, or give rise to a right thereunder to
require any payment to be made by the Borrower
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or any of its Subsidiaries, and (d) will not result in the creation or
imposition of any material Lien on any asset of the Borrower or any of its
Subsidiaries.
SECTION 3.04. Financial Condition; No Material Adverse Change.
(a) The Borrower has heretofore furnished to the Lenders its consolidated
balance sheet and statements of income, stockholders equity and cash flows (i)
as of and for the fiscal year ended September 30, 1998, reported on by KPMG Peat
Marwick LLP, independent public accountants, and (ii) as of and for the fiscal
quarter and the portion of the fiscal year ended March 31, 1999, certified by
its chief financial officer. Such financial statements present fairly, in all
material respects, the financial position and results of operations and cash
flows of the Borrower and its consolidated Subsidiaries as of such dates and for
such periods in accordance with GAAP, subject to year-end audit adjustments and
the absence of footnotes in the case of the statements referred to in clause
(ii) above.
(b) The Borrower has heretofore furnished to the Lenders its
pro forma consolidated balance sheet as of March 31, 1999, prepared giving
effect to the Transactions as if the Transactions had occurred on such date.
Such pro forma consolidated balance sheet (i) has been prepared in good faith
based on the same assumptions used to prepare the pro forma financial statements
included in the Information Memorandum (which assumptions are believed by the
Borrower to be reasonable), (ii) is based on the best information available to
the Borrower after due inquiry, (iii) accurately reflects all adjustments
necessary to give effect to the Transactions and (iv) presents fairly, in all
material respects, the pro forma financial position of the Borrower and its
consolidated Subsidiaries as of March 31, 1999 as if the Transactions had
occurred on such date.
(c) On the date hereof, except as disclosed in the financial
statements referred to above or the notes thereto or in the Information
Memorandum and except for the Disclosed Matters, after giving effect to the
Transactions, none of the Borrower or its Subsidiaries has, as of the
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Effective Date, any material contingent liabilities, unusual long-term
commitments or unrealized losses.
(d) Since September 30, 1998, there has been no material
adverse change in the business, assets, operations, prospects, financial
condition or contractual arrangements of the Borrower and its Subsidiaries,
taken as a whole.
SECTION 3.05. Properties. (a) Each of the Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except for minor defects in
title that do not interfere in any material respect with its ability to conduct
its business as currently conducted or to utilize such properties for their
intended purposes.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed or otherwise has rights to use, all trademarks, trade names,
copyrights, patents and other intellectual property material to its business,
and, to the Borrower's knowledge, the use thereof by the Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) There
are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve any of the Loan Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect
to any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the
Borrower nor any of
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its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c) Since the date of this Agreement, there has been no change
in the status of the Disclosed Matters that, individually or in the aggregate,
has resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of the
Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority (including any applicable labor laws or
regulations) applicable to it or its property and all indentures, agreements and
other instruments binding upon it or its property, except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect. No Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither
the Borrower nor any of its Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Borrower and its Subsidiaries
has timely filed or caused to be filed all Tax returns and reports required to
have been filed and has paid or caused to be paid all Taxes required to have
been paid by it, except (a) any Taxes that are being or promptly will be
contested in good faith by appropriate proceedings and for which the Borrower or
such Subsidiary, as applicable, has set aside on its books adequate reserves in
accordance with GAAP or (b) to the extent that the failure
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to do so could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed the fair market value of the assets of such Plan.
SECTION 3.11. Disclosure. Neither the Information Memorandum
nor any of the other reports, financial statements, certificates or other
information furnished by or on behalf of any Loan Party to the Administrative
Agent or any Lender in connection with the negotiation of this Agreement or any
other Loan Document or delivered hereunder or thereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
SECTION 3.12. Subsidiaries. Schedule 3.12 to the Disclosure
Letter sets forth the name of, and the ownership interest of the Borrower and
each other Subsidiary in, each Subsidiary and identifies each Subsidiary that is
a Significant Subsidiary and/or a Subsidiary Loan Party, in each case as of the
Effective Date.
SECTION 3.13. Insurance. Schedule 3.13 to the Disclosure
Letter sets forth a description of all insurance maintained by or on behalf of
the Borrower and its Subsidiaries as of the Effective Date. As of the Effective
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Date, all premiums in respect of such insurance have been paid. The Borrower
believes that the insurance maintained by or on behalf of the Borrower and its
Subsidiaries is adequate.
SECTION 3.14. Year 2000. Any reprogramming required to permit
the proper functioning, in and following the year 2000, of (a) the internal
computer systems of the Borrower and its Subsidiaries and (b) equipment
containing embedded microchips used in the Borrower's systems (whether or not
supplied by others) and the testing of all such systems and equipment, as so
reprogrammed, will be substantially completed by September 30, 1999. To the
Borrower's knowledge, any such reprogramming of systems and equipment with which
the Borrower's systems interface will be substantially completed by September
30, 1999. The Borrower does not expect the cost to the Borrower and its
Subsidiaries of such reprogramming and testing and of the reasonably foreseeable
consequences of year 2000 to the Borrower and its Subsidiaries (including
reprogramming errors and the failure of others' systems or equipment) to result
in a Default or a Material Adverse Effect.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders
to make Loans hereunder shall not become effective until the date on which each
of the following conditions is satisfied (or waived in accordance with Section
9.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include facsimile
transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.
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(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
counsel for the Borrower, substantially in the form of Exhibit B. The
Borrower hereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of each Loan Party, the authorization of the Transactions and
any other legal matters relating to the Loan Parties, the Loan
Documents or the Transactions, all in form and substance satisfactory
to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President, a
Vice President or a Financial Officer of the Borrower, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of
Section 4.02.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
reasonable out-of-pocket expenses (including fees, charges and
disbursements of counsel) required to be reimbursed or paid by any Loan
Party hereunder or under any other Loan Document.
(f) The Administrative Agent (or its counsel) shall have
received from each party thereto a counterpart of the Guarantee
Agreement signed on behalf of such party.
(g) All consents and approvals required to be obtained from
any Governmental Authority or other
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Person in connection with the Recapitalization shall have been obtained
(including from the stockholders of the Borrower), and all applicable
waiting periods and appeal periods shall have expired, in each case
without the imposition of any materially burdensome conditions. The
Administrative Agent shall have received copies of any Recapitalization
Documents signed prior to such date and all certificates, opinions and
other documents delivered thereunder prior to such date, certified by a
Financial Officer as complete and correct.
(h) The Lenders shall have received a pro forma consolidated
balance sheet of the Borrower as of March 31, 1999, reflecting all pro
forma adjustments as if the Transactions had been consummated on such
date, and such pro forma consolidated balance sheet shall be consistent
in all material respects with the forecasts and other information
previously provided to the Lenders.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 5:00 p.m., New York City time, on
September 30, 1999 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender
to make a Loan on the occasion of any Borrowing is subject to receipt of the
request therefor in accordance herewith and to the satisfaction of the following
conditions:
(a) The representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct in all material
respects on and as of the date of such Borrowing, except to the extent
they expressly relate to an earlier date, in which case as of such
earlier date.
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(b) At the time of and immediately after giving effect to such
Borrowing no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (a)
and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full the Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the
Borrower, its audited consolidated balance sheet and related statements
of operations, stockholders' equity and cash flows as of the end of and
for such year, setting forth in each case in comparative form the
figures as of the end of and for the previous fiscal year, all reported
on by KPMG Peat Marwick LLP or other independent public accountants of
recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception
as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied;
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(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, its consolidated
balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such fiscal quarter and
the then elapsed portion of the fiscal year, setting forth in each case
in comparative form the figures for the corresponding period or periods
of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Borrower and its consolidated Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of
footnotes;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer (i)
certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Sections
6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP
or in the application thereof has occurred since the date of the
Borrower's audited financial statements referred to in Section 3.04
and, if any such change has occurred, specifying the effect of such
change on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements
under clause (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the
extent required by accounting rules or guidelines);
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(e) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Borrower or any Subsidiary with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national
securities exchange; and
(f) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Borrower or any Subsidiary, or compliance with the
terms of any Loan Document, as the Administrative Agent or any Lender
may reasonably request.
SECTION 5.02. Notices of Material Events. The Borrower will
furnish to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Borrower or any Affiliate thereof that, if
adversely determined, could reasonably be expected to result in a
Material Adverse Effect; and
(c) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower
will, and will cause each of its Subsidiaries to, do or cause to be done all
things necessary to preserve,
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renew and keep in full force and effect its legal existence and the rights,
licenses, permits, privileges, franchises, patents, copyrights, trademarks and
trade names material to the conduct of its business; provided that the foregoing
shall not prohibit any merger, consolidation, liquidation or dissolution
permitted under Section 6.03.
SECTION 5.04. Payment of Obligations. The Borrower will, and
will cause each of its Subsidiaries to, pay its Indebtedness and other
obligations, including Tax liabilities, before the same shall become delinquent
or in default, except where (a) the validity or amount thereof is being
contested in good faith by appropriate proceedings, (b) the Borrower or such
Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP and (c) the failure to make payment pending such contest
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties. The Borrower will,
and will cause each of its Subsidiaries to, keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear and obsolescence excepted.
SECTION 5.06. Insurance. The Borrower will, and will cause
each of its Subsidiaries to, maintain, with financially sound and reputable
insurance companies insurance in such amounts (with no greater risk retention)
and against such risks as are customarily maintained by companies of established
repute engaged in the same or similar businesses operating in the same or
similar locations. The Borrower will furnish to the Lenders, upon request of the
Administrative Agent, information in reasonable detail as to the insurance so
maintained.
SECTION 5.07. Books and Records; Inspection and Audit Rights.
The Borrower will, and will cause each of its Subsidiaries to, keep proper books
of record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities. The
Borrower will, and will cause each of its
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Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender, upon reasonable prior notice, without material disruption
of the Borrower's business, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested, in each case subject to
the Lenders' confidentiality obligations under Section 9.12.
SECTION 5.08. Compliance with Laws. The Borrower will, and
will cause each of its Subsidiaries to, comply with all laws, rules, regulations
and orders of any Governmental Authority applicable to it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.09. Use of Proceeds. (a) The proceeds of the Loans
will be used by the Borrower only (i) to finance, in whole or in part, the
Dividend, (ii) to finance repurchases of common stock pursuant to the Tender
Offer or on the open market and (iii) for general corporate purposes of the
Borrower and its Subsidiaries.
(b) No part of the proceeds of any Loan will be used, whether
directly or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations U and X.
SECTION 5.10. Additional Subsidiaries; Significant
Subsidiaries. The Borrower may from time to time, but no more than once each
fiscal year, by written notice to the Administrative Agent designate
Subsidiaries as "Significant Subsidiaries" or "Insignificant Subsidiaries", and
the Borrower shall make such designation as necessary to comply with the
requirements of the definition of "Significant Subsidiary". If any additional
Subsidiary is formed or acquired or becomes a Subsidiary after the date hereof,
the Borrower shall, within thirty days after such Subsidiary is formed or
acquired or becomes a Subsidiary, notify the Administrative Agent thereof and
designate such
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Subsidiary as a "Significant Subsidiary" or an "Insignificant Subsidiary". The
Borrower may designate Subsidiaries as "Significant Subsidiaries" or
"Insignificant Subsidiaries" if such designation is necessary to cure a default
described in clause (m) of Article VII, provided that the Required Lenders have
determined that the newly-designated "Significant Subsidiaries" are comparable
in all material respects to the newly-designated "Insignificant Subsidiaries."
At the time of any designation pursuant to any of the preceding three sentences,
the Borrower shall (a) provide to the Administrative Agent a certificate of a
Financial Officer (i) if any Subsidiary is being designated as "Insignificant,"
stating that no Default has occurred and is continuing after giving effect to
such designation and (ii) setting forth reasonably detailed calculations
demonstrating compliance with the requirements of the definition of "Significant
Subsidiary" immediately after such designation on a pro forma basis as if such
designation had occurred immediately prior to the first day of the fiscal year
most recently ended and (b) cause any Subsidiary that is being designated as a
"Significant Subsidiary" and is not a Foreign Subsidiary to become a party to
the Guarantee Agreement. Section 19 of the Guarantee Agreement shall apply to
designations made pursuant to this Section.
SECTION 5.11. Federal Reserve Regulations. The Borrower will,
and will cause each Subsidiary to, ensure that at no time will Margin Stock
comprise 25% or more of the assets that are (or would but for the exclusions in
Sections 6.02(e) and 6.05(d) be) subject to the restrictions of Section 6.02 or
Section 6.05.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full, the Borrower covenants and agrees with the Lenders that:
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SECTION 6.01. Indebtedness. The Borrower will not, and will
not permit any Subsidiary Loan Party to, create, incur, assume or permit to
exist any Indebtedness, except:
(a) Indebtedness created under the Loan Documents;
(b) Indebtedness existing on the date hereof and set forth in
Schedule 6.01 to the Disclosure Letter and extensions, renewals and
replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof or result in an earlier maturity
date or decreased weighted average life thereof;
(c) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary; provided that
Indebtedness of any Subsidiary that is not a Loan Party to the Borrower
or any Subsidiary Loan Party shall be subject to Section 6.04;
(d) Guarantees by the Borrower of Indebtedness of any
Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any
other Subsidiary; provided that Guarantees by the Borrower or any
Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a
Loan Party shall be subject to Section 6.04;
(e) any Indebtedness of a Subsidiary, secured Indebtedness of
the Borrower, or Capital Lease Obligation of the Borrower; provided
that the sum, without duplication, of (i) the aggregate principal
amount of Indebtedness permitted by this clause (e) and (ii) the
Attributable Debt permitted by Section 6.06(b), shall not exceed at any
time outstanding the greater of (i) $25 million and (ii) 12.5% of
Consolidated EBITDA for the period of four consecutive fiscal quarters
most recently ended on or prior to such time;
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(f) Indebtedness of the Borrower or any Subsidiary in respect
of (i) standby or performance letters of credit; provided that the
aggregate amount of Indebtedness permitted by this clause (i) shall not
at any time exceed the greater of (A) $10 million and (B) 5% of
Consolidated EBITDA for the period of four consecutive fiscal quarters
most recently ended on or prior to such time; and (ii) trade letters of
credit;
(g) Indebtedness of any Person that becomes a Subsidiary after
the date hereof; provided that such Indebtedness exists at the time
such Person becomes a Subsidiary and is not created in contemplation of
or in connection with such Person becoming a Subsidiary;
(h) other unsecured Indebtedness in an aggregate principal
amount not exceeding at any time outstanding the greater of (i) $100
million and (ii) 50% of Consolidated EBITDA for the period of four
consecutive fiscal quarters most recently ended on or prior to such
time; and
(i) other unsecured Indebtedness of the Borrower or a
Subsidiary; provided, that the requirements of Section 2.09(c) are met
with respect to such Indebtedness.
SECTION 6.02. Liens. The Borrower will not, and will not
permit any Subsidiary Loan Party to, create, incur, assume or permit to exist
any Lien on any property or asset now owned or hereafter acquired by it, or
assign or sell any income or revenues (including accounts receivable) or rights
in respect of any thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 6.02
to the Disclosure Letter; provided that (i) such Lien shall not apply
to any other property or asset of the Borrower or any
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Subsidiary and (ii) such Lien shall secure only those obligations which
it secures on the date hereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on
any property or asset of any Person that becomes a Subsidiary after the
date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary,
as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Borrower or any Subsidiary and (iii) such
Lien shall secure only those obligations which it secures on the date
of such acquisition or the date such Person becomes a Subsidiary, as
the case may be, and extensions, renewals and replacements thereof that
do not increase the outstanding principal amount thereof;
(d) Liens securing Indebtedness permitted by Section 6.01(e);
provided that the fair market value of the property and assets subject
to such Liens does not exceed the principal amount of such Indebtedness
by more than 25%;
(e) Liens on any Margin Stock held by the Borrower or any
Subsidiary to the extent that such Margin Stock would otherwise
comprise 25% or more of the property and assets subject to this Section
6.02; and
(f) any Lien renewing, extending or refunding any Lien
permitted by Section 6.02(b), provided that the principal amount
secured is not increased and the Lien is not extended to other
property.
SECTION 6.03. Fundamental Changes. (a) The Borrower will not,
nor will it permit any Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
liquidate or dissolve, except that, if at the time thereof and immediately after
giving effect thereto no Default shall
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have occurred and be continuing (i) any Person may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation, (ii) any Person
may merge into any Subsidiary and any Subsidiary may merge into any Person in a
transaction in which the surviving entity is or becomes a Subsidiary and (if any
party to such merger is a Subsidiary Loan Party) is or becomes a Subsidiary Loan
Party and (iii) any Subsidiary (other than a Subsidiary Loan Party) may
liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders; provided that any such merger
involving a Person that is not a wholly owned Subsidiary immediately prior to
such merger shall not be permitted unless also permitted by Section 6.04;
provided further, that prior to consummating any merger pursuant to clause (i)
or (ii) of this Section 6.03, the Borrower will deliver to the Administrative
Agent a certificate of a Financial Officer demonstrating compliance immediately
following such merger, on a pro forma basis giving effect to such merger, with
Sections 6.12, 6.13, 6.14 and 6.15.
(b) The Borrower and its Subsidiaries, collectively, will not
engage to any material extent in any business other than businesses of the type
conducted by the Borrower and its Subsidiaries on the date of execution of this
Agreement and businesses reasonably related or incidental thereto.
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries
to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a wholly owned Subsidiary prior to such merger) any Equity
Interests in or evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any investment or any other interest in, any other Person, or
purchase or otherwise acquire (in one transaction or a series of transactions)
any
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assets of any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments existing on the date hereof and set forth on
Schedule 6.04 to the Disclosure Letter;
(c) investments by the Borrower and its Subsidiaries in
Subsidiaries; provided that the aggregate amount of investments by Loan
Parties in, and loans and advances by Loan Parties to, and Guarantees
by Loan Parties of Indebtedness of, Subsidiaries that are not Loan
Parties (excluding all such investments, loans, advances and Guarantees
otherwise permitted pursuant to this Section 6.04) shall not at any
time outstanding exceed the greater of (i) $100 million and (ii) 37.5%
of Consolidated EBITDA for the period of four consecutive fiscal
quarters most recently ended on or prior to such time;
(d) loans or advances made by the Borrower to any Subsidiary
and made by any Subsidiary to the Borrower or any other Subsidiary;
provided that any such loans or advances from Loan Parties to
Subsidiaries that are not Loan Parties are represented by promissory
notes that are pledged to the Administrative Agent for the benefit of
the Lenders pursuant to the Pledge Agreement;
(e) Guarantees constituting Indebtedness permitted by Section
6.01; provided that the aggregate principal amount of Indebtedness of
Subsidiaries that are not Loan Parties that is Guaranteed by any Loan
Party shall be subject to the limitation set forth in clause (c) above;
(f) Permitted Acquisitions;
(g) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes
with, customers and
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suppliers, in each case in the ordinary course of business;
(h) investments by the IFSC and investments by the Borrower
and its Subsidiaries in the IFSC; provided that such investments in the
IFSC do not in the aggregate exceed $100 million;
(i) investments by SIV and investments by the Borrower and its
Subsidiaries in SIV, to the extent that such investments in SIV do not
exceed (i) $30 million in the aggregate made at any time pursuant to
approvals of the Borrower's Board of Directors on or prior to the date
hereof or (ii) $15 million made in any fiscal year of the Borrower that
ends after the date hereof; and
(j) investments not described in clauses (a) through (i)
above; provided that the aggregate amount of such investments does not
at any time outstanding exceed the greater of (i) $15 million and (ii)
7.5% of Consolidated EBITDA for the period of four consecutive fiscal
quarters most recently ended on or prior to such time.
SECTION 6.05. Asset Sales. The Borrower will not, and will not
permit any Subsidiary Loan Party to, sell, transfer, lease or otherwise dispose
of any asset, including any Equity Interest owned by it, nor will the Borrower
permit any of its Subsidiaries to issue any additional Equity Interest in such
Subsidiary (other than to the Borrower or another Subsidiary), except:
(a) sales of inventory, used or surplus equipment and
Permitted Investments in the ordinary course of business;
(b) sales, transfers and dispositions to the Borrower or a
Subsidiary; provided that any such sales, transfers or dispositions
involving a Subsidiary that is not a Loan Party shall be made in
compliance with Section 6.09;
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(c) sales, transfers and other dispositions of assets (other
than Equity Interests in a Subsidiary Loan Party) that are not
permitted by any other clause of this Section; provided that the
aggregate book value of all assets sold, transferred or otherwise
disposed of in reliance upon this clause (c) shall not, at the time of
such sale, transfer or other disposition, exceed 10% of Consolidated
Net Tangible Assets; and
(d) sales, transfers or other dispositions of any Margin Stock
held by the Borrower or any Subsidiary to the extent such Margin Stock
would otherwise comprise 25% or more of the property and assets subject
to this Section 6.05.
SECTION 6.06. Sale and Leaseback Transactions. The Borrower
will not, and will not permit any Subsidiary to, enter into any Sale-Leaseback
Transaction except:
(a) Sale-Leaseback Transactions to which the Borrower or any
Subsidiary is a party as of the date hereof; and
(b) other Sale-Leaseback Transactions; provided that the sum,
without duplication, of (i) the Indebtedness permitted by Section
6.01(e) and (ii) the aggregate Attributable Debt in respect of
Sale-Leaseback Transactions permitted by this clause (b), does not at
any time outstanding exceed the greater of (i) $25 million and (ii)
12.5% of Consolidated EBITDA for the period of four consecutive fiscal
quarters most recently ended on or prior to such time.
SECTION 6.07. Hedging Agreements. The Borrower will not, and
will not permit any Subsidiary Loan Party to, enter into any Hedging Agreement,
other than Hedging Agreements entered into in the ordinary course of business to
hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in
the conduct of its business or the
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management of its liabilities, including Hedging Agreements entered into in
connection with this Agreement.
SECTION 6.08. Restricted Payments. The Borrower will not, nor
will it permit any Subsidiary Loan Party to, declare or make, or agree to pay or
make, directly or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, except, so long as no Default has occurred
and is continuing or would occur as a result thereof, (i) the Borrower may
declare and pay dividends with respect to its capital stock payable solely in
additional shares of Common Stock, (ii) Subsidiaries may declare and pay
dividends ratably with respect to their capital stock, (iii) the Borrower may
make Restricted Payments pursuant to and in accordance with stock option plans
or other benefit plans for management or employees of the Borrower and its
Subsidiaries, (iv) the Borrower may pay the Dividend, (v) the Borrower may
repurchase shares of Common Stock pursuant to the Tender Offer, (vi) the
Borrower may effect open market purchases of up to approximately 5% (as the same
may increase or decrease based on the number of shares acquired in the Tender
Offer) of its shares of Common Stock outstanding on the date hereof, and (vii)
the Borrower may make other Restricted Payments so long as the aggregate amount
of Restricted Payments made pursuant to this clause (vii) after the date hereof
does not exceed $50 million; (viii) Restricted Payments made pursuant to the
Share Forward Purchase Agreements; and (ix) any other cash Restricted Payment,
provided that, in the case of this clause (ix), on a pro forma basis after
giving effect to such Restricted Payment, the Borrower's Leverage Ratio is less
than 1.50 to 1.00.
SECTION 6.09. Transactions with Affiliates. The Borrower will
not, nor will it permit any Subsidiary to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) transactions in the ordinary course of business that are
at prices and on terms and conditions not less favorable to the Borrower or such
Subsidiary than could be obtained on an arm's-length basis
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from unrelated third parties, (b) transactions between or among the Borrower and
the Subsidiary Loan Parties not involving any other Affiliate, (c) any
Restricted Payments permitted by Section 6.08 and (d) the Recapitalization.
SECTION 6.10. Restrictive Agreements. The Borrower will not,
nor will it permit any Subsidiary Loan Party to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of the
Borrower or any Subsidiary to create, incur or permit to exist any Lien upon any
of its property or assets, or (b) the ability of any Subsidiary to pay dividends
or other distributions with respect to any shares of its capital stock or to
make or repay loans or advances to the Borrower or any other Subsidiary or to
Guarantee Indebtedness of the Borrower or any other Subsidiary; provided that
(i) the foregoing shall not apply to restrictions and conditions imposed by law
or by any Loan Document, (ii) the foregoing shall not apply to restrictions and
conditions existing on the date hereof identified on Schedule 6.10 to the
Disclosure Letter (but shall apply to any extension or renewal of, or any
amendment or modification expanding the scope of, any such restriction or
condition), (iii) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary or
assets pending such sale, provided such restrictions and conditions apply only
to the Subsidiary or assets that are to be sold and such sale is permitted
hereunder, (iv) clause (a) of the foregoing shall not apply to restrictions or
conditions imposed by any agreement relating to secured Indebtedness permitted
by this Agreement if such restrictions or conditions apply only to the property
or assets securing such Indebtedness and (v) clause (a) of the foregoing shall
not apply to customary provisions in leases and other contracts restricting the
assignment thereof.
SECTION 6.11. Amendment of Material Documents. The Borrower
will not, nor will it permit any Subsidiary to, make or agree to any material
change in the terms of the Recapitalization from those described to the Lenders
prior
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to the date hereof in any manner that is adverse in any significant respect to
the Lenders.
SECTION 6.12. Interest Expense Coverage Ratio. The Borrower
will not permit the ratio of (a) Consolidated EBITDA to (b) Consolidated Cash
Interest Expense, in each case for any period of four consecutive fiscal
quarters ending after the date hereof, to be less than 5.00 to 1.00.
SECTION 6.13. Total Balance Sheet Indebtedness to EBITDA. The
Borrower will not permit the ratio of (a) Total Balance Sheet Indebtedness as of
the last day of any fiscal quarter to (b) Consolidated EBITDA for the period of
four consecutive fiscal quarters ending with such fiscal quarter, to exceed 2.75
to 1.00.
SECTION 6.14. Annualized Contract Value to Total Balance Sheet
Indebtedness. The Borrower will not permit the ratio of (a) Annualized Contract
Value as of the last day of any fiscal quarter to (b) Consolidated Funded Debt
as of the last day of such fiscal quarter, to be less than 1.25 to 1.00.
SECTION 6.15. Minimum Annualized Contract Value. The Borrower
will not permit Annualized Contract Value as of the last day of any fiscal
quarter to be less than $350 million.
SECTION 6.16. Certain Indemnity Obligations. The Borrower will
not, nor will it permit any Subsidiary to, take any action, or omit to take any
action, that could reasonably be expected to result in the Borrower or any
Subsidiary being liable for any indemnity or reimbursement obligation under any
Recapitalization Document, including any indemnity or reimbursement obligation
under Section II.7 of the Distribution Agreement, except for, on any date, (a)
indemnity or reimbursement obligations that do not in the aggregate exceed $150
million or (b) indemnity or reimbursement obligations that would not in the
aggregate result in the ratio of (i) the sum of (A) Total Balance Sheet
Indebtedness as of the last day of the fiscal quarter most recently ended on or
prior to such date plus (B) the
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amount of such indemnity or reimbursement obligations to (ii) Consolidated
EBITDA for the period of four consecutive fiscal quarters most recently ended on
or prior to such date, exceeding 2.00 to 1.00.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall
occur:
(a) the Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable under this Agreement or any other Loan
Document, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or
on behalf of the Borrower or any Subsidiary in any Loan Document or any
amendment or modification thereof or waiver thereunder, or in any
report, certificate, financial statement or other document furnished
pursuant to or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, shall prove to have been
incorrect in any material respect when made or deemed made or
furnished;
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.03 (with
respect to the existence of the Borrower) or 5.09(a) or in Article VI;
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(e) any Loan Party shall fail to observe or perform any
covenant, condition or agreement contained in any Loan Document (other
than those specified in clause (a), (b) or (d) of this Article), and
such failure shall continue unremedied for a period of 30 days after
notice thereof from the Administrative Agent to the Borrower (which
notice will be given at the request of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, when and as the same shall become
due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of
time or both) the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (g) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any
Significant Subsidiary or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Significant
Subsidiary or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for 60
days or an order or
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decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Significant Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Significant
Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of
the foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit
in writing its inability or fail generally to pay its debts as they
become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $30 million shall be rendered against the
Borrower, any Subsidiary or any combination thereof and the same shall
remain undischarged for a period of 60 consecutive days during which
execution shall not be effectively stayed, or any action shall be
legally taken by a judgment creditor to attach or levy upon any assets
of the Borrower or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in a
Material Adverse Effect;
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(m) the guarantee of any Subsidiary Loan Party under the
Guarantee Agreement shall not be (or shall be claimed by the Borrower
or any Subsidiary Loan Party not to be) valid or in full force and
effect, and such failure to be valid or in full force and effect shall
not have been cured by the Borrower in accordance with the third
sentence of Section 5.10; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
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ARTICLE VIII
The Administrative Agent
Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth in the Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated by the
Loan Documents that the Administrative Agent is required to exercise in writing
by the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary under the circumstances as provided in Section 9.02), and (c)
except as expressly set forth in the Loan Documents, the Administrative Agent
shall not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower or any of its Subsidiaries
that is communicated to or obtained by the bank serving as Administrative Agent
or any of its Affiliates in any capacity. The Administrative Agent shall not be
liable for any action taken or not taken by it with
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the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02) or in the absence of its own gross negligence or
wilful misconduct. The Administrative Agent shall not be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document
delivered thereunder or in connection therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth in any Loan Document, (iv) the validity, enforceability, effectiveness or
genuineness of any Loan Document or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in Article IV or elsewhere in
any Loan Document, other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all of its duties
and exercise its rights and powers by or through any one or more subagents
appointed by the Administrative Agent. The Administrative Agent and any such
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subagent may perform any and all of its duties and exercise its rights and
powers through their respective Related Parties. The exculpatory provisions of
the preceding paragraphs shall apply to any such subagent and to the Related
Parties of the Administrative Agent and any such subagent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor to
the Administrative Agent as provided in this paragraph, the Administrative Agent
may resign at any time by notifying the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, with the prior approval
of the Borrower (which shall not be unreasonably withheld), to appoint a
successor. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New York
and a minimum capital surplus of $100 million, or an Affiliate of any such bank.
Upon the acceptance of its appointment as Administrative Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its subagents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
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Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by facsimile transmission, as follows:
(a) if to the Borrower, to it at 00 Xxx Xxxxxxx Xxxx,
Xxxxxxxx, XX 00000, Attention of Chief Financial Officer (Facsimile No.
(000) 000-0000) with copies to the Borrower's Treasurer at the same
address and facsimile number, to the Borrower's Legal Department
(Facsimile No. (000) 000-0000) at the same address and to Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, Attention of Xxxxxx Xxxxxx, Esq., 000 Xxxx
Xxxx Xxxx, Xxxx Xxxx Xxxxxxxxxx 00000-0000 (Facsimile No. (650)
493-6811);
(b) if to the Administrative Agent, to The Chase Manhattan
Bank, Loan and Agency Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xx. Xxxxx Xxxxxxx
(Facsimile No. (000) 000-0000), with a copy to The Chase Manhattan
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Bank, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, Attention of Mr. Xxxxx
Xxxxx (Facsimile No. (000) 000-0000); and
(c) if to any Lender, to it at its address (or facsimile
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or facsimile number for notices and
other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by
the Administrative Agent or any Lender in exercising any right or power
hereunder or under any other Loan Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent and the
Lenders hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of any Loan Document or consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered
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into by the Borrower and the Required Lenders or, in the case of any other Loan
Document, pursuant to an agreement or agreements in writing entered into by the
Administrative Agent and the Loan Party or Loan Parties that are parties
thereto, in each case with the consent of the Required Lenders; provided that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
maturity of any Loan, or the date of any scheduled payment of the principal
amount of any Term Loan under Section 2.08, or any date for the payment of any
interest or fees payable hereunder, or reduce the amount of, waive or excuse any
such payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender affected thereby, (iv) change Section
2.16(b) or (c) in a manner that would alter the pro rata sharing of payments
required thereby, without the written consent of each Lender, (v) change any of
the provisions of this Section or the percentage set forth in the definition of
"Required Lenders" or any other provision of any Loan Document specifying the
number or percentage of Lenders (or Lenders of any Class) required to waive,
amend or modify any rights thereunder or make any determination or grant any
consent thereunder, without the written consent of each Lender (or each Lender
of such Class, as the case may be), (vi) release any Subsidiary Loan Party from,
or limit or condition its obligations under, the Guarantee Agreement (except as
expressly provided in the Guarantee Agreement or in Section 5.10), in each case
without the written consent of each Lender, (vii) change any provisions of any
Loan Document in a manner that by its terms adversely affects the rights in
respect of payments due to Lenders holding Loans of any Class differently than
those holding Loans of any other Class, without the written consent of Lenders
holding a majority in interest of the outstanding Loans and unused Commitments
of each affected Class; provided further that (A) no such agreement shall amend,
modify or otherwise affect the rights or duties of the Administrative Agent
without the prior written consent of the Administrative Agent and (B) any
waiver, amendment or
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modification of this Agreement that by its terms affects the rights or duties
under this Agreement of the Revolving Lenders (but not the Term Lenders) or the
Term Lenders (but not the Revolving Lenders) may be effected by an agreement or
agreements in writing entered into by the Borrower and requisite percentage in
interest of the affected Class of Lenders that would be required to consent
thereto under this Section if such Class of Lenders were the only Class of
Lenders hereunder at the time. Notwithstanding the foregoing, any provision of
this Agreement may be amended by an agreement in writing entered into by the
Borrower, the Required Lenders and the Administrative Agent if (i) by the terms
of such agreement the Commitment of each Lender not consenting to the amendment
provided for therein shall terminate upon the effectiveness of such amendment
and (ii) at the time such amendment becomes effective, each Lender not
consenting thereto receives payment in full of the principal of and interest
accrued on each Loan made by it and all other amounts owing to it or accrued for
its account under this Agreement.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the syndication of the credit facilities provided for herein, the preparation
and administration of the Loan Documents or any amendments, modifications or
waivers of the provisions thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated) and (ii) all out-of-pocket expenses
incurred by the Administrative Agent, or any Lender, including the reasonable
fees, charges and disbursements of any counsel for the Administrative Agent or
any Lender, in connection with the enforcement or protection of its rights in
connection with the Loan Documents, including its rights under this Section, or
in connection with the Loans made hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans.
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(b) The Borrower shall indemnify the Administrative Agent and
each Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an "Indemnitee") against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including the reasonable fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of any Loan
Document or any other agreement or instrument contemplated hereby, the
performance by the parties to the Loan Documents of their respective obligations
thereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or the use of the proceeds therefrom, (iii)
any actual or alleged presence or release of Hazardous Materials on or from any
property currently or formerly owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses resulted from the gross negligence or wilful misconduct of such
Indemnitee.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent under paragraph (a) or (b)
of this Section, each Lender severally agrees to pay to the Administrative Agent
such Lender's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent in its capacity as such. For purposes hereof, a
Lender's "pro rata share" shall be determined based upon its share of the
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sum of the total Revolving Exposures, outstanding Term Loans and unused
Commitments at the time.
(d) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable within
10 Business Days after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except that
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans at the time owing to it); provided that
(i) except in the case of an assignment to a Lender or an Affiliate of a Lender,
each of the Borrower and the Administrative Agent must give their prior written
consent to such assignment (which consent shall not be unreasonably withheld),
(ii) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an assignment of the
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entire remaining amount of the assigning Lender's Commitment or Loans of either
Class, the amount of the Commitment or Loans of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $5 million unless each of the Borrower and the Administrative
Agent otherwise consent, (iii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement, except that this clause (iii) shall not be
construed to prohibit the assignment of a proportionate part of all the
assigning Lender's rights and obligations in respect of one Class of Commitments
or Loans, (iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500, and (v) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; and provided further that any consent of the Borrower otherwise
required under this paragraph shall not be required if an Event of Default under
clause (h) or (i) of Article VII has occurred and is continuing. Subject to
acceptance and recording thereof pursuant to paragraph (d) of this Section, from
and after the effective date specified in each Assignment and Acceptance the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.13, 2.14, 2.15 and 9.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
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(c) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register
shall be conclusive, and the Borrower, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower or the
Administrative Agent sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitments and the
Loans owing to it); provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent and the other Lenders shall
continue to
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deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce the Loan Documents and to approve
any amendment, modification or waiver of any provision of the Loan Documents;
provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (f) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections 2.13,
2.14 and 2.15 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 9.08 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.16(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.13 or 2.15 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.15 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.15(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign, or grant a
security interest in, all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment or grant of a security interest; provided that no such
pledge or assignment or grant of a security interest shall release a
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Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
(h) Notwithstanding anything to the contrary contained herein,
any Bank (a "Granting Bank") may grant to a special purpose funding vehicle (a
"SPC"), identified as such in writing from time to time by the Granting Bank to
the Administrative Agent and the Borrower, the option to provide to the Borrower
all or any part of any Loan that such Granting Bank would otherwise be obligated
to make to the Borrower pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to make any Loan and (ii) if a
SPC elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, the Granting Bank shall be obligated to make such Loan
pursuant to the terms hereof. The making of a Loan by a SPC hereunder shall
utilize the Commitment of the Granting Bank to the same extent, and as if, such
Loan were made by such Granting Bank. Each party hereto hereby agrees that no
SPC shall be liable for any indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the Granting Bank). In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior indebtedness of any SPC, it will not institute against, or
join any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under the
laws of the United States or any State thereof. In addition, notwithstanding
anything to the contrary contained in this Section 9.04(h), any SPC may (i) with
notice to, but without the prior written consent of, the Borrower and the
Administrative agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loans to the Granting Bank or to any
financial institutions (consented to by the Borrower and Administrative Agent)
providing liquidity and/or credit support to or for the account of such SPC to
support the funding or maintenance of Loans and (ii) disclose on a confidential
basis any non-public information
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relating to its Loans to any rating agency, commercial paper dealer or provider
of any surety, guarantee or credit or liquidity enhancement to such SPC. This
section may not be amended without the written consent of the SPC.
SECTION 9.05. Survival. All covenants, agreements,
representations and warranties made by the Loan Parties in the Loan Documents
and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the other parties hereto and shall survive the
execution and delivery of the Loan Documents and the making of any Loans,
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that the Administrative Agent or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
fee or any other amount payable under this Agreement is outstanding and unpaid
and so long as the Commitments have not expired or terminated. The provisions of
Sections 2.13, 2.14, 2.15 and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and thereof and supersede any and
all previous agreements and understandings, oral or written, relating to the
subject matter hereof and thereof. Except as provided in Section 4.01, this
Agreement shall become effective when
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it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by facsimile transmission shall be
effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other obligations at
any time owing by such Lender or Affiliate to or for the credit or the account
of the Borrower against any of and all the obligations of the Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service
of Process. (a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
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(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to any Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that
the Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against the
Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (b) of this Section. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement or any other Loan Document will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
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SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative
Agent and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors on a need to know basis (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to any
assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement, (g) with the
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consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Administrative Agent or any Lender on a nonconfidential
basis from a source other than the Borrower, if the Administrative Agent or such
Lender has no actual knowledge that the provider of such information was under a
confidentiality obligation. For the purposes of this Section, "Information"
means all information received from the Borrower relating to the Borrower or its
business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrower; provided that, in the case of information received
from the Borrower after the date hereof, such information is clearly identified
at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
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SECTION 9.13. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date
of repayment, shall have been received by such Lender.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
GARTNER GROUP, INC.,
by
/s/ Xxxxxxx Xxxxxxxx
--------------------
Name: Xxxxxxx Xxxxxxxx
Title: CFO & VP
104
98
THE CHASE MANHATTAN BANK, individually and as
Administrative Agent,
by
/s/ Xxxxxx Xxxxxxxxx
------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON, individually and as
Syndication Agent,
by
/s/ Xxxx Xxxxxxxxx
------------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Director
by
/s/ Xxxxxx Xxxx
------------------------
Name: Xxxxxx Xxxx
Title: Vice President
FLEET NATIONAL BANK, individually and as
Documentation Agent,
by
/s/ Xxxxxxxxxxx Xxxxxxxx
------------------------
Name: Xxxxxxxxxxx Xxxxxxxx
Title: Senior Vice
President
105
BANCO ESPIRITO SANTO E
COMERCIAL DE LISBOA, NASSAU
BRANCH,
by
/s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
by
/s/ Xxxxx X. Xxxx
--------------------------
Name: Xxxxx X. Xxxx
Title: Senior V.P.
BANK LEUMI USA,
by
/s/ Xxxxxx Xxxxxx
--------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Vice
President
by
/s/ Xxxxxxxx Xxxxx
--------------------------
Name: Xxxxxxxx Xxxxx
Title: Senior Vice
President
THE BANK OF NEW YORK,
by
/s/ Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA,
by
/s/ J.R. Xxxxxxx
--------------------------
Name: J.R. Trimble
Title: Senior Relationship
Manager
000
XXXX XX XXXXXXX,X.X.,
by
/s/ Chitt Swamidasan
------------------------
Name: Chitt Swamidasan
Title: Vice President
BANKBOSTON, N.A.,
by
/s/ Xxxx X. Lindeauer
------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Managing Director
COMERICA BANK,
by
/s/ Xxxxx X. Xxxxxx
------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice
President
DAI ICHI KANGYO BANK,LTD.,
by
/s/ Xxxxxx X. Xxxxx
------------------------
Name: Xxxxxx X. Xxxxx
Title: Account Officer
DEUTSCHE BANK A.G., NEW YORK
AND/OR CAYMAN ISLANDS BRANCH,
by
107
/s/ Xxxxx X.Xxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice
President
by
/s/ Xxxxxxxxx Xxxxx
----------------------------
Name: Xxxxxxxxx Xxxxx
Title: Assistant Vice
President
THE FIRST CHICAGO NATIONAL BANK,
by
/s/ Xxxxxx XxXxxxxx
--------------------------
Name: Xxxxxx XxXxxxxx
Title: Corporate Banking
Officer
FIRST UNION NATIONAL BANK,
by
/s/ Xxxx X. Xxxxxx
--------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice
President
THE FUJI BANK, LIMITED,
by
/s/ Xxxxx Xxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President &
Manager
108
IBM CREDIT CORPORATION,
by
/s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Manager, Commercial
Financing Solutions
Americas
MERCANTILE BANK, NATIONAL ASSOCIATION,
by
/s/ Xxxx X. Xxxxxx
--------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice
President
NATIONAL CITY BANK,
by
/s/ Xxxxxxx X. Xxxx
--------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice
President
PEOPLE'S BANK,
by
/s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Assistant Vice
President
000
XXXXX XXXXXX BANK AND TRUST COMPANY,
by
/s/ Xxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
THE SUMITOMO BANK, LIMITED,
by
/s/ J. Xxxxx Xxxxxxxx
--------------------------
Name: J. Xxxxx Xxxxxxxx
Title: Senior Vice
President
SUNTRUST BANKS, INC.,
by
/s/ W. Xxxxx Xxxxxx
--------------------------
Name: W. Xxxxx Xxxxxx
Title: Vice President
110
Schedule 2.01
Lender Commitment
------ ----------
[to come]
111
EXHIBIT A
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of July 16, 1999 (as
amended and in effect on the date hereof, the "Credit Agreement"), among Gartner
Group, Inc., the Lenders named therein and The Chase Manhattan Bank, as
Administrative Agent for the Lenders. Terms defined in the Credit Agreement are
used herein with the same meanings.
The Assignor named on the reverse hereof hereby sells and assigns, without
recourse to the Assignor, to the Assignee named on the reverse hereof, and the
Assignee hereby purchases and assumes, without recourse to the Assignor, from
the Assignor, effective as of the Assignment Date set forth on the reverse
hereof, the interests set forth on the reverse hereof (the "Assigned Interest")
in the Assignor's rights and obligations under the Credit Agreement, including,
without limitation, the interests set forth on the reverse hereof in the
Commitments of the Assignor on the Assignment Date and Term Loans and Revolving
Loans owing to the Assignor which are outstanding on the Assignment Date, but
excluding accrued interest and fees to and excluding the Assignment Date. The
Assignee hereby acknowledges receipt of a copy of the Credit Agreement and the
other Loan Documents. From and after the Assignment Date (i) the Assignee shall
be a party to and be bound by the provisions of the Credit Agreement and, to the
extent of the Assigned Interest, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent of the Assigned Interest,
relinquish its rights (except as otherwise provided in the Credit Agreement) and
be released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 2.15(e) of the
Credit Agreement, duly completed and executed by the Assignee, and (ii) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The [Assignee/Assignor] shall pay the fee payable to the
Administrative Agent pursuant to Section 9.04(b) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
112
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
113
3
Percentage Assigned of
Facility/Commitment (set forth,
to at least 8 decimals, as a
Principal Amount Assigned percentage of the aggregate
Commitments of all Lenders
thereunder)
Facility
Revolving Commitment Assigned: $ %
Term Commitment Assigned: $ %
Revolving Loans:
Term Loans:
The terms set forth above and on the reverse side hereof are hereby agreed to:
[Name of Assignor] , as Assignor
By: ________________________________
Name:
Title:
[Name of Assignee] , as Assignee
By: ________________________________
Name:
Title:
The undersigned hereby consent to the within assignment: 1/
Gartner Group, Inc., The Chase Manhattan Bank, as
Administrative Agent,
By: ________________________ By: ___________________________
Name: Name:
Title: Title:
--------
1/ Consents to be included to the extent required by Section 9.04(b) of the
Credit Agreement.
114
EXHIBIT B
Form of Opinion of Borrower's Counsel
[to come]
115
EXHIBIT C
[FORM OF]
GUARANTEE AGREEMENT dated as of July 16,
1999, among each of the subsidiaries listed on
Schedule I hereto (each such subsidiary individually,
a "Subsidiary Guarantor" and collectively, the
"Subsidiary Guarantors") of GARTNER GROUP, INC., a
Delaware corporation (the "Borrower"), and THE CHASE
MANHATTAN BANK, a New York banking corporation
("Chase"), as administrative agent (in such capacity,
the "Administrative Agent") for the Lenders.
Reference is made to the Credit Agreement dated as of July 16, 1999 (as
amended from time to time, the "Credit Agreement"), among the Borrower, the
lenders from time to time party thereto (the "Lenders"), and Chase, as
Administrative Agent. Capitalized terms used but not defined herein shall have
the meanings assigned to such terms in the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower, pursuant to, and
upon the terms and subject to the conditions specified in, the Credit Agreement.
In connection therewith, each Subsidiary Guarantor has agreed to guarantee the
Obligations (as defined below) by entering into this Agreement. Each of the
Subsidiary Guarantors is a directly or indirectly owned Subsidiary of the
Borrower, and each of the Subsidiary Guarantors acknowledges that it will derive
substantial benefit from the making of the Loans by the Lenders. The obligations
of the Lenders to make Loans are conditioned on, among other things, the
execution and delivery by the Subsidiary Guarantors of a Guarantee Agreement in
the form hereof. As consideration therefor, the Subsidiary Guarantors are
willing to execute this Agreement.
Accordingly, the parties hereto agree as follows:
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2
SECTION 1. Guarantee. Each Subsidiary Guarantor unconditionally guarantees,
jointly with the other Subsidiary Guarantors and severally, as a primary obligor
and not merely as a surety, (a) the due and punctual payment of (i) the
principal of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise and (ii) all other monetary
obligations, including fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Loan Parties to the Administrative Agent
and the Lenders under the Credit Agreement and the other Loan Documents, (b) the
due and punctual performance of all covenants, agreements, obligations and
liabilities of the Loan Parties under or pursuant to the Credit Agreement and
the other Loan Documents and (c) the due and punctual payment and performance of
all obligations of the Borrower under each Hedging Agreement entered into with
any counterparty that was a Lender at the time such Hedging Agreement was
entered into (all the monetary and other obligations described in the preceding
clauses (a) through (c) being collectively called the "Obligations"). Each
Subsidiary Guarantor further agrees that the Obligations may be extended or
renewed, in whole or in part, without notice to or further assent from it.
SECTION 2. Obligations Not Waived. To the fullest extent permitted by
applicable law, each Subsidiary Guarantor waives presentment to, demand of
payment from and protest to the Borrower of any of the Obligations, and also
waives notice of acceptance of its guarantee and notice of protest for
nonpayment. To the fullest extent permitted by applicable law, the obligations
of each Subsidiary Guarantor hereunder shall not be affected by (a) the failure
of the Administrative Agent or any Lender to assert any claim or
117
3
demand or to enforce or exercise any right or remedy against the Borrower or any
other Subsidiary Guarantor under the provisions of the Credit Agreement, any
other Loan Document or otherwise or (b) any rescission, waiver (except the
effect of any waiver obtained pursuant to Section 11(b)), amendment or
modification of, or any release from any of the terms or provisions of, this
Agreement, any other Loan Document, any Guarantee or any other agreement,
including with respect to any other Subsidiary Guarantor under this Agreement.
SECTION 3. Guarantee of Payment. Each Subsidiary Guarantor further agrees
that its guarantee constitutes a guarantee of payment when due and not of
collection, and waives any right to require that any resort be had by the
Administrative Agent or any Lender to any balance of any deposit account or
credit on the books of the Administrative Agent or any Lender in favor of the
Borrower or any other person or to any collateral security.
SECTION 4. No Discharge or Diminishment of Guarantee. The obligations of
each Subsidiary Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason (other than the
indefeasible payment in full in cash of the Obligations), including any claim of
waiver, release, surrender, alteration or compromise of any of the Obligations,
and shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Subsidiary Guarantor
hereunder shall not be discharged or impaired or otherwise affected by the
failure of the Administrative Agent or any Lender to assert any claim or demand
or to enforce any remedy under the Credit Agreement, any other Loan Document or
any other agreement, by any waiver or modification of any provision of any
thereof, by any default, failure or delay, wilful or otherwise, in the
performance of the Obligations, or by any other act or omission that may or
might in any manner or to any extent vary the risk of any Subsidiary Guarantor
or that would
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4
otherwise operate as a discharge of any Subsidiary Guarantor as a matter of law
or equity (other than the indefeasible payment in full in cash of all the
Obligations). Each of the Subsidiary Guarantors authorizes the Administrative
Agent to (a) take and hold security for the payment of this Guarantee and the
Obligations and exchange, enforce, waive and release any such security, (b)
apply such security and direct the order or manner of sale thereof as it in its
sole discretion may determine and (c) release or substitute any one or more
endorsees, other guarantors or other obligors.
SECTION 5. Defenses of Borrower Waived. To the fullest extent permitted by
applicable law, each of the Subsidiary Guarantors waives any defense based on or
arising out of any defense of the Borrower or the unenforceability of the
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrower, other than the final and indefeasible payment
in full in cash of the Obligations. The Administrative Agent and the Lenders
may, at their election, foreclose on any security held by one or more of them by
one or more judicial or nonjudicial sales, accept an assignment of any such
security in lieu of foreclosure, compromise or adjust any part of the
Obligations, make any other accommodation with the Borrower or any other
guarantor or exercise any other right or remedy available to them against the
Borrower or any other guarantor, without affecting or impairing in any way the
liability of any Subsidiary Guarantor hereunder except to the extent the
Obligations have been fully, finally and indefeasibly paid in cash. Pursuant to
applicable law, each of the Subsidiary Guarantors waives any defense arising out
of any such election even though such election operates, pursuant to applicable
law, to impair or to extinguish any right of reimbursement or subrogation or
other right or remedy of such Subsidiary Guarantor against the Borrower or any
other Subsidiary Guarantor or guarantor, as the case may be, or any security.
SECTION 6. Agreement to Pay; Subordination. In furtherance of the foregoing
and not in limitation of any other right that the Administrative Agent or any
Lender has at law or in equity against any Subsidiary Guarantor by
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5
virtue hereof, upon the failure of the Borrower or any other Loan Party to pay
any Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each Subsidiary Guarantor
hereby promises to and will forthwith pay, or cause to be paid, to the
Administrative Agent or such Lender as designated thereby in cash the amount of
such unpaid Obligations. Upon payment by any Subsidiary Guarantor of any sums to
the Administrative Agent or any Lender as provided above, all rights of such
Subsidiary Guarantor against the Borrower arising as a result thereof by way of
right of subrogation, contribution, reimbursement, indemnity or otherwise shall
in all respects be subordinate and junior in right of payment to the prior
indefeasible payment in full in cash of all the Obligations. If any amount shall
erroneously be paid to any Subsidiary Guarantor on account of such subrogation,
contribution, reimbursement, indemnity or similar right, such amount shall be
held in trust for the benefit of the Administrative Agent and the Lenders and
shall forthwith be paid to the Administrative Agent to be credited against the
payment of the Obligations, whether matured or unmatured, in accordance with the
terms of the Loan Documents.
SECTION 7. Information. Each of the Subsidiary Guarantors assumes all
responsibility for being and keeping itself informed of the Borrower's financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Obligations and the nature, scope and extent of the risks that
such Subsidiary Guarantor assumes and incurs hereunder, and agrees that none of
the Administrative Agent or the Lenders will have any duty to advise any of the
Subsidiary Guarantors of information known to it or any of them regarding such
circumstances or risks.
SECTION 8. Representations and Warranties. Each of the Subsidiary
Guarantors represents and warrants as to itself that all representations and
warranties relating to it contained in the Credit Agreement are true and correct
in all material respects.
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6
SECTION 9. Termination. The Guarantees made hereunder (a) shall terminate
when all the Obligations have been indefeasibly paid in full and the Lenders
have no further commitment to lend under the Credit Agreement and (b) shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any Obligation is rescinded or must otherwise
be restored by the Administrative Agent or any Lender or any Subsidiary
Guarantor upon the bankruptcy or reorganization of the Borrower, any Subsidiary
Guarantor or otherwise. In addition, the guarantee made by each Subsidiary
Guarantor hereunder shall automatically be terminated at such time, if any, as
such Subsidiary Guarantor ceases to be a "Significant Subsidiary" pursuant to
and in accordance with Section 5.10 of the Credit Agreement.
SECTION 10. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Subsidiary Guarantors that are
contained in this Agreement shall bind and inure to the benefit of the
Administrative Agent, the Lenders and their respective permitted successors and
assigns. This Agreement shall become effective as to any Subsidiary Guarantor
when a counterpart hereof executed on behalf of such Subsidiary Guarantor shall
have been delivered to the Administrative Agent, and a counterpart hereof shall
have been executed on behalf of the Administrative Agent, and thereafter shall
be binding upon such Subsidiary Guarantor and the Administrative Agent and their
respective successors and assigns, and shall inure to the benefit of such
Subsidiary Guarantor, the Administrative Agent and the Lenders, and their
respective permitted successors and assigns, except that no Subsidiary Guarantor
shall have the right to assign its rights or obligations hereunder or any
interest herein (and any such attempted assignment shall be void), except as
expressly contemplated by this Agreement or the other Loan Documents. If all of
the capital stock of a Subsidiary Guarantor is sold, transferred or otherwise
disposed of pursuant to a transaction permitted by the Credit Agreement, such
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7
Subsidiary Guarantor shall be released from its obligations under this Agreement
without further action. This Agreement shall be construed as a separate
agreement with respect to each Subsidiary Guarantor and may be amended,
modified, supplemented, waived or released with respect to any Subsidiary
Guarantor without the approval of any other Subsidiary Guarantor and without
affecting the obligations of any other Subsidiary Guarantor hereunder.
SECTION 11. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent in exercising any power or right hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Administrative Agent
hereunder and of the Lenders under the other Loan Documents are cumulative and
are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or consent to any departure by any
Subsidiary Guarantor therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) below, and then such waiver or consent shall
be effective only in the specific instance and for the purpose for which given.
No notice or demand on any Subsidiary Guarantor in any case shall entitle such
Subsidiary Guarantor to any other or further notice or demand in similar or
other circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to a written agreement entered into
between the Subsidiary Guarantors with respect to which such waiver, amendment
or modification relates and the Administrative Agent, with the prior written
consent of the Required Lenders (except as otherwise provided in the Credit
Agreement).
SECTION 12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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8
SECTION 13. Notices. All communications and notices hereunder shall be in
writing and given as provided in Section 9.01 of the Credit Agreement. All
communications and notices hereunder to each Subsidiary Guarantor shall be given
to it at its address set forth in Schedule I.
SECTION 14. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by the Subsidiary Guarantors
herein shall be considered to have been relied upon by the Administrative Agent
and the Lenders and shall survive the making by the Lenders of the Loans
regardless of any investigation made by the Administrative Agent or the Lenders
or on their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any other fee or amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid and as long as the Commitments have not been terminated.
(b) In the event any one or more of the provisions contained
in this Agreement should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby (it being
understood that the invalidity of a particular provision in a particular
jurisdiction shall not in and of itself affect the validity of such provision in
any other jurisdiction). The parties shall endeavor in good-faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
SECTION 15. Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original, but all of which when taken together
shall constitute a single contract, and shall become effective as provided in
Section 10. Delivery of an executed signature page to this Agreement by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart of this Agreement.
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9
SECTION 16. Rules of Interpretation. The rules of interpretation specified
in Section 1.03 of the Credit Agreement shall be applicable to this Agreement.
SECTION 17. Jurisdiction; Consent to Service of Process. (a) Each
Subsidiary Guarantor hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State court
or Federal court of the United States of America sitting in New York County, and
any appellate court from any thereof, in any action or proceeding arising out of
or relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or the other Loan Documents against any
Subsidiary Guarantor or its properties in the courts of any jurisdiction.
(b) Each Subsidiary Guarantor hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the other Loan Documents in any New York State or Federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 13. Nothing in
this Agreement will
124
10
affect the right of any party to this Agreement to serve process in any other
manner permitted by law.
SECTION 18. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 18.
SECTION 19. Additional Subsidiary Guarantors. Pursuant to Section 5.10 of
the Credit Agreement, each Subsidiary Loan Party that was not in existence on
the date of the Credit Agreement or that becomes a Subsidiary Loan Party after
such date is required to enter into this Agreement as a Subsidiary Guarantor.
Upon execution and delivery after the date hereof by the Administrative Agent
and such a Subsidiary Loan Party of an instrument in the form of Annex 1 hereto,
such Subsidiary Loan Party shall become a Subsidiary Guarantor hereunder with
effect from and after the date of such execution and delivery. The execution and
delivery of any such instrument shall not require the consent of any other
Subsidiary Guarantor hereunder. The rights and obligations of each Subsidiary
Guarantor hereunder shall remain in full force and effect notwithstanding the
addition of any new Subsidiary Guarantor as a party to this Agreement.
SECTION 20. Right of Setoff. If an Event of Default shall have occurred and
be continuing, each of the Administrative Agent and the Lenders is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final)
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11
at any time held and other Indebtedness at any time owing by the Administrative
Agent or such Lender, as the case may be, or any of their respective Affiliates,
to or for the credit or the account of any Subsidiary Guarantor against any or
all the obligations of such Subsidiary Guarantor now or hereafter existing under
this Agreement and the other Loan Documents held by the Administrative Agent or
such Lender, irrespective of whether or not the Administrative Agent or such
Lender shall have made any demand under this Agreement or any other Loan
Document and although such obligations may be unmatured. The rights of the
Administrative Agent and each Lender under this Section 20 are in addition to
other rights and remedies (including other rights of setoff) which such Person
may have.
126
12
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
GARTNER GROUP, INC.,
by
-----------------------------
Name:
Title:
COMPUTER AND COMMUNICATION
INFORMATION SERVICES, INC.,
by
-----------------------------
Name:
Title:
DATAQUEST INCORPORATED,
by
-----------------------------
Name:
Title:
DATAQUEST(KOREA)INC.,
by
-----------------------------
Name:
Title:
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13
DECISION DRIVERS, INC,
by
-----------------------------
Name:
Title:
GARTNER ENTERPRISES LTD.,
by
-----------------------------
Name:
Title:
GARTNER GROUP LEARNING INC.,
by
-----------------------------
Name:
Title:
G.G. GLOBAL HOLDINGS,
by
-----------------------------
Name:
Title:
G.G. INVESTMENT MANAGEMENT, INC.,
by
-----------------------------
Name:
Title:
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14
G.G. CREDIT INC.,
by
-----------------------------
Name:
Title:
X.X. XXXX CORPORATION,
by
-----------------------------
Name:
Title:
XXXXXX-XXXXXXXX, INC.,
by
-----------------------------
Name:
Title:
THE RESEARCH BOARD, INC.,
by
-----------------------------
Name:
Title:
VISION EVENTS INTERNATIONAL, INC.,
by
-----------------------------
Name:
Title:
129
15
VUE ACQUISITION CORPORATION,
by
-----------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent,
by
-----------------------------
Name:
Title:
130
16
G.G. CANADA,INC.
by
-----------------------------
Name:
Title:
INTECO CORPORATION,
by
-----------------------------
Name:
Title:
131
SCHEDULE I TO THE
GUARANTEE AGREEMENT
Subsidiary Guarantor Address
-------------------- -------
132
Annex 1 to the
Guarantee Agreement
SUPPLEMENT NO. dated as of , to the Guarantee
Agreement dated as of July 16, 1999, among each of the
subsidiaries listed on Schedule I thereto (each such
subsidiary individually, a "Subsidiary Guarantor" and
collectively, the "Subsidiary Guarantors") of GARTNER GROUP,
INC., a Delaware corporation (the "Borrower"), and THE CHASE
MANHATTAN BANK, a New York banking corporation ("Chase"), as
Administrative Agent for the Lenders.
A. Reference is made to the Credit Agreement dated as of July 16, 1999 (as
amended from time to time, the "Credit Agreement"), among the Borrower, the
lenders from time to time party thereto (the "Lenders"), and Chase, as
Administrative Agent for the Lenders. Capitalized terms used herein and not
defined herein shall have the meanings assigned to such terms in the Credit
Agreement.
B. The Subsidiary Guarantors have entered into the Guarantee Agreement in
order to induce the Lenders to make Loans. Pursuant to Section 5.10 of the
Credit Agreement, each Subsidiary Loan Party that was not in existence on the
date of the Credit Agreement or that becomes a Subsidiary Loan Party after such
date is required to enter into the Guarantee Agreement as a Subsidiary
Guarantor. Section 19 of the Guarantee Agreement provides that such additional
Subsidiaries of the Borrower may become Subsidiary Guarantors under the
Guarantee Agreement by execution and delivery of an instrument in the form of
this Supplement. The undersigned Subsidiary of the Borrower (the "New Subsidiary
Guarantor") is executing this Supplement in accordance with the requirements of
the Credit Agreement to become a Subsidiary Guarantor under the Guarantee
Agreement in order to induce the Lenders to make additional Loans and as
consideration for Loans previously made.
Accordingly, the Administrative Agent and the New Subsidiary Guarantor
agree as follows:
133
2
SECTION 1. In accordance with Section 19 of the Guarantee Agreement, the
New Subsidiary Guarantor by its signature below becomes a Subsidiary Guarantor
under the Guarantee Agreement with effect from and after the date of execution
and delivery of this Agreement in accordance with Section 3 hereof and the New
Subsidiary Guarantor hereby (a) agrees to, and assumes and agrees to be bound
by, all the terms and provisions of the Guarantee Agreement applicable to it as
a Subsidiary Guarantor thereunder and (b) represents and warrants that the
representations and warranties made by it as a Subsidiary Guarantor thereunder
are true and correct on and as of the date hereof. Each reference to a
"Subsidiary Guarantor" in the Guarantee Agreement shall be deemed to include the
New Subsidiary Guarantor. The Guarantee Agreement is hereby incorporated herein
by reference.
SECTION 2. The New Subsidiary Guarantor represents and warrants to the
Administrative Agent and the Lenders that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts, each of which
shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Administrative Agent shall have received counterparts of this Supplement that,
when taken together, bear the signatures of the New Subsidiary Guarantor and the
Administrative Agent. Delivery of an executed signature page to this Supplement
by facsimile transmission shall be as effective as delivery of a manually
executed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Guarantee Agreement
shall remain in full force and effect.
134
3
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guarantee Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision hereof in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties hereto
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be in writing and
given as provided in Section 13 of the Guarantee Agreement. All communications
and notices hereunder to the New Subsidiary Guarantor shall be given to it at
the address set forth under its signature below, with a copy to the Borrower.
SECTION 8. The New Subsidiary Guarantor agrees to reimburse the
Administrative Agent for its reasonable out-of-pocket expenses in connection
with this Supplement, including the fees, disbursements and other charges of
counsel for the Administrative Agent.
IN WITNESS WHEREOF, the New Subsidiary Guarantor and the Administrative
Agent have duly executed this Supplement to the Guarantee Agreement as of the
day and year first above written.
[Name of New Subsidiary Guarantor],
135
by
-----------------------------------
Name:
Title:
Address:
----------------------------
------------------------------------
------------------------------------
THE CHASE MANHATTAN BANK,
as Administrative Agent,
by
-----------------------------------
Name:
Title:
136
EXHIBIT D
INDEMNITY, SUBROGATION and CONTRIBUTION
AGREEMENT dated as of July 16, 1999, among GARTNER
GROUP, INC., a Delaware corporation (the "Borrower"),
each subsidiary of the Borrower listed on Schedule I
hereto (the "Subsidiary Guarantors") and THE CHASE
MANHATTAN BANK, a New York banking corporation
("Chase"), as administrative agent (in such capacity,
the "Administrative Agent") for the Lenders.
Reference is made to (a) the Credit Agreement dated as of July
16, 1999 (as amended from time to time, the "Credit Agreement"), among the
Borrower, the lenders from time to time party thereto (the "Lenders"), and
Chase, as administrative agent for the Lenders, and (b) the Guarantee Agreement
dated as of July 16, 1999, among the Subsidiary Guarantors and the
Administrative Agent (as amended, supplemented or otherwise modified from time
to time, the "Guarantee Agreement"). Capitalized terms used herein and not
defined herein shall have the meanings assigned to such terms in the Credit
Agreement.
The Lenders have agreed to make Loans to the Borrower,
pursuant to, and upon the terms and subject to the conditions specified in, the
Credit Agreement. The Subsidiary Guarantors have agreed to guarantee such Loans
and the other Obligations (as defined in the Guarantee Agreement) of the
Borrower under the Credit Agreement pursuant to the Guarantee Agreement. The
obligations of the Lenders to make Loans are conditioned on, among other things,
the execution and delivery by the Borrower and the Subsidiary Guarantors of an
agreement in the form hereof.
137
Accordingly, the Borrower, each Subsidiary Guarantor and the
Administrative Agent agree as follows:
SECTION 1. Indemnity and Subrogation. In addition to all such
rights of indemnity and subrogation as the Subsidiary Guarantors may have under
applicable law (but subject to Section 3), the Borrower agrees that in the event
a payment shall be made by any Subsidiary Guarantor under the Guarantee
Agreement, the Borrower shall indemnify such Subsidiary Guarantor for the full
amount of such payment and such Subsidiary Guarantor shall be subrogated to the
rights of the person to whom such payment shall have been made to the extent of
such payment.
SECTION 2. Contribution and Subrogation. Each Subsidiary
Guarantor (a "Contributing Guarantor") agrees (subject to Section 3) that, in
the event a payment shall be made by any other Subsidiary Guarantor under the
Guarantee Agreement and such other Subsidiary Guarantor (the "Claiming
Guarantor") shall not have been fully indemnified by the Borrower as provided in
Section 1, the Contributing Guarantor shall indemnify the Claiming Guarantor in
an amount equal to the amount of such payment multiplied by a fraction of which
the numerator shall be the net worth of the Contributing Guarantor, and the
denominator shall be the aggregate net worth of all the Subsidiary Guarantors,
in each case on the date hereof (or, in the case of any Subsidiary Guarantor
becoming a party hereto pursuant to Section 11, the date of the Supplement
hereto executed and delivered by such Subsidiary Guarantor). Any Contributing
Guarantor making any payment to a Claiming Guarantor pursuant to this Section 2
shall be subrogated to the rights of such Claiming Guarantor under Section 1 to
the extent of such payment.
SECTION 3. Subordination. Notwithstanding any provision of
this Agreement to the contrary, all rights of the Subsidiary Guarantors under
Sections 1 and 2 and all other rights of indemnity, contribution or subrogation
under applicable law or otherwise shall be fully subordinated to the
indefeasible payment in full in cash of the Obligations. No failure on the part
of the Borrower or any Subsidiary Guarantor to make the payments required by
Sections 1 and 2 (or any other payments required under applicable law or
otherwise) shall in any respect limit the obligations and liabilities of any
Subsidiary Guarantor with respect to its
138
5
obligations hereunder, and each Subsidiary Guarantor shall remain liable for the
full amount of the obligations of such Subsidiary Guarantor hereunder.
SECTION 4. Termination. This Agreement shall survive and be in
full force and effect so long as any Obligation is outstanding and has not been
indefeasibly paid in full in cash, and so long as any of the Commitments under
the Credit Agreement have not been terminated, and shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any guaranteed Obligation is rescinded or must otherwise be
restored by the Administrative Agent, any Lender or any Subsidiary Guarantor
upon the bankruptcy or reorganization of the Borrower or any Subsidiary
Guarantor or otherwise.
SECTION 5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. No Waiver; Amendment. (a) No failure on the part of
the Administrative Agent or any Subsidiary Guarantor to exercise, and no delay
in exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy by the Administrative Agent or any Subsidiary Guarantor preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. All remedies hereunder are cumulative and are not exclusive of any other
remedies provided by law. None of the Administrative Agent and the Subsidiary
Guarantors shall be deemed to have waived any rights hereunder unless such
waiver shall be in writing and signed by such parties.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to a written agreement entered into
between the Borrower, the Subsidiary Guarantors and the Administrative Agent,
with the prior written consent of the Required Lenders (except as otherwise
provided in the Credit Agreement).
139
6
SECTION 7. Notices. All communications and notices hereunder
shall be in writing and given as provided in the Guarantee Agreement and
addressed as specified therein.
SECTION 8. Binding Agreement; Assignments. Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the parties that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns. Except as contemplated herein or in the Credit
Agreement, neither the Borrower nor any Subsidiary Guarantor may assign or
transfer any of its rights or obligations hereunder (and any such attempted
assignment or transfer shall be void) without the prior written consent of each
Lender. Notwithstanding the foregoing, at the time any Subsidiary Guarantor is
released from its obligations under the Guarantee Agreement in accordance with
the Guarantee Agreement and the Credit Agreement, such Subsidiary Guarantor will
cease to have any rights or obligations under this Agreement.
SECTION 9. Survival of Agreement; Severability. (a) All
covenants and agreements made by the Borrower and each Subsidiary Guarantor
herein shall be considered to have been relied upon by the Administrative Agent,
the Lenders and each Subsidiary Guarantor and shall survive the making by the
Lenders of the Loans and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loans or any other fee or amount
payable under the Credit Agreement or this Agreement or under any of the other
Loan Documents is outstanding and unpaid and as long as the Commitments have not
been terminated.
(b) In case any one or more of the provisions contained in
this Agreement should be held invalid, illegal or unenforceable in any respect,
no party hereto shall be required to comply with such provision for so long as
such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be
140
7
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 10. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement shall be effective with
respect to any Subsidiary Guarantor when a counterpart bearing the signature of
such Subsidiary Guarantor shall have been delivered to the Administrative Agent.
Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
141
8
SECTION 11. Additional Guarantors. Pursuant to Section 5.10 of
the Credit Agreement, each Subsidiary Loan Party that was not in existence on
the date of the Credit Agreement or that becomes a Subsidiary Loan Party after
such date is required to enter into the Guarantee Agreement as a Subsidiary
Guarantor. Upon execution and delivery after the date hereof by the
Administrative Agent and such Subsidiary of an instrument in the form of Annex 1
hereto, such Subsidiary shall become a Subsidiary Guarantor hereunder with
effect from and after the date of such execution and delivery. The execution and
delivery of any such instrument shall not require the consent of any other
Subsidiary Guarantor hereunder. The rights and obligations of each Subsidiary
Guarantor hereunder shall remain in full force and effect notwithstanding the
addition of any new Subsidiary Guarantor as a party to this Agreement.
SECTION 12. Waiver of Jury Trial. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12.
142
9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first appearing above.
GARTNER GROUP, INC.,
by
/s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: CFO & VP
COMPUTER AND COMMUNICATION
INFORMATION SERVICES,
INC.,
by
/s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
DATAQUEST INCORPORATED,
by
/s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
DATAQUEST(KOREA)INC.,
by
/s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
143
10
DECISION DRIVERS, INC,
by
/s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Secretary
GARTNER ENTERPRISES LTD.,
by
/s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
GARTNER GROUP LEARNING INC.,
by
/s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
G.G. GLOBAL HOLDINGS,
by
/s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
G.G. INVESTMENT MANAGEMENT, INC.,
by
/s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Treasurer
144
11
G.G. CREDIT INC.,
by
/s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Treasurer
X.X. XXXX CORPORATION,
by
/s/ Brain Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: President
XXXXXX-XXXXXXXX, INC.,
by
/s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
THE RESEARCH BOARD, INC.,
by
/s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
VISION EVENTS INTERNATIONAL, INC.,
by
/s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
145
12
VUE ACQUISITION CORPORATION,
by
/s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Secretary
THE CHASE MANHATTAN BANK,
as Administrative Agent,
by
/s/ Xxxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Vice President
146
13
G.G. CANADA,INC.
by
/s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Secretary
INTECO CORPORATION,
by
/s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Secretary
147
SCHEDULE I
to the Indemnity Subrogation
and Contribution Agreement
Subsidiary Guarantors
Name Address
---- -------
148
Annex 1 to
the Indemnity, Subrogation and
Contribution Agreement
SUPPLEMENT NO. dated as of [ ], to
the Indemnity, Subrogation and Contribution
Agreement dated as of July 16, 1999 (as the same may
be amended, supplemented or otherwise modified from
time to time, the "Indemnity, Subrogation and
Contribution Agreement"), among GARTNER GROUP, INC.,
a Delaware corporation (the "Borrower"), each
subsidiary of the Borrower listed on Schedule I
thereto (the "Subsidiary Guarantors"), and THE CHASE
MANHATTAN BANK, a New York banking corporation
("Chase"), as administrative agent (the
"Administrative Agent"), for the Lenders.
A. Reference is made to (a) the Credit Agreement dated as of
July 16, 1999 (as amended from time to time, the "Credit Agreement"), among the
Borrower, the lenders from time to time party thereto (the "Lenders"), and
Chase, as Administrative Agent, and (b) the Guarantee Agreement dated as of July
16, 1999, among the Subsidiary Guarantors and the Administrative Agent (as
amended, supplemented or otherwise modified from time to time, the "Guarantee
Agreement").
B. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Indemnity,
Subrogation and Contribution Agreement and the Credit Agreement.
C. The Borrower and the Subsidiary Guarantors have entered
into the Indemnity, Subrogation and Contribution Agreement in order to induce
the Lenders to make Loans. Pursuant to Section 5.10 of the Credit Agreement,
each Subsidiary Loan Party that was not in existence on the date of the Credit
Agreement or that becomes a Subsidiary Loan Party after such date is required to
enter into the Guarantee Agreement as a Subsidiary Guarantor. Section 11 of the
Indemnity, Subrogation and Contribution Agreement provides that such additional
Subsidiaries of the Borrower shall become Subsidiary Guarantors under the
Indemnity, Subrogation and Contribution Agreement by execution and delivery of
an instrument in the
149
form of this Supplement. The undersigned Subsidiary (the "New Guarantor") is
executing this Supplement in accordance with the requirements of the Credit
Agreement to become a Subsidiary Guarantor under the Indemnity, Subrogation and
Contribution Agreement in order to induce the Lenders to make additional Loans
and as consideration for Loans previously made.
Accordingly, the Administrative Agent and the New Guarantor
agree as follows:
SECTION 1. In accordance with Section 11 of the Indemnity,
Subrogation and Contribution Agreement, the New Guarantor by its signature below
becomes a Subsidiary Guarantor under the Indemnity, Subrogation and Contribution
Agreement with effect from and after the date of execution and delivery of this
Agreement in accordance with Section 3 hereof, and the New Guarantor hereby
agrees to, and assumes and agrees to be bound by, all the terms and provisions
of the Indemnity, Subrogation and Contribution Agreement applicable to it as a
Subsidiary Guarantor thereunder. Each reference to a "Subsidiary Guarantor" in
the Indemnity, Subrogation and Contribution Agreement shall be deemed to include
the New Guarantor. The Indemnity, Subrogation and Contribution Agreement is
hereby incorporated herein by reference.
SECTION 2. The New Guarantor represents and warrants to the
Administrative Agent and the Lenders that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Administrative
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Guarantor and the Administrative Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
150
3
SECTION 4. Except as expressly supplemented hereby, the
Indemnity, Subrogation and Contribution Agreement shall remain in full force and
effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained
in this Supplement should be held invalid, illegal or unenforceable in any
respect, neither party hereto shall be required to comply with such provision
for so long as such provision is held to be invalid, illegal or unenforceable,
but the validity, legality and enforceability of the remaining provisions
contained herein and in the Indemnity, Subrogation and Contribution Agreement
shall not in any way be affected or impaired. The parties hereto shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be
in writing and given as provided in Section 7 of the Indemnity, Subrogation and
Contribution Agreement. All communications and notices hereunder to the New
Guarantor shall be given to it at the address set forth under its signature.
151
4
SECTION 8. The New Guarantor agrees to reimburse the
Administrative Agent for its reasonable out-of-pocket expenses in connection
with this Supplement, including the reasonable fees, other charges and
disbursements of counsel for the Administrative Agent.
IN WITNESS WHEREOF, the New Guarantor and the Administrative
Agent have duly executed this Supplement to the Indemnity, Subrogation and
Contribution Agreement as of the day and year first above written.
[Name Of New Guarantor],
by
Name:
Title:
Address:
THE CHASE MANHATTAN BANK,
as Administrative Agent,
by
Name:
Title:
152
Exhibit E
Form of Pledge Agreement
[to come]