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Exhibit 10.4
AMENDED AND RESTATED
CREDIT AGREEMENT
by and among
INTERIM SERVICES INC.,
THE BORROWING SUBSIDIARIES,
as Borrowers
and
NATIONSBANK, NATIONAL ASSOCIATION,
as Administrative Agent,
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Documentation Agent,
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Book Manager,
and
THE BANKS PARTIES THERETO
July 2, 1999
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TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS
1.1 Amendment and Restatement. .............................................................................3
1.2 Certain Defined Terms. .................................................................................3
1.3 Other Interpretive Provisions...........................................................................31
1.4 Accounting Principles...................................................................................32
1.5 Currency Equivalents Generally..........................................................................33
ARTICLE II. THE CREDITS
2.1 Amounts and Terms of Commitments; Joint and Several Liability...........................................34
2.2 Loan Accounts...........................................................................................37
2.3 Procedure for Syndicated Borrowing......................................................................37
2.4 Conversion and Continuation Elections - Syndicated Loans................................................39
2.5 Utilization of Revolving Commitments in Offshore Currencies. ...........................................40
2.6 Bid Borrowings..........................................................................................41
2.7 Procedure for Bid Borrowings............................................................................42
2.8 Voluntary Termination or Reduction of Commitments. ....................................................45
2.9 Optional Prepayments....................................................................................45
2.10 Use of Proceeds.........................................................................................46
2.11 Currency Exchange Fluctuations..........................................................................46
2.12 Repayment...............................................................................................47
2.13 Interest................................................................................................47
2.14 Fees....................................................................................................48
2.15 Computation of Fees and Interest........................................................................49
2.16 Payments by the Companies...............................................................................49
2.17 Payments by the Banks to the Agent......................................................................50
2.18 Sharing of Payments Etc.................................................................................51
2.19 Swing Line..............................................................................................51
2.20 Designation of Borrowing Subsidiaries. ...............................................................53
2.21 364 Day Extension and Term Loan Option. .............................................................53
2.22 The Euro................................................................................................55
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ARTICLE III. THE LETTERS OF CREDIT
3.1 The Letter of Credit Facilities.........................................................................56
3.2 Issuance, Amendment and Renewal of Letters of Credit....................................................57
3.3 Risk Participations, Drawings and Reimbursements........................................................58
3.4 Repayment of Participations.............................................................................60
3.5 Role of the Issuing Bank................................................................................60
3.6 Obligations Absolute....................................................................................61
3.7 Cash Collateral Pledge..................................................................................62
3.8 Letter of Credit Fees...................................................................................62
3.9 Uniform Customs and Practice............................................................................63
ARTICLE IV. INTERIM NOTE GUARANTEE
4.1 Interim Notes Guarantee.................................................................................64
4.2 Risk Participation, Advances and Reimbursements.........................................................64
4.3 Repayment of Participations.............................................................................65
4.4 Role of NationsBank.....................................................................................66
4.5 Obligations Absolute....................................................................................66
4.6 Cash Collateral Pledge..................................................................................67
4.7 Interim Note Guarantee Fees.............................................................................68
ARTICLE V. CHANGE IN CIRCUMSTANCES
5.1 Increased Cost and Reduced Return.......................................................................69
5.2 Limitation on Types of Loans............................................................................70
5.3 Illegality..............................................................................................71
5.4 Treatment of Affected Loans.............................................................................71
5.5 Compensation............................................................................................72
5.6 Taxes...................................................................................................72
5.7 Replacement Banks.......................................................................................74
5.8 Mitigation..............................................................................................74
5.9 Survival................................................................................................75
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ARTICLE VI. CONDITIONS PRECEDENT
6.1 Conditions to Execution of Agreement....................................................................76
6.2 Condition of Extension of Credit to Borrowing Subsidiary................................................77
6.3 Conditions to All Credit Extensions.....................................................................78
6.4 Supplements to Schedules................................................................................79
ARTICLE VII. REPRESENTATIONS AND WARRANTIES
7.1 Existence and Power.....................................................................................80
7.2 Authorization; No Contravention.........................................................................80
7.3 Governmental Authorization..............................................................................80
7.4 Binding Effect..........................................................................................80
7.5 Litigation: Labor Controversies.........................................................................81
7.6 No Default..............................................................................................81
7.7 Use of Proceeds; Margin Regulations.....................................................................81
7.8 Title to Properties.....................................................................................81
7.9 Taxes...................................................................................................82
7.10 Financial Condition.....................................................................................82
7.11 Support Documents.......................................................................................83
7.12 Copyrights, Patents, Trademarks and Licenses, etc.......................................................83
7.13 Subsidiaries............................................................................................83
7.14 Insurance...............................................................................................84
7.15 ERISA Compliance........................................................................................84
7.16 Environmental Matters...................................................................................85
7.17 Regulated Entities......................................................................................85
7.18 No Burdensome Restrictions..............................................................................85
7.19 Full Disclosure.........................................................................................85
7.20 Immunity................................................................................................85
7.21 Year 2000 Compliance....................................................................................85
ARTICLE VIII. AFFIRMATIVE COVENANTS
8.1 Financial Information, Reports, Notices, etc............................................................86
8.2 Compliance with Laws, etc...............................................................................88
8.3 Maintenance of Properties...............................................................................88
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8.4 Insurance...............................................................................................89
8.5 Books and Records.......................................................................................89
8.6 Maintenance of Existence, etc...........................................................................89
8.7 Additional Support Documents............................................................................89
8.8 Compliance with ERISA...................................................................................90
8.9 Release of Pledge or Guaranty...........................................................................90
8.10 Swap Contracts..........................................................................................90
8.11 Year 2000 Compliant.....................................................................................91
ARTICLE IX. NEGATIVE COVENANTS
9.1 Business Activities.....................................................................................92
9.2 Liens...................................................................................................92
9.3 Financial Condition.....................................................................................93
9.4 Investments.............................................................................................93
9.5 Restricted Payments, etc................................................................................94
9.6 Consolidation Merger, etc...............................................................................95
9.7 Asset Dispositions, etc.................................................................................96
9.8 Transactions with Affiliates............................................................................96
9.9 Negative Pledges, Restrictive Agreements, etc...........................................................96
9.10 Subsidiaries'Voting Share...............................................................................97
9.11 ERISA...................................................................................................97
9.12 Limitation on Indebtedness..............................................................................97
9.13 Change Fiscal Year......................................................................................98
9.14 Subordinated Indebtedness...............................................................................98
ARTICLE X. EVENTS OF DEFAULT
10.1 Events of Default.......................................................................................99
10.2 Remedies...............................................................................................101
10.3 Rights Not Exclusive...................................................................................102
ARTICLE XI. THE AGENT
11.1 Appointment, Powers and Immunities.....................................................................103
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11.2 Reliance by Agent......................................................................................104
11.3 Defaults...............................................................................................104
11.4 Rights as Bank.........................................................................................104
11.5 Indemnification........................................................................................105
11.6 Non-Reliance on Agent and Other Banks..................................................................105
11.7 Successor Agent and Successor Issuing Bank.............................................................105
11.8 Security Trustee.......................................................................................106
11.9 Dutch Pledge Agreements................................................................................106
11.10 Documentation Agent....................................................................................106
ARTICLE XII. MISCELLANEOUS
12.1 Amendments and Waivers.................................................................................108
12.2 Notices................................................................................................109
12.3 No Waiver; Cumulative Remedies.........................................................................109
12.4 Costs and Expenses.....................................................................................109
12.5 Company Indemnification................................................................................110
12.6 Marshalling; Payments Set Aside........................................................................111
12.7 Successors and Assigns.................................................................................111
12.8 Assignments, Participations, etc.......................................................................111
12.9 Designated Bidders.....................................................................................113
12.10 Confidentiality........................................................................................114
12.11 Set-off................................................................................................114
12.12 Notification of Addresses of Lending Offices, Etc......................................................115
12.13 Counterparts...........................................................................................115
12.14 Severability...........................................................................................115
12.15 No Third Parties Benefited.............................................................................115
12.16 Governing Law and Jurisdiction.........................................................................115
12.17 Waiver of Jury Trial...................................................................................116
12.18 Entire Agreement.......................................................................................116
12.19 Judgment Currency......................................................................................116
12.20 Confirmation of Foreign Pledge Agreements. ...........................................................117
EXHIBIT A FORM OF BID LOAN NOTE.........................................................................A-1
EXHIBIT B COMPLIANCE CERTIFICATE........................................................................B-1
EXHIBIT C DESIGNATION AGREEMENT.........................................................................C-1
EXHIBIT D FORM OF LOAN NOTE INSTRUMENT..................................................................D-1
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EXHIBIT E INVITATION FOR COMPETITIVE BID................................................................E-1
EXHIBIT F IRREVOCABLE NOTICE OF SYNDICATED ACTIVITY.....................................................F-1
EXHIBIT G FORM OF REVOLVING LOAN NOTE...................................................................G-1
EXHIBIT H FORM OF SWING LINE NOTE.......................................................................H-1
EXHIBIT I FORM OF 364 DAY NOTE..........................................................................I-1
EXHIBIT J COMPETITIVE BID REQUEST.......................................................................J-1
EXHIBIT K COMPETITIVE BID...............................................................................K-1
EXHIBIT L FORM OF SWING LINE BORROWING NOTICE...........................................................L-1
EXHIBIT M FORM OF ASSUMPTION LETTER.....................................................................M-1
EXHIBIT N FORM OF ASSIGNMENT AND ACCEPTANCE.............................................................N-1
SCHEDULE I PRICING GRID
SCHEDULE II PLEDGORS AND PLEDGED INTERESTS
SCHEDULE 1.2(a) EXISTING LETTERS OF CREDIT
SCHEDULE 1.2(b) GUARANTORS
SCHEDULE 1.2(c) XXXXXXX INDEBTEDNESS
SCHEDULE 1.2(d) DESCRIPTION OF PERMITTED SECURITIZATION
SCHEDULE 2.1 COMMITMENTS
SCHEDULE 7.5 LITIGATION
SCHEDULE 7.10 ADDITIONAL LIABILITIES
SCHEDULE 7.12 LITIGATION REGARDING PATENTS, TRADEMARKS, ETC.
SCHEDULE 7.13 SUBSIDIARIES
SCHEDULE 7.15 ERISA MATTERS
SCHEDULE 9.4(a) EXISTING INVESTMENTS
SCHEDULE 9.9 RESTRICTIVE AGREEMENTS
SCHEDULE 9.12 EXISTING INDEBTEDNESS
SCHEDULE 12.2 OFFSHORE AND DOMESTIC LENDING OFFICES ADDRESSES FOR NOTICE
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AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of July
2, 1999, among INTERIM SERVICES INC., a Delaware corporation ("Interim"), the
BORROWING SUBSIDIARIES parties hereto both as of the date hereof or pursuant to
Section 2.20 (herein Interim and each Borrowing Subsidiary are individually
referred to as a "Company" and collectively, the "Companies"), the several
financial institutions from time to time party to this Agreement (collectively,
the "Banks"; individually, a "Bank"), The First National Bank of Chicago, as
documentation agent for the Banks (in such capacity, the "Documentation
Agent"), and NationsBank, N.A., as agent for the Banks (in such capacity, the
"Agent").
WHEREAS, the Companies, the Agent and certain banks (the "Original
Banks") have entered into a Credit Agreement dated May 1, 1997 (the "Original
Agreement") pursuant to which the Original Banks have made available to
Companies certain credit facilities of up to $675,000,000, which facilities
consist of a term loan facility of $275,000,000 which term loan is evidenced by
term notes dated May 1, 1997 (the "Original Term Notes") and a multicurrency
revolving credit facility of $400,000,000 which revolving credit facility is
evidenced by revolving notes dated May 1, 1997 (the "Existing Notes"); and
WHEREAS, as a condition to making the credit facilities available
under the Original Agreement the Banks required that all Domestic Subsidiaries
of Interim, other than Borrowing Subsidiaries, guarantee payment of all
obligations and that there be pledged to secure the obligations all of the
issued and outstanding capital stock of Domestic Subsidiaries and 65% of the
outstanding Voting Stock of Direct Foreign Subsidiaries; and
WHEREAS, Interim (Europe) has issued Floating Rate Guaranteed Unlisted
Unsecured Loan Notes 2002 in the principal amount of (pound)12,500,000 (the
"Interim Notes") a portion of the principal amount of which Interim Notes were
to be used to pay the purchase price of shares of capital stock of Xxxxxxx Page
together with interest, the payment of which Interim Notes is guaranteed under
the Original Agreement; and
WHEREAS, Interim has paid the Original Term Notes; and
WHEREAS, Interim has entered into an Agreement and Plan of Merger
whereby Interim will acquire Xxxxxxx (as hereinafter defined); and
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WHEREAS, the Companies have requested that the Original Agreement be
amended and restated in its entirety in order to, among other things, increase
the amount of the credit facilities from $400 million to $675 million, extend
the maturity date of the indebtedness arising thereunder, change various
covenants, as a part of the increase in the credit facilities the addition of a
$150 million 364 Day Facility and change the interest and fees payable
thereunder; and
WHEREAS, certain of the Original Banks have assigned all or a portion
of their interest in the Original Agreement to other Original Banks and
simultaneously with the execution of this Agreement new banks by their
execution of this Agreement and payment to the Agent pursuant to the terms
hereof of their portion of outstanding Loans will acquire interests in all or a
portion of the Loans made pursuant to this Agreement;
NOW, THEREFORE, the Companies, the Banks and the Agent hereby agree as
follows:
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ARTICLE 1
DEFINITIONS
1.1 Amendment and Restatement. The Companies, the Agent and the Banks
hereby agree that upon the effectiveness of this Agreement, the terms and
provisions of the Original Agreement shall be and hereby are amended and
restated in their entirety by the terms and conditions of this Agreement and
the terms and provisions of the Original Agreement, except as otherwise
provided in the next paragraph, shall be superseded by this Agreement.
Notwithstanding the amendment and restatement of the Original
Agreement by this Agreement, the Companies shall continue to be liable to the
Agent and the Original Banks which have not elected to continue as a party to
this Agreement with respect to agreements on the part of the Companies under
the Original Agreement to indemnify and hold harmless the Agent and the
Original Banks which have not elected to continue as a party to this Agreement
from and against all claims, demands, liabilities, damages, losses, costs,
charges and expenses to which the Agent and the Original Banks which have not
elected to continue as a party to this Agreement may be subject arising in
connection with the Original Agreement. This Agreement is given as a
substitution of, and not as a payment of, the obligations of the Companies
under the Original Agreement and is not intended to constitute a novation of
the Original Agreement. Except as otherwise selected by the Companies by
delivery of a Borrowing Notice or Interest Rate Selection Notice prior to the
Effective Date in accordance with the terms hereof, upon the Effective Date of
this Agreement all amounts outstanding and owing by the Companies under the
Original Agreement as of the Effective Date, shall constitute Advances
hereunder accruing interest at the Base Rate hereunder. The parties hereto
agree that the Interest Periods for all Offshore Rate Loans outstanding under
the Original Agreement on the Effective Date shall be terminated, the Banks
shall grant a one-time waiver of any payments required under Section 5.5 to the
Banks and the Companies shall furnish to the Agent Interest Rate Selection
Notices for existing Loans and Borrowing Notices for additional Loans as may be
required in connection with the allocation of Loans among Banks in accordance
with their Commitments.
1.2 Certain Defined Terms. The following terms have the following
meanings:
"Absolute Rate" has the meaning specified in Section 2.7(c).
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"Acquisition" means any transaction or series of related
transactions for the purpose of or resulting, directly or indirectly,
in (a) the acquisition of all or substantially all of the assets of a
Person, or of any business or division of a Person, (b) the
acquisition of in excess of 50% of the capital stock, partnership
interests, membership interests or equity of any Person, or otherwise
causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person (other than
a Person that is a Subsidiary immediately prior to giving effect to
such combination) provided that the applicable Company or a Subsidiary
is the surviving entity.
"Active Subsidiary" means a Subsidiary of Interim that is
then doing business of any kind;
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person. A Person shall be deemed to
control another Person if the controlling Person possesses, directly
or indirectly, the power to direct or cause the direction of the
management and policies of the other Person, whether through the
ownership of voting securities, membership interests, by contract, or
otherwise.
"Agent" means NationsBank in its capacity as agent for the
Banks hereunder, and any successor agent arising under Section 11.9.
"Agent-Related Persons" means the Agent and any successor
agent arising under Section 11.9, together with their respective
Affiliates (including in the case of NationsBank, the Arranger), and
the officers, directors, employees, agents and attorneys-in-fact of
such Persons and Affiliates.
"Agent's Payment Office" means (i) in respect of payments in
Dollars, the address for payments set forth on Schedule 12.2 or such
other address as the Agent may from time to time specify in accordance
with Section 12.2, and (ii) in the case of payments in any Offshore
Currency, such address as the Agent may from time to time specify in
accordance with Section 12.2.
"Aggregate Assumed Interest" means the aggregate amount of
interest which would be payable on the Interim Notes from the date of
determination to the stated maturity of the Interim Notes assuming a
rate of interest for the remaining term of the Interim Notes to be
that rate of interest in effect on the Interim Notes on such date of
determination;
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"Agreement" means this Credit Agreement, as amended, modified
or supplemented from time to time.
"Alternate Currency" has the meaning specified in Section
2.5(b).
"Applicable Currency" means, as to any particular payment or
Loan, Dollars or the Offshore Currency in which it is denominated or
is payable.
"Applicable Fee Percentage" means, at any time, the rate set
forth on Schedule I under the column "Applicable Fee Percentage" for
the level applicable at such time in accordance with the provisions of
Section 2.15(c).
"Applicable Margin" means
(i) with respect to Base Rate Loans, 0%;
(ii) with respect to Offshore Rate Loans, at any
time, the rate set forth on Schedule I under the column
"Applicable Margin" for the level applicable at such time in
accordance with the provisions of Section 2.15(c).
"Arranger" means Banc of America Securities, LLC, and its
successors.
"Assignment and Acceptance" has the meaning specified in
Section 12.8.
"Assignee" has the meaning specified in subsection 12.8(a).
"Associated Costs" means a rate per annum equal to the
arithmetic mean of the percentage rates applicable to the Offshore
Currency Lending Office of the relevant Bank according to the
following formula:
Associated Costs BY + L(Y-X) + S(Y-Z)
--------------------
per annum = 100 - (B+S)
where:
B = The percentage of such Bank's eligible liabilities
required, on the first day of the Relevant Period,
to be held in a non-interest-bearing deposit account
with the Bank of England pursuant to the cash ratio
requirements of the Bank of England.
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Y = The interest rate at which Sterling deposits in an
amount comparable to the aggregate principal amount
of the relevant Loan are offered by such Bank to
leading banks in the London interbank market at or
about 11:00 a.m. (London time) on the first day of
the Relevant Period for a period comparable to the
Relevant Period.
L = The average percentage of eligible liabilities
which the Bank of England, as at the first day of
the Relevant Period, requires such Bank to maintain
as secured money with members of the London Discount
Market Association and/or as secured call money with
those money brokers and gilt-edged primary market
makers recognized by the Bank of England.
X = The rate at which secured Sterling deposits in an
amount comparable to the aggregate principal amount
of the relevant Loan may be placed by such Bank with
members of the London Discount Market Association
and/or as secured call money with money brokers and
gilt-edged primary market makers at or about 11:00
a.m. (London time) on the first day of the Relevant
Period for a period comparable to the Relevant
Period.
S = The percentage of such Bank's eligible liabilities
required on the first day of the relevant Interest
Period to be placed as a special deposit with the
Bank of England.
Z = The percentage interest rate per annum payable by
the Bank of England on special deposits or, if
lower, Y.
(a) For the purposes of this definition:
(i) "eligible liabilities" and "special deposits"
shall have the meanings ascribed to them from time to time by
the Bank of England; and
(ii) "Relevant Period" means, if the Interest Period
with respect to the relevant Loan is three months or less,
the duration of such Interest Period or, if such Interest
Period is longer than three months, each period of three
months and any necessary shorter period in such Interest
Period.
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(b) In the application of the above formula, B, Y, L, X, S
and Z will be included in the formula as decimal fractions and not as
percentages, e.g. if B = 0.5% and Y = 15%, BY will be calculated as
0.5 x 15 and not as 0.5% x 15%.
(c) Associated Costs shall be computed by the applicable Bank
on the first day of each Relevant Period, and shall, if necessary, be
rounded upward to the nearest 1/10,000 of 1%. If there is more than
one Relevant Period comprised in the relevant Interest Period, then
the Associated Costs for that Interest Period shall be the weighted
average of the amounts so computed for the Relevant Periods comprised
in that Interest Period.
(d) Calculations will be made on the basis of a year of 365
days.
The "Associated Costs" shall be increased by an amount which
the applicable Bank shall determine from time to time to be necessary
to compensate such Bank for the cost or loss to it of complying with
any liquidity, monetary control or prudential requirements of The Bank
of England existing from time to time pursuant to Section 5.1(c).
"Assuming Bank" has the meaning specified in Section 2.21(c).
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel or, from and
after the Closing Date, internal counsel.
"Australian Interim Indebtedness" means the net indebtedness
of Interim arising under the Financing Transaction, as the same may
hereafter be extended, renewed or modified from time to time. The
parties hereto acknowledge and stipulate that the amount of the
Australian Interim Indebtedness to be provided by the provisions of
the Financing Transaction, will be the net obligation of Interim under
the Financing Transaction agreements as determined by Bank of America
National Trust & Savings Association on a semi-annual basis. The
amount of such Australian Interim Indebtedness as of the Effective
Date is set forth on Schedule 9.12.
"Bank" has the meaning specified in the introductory clause
hereto.
"Base Rate" means, for any day, the higher of (a) 0.50% per
annum above the latest Federal Funds Rate, and (b) the rate of
interest in effect for such day as publicly announced from time to
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time by NationsBank in Charlotte, North Carolina, as its "prime rate."
(The "prime rate" is a rate set by NationsBank based upon various
factors including NationsBank's costs and desired return, general
economic conditions and other factors, and is used as a reference
point for pricing some loans, which may be priced at, above, or below
such announced rate.) Any change in the prime rate announced by
NationsBank shall take effect at the opening of business on the day
specified in the public announcement of such change.
"Base Rate Loan" means a Revolving Loan, Swing Line Loan, 364
Day Loan, Interim Note Borrowing or L/C Advance that bears interest at
the Base Rate.
"Bid Borrowing" means a Borrowing hereunder consisting of one
or more Bid Loans made to the Companies on the same day by one or more
Banks or Designated Bidders.
"Bid Loan" means a Revolving Loan by a Bank or a Designated
Bidder to one or more of the Companies under Section 2.6.
"Bid Loan Bank" means, in respect of any Bid Loan, the Bank
or a Designated Bidder making such Bid Loan to the Companies.
"Bid Loan Note" means a note substantially in the form of
Exhibit A and delivered to a Bank pursuant to Section 2.2.
"Borrowing" means a borrowing hereunder consisting of (i) Bid
Loans, Revolving Loans or 364 Day Loans of the same Type and in the
same Applicable Currency made to a Company on the same day by the
Banks under Section 2.1(a) or (b) or (in the case of Bid Borrowings)
Bid Loan Banks under Sections 2.6 and 2.7, and, in the case of
Offshore Rate Loans, having the same Interest Period and (ii) Swing
Line Loans under Section 2.19. A Borrowing may be a Revolving
Borrowing or 364 Day Borrowing or a Swing Line Borrowing or a Bid
Borrowing.
"Borrowing Date" means any date on which a Borrowing occurs
under Section 2.3, Section 2.7, Section 2.19 or Section 2.21.
"Borrowing Subsidiary" means any Subsidiary of Interim which
has been designated pursuant to Section 2.20.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City or Charlotte,
North Carolina are authorized or required by law to close and (i) with
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respect to disbursements and payments in Dollars, a day on which
dealings are carried on in the applicable offshore Dollar interbank
market, and (ii) with respect to any disbursements and payments in and
calculations pertaining to any Offshore Currency Loan, a day on which
commercial banks are open for foreign exchange business in London,
England, and on which dealings in the relevant Offshore Currency are
carried on in the applicable offshore foreign exchange interbank
market in which disbursement of or payment in such Offshore Currency
will be made or received hereunder.
"Cash Account Agreement" means the Cash Account Agreement
delivered by each Company in favor of the Agent relating to the cash
collateralization of the L/C Obligations and Interim Note Obligations,
as the same may be amended or otherwise modified from time to time.
"Cash Collateralize" means to pledge and deposit with or
deliver to the Agent, for the benefit of the Agent, the Issuing Bank,
NationsBank and the Banks, as collateral for the L/C Obligations or
Interim Note Obligations, or both, cash or deposit account balances
pursuant to documentation in form and substance reasonably
satisfactory to the Agent, the Issuing Bank and NationsBank.
Derivatives of such term shall have corresponding meanings. The
Companies hereby grant the Agent, for the benefit of the Agent, the
Issuing Bank, NationsBank and the Banks, a security interest in all
such cash and deposit account balances. Cash collateral shall be
maintained in blocked, interest bearing deposit accounts at
NationsBank.
"Cash Equivalent Investment" means, at any time:
(a) any evidence of Indebtedness, maturing not more than one
year after such time, issued or guaranteed by the government of a
country ("OECD Country") which is a member of the Organization for
Economic Cooperation and Development or any agency thereof;
(b) commercial paper, maturing not more than nine months from
the date of issue, which is issued by
(i) a corporation (other than an Affiliate of the
Companies) organized under the laws of any state of the
United States or of the District of Columbia and rated A-2,
or better, by Standard & Poor's Ratings Services or P-2, or
better, by Xxxxx'x Investors Service, Inc., or
(ii) any Bank (or its holding company);
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(c) any certificate of deposit or bankers acceptance,
maturing not more than one year after such time, which is issued by
either
(i) a commercial banking institution that is a
member of the Federal Reserve System or an applicable central
bank of an OECD Country and has a combined capital and
surplus and undivided profits of not less than $500,000,000,
or
(ii) any Bank;
(d) any repurchase agreement entered into with any Bank (or
other commercial banking institution of the stature referred to in
clause (c)(i)) which
(i) is secured by a fully perfected security
interest in any obligation of the type described in any of
clauses (a) through (c); and
(ii) has a market value at the time such repurchase
agreement is entered into of not less than 100% of the
repurchase obligation of such Bank (or other commercial
banking institution) thereunder; or
(e) money market preferred stock of companies listed on the
S&P 500 and having a long-term debt rating of A- or better by S&P or
A3 or better by Moody's, and short-term (one-year or less) debt
instruments, so long as the underlying obligor has a short-term debt
rating of A-2 (or MIG-2) or better by S&P or P-2 (or MIG-2) or better
by Moody's;
(f) Investments in money market funds that invest primarily
in items described in clauses (a), (b), (c), (d) and (e) above;
(g) participations in short-term loans to any corporation
(other than the Company or any Subsidiary) organized under the United
States of America and rated at least A-2 by S&P or P-2 by Moody's;
"Change in Control" means (i) the acquisition by any Person,
or two or more Persons acting in concert, of beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Exchange Act) of 20% or more of the outstanding
shares of voting stock of Interim or (ii) during any period of up to
12 consecutive months, commencing on the Closing Date, individuals who
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18
at the beginning of such 12-month period were directors of Interim
shall cease for any reason (other than the death, disability or
retirement of an officer of Interim that is serving as a director at
such time so long as another officer of Interim replaces such Person
as a director) to constitute a majority of the Board of Directors of
Interim.
"Closing Date" means July 2, 1999, provided that this
Agreement and the Notes shall have been executed and delivered to the
Agent, or such later date on which such events shall have occurred.
"Code" means the Internal Revenue Code of 1986, as amended,
and regulations promulgated thereunder.
"Commitment", as to each Bank, means the sum of such Bank's
Revolving Commitment and 364 Day Loan Commitment.
"Company" and "Companies" has the meaning specified in the
introductory clause hereto.
"Competitive Bid" means an offer by a Bank or a Designated
Bidder to make a Bid Loan in accordance with Section 2.7(c).
"Competitive Bid Request" has the meaning specified in
Section 2.7(a).
"Compliance Certificate" means a certificate substantially in
the form of Exhibit B.
"Consenting Bank" has the meaning specified in Section
2.21(a).
"Consolidated EBITDA" means, for any four quarter period,
Consolidated Net Income plus Consolidated Interest Expense, income
taxes, depreciation expense, amortization expense and up to
$10,000,000 of one time costs associated with the separation of
certain personnel and the related systems integration and merger costs
arising out of the Acquisition of Xxxxxxx, all determined on a
consolidated basis for Interim and its Subsidiaries; provided that,
with respect to any Acquisition which is treated as a "purchase,"
Consolidated EBITDA, beginning with the fiscal quarter during which
such Acquisition occurs, shall include the results of the operations
of the Person or assets so acquired (which results shall be determined
on an historical pro forma basis in form and substance satisfactory to
the Required Banks so long as Interim has furnished to the Banks
financial information acceptable to the Required Banks with respect to
the Person or assets so acquired).
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"Consolidated Interest Coverage Ratio" means, with respect to
Interim and its Subsidiaries, on a consolidated basis, for any
consecutive four quarter period, the ratio of Consolidated EBITDA to
Consolidated Interest Expense.
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of Interim
and its Subsidiaries (net of interest income of not to exceed
$500,000), including, without limitation (i) the amortization of debt
discounts, (ii) the amortization of all fees (including, without
limitation, fees payable in respect of Rate Hedging Obligations)
payable in connection with the incurrence of Indebtedness to the
extent included in interest expense and (iii) the portion of any
liabilities incurred in connection with Capital Leases allocable to
interest expense, all determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis; provided, however, in the
case of the occurrence of an Acquisition, there shall be included in
Consolidated Interest Expense for the first four consecutive fiscal
quarters ending after the date of such Acquisition an amount which
shall be determined by multiplying that portion of the cost of
Acquisition which represents Indebtedness, whether incurred, assumed
or acquired, times the interest rate applicable to such Indebtedness
which is in effect on the date of determination and then multiplying
the result by a fraction the numerator of which is 365 minus the
actual number of days that have elapsed from and after the date of
such Acquisition and the denominator of which is 365.
"Consolidated Net Income" means, for any period ending on the
date for which computation thereof is being made, the gross revenues
from operations of Interim and its Subsidiaries (including payments
received by Interim and the Subsidiaries of (i) interest income, and
(ii) dividends and distributions made in the ordinary course of their
business by Persons in which investment is permitted pursuant to this
Agreement and not related to an extraordinary event), less all
operating and non-operating expenses of Interim and its Subsidiaries
including taxes on income, all determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis; but excluding (for
all purposes other than compliance with Section 9.3(ii)) hereof as
income: (i) net gains on the sale, conversion or other disposition of
capital assets, (ii) net gains on the acquisition, retirement, sale or
other disposition of capital stock and other securities of Interim or
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20
its Subsidiaries, (iii) net gains on the collection of proceeds of
life insurance policies, (iv) any write-up of any asset, and (v) any
other net gain or credit of an extraordinary nature as determined in
accordance with GAAP applied on a Consistent Basis.
"Consolidated Net Worth" means the aggregate amount of
shareholders equity as determined from a consolidated balance sheet of
Interim and its Subsidiaries, prepared in accordance with GAAP;
provided that the amount of any cumulative translation adjustment
shall be excluded for purposes of determining Consolidated Net Worth.
"Consolidated Total Leverage Ratio" means, with respect to
Interim and its Subsidiaries, on a consolidated basis, for any
consecutive four quarter period, the ratio of Total Indebtedness as at
the end of such period to Consolidated EBITDA for such period.
"Contingent Obligation" means any agreement, undertaking or
arrangement by which any Person guarantees, endorses or otherwise
becomes or is contingently liable upon (by direct or indirect
agreement to provide funds for payment, to supply funds to, or
otherwise to invest in, a debtor, or otherwise to assure a creditor
against loss) the Indebtedness of any other Person (other than by
endorsements of instruments in the course of collection), or
guarantees the payment of dividends or other distributions upon the
shares of any other Person. The amount of any Person's obligation
under any Contingent Obligation shall (subject to any limitation set
forth therein) be deemed to be the outstanding principal amount (or
maximum principal amount, if larger) of the Indebtedness guaranteed
thereby.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other
instrument, document or agreement to which such Person is a party or
by which it or any of its property is bound.
"Conversion/Continuation Date" means any date on which, under
Section 2.4, a Company (a) converts Syndicated Loans of one Type to
another Type, or (b) continues as Syndicated Loans of the same Type,
but with a new Interest Period, Syndicated Loans having Interest
Periods expiring on such date.
"Credit Extension" means and includes (a) the making of any
Syndicated Loans and Bid Loans and Swing Line Loans hereunder, (b) the
issuance of the Interim Note Guarantee and the making of any payment
pursuant thereto, and (c) the Issuance of any Letters of Credit
hereunder.
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"Default" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured or
otherwise remedied during such time) constitute an Event of Default.
"Designated Bidder" means an Affiliate of a Bank that is an
entity described in clause (a) or (b) of the definition of "Eligible
Assignee" and that has become a party hereto pursuant to Section 12.9.
"Designation Agreement" means an agreement in substantially
the form of Exhibit C.
"Direct Foreign Subsidiary" means a Foreign Subsidiary in
respect of which all of the Voting Stock, except qualifying shares of
directors or managers, is owned by Interim or a Domestic Subsidiary.
"Documentation Agent" means The First National Bank of
Chicago in its capacity as documentation agent for the Banks
hereunder, and any successor documentation agent thereto.
"Dollars", "dollars" and "$" each mean lawful money of the
United States.
"Dollar Equivalent Amount" means (a) the amount denominated
in Dollars, and (b) as to any amount denominated in an Offshore
Currency, the equivalent amount in Dollars as determined by the Agent
on the basis of the Spot Rate for the purchase of Dollars with such
Offshore Currency.
"EMU" means the European economic and monetary union.
"Effective Date" means the date on which all conditions
precedent set forth in Section 6.1 are satisfied.
"Eligible Assignee" means (a) a commercial bank organized
under the laws of the United States, or any state thereof, and having
a combined capital and surplus of at least $500,000,000; (b) a
commercial bank organized under the laws of any other country which is
a member of the Organization for Economic Cooperation and Development
(the "OECD"), or a political subdivision of any such country, and
having a combined capital and surplus of at least $500,000,000,
provided that such bank is acting through a branch or agency located
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22
in the country in which it is organized or another country which is
also a member of the OECD; and (c) a Person that is primarily engaged
in the business of commercial lending and that is (i) a Subsidiary of
a Bank, (ii) a Subsidiary of a Person of which a Bank is a Subsidiary,
or (iii) a Person of which a Bank is a Subsidiary.
"Environmental Claims" means all claims, however asserted, by
any Governmental Authority or other Person alleging potential
liability or responsibility for violation of any Environmental Law, or
for release or injury to the environment
"Environmental Laws" means all federal, state, local or
foreign laws, statutes, common law duties, rules, regulations,
ordinances and codes, together with all administrative orders,
directed duties, requests, licenses, authorizations and permits of,
and agreements with, any Governmental Authorities, in each case
relating to environmental, health, safety and land use matters.
"Equipment" means all equipment of whatever kind or nature
now owned or hereafter acquired by a Person, including, without
limitation, all machinery, vehicles, tools, furniture, furnishings,
office machines and equipment, material handling equipment, forklifts,
conveyors, machine systems, computers and all other goods used with
all accessories, parts and additions noted or hereafter affixed
thereto or used in connection therewith.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with any Company within the meaning
of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of
the Code for purposes of provisions relating to Section 412 of the
Code).
"ERISA Event" means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by any Company or any ERISA Affiliate
from a Pension Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in Section
4001 (a) (2) of ERISA) or a cessation of operations which is treated
as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or
partial withdrawal by any Company or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate a
Plan (other than in a standard termination within the meaning of
Section 4041(b) of ERISA), the treatment of a Plan amendment as a
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23
termination under Section 4041 or 4041A of ERISA (other than in a
standard termination within the meaning of Section 4041(b) of ERISA),
or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which might
reasonably be expected to constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon any
Company or any ERISA Affiliate.
"Euro" means the lawful currency of the EMU.
"Eurocurrency Reserve Percentage" has the meaning specified
in the definition of "Offshore Rate".
"Event of Default" means any of the events or circumstances
specified in Section 10.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and regulations promulgated thereunder.
"Excluded Subsidiary" means each of Spectrum, Xxxxxxx Page
International PTE Ltd., Atrium (AU-B) Pty. Limited, FSS Ltd. Interim
Services (Canada) Ltd., Xxxxxxx Services, Ltd., and any other Foreign
Subsidiary of Xxxxxxx existing as of the Closing Date.
"Existing Credit Agreement" means the Credit Agreement dated
as of May 1, 1997 among Interim Services Inc., The Borrowing
Subsidiaries, The Lenders Party Thereto, NationsBank, N.A., as Agent
and The First National Bank of Chicago, as Documentation Agent.
"Existing Letters of Credit" means the letters of credit
described on Schedule 1.2(a).
"Facility L/C" means any standby letter of credit issued by
an Issuing Bank pursuant to Section 3.1(a) and the Existing Letters of
Credit.
"Facility L/C Obligations" means at any time the sum of (a)
the aggregate undrawn amount of all Facility L/Cs then outstanding,
plus (b) the amount of all unreimbursed drawings under Facility L/Cs,
including an L/C Borrowing in respect of a Facility L/C.
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"Fair Market Value" means, with respect to any capital stock
or other ownership interests issued or given by Interim or any
Subsidiary in connection with an Acquisition, (i) in the case of
capital stock that is Common Stock and such Common Stock is then
designated as a national market system security by the National
Association of Securities Dealers, Inc. ("NASDAQ") or is listed on a
national securities exchange, the average of the last reported bid and
ask quotations or prices reported thereon for Common Stock or such
other value as may be ascribed to the Common Stock in a definitive
merger or acquisition agreement provided such value is determined
according to customary methods for like transactions and is approved
(to the extent required by Interim's charter or bylaws) by Interim's
board of directors or (ii) in the case of capital stock that is not
Common Stock or in the event that Common Stock is not so designated on
NASDAQ or listed on such national exchange, or in the case of any
other ownership interests, the determination of the fair market value
thereof in good faith by a majority or disinterested members of the
board of directors of Interim or such Subsidiary, in each case
effective as of the close of business on the Business Day immediately
preceding the closing date of such Acquisition.
"FDIC" means the Federal Deposit Insurance Corporation and
any Governmental Authority succeeding to any of its principal
functions.
"Federal Funds Rate" means, for any day, the rate set forth
in the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of New
York (including any such successor, "H.l5(519)") on the preceding
Business Day opposite the caption "Federal Funds (Effective)"; or, if
for any relevant day such rate is not so published on any such
preceding Business Day, the rate for such day will be the arithmetic
mean as determined by the Agent of the rates for the last transaction
in overnight Federal funds arranged prior to 9:00 a.m. (New York City
time) on that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Agent.
"Fee Letters" has the meaning specified in Section 2.14(a).
"Financing Transaction" means a set of integrated
transactions involving extensions of credit to Interim and a
Subsidiary and concurrent and forward purchases of equity interests of
a Subsidiary, all as evidenced by a series of agreements executed on
or about June 30, 1999 among (1) Interim and Bank of America National
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25
Trust and Savings Association, as to a Financing and Interest Purchase
Agreement, (2) Atrium (AU-B) Pty. Limited and Bank of America National
Trust and Savings Association, as to a Loan Agreement, (3) Atrium
(U.S.-B) LLC and Bank of America National Trust and Savings
Association, as to a Subscription Agreement, (4) Bank of New York, as
escrow agent, Bank of America National Trust and Savings Association,
Interim, and Atrium (U.S.-B) LLC, as to an Escrow Agreement and (5)
Interim and Bank of America National Trust and Savings Association as
to a Guaranty Agreement, all as the same may be extended, renewed and
modified. The consequence of the consummation of these transactions,
after effecting the offsetting transactions pursuant to the
above-referenced documents, and various additional and related
agreements and transactions between and among Interim and some of its
Subsidiaries, is the creation of Australian Interim Indebtedness.
"Foreign Subsidiary" means any Subsidiary (other than
Spectrum) which (i) is organized under the laws of a jurisdiction
other than the United States or a state thereof and (ii) conducts
substantially all of its business and operations outside the United
States.
"FRB" means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its
principal functions.
"Further Taxes" means any and all present or future taxes,
levies, assessments, imposts, duties, deductions, fees, withholdings
or similar charges (including, without limitation, net income taxes
and franchise taxes), and all liabilities with respect thereto,
imposed by any jurisdiction on account of amounts payable or paid
pursuant to Section 5.1.
"FX Trading Office" means the NationsBank Foreign Exchange
Trading Desk in Charlotte, North Carolina, or such other office or
source of information as the Agent may designate with the concurrence
of the Companies.
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances, subject to the
provisions of Section 1.4.
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"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guarantor" means each of the Subsidiaries listed on Schedule
1.2(b) and such other Subsidiaries which may become a Guarantor.
"Guaranty" means a Guaranty in the form reasonably acceptable
to the Agent and the Banks executed by every Guarantor, as the same
may be amended or otherwise modified from time to time.
"Honor Date" has the meaning specified in Section 3.3(b).
"IBOR" has the meaning specified in the definition of
"Offshore Rate".
"Impermissible Qualification" means, relative to the opinion
or certification of any independent public accountant or, if
applicable, any chartered accountants as to any financial statement of
any Company or any Subsidiary, any qualification or exception to such
opinion or certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of
matters relevant to such financial statement; or
(c) which relates to the treatment or classification of any
item in such financial statement and which, as a condition to its
removal, would require an adjustment to such item the effect of which
would be to cause any Company to be in default of any of its
obligations under Section 9.3.
"Inactive Subsidiary" means a Subsidiary of Interim that is
not an Active Subsidiary.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
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(b) all obligations, contingent or otherwise, relative to the
face amount of all letters of credit (other than letters of credit
supporting trade payables in the ordinary course of business), whether
or not drawn, and banker's acceptances issued for the account of such
Person (it being understood that, to the extent an undrawn letter of
credit supports another obligation consisting of Indebtedness, in
calculating aggregate Indebtedness only such other obligation shall be
included);
(c) all obligations of such Person as lessee under leases
which have been or should be, in accordance with GAAP, recorded as
capitalized lease liabilities;
(d) net liabilities of such Person under all Swap Contracts;
(e) whether or not so included as liabilities in accordance
with GAAP, all obligations of such Person to pay the deferred purchase
price of property or services (other than obligations under employment
contracts (including earn-out provisions which have not yet been
earned), restrictive covenants or similar arrangements or trade
payables in the ordinary course of business), and indebtedness
(excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements)
whether or not such indebtedness shall have been assumed by such
Person or is limited in recourse;
(f) liabilities in accordance with GAAP of such Person with
respect to lease paper sold by such Person or any other Persons;
(g) all Contingent Obligations of such Person in respect of
any of the foregoing whether such Person or another Person is the
principal obligor in respect thereof;
(h) all amounts outstanding under Permitted Receivables
Securitizations;
(i) the aggregate amount of liabilities (including
obligations to purchase or repurchase or other Contingent Obligations)
arising under tax retention operating leases; and
(j) with respect to the Indebtedness evidenced by the
Financing Transaction, only the Australian Interim Indebtedness.
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"Indemnified Liabilities" has the meaning specified in
Section 12.5.
"Indemnified Person" has the meaning specified in Section
12.5.
"Insolvency Proceeding" means, with respect to any Person,
(a) any case, action or proceeding with respect to such Person before
any competent court or other Governmental Authority relating to
bankruptcy, reorganization, insolvency, liquidation, receivership,
dissolution, administrative receivership, administration, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors, or other,
similar arrangement in respect of its creditors generally or any
substantial portion of its creditors; undertaken under U.S.
Federal, State or foreign law.
"Interest Payment Date" means, as to any Loan other than a
Base Rate Loan, the last day of each Interest Period applicable to
such Loan and, as to any Base Rate Loan, the last Business Day of each
calendar quarter and each date such Loan is converted into another
Type of Loan; provided, however, that if any Interest Period for an
Offshore Rate Loan or Bid Loan exceeds three months, the dates that
fall at three month intervals after the beginning, and prior to the
end, of such Interest Period are also Interest Payment Dates.
"Interest Period" means, (a) as to any Offshore Rate Loan,
the period commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which such Loan is converted into or
continued as an Offshore Rate Loan, and ending on the date one week
later in the case of a Loan in Dollars or pounds Sterling only or one,
two, three or six months thereafter in all other cases as selected by
a Company in its Irrevocable Notice of Syndicated Activity (or such
other period of time, not to exceed 12 months, as the Agent shall,
following reasonable prior notice from a Company, with the consent of
all Banks, elect to make available); and (b) as to any Bid Loan, a
period of not less than seven days and not more than 365 days as
selected by the Company in the applicable Competitive Bid Request;
provided that:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, that Interest Period shall be
extended to the following Business Day unless, in the case of
an Offshore Rate Loan, the result of such extension would be
to carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the preceding
Business Day;
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(ii) any Interest Period pertaining to an Offshore
Rate Loan that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
(iii) no Interest Period for any Loan shall extend
beyond the date stated in clause (a) of the definition of
"Termination Date".
"Interim (Europe)" means Interim Services (Europe) Inc., a
Delaware corporation and wholly-owned Subsidiary of Interim and which
entity is a Borrowing Subsidiary.
"Interim Note Advance" means each Bank's participation in any
Interim Note Borrowing in accordance with its Pro Rata Share.
"Interim Note Borrowing" means an extension of credit
resulting from a payment under the Interim Note Guaranty which shall
not have been reimbursed on the date when made or converted into an
appropriate Borrowing.
"Interim Note Commitments" means the commitment of
NationsBank to guaranty, and the commitment of the Banks severally to
participate in, the Interim Note Guarantee, in an aggregate amount not
to exceed on any date the amount of the Interim Note Obligations.
"Interim Note Guarantee" means the guaranty of payment by
NationsBank arising under the Interim Note Instrument the terms of
which are set forth in Schedule IV to the Interim Note Instrument.
"Interim Note Instrument" means the Loan Note Instrument
dated May 1, 1997 between Xxxxxxx Page and NationsBank, N.A.
constituting up to (pound)12,500,000 Floating Rate Guaranteed Unlisted
Unsecured Loan Notes 2002, a copy of which is attached hereto
substantially in the form of Exhibit D, pursuant to which (a) Xxxxxxx
Page has issued the Interim Notes evidencing its obligation to pay the
purchase price of shares of capital stock of Xxxxxxx Page together
with interest and (b) NationsBank has guaranteed payment of such
amount.
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"Interim Note Obligations" means at any time the Dollar
Equivalent Amount of the sum of (a) the aggregate unpaid principal
amount of Interim Notes, plus (b) the Aggregate Assumed Interest, plus
(c) the amount of unreimbursed payments made by NationsBank pursuant
to the Interim Note Guarantee.
"Interim Note Related Documents" means the Interim Note
Instrument and any documents relating to the Interim Note Guarantee.
"Interim Notes" means the Floating Rate Guaranteed Unlisted
Unsecured Loan Notes 2002 in the original principal amount of
approximately (pound)12,500,000 of which approximately
(pound)9,000,000 are outstanding issued pursuant to the Loan Note
Instrument the form of which is set forth in Schedule I to the Loan
Note Instrument.
"Interim Receivables" means Interim Receivables Corp., a
Delaware corporation.
"Inventory" means all inventory of whatever kind or nature of
a Person and wherever located, including, without limitation, all
goods held for sale or lease or furnished or to be furnished under
contracts, and any raw materials, work in process or finished goods,
and all goods and materials used or consumed in such Person's
business, including, without limitation, those goods identified as
equipment on operating leases, machine inventory and parts and
supplies inventory.
"Investment" means, relative to any Person,
(a) any loan or advance made by such Person to any other
Person (excluding commission, travel and similar advances to officers
and employees made in the ordinary course of business);
(b) any Contingent Obligation of such Person; and
(c) any ownership or similar interest held by such Person in
any other Person.
The amount of any Investment shall be the original principal or
capital amount thereof less all returns of principal or equity thereon
(and without adjustment by reason of the financial condition of such
other Person) and shall, if made by the transfer or exchange of
property other than cash, be deemed to have been made in an original
principal or capital amount equal to the fair market value of such
property.
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"Invitation for Competitive Bids" means a solicitation for
Competitive Bids, substantially in the form of Exhibit E.
"Irrevocable Notice of Syndicated Activity" means a notice in
substantially the form of Exhibit F.
"IRS" means the Internal Revenue Service, and any
Governmental Authority succeeding to any of its principal functions
under the Code.
"Issuance Date" has the meaning specified in Section 3.1(a).
"Issue" means, with respect to any Letter of Credit, to issue
or to extend the expiry of, or to renew or increase the amount of,
such Letter of Credit; and the terms "Issued," "Issuing" and
"Issuance" have corresponding meanings.
"Issuing Bank" means NationsBank, and in the case of the
Existing Letters of Credit, First Chicago, Comerica Bank, and
SunTrust, or, upon the request of the Companies with the consent of
the Agent, another Bank, in its capacity as issuer of one or more
Letters of Credit hereunder, together with any successor letter of
credit issuer arising under Section 11.1(b) or Section 11.9.
"Judgment Currency" has the meaning specified in Section
12.19.
"L/C Advance" means each Bank's participation in any L/C
Borrowing in accordance with its Pro Rata Share.
"L/C Amendment Application" means an application form for
amendment of outstanding Letters of Credit as shall at any time be in
use at the Issuing Bank, as the Issuing Bank shall request.
"L/C Application" means an application for Issuances of
standby or commercial documentary letters of credit in such form as
shall at any time be in use at the Issuing Bank, shall be consistent
with the terms of this Credit Agreement and shall be agreed to by the
Company applying for the applicable Letter of Credit.
"L/C Borrowing" means an extension of credit resulting from a
drawing under any Letter of Credit which shall not have been
reimbursed on the date when made or converted into an appropriate
Borrowing.
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"L/C Commitment" means the commitment of the Issuing Bank to
Issue, and the commitment of the Banks severally to participate in,
Letters of Credit from time to time Issued or outstanding under
Article III, in an aggregate amount not to exceed on any date in the
case of Letters of Credit the amount of $75,000,000, as the same shall
be reduced as a result of a reduction in the L/C Commitment pursuant
to Section 2.8; provided that the L/C Commitment is a part of the
combined Revolving Commitments, rather than a separate, independent
commitment and shall not at any time exceed the combined Revolving
Commitments.
"L/C Obligations" means at any time the sum of (a) the
aggregate undrawn amount of all Letters of Credit then outstanding,
plus (b) the amount of all unreimbursed drawings under all Letters of
Credit, including all outstanding L/C Borrowings.
"L/C-Related Documents" means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document
relating to any Letter of Credit, including any of the Issuing Bank's
standard form documents for letter of credit issuances.
"Lending Office" means, as to any Bank, the office or offices
of such Bank specified as its "Lending Office", "Domestic Lending
Office", "Offshore Lending Office" or "Offshore Currency Lending
Office", as the case may be, on Schedule 12.2, or such other office or
offices as such Bank may from time to time notify the Companies and
the Agent.
"Letters of Credit" means any standby letter of credit issued
by the Issuing Bank pursuant to Section 3.1(a) and the Existing
Letters of Credit.
"Lien" means any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preferential arrangement of
any kind or nature whatsoever in respect of any property (including
those created by, arising under or evidenced by any conditional sale
or other title retention agreement), the interest of a lessor under a
capital lease, or any financing lease having substantially the same
economic effect as any of the foregoing, or the filing of any
financing statement naming the owner of the asset to which such lien
relates as debtor, under the Uniform Commercial Code or any comparable
law and any contingent or other agreement to provide any of the
foregoing, but not including the interest of a lessor under an
operating lease.
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"Loan" means an extension of credit to a Company under
Article II, Article III or Article IV, and may be a Revolving Loan,
Swing Line Loan, Bid Loan, 364 Day Loan, L/C Advance or Interim Note
Advance and, if the Companies so elect pursuant to Section 2.21(f), a
Term Loan.
"Loan Documents" means this Agreement, any Notes, the Support
Documents, the Fee Letters, the L/C-Related Documents, and all other
documents delivered to the Agent or any Bank in connection with the
transactions contemplated by this Agreement.
"Margin Stock" means "margin stock" as such term is defined
in Regulation T, U or X of the FRB.
"Material Adverse Effect" means (a) a material adverse change
in, or a material adverse effect upon, the operations, business,
properties, condition (financial or otherwise) or prospects of Interim
and its Subsidiaries taken as a whole, (b) a material impairment of
the ability of any Company or any Subsidiary to perform under any Loan
Document or to avoid or cure, as applicable, any Event of Default, or
(c) a material adverse effect upon the legality, validity, binding
effect or enforceability against any Company or any Subsidiary of any
Loan Document.
"Merger Agreement" means the Agreement and Plan of Merger
dated as of March 24, 1999 among Xxxxxxx, Interim Merger Corporation
and Interim.
"Xxxxxxx Page" means Xxxxxxx Page Group PLC (formerly known
as Interim Services (UK) PLC), a public liability company incorporated
in England and Wales (Registered Number 3310225) and wholly-owned
Subsidiary of Interim (Europe) and which entity is a Borrowing
Subsidiary.
"Minimum Tranche" means in respect of Loans comprising part
of the same Borrowing, or to be converted or continued under Section
2.4, (a) in the case of Base Rate Loans and Offshore Rate Loans in
Dollars, $10,000,000 or any multiple of $1,000,000 in excess thereof,
or (as to Revolving Borrowings and 364 Day Borrowings) the aggregate
amount of the then unused Revolving Commitments and 364 Day
Commitments, and (b) in the case of Offshore Currency Loans, a
multiple of 100,000 units of the Applicable Currency in excess of the
Dollar Equivalent Amount (calculated by the Agent as of the date of
receipt of the relevant Irrevocable Notice of Committed Activity) of
$10,000,000 or (as to Revolving Commitments and 364 Day Commitments)
the aggregate amount of the then unused Revolving Commitments.
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"Multiemployer Plan" means a "multiemployer plan", within the
meaning of Section 4001 (a) (3) of ERISA, to which any Company or any
ERISA Affiliate makes, is making, or is obligated to make
contributions or, during the preceding three calendar years, has made,
or been obligated to make, contributions.
"NationsBank" means NationsBank, N.A., a national banking
association.
"Net Issuance Proceeds" means with respect to the issuance
and sale of any Indebtedness (including the consummation of any
Permitted Receivables Securitization) of Interim or any Subsidiary,
the principal amount of such Indebtedness, less any costs of issuance
and any original issue discount.
"Non-Consenting Bank" has the meaning specified in Section
2.21(a).
"Xxxxxxx" means Xxxxxxx Corporation, a Georgia corporation.
"Xxxxxxx Indebtedness" means Indebtedness of Xxxxxxx
described in Schedule 1.2(c) hereto.
"Notes" means the Revolving Loan Notes, 364 Day Notes, Swing
Line Note and the Bid Loan Notes.
"Obligations" means, collectively, all advances, debts,
liabilities, obligations, covenants and duties arising under any Loan
Document and the Interim Note Obligations owing by any Company to any
Bank, any Designated Bidder, the Agent, or any Indemnified Person, or
arising under any Swap Contract between any Company and any Bank or
the Agent, in any case, whether direct or indirect (including those
acquired by assignment), absolute or contingent, due or to become due,
now existing or hereafter arising.
"Offshore Currency" means British pounds sterling, Euros and
Australian dollars at any time, and with the consent of all the Banks
such other currency that is at such time freely traded in offshore
interbank foreign exchange markets and is freely transferable and
freely convertible into Dollars and such currency is readily available
to the Banks and is an Alternate Currency.
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"Offshore Currency Lending Office" means the office of a Bank
from which Offshore Currency Loans are to be made as set forth in
Schedule 12.2.
"Offshore Currency Loan" means any Offshore Rate Loan
denominated in an Offshore Currency.
"Offshore Rate" means, for any Interest Period, with respect
to Offshore Rate Loans comprising part of the same Borrowing, the rate
of interest per annum (rounded upward to the next 1/100th of 1%)
determined by the Agent as follows:
IBOR
------------------------------------
Offshore Rate = 1 - Eurocurrency Reserve Percentage
The Offshore Rate shall be adjusted automatically as to all
Offshore Rate Loans then outstanding as of the effective date
of any change in the Eurocurrency Reserve Percentage.
"Eurocurrency Reserve Percentage" means for any day for any
Interest Period the maximum reserve percentage (expressed as
a decimal, rounded upward to the next 1/100th of 1%) in
effect on such day (whether or not applicable to any Bank)
under regulations issued from time to time by the FRB for
determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"); and
"IBOR" means, with respect to any Offshore Rate Loan, for the
Interest Period applicable thereto, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Dow Xxxxx Telerate Page 3750 (or any successor
page) as the London interbank offered rate for deposits in
Dollars or such other applicable page in the case of an
Alternate Currency at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "IBOR" shall
mean, for any Offshore Rate Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO
Page as the London interbank offered rate for deposits in
Dollars or the Alternate Currency, as the case may be, at
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approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period for a term
comparable to such Interest Period; provided, however, if
more than one rate is specified on Reuters Screen LIBO Page,
the applicable rate shall be the arithmetic mean of all such
rates (rounded upwards, if necessary, to the nearest 1/100th
of 1%)
"Offshore Rate Loan" means a Syndicated Loan that bears
interest based on the Offshore Rate.
"Organization Documents" means, for any corporation, the
certificate or articles of incorporation, memorandum of association,
articles of association, the bylaws, or other similar organizational
documents, any certificate of determination or instrument relating to
the rights of preferred shareholders of such corporation, any
shareholder rights agreement, and all applicable resolutions of the
board of directors (or any committee thereof) of such corporation
adopting, supplementing or modifying any of the foregoing and, for any
entity other than a corporation, the equivalent of the foregoing,
including the partnership agreement (or comparable agreement) of any
partnership.
"Original Currency" has the meaning specified in Section
12.19.
"Other Taxes" has the meaning specified in Section 5.6(b).
"Overnight Rate" means, for any day, the rate of interest per
annum at which overnight deposits in the Applicable Currency, in an
amount approximately equal to the amount with respect to which such
rate is being determined, would be offered for such day by NationsBank
to major banks in the London interbank market.
"Participant" has the meaning specified in Section 12.8(d).
"Payroll Account" means a bank account maintained by Interim
or any Subsidiary solely for the purpose of paying salary, bonuses and
similar items to employees.
"PBGC" means the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
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"Pension Plan" means a pension plan (as defined in Section
3(2) of ERISA) subject to Title IV of ERISA which any Company sponsors
or maintains, or to which it makes, is making, or is obligated to make
contributions, or in the case of a multiple employer plan (as
described in Section 4064(a) of ERISA) has made contributions at any
time during the immediately preceding five plan years.
"Permitted Receivables Securitization" means limited recourse
or nonrecourse sales and assignments of accounts receivable of Interim
or its Subsidiaries to one or more special purpose entities, in
connection with the issuance of obligations by such special purpose
entities secured by such accounts, the proceeds of the issuance of
which obligations shall be made available to Interim or its
Subsidiaries at such rates of advance, and the obligations issued by
such special purpose entities shall be in such amount or amounts, bear
such rate or rates of interest, and be subject to such customary terms
and conditions, all as shall be reasonably acceptable to the Required
Banks; provided, however, that the maximum principal amount which may
be advanced at any time pursuant to the Permitted Receivables
Securitization shall not exceed $250,000,000; provided, further, the
receivables securitization, the terms of which are described on
Schedule 1.2(d), is deemed acceptable to all Banks by reason of their
execution of this Agreement.
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section
3(3) of ERISA) which a Company sponsors or maintains or to which a
Company makes, is making, or is obligated to make contributions and
includes any Pension Plan, other than a Plan maintained outside the
United States primarily for the benefit of persons who are not U.S.
residents.
"Pledge Agreements" means, collectively, the pledge
agreements of certain Companies and Guarantors, which Companies and
Guarantors as of the Closing Date are described in Schedule II, in
form reasonably satisfactory to the Agent and the Banks pursuant to
which there is pledged to the Agent for the benefit of the Banks the
ownership interest in those Subsidiaries described in Schedule II, and
such other Subsidiaries as may be required by Section 8.7.
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"Pro Forma Historical Statements" means the pro forma
consolidated financial statements (including balance sheets and
earnings statement) of Interim and its Subsidiaries and Xxxxxxx and
its Subsidiaries for the period ended March 26, 1999 in the case of
Interim and May 2, 1999 in the case of Xxxxxxx, giving historical pro
forma effect to the acquisition of Xxxxxxx and its Subsidiaries.
"Pro Forma Projections" means the pro forma consolidated
financial statement projections of Interim and its Subsidiaries for
each of the fiscal years ending 1999 through 2003, giving effect to
the acquisition of Xxxxxxx and its Subsidiaries, in form and detail
satisfactory to the Agent.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, and whether tangible or
intangible.
"Pro Rata Share" means, as to any Bank at any time, the
percentage equivalent (expressed as a decimal, rounded to the ninth
decimal place) at such time of such Bank's Commitment divided by the
combined Commitments of all Banks.
"Reduction Date" has the meaning specified in Section 2.9(d).
"Registration Statement" means the Registration Statement No.
333-79191 on Form S-4 filed by Interim with the Securities and
Exchange Commission on May 24, 1999, as amended.
"Replacement Bank Date" has the meaning specified in Section
2.21(c).
"Reportable Event" means any of the events set forth in
Section 4043(c) of ERISA or the regulations thereunder, other than any
such event for which the 30-day notice requirement under ERISA has
been waived in regulations issued by the PBGC.
"Required Banks" means at any time Banks holding at least 51%
of the Commitments without giving effect to the termination of any
Commitments as a result of an Event of Default.
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or final,
nonappealable determination of an arbitrator or of a Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
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"Responsible Officer" means the Chief Executive Officer, the
Chief Financial Officer, the Treasurer, or an Assistant Treasurer of
Interim or the same individuals holding the same or equivalent office
with any other Company or Subsidiary.
"Revolving Borrowing" means a Borrowing hereunder consisting
of Revolving Loans made on the same day by the Banks ratably according
to their respective Pro Rata Shares and, in the case of Offshore Rate
Loans, having the same Interest Periods.
"Revolving Commitment", as to each Bank, has the meaning
specified in Section 2.1(a).
"Revolving Loan" has the meaning specified in Section 2.1(a)
and may be an Offshore Rate Loan or a Base Rate Loan (each, a "Type"
of Revolving Loan).
"Revolving Loan Note" means a note substantially in the form
of Exhibit G and delivered to a Bank pursuant to Section 2.2.
"Revolving Loan Outstandings" means the sum of outstanding
principal amounts of Revolving Loans, Bid Loans, L/C Obligations,
Interim Note Obligations and Swing Line Outstandings.
"Same Day Funds" means (i) with respect to disbursements and
payments in Dollars, immediately available funds, and (ii) with
respect to disbursements and payments in an Offshore Currency, same
day or other funds as may be determined by the Agent to be customary
in the place of disbursement or payment for the settlement of
international banking transactions in the relevant Offshore Currency.
"Spectrum" means Spectrum Insurance Company, Ltd., a Cayman
Islands corporation.
"Spot Rate" for a currency means the rate quoted (expressed
as a decimal, rounded to the fourth decimal place) to the Agent as the
spot rate for the purchase of such currency with another currency
through the FX Trading Office at approximately 11:00 a.m. (Charlotte
time) on the date two Business Days prior to the date as of which the
foreign exchange settlement is made.
"Stock Consideration" means, with respect to an Acquisition,
the Fair Market Value of all capital stock or other ownership
interests of Interim or any Subsidiary issued or given in connection
with such Acquisition.
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"Subordinated Indebtedness" means collectively Indebtedness
of a Company subordinated to the Obligations in form and substance
(including terms and conditions) satisfactory to the Required Banks.
"Subsidiary" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other
business entity of which more than 50% of the voting stock, membership
interests or other equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by such
Person, or one or more of the Subsidiaries of such Person, or a
combination thereof. Unless the context otherwise clearly requires,
references herein to a "Subsidiary" refer to a Subsidiary of Interim.
"Support Documents" means, collectively, (i) the Cash Account
Agreement, Guaranties and Pledge Agreements and all other cash
collateralization agreements, guaranties and pledges, and other
instruments or agreements in favor of the Banks or the Agent for the
benefit of the Banks now or hereafter delivered by the applicable
Company, Guarantor or other Subsidiary to the Banks or the Agent
pursuant to or in connection with the transactions contemplated
hereby, and all documents now or hereafter filed under applicable law
by the applicable Company, Guarantor or other Subsidiary in favor of
the Banks or the Agent for the benefit of the Banks as secured party,
and (ii) any amendments, supplements, modifications, renewals,
replacements, consolidations, substitutions and extensions of any of
the foregoing.
"Swap Contract" means any agreement, whether or not in
writing, relating to any transaction that is a rate swap, basis swap,
forward rate transaction, commodity swap, commodity option, equity or
equity index swap or option, bond, note or xxxx option, interest rate
option, forward foreign exchange transaction, cap, collar or floor
transaction, currency swap, cross-currency rate swap, swaption,
currency option or any other, similar transaction (including any
option to enter into any of the foregoing) or any combination of the
foregoing, and, unless the context otherwise clearly requires, any
master agreement relating to or governing any or all of the foregoing.
"Swap Termination Value" means, in respect of any one or more
Swap Contracts, after taking into account the effect of any legally
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enforceable netting agreement relating to such Swap Contracts, (a) for
any date on or after the date such Swap Contracts have been closed out
and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date
referenced in clause (a) the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined by the
applicable Company based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap
Contracts (which may include any Bank).
"Swing Line" means the revolving line of credit established
by NationsBank in favor of the Companies pursuant to Section 2.19.
"Swing Line Borrowing" means a Borrowing under the Swing
Line.
"Swing Line Borrowing Notice" means a notice substantially in
the form of Exhibit L.
"Swing Line Loans" means loans made by NationsBank to the
Companies pursuant to Section 2.19.
"Swing Line Note" means the promissory note of the Companies
evidencing Swing Line Loans executed and delivered to NationsBank as
provided in Section 2.19 substantially in the form of Exhibit H.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal amount of all Swing Line Loans
then outstanding.
"Swing Line Participation" means, with respect to any Bank
(other than NationsBank) and a Swing Line Loan, the extension of
credit represented by the participation of such Bank in the liability
owed to NationsBank in respect of such Swing Line Loan.
"Syndicated Borrowing" means either or both a Revolving
Borrowing or a 364 Day Borrowing.
"Syndicated Loan" means either or both a Revolving Loan or a
364 Day Loan.
"Taxes" has the meaning specified in Section 5.6(a).
"Term Loan" has the meaning specified in Section 2.21.
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"364 Day Borrowing" means a Borrowing hereunder consisting of
364 Day Loans made on the same day by the Banks ratably according to
their respective Pro Rata Shares and, in the case of Offshore Rate
Loans, having the same Interest Periods.
"364 Day Commitment", as to each Bank, has the meaning
specified in Section 2.1(b).
"364 Day Extension Date" means June 29, 2000 and each date
thereafter, if any, to which the 364 Day Termination Date has been
extended pursuant to Section 2.21, but in no event later than the
Termination Date.
"364 Day Loan" has the meaning specified in Section 2.1(b)
and may be an Offshore Rate Loan or a Base Rate Loan (each, a "Type"
of 364 Day Loan).
"364 Day Loan Outstandings" means the sum of the outstanding
principal amount of 364 Day Loans.
"364 Day Note" means a note substantially in the form of
Exhibit I and delivered to each Bank pursuant to Section 2.2.
"364 Day Termination Date" means the earlier of (i) the 364
Day Extension Date or (ii) the date of termination of Banks'
obligations pursuant to Section 10.1 upon the occurrence of an Event
of Default, or (iii) such date as the Companies may voluntarily
permanently terminate the 364 Day Commitments by permanent payment in
full of all 364 Day Loan Outstandings, or (iv) the occurrence of the
Termination Date.
"Termination Date" means the earlier to occur of:
(a) June 30, 2004, and
(b) (i) in the case of Revolving Loans, Bid Loans, Swing Line
Loans, Interim Note Guarantee and Letters of Credit, the date on which
the Revolving Commitments terminate and all the monetary Obligations
(and obligations in the nature of continuing indemnities or for fees
and disbursements of third parties not yet invoiced to an obligor),
have been paid in full in accordance with the provisions of this
Agreement; and
(ii) in the case of 364 Day Loans, the 364 Day
Termination Date; and
(c) the occurrence of a Default or an Event of Default.
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"Total Indebtedness" means, at any time, all Indebtedness of
Interim and its Subsidiaries on a consolidated basis at such time.
"Total Offshore Currency Sublimit" means, with respect to the
principal amount of Loans outstanding in Offshore Currencies, the
Dollar Equivalent Amount of $350,000,000.
"Type" has the meaning specified in the definition of
"Revolving Loan" and "364 Day Loan".
"Unfunded Pension Liability" means the excess of a Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the
current value of that Plan's assets, determined in accordance with the
assumptions used for funding that Plan pursuant to Section 412 of the
Code for the applicable plan year.
"United States" and "U.S." each means the United States of
America.
"Valuation Date" has the meaning specified in Section 2.5(a).
"Year 2000 Compliant" means all computer applications
(including those affected by information received from its suppliers
and vendors) that are material to Interim's or any of its
Subsidiaries' business and operations will on a timely basis be able
to perform properly date-sensitive functions involving all dates on
and after January 1, 2000;
"Year 2000 Problem" means the risk that computer applications
used by Interim or any of its Subsidiaries (including those affected
by information received from its suppliers and vendors) may be unable
to recognize and perform properly date-sensitive functions involving
certain dates on and after January 1, 2000.
1.3 Other Interpretive Provisions.
(1) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(2) The words "hereof", "herein", "hereunder" and similar words refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
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(3) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(1) The term "including" is not limiting and means "including without
limitation."
(2) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including";
the words "to" and "until" each mean "to but excluding", and the
word "through" means "to and including."
(3) The term "property" means Property.
(4) The term "Charlotte time" means the time of day as of any
determination thereof in Charlotte, North Carolina.
(5) Whenever interest rates or fees are established in whole or in
part by reference to a numerical percentage expressed as "___%,"
such arithmetic expression shall be interpreted in accordance with
the convention that 1% = 100 basis points.
(4) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall
be deemed to include all subsequent amendments and other modifications thereto,
but only to the extent such amendments and other modifications are not
prohibited by the terms of any Loan Document, and
(1) references to any statute or regulation are to be construed as
including all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting the statute or
regulation.
(5) The captions and headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of this Agreement.
(6) Each of the parties to the Loan Documents and their counsel have
reviewed and revised, or requested (or had the opportunity to request)
revisions to, the Loan Documents, and any rule of construction that ambiguities
are to be resolved against the drafting party shall be inapplicable in the
construing and interpretation of the Loan Documents and all exhibits, schedules
and appendices thereto.
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1.4 Accounting Principles.
(1) Unless the context otherwise clearly requires, all accounting
terms not expressly defined herein shall be construed, and all financial
computations required under this Agreement shall be made, in accordance with
GAAP, consistently applied as utilized by the Companies. If any change after
the Closing Date in GAAP as in effect on the Closing Date shall result in a
change in any calculation required to determine compliance with any provision
contained in this Agreement, the Companies and the Required Banks will
negotiate in good faith to amend such provision in a manner to reflect such
change such that the determination of compliance with such provision shall
yield the same substantive result as would have obtained prior to such change
in GAAP. Until such an amendment is entered into, covenants shall be calculated
in accordance with GAAP as in effect immediately preceding such change.
(2) References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of the Companies.
1.5 Currency Equivalents Generally. For all purposes of this Agreement
(but not for purposes of the preparation of any financial statements delivered
pursuant hereto), the equivalent in any Offshore Currency or other currency of
an amount in Dollars, and the equivalent in Dollars of an amount in any
Offshore Currency or other currency, shall be determined as set forth in the
definition of Dollar Equivalent Amount.
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ARTICLE 2
THE CREDITS
2.1 Amounts and Terms of Commitments; Joint and Several Liability.
(1) Each Bank severally agrees, on the terms and conditions set forth
herein, to make loans in Applicable Currencies to the Companies (each such
loan, a "Revolving Loan") from time to time on any Business Day during the
period from the Effective Date to the Termination Date (or such earlier date as
the Revolving Commitments of all Banks shall terminate in accordance with the
terms hereof), in an aggregate Dollar Equivalent Amount of principal not to
exceed at any time outstanding the amount set forth on Schedule 2.1 under the
heading "Revolving Commitment" (such amount as the same may be reduced under
Section 2.8 or 2.9(d) or (f) or changed as a result of one or more assignments
under Section 12.8, such Bank's "Revolving Commitment"); provided, however,
that, after giving effect to any Revolving Borrowings and all L/C Obligations,
Interim Note Obligations, Bid Borrowings and Swing Line Outstandings, the
aggregate Dollar Equivalent Amount of the principal of all Revolving Loan
Outstandings as determined pursuant to Section 2.5 shall not at any time exceed
the combined Revolving Commitments. Each Revolving Loan will be made to one of
the Companies. Within the limits of each Bank's Revolving Commitment, and
subject to the other terms and conditions hereof, the Companies may borrow
under this Section 2.1(a), prepay under Section 2.9 and Section 2.11 and
reborrow under this Section 2.1 (a). Such Revolving Loans may be Offshore Rate
Loans or Base Rate Loans, except that all Base Rate Loans shall be in Dollars
and, after giving effect to all Revolving Loan Outstandings in Offshore
Currencies, subject to Section 2.11(b) ,the Dollar Equivalent Amount of all
Revolving Loan Outstandings in Offshore Currencies shall not exceed the Total
Offshore Currency Sublimit.
(2) Each Bank severally agrees, on the terms and conditions set forth
herein, to make loans in Dollars to the Companies (each such loan, a "364 Day
Loan") from time to time on any Business Day during the period from the
Effective Date to the 364 Day Termination Date, in an aggregate principal
amount not to exceed at any time outstanding the amount set forth on Schedule
2.1 under the heading "364 Day Commitment") (such amount as the same may be
reduced under Section 2.8 or 2.9 or changed as a result of one or more
assignments under Section 12.8, such Bank's "364 Day Commitment") provided,
however, that, after giving effect to any 364 Day Borrowings, the aggregate
principal of all 364 Day Loan Outstandings shall not at any time exceed the
combined 364 Day Commitments. Each 364 Day Loan will be made to one of the
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Companies. Within the limits of each Bank's 364 Day Commitment, and subject to
the other terms and conditions hereof, the Companies may borrow under this
Section 2.1(b), prepay under Section 2.9 and reborrow under this Section
2.1(b). Such 364 Day Loans may be Offshore Rate Loans or Base Rate Loans,
except that all 364 Day Loans shall be in Dollars.
(c) Notwithstanding anything contained in this Section 2.1 to the
contrary, unless all the Banks shall agree otherwise pursuant to Section
2.5(b), all Loans under Section 2.1(a) shall be in Dollars or an Offshore
Currency. The Loan to Xxxxxxx Page existing on the Effective Date in pounds
sterling (as an Offshore Currency) in a Dollar Equivalent Amount of
$254,362,500.00 (such Loan, together with any outstanding amount thereof,
including continuations pursuant to Section 2.4, herein called the "Xxxxxxx
Page Pound Loan") shall continue to be denominated in British pounds sterling.
All payments of the principal amount of the Xxxxxxx Page Pound Loan shall be in
pounds sterling. All Loans under Section 2.1(b) shall be in Dollars.
(d) Notwithstanding any other provision of this Agreement, each
Company shall be jointly and severally liable as primary obligor and not merely
as surety for repayment of all Obligations arising under the Loan Documents.
Such joint and several liability shall apply to each Company regardless of
whether (i) any Loan was only requested by or made to another Company or the
proceeds of any Loan were used only by another Company, (ii) any Letter of
Credit was Issued on the application of another Company, (iii) the Interim Note
Guarantee was entered into for the account of Xxxxxxx Page, (iv) any interest
rate election was made only by another Company, or (v) any indemnification
obligation or any other obligation arose only as a result of the actions of
another Company; provided the liability of each of the Companies other than
Interim under this Agreement, the Notes and the other Loan Documents shall be
limited to the maximum amount of the Obligations for which such other Company
may be liable without violating any applicable fraudulent conveyance,
fraudulent transfer or comparable laws. Each Company shall retain any right of
contribution arising under applicable law against the other Companies as the
result of the satisfaction of any Obligations; provided, no Company shall
assert such right of contribution against any other Company until the
Obligations shall have been paid in full. Notwithstanding anything herein to
the contrary, Xxxxxxx Page shall be liable hereunder only for Borrowings,
including Interim Note Borrowings and L/C Borrowings, made by it or on its
behalf hereunder together with interest relating thereto and fees and expenses
arising hereunder
Without limiting the foregoing provisions of this Section 2.1(d), each
of the Companies other than Xxxxxxx Page hereby irrevocably, absolutely and
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unconditionally guarantees the full and punctual payment or performance when
due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, of all Obligations of each other Company,
whether owing to the Agent or any Bank. This guarantee constitutes a guaranty
of payment and not of collection. The liability of each of the Companies other
than Interim under the immediately preceding two sentences shall be limited to
the maximum amount for which such other Company may be liable without violating
any applicable fraudulent conveyance, fraudulent transfer or comparable laws.
It is the intention of the parties that with respect to each Company
its obligations hereunder and under the other Loan Documents shall be absolute,
unconditional and irrevocable irrespective of:
(1) any lack of validity, legality or enforceability of this
Agreement, any Note, any other Loan Document as to any other
Company or the Interim Note Instrument.
(2) the failure of the Agent or any Bank
(1) to enforce any right or remedy against any other Company
or any other Person under the provisions of this Agreement, any
Note, any other Loan Document or otherwise, or
(2) to exercise any right or remedy against any guarantor of,
or collateral securing, any Obligations;
(3) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other
extension, compromise or renewal of any Obligations;
(4) any reduction, limitation, impairment or termination of any
Obligations with respect to any other Company or any other Person
for any reason including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to (and each
Company hereby waives any right to or claim of) any defense or
setoff, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality, nongenuineness,
irregularity, compromise or unenforceability of, or any other
event or occurrence affecting, any Obligations with respect to any
other Company;
(5) any addition, exchange, release, surrender or nonperfection of any
collateral, or any amendment to or waiver or release or addition
of, or consent to departure from, any guaranty, held by the Agent,
any Bank or any holder of any Note securing any of the
Obligations; or
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(6) any other circumstance which might otherwise constitute a defense
available to, or a legal or equitable discharge of, any other
Company, any surety or any guarantor.
Each Company agrees that its joint and several liability hereunder
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the Obligations is rescinded
or must be restored by the Agent, any Bank or any holder of any Note, upon the
insolvency, bankruptcy or reorganization of any Company as though such payment
had not been made.
Each Company hereby expressly waives: (a) notice of the Banks'
acceptance of this Agreement; (b) notice of the existence or creation or
non-payment of all or any of the Obligations; (c) presentment, demand, notice
of dishonor, protest, and all other notices whatsoever other than notices
expressly provided for in this Agreement and (d) all diligence in collection or
protection of or realization upon the Obligations or any thereof, any
obligation hereunder, or any security for or guaranty of any of the foregoing.
No delay on any of the Banks' or the Agent's part in the exercise of
any right or remedy shall operate as a waiver thereof, and no single or partial
exercise by any of the Banks or the Agent of any right or remedy shall preclude
any other or further exercise thereof or the exercise of any other right or
remedy. No action of the Agent or any of the Banks permitted hereunder shall in
any way affect or impair any of their rights or any of their obligations to any
of the Companies under this Agreement.
2.2 Loan Accounts.
(1) The Loans made by each Bank (including NationsBank as provider of
the Swing Line) or Designated Bidder, the Letters of Credit Issued by the
Issuing Bank and the Interim Note Guarantee made by NationsBank shall be
evidenced by one or more loan accounts or records maintained by such Bank,
Designated Bidder, Issuing Bank or NationsBank, as the case may be, in the
ordinary course of business. The loan accounts or records maintained by the
Agent, the Issuing Bank, each Bank or Designated Bidder or NationsBank shall be
prima facie evidence of the amount of the Loans made by the Banks and
Designated Bidders to the Companies and the interest and payments thereon. Any
failure to record or any error in doing so shall not, however, limit, expand or
otherwise affect the obligations of the Companies hereunder.
(2) Upon the request of any Bank or Designated Bidder made through the
Agent, the Loans made by such Bank may be evidenced by one or more Notes, in
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addition to loan accounts. Each such Bank or Designated Bidder may, at its
option, endorse on the schedules annexed to its Note(s) the date, amount and
maturity of each Loan made by it and the amount of each payment of principal
made by a Company with respect thereto. Each such Bank and Designated Bidder is
irrevocably authorized by each Company to endorse its Note(s) and each Bank's
or Designated Bidder's record shall be prima facie evidence; provided, however,
that the failure of a Bank or Designated Bidder to make, or an error in making,
a notation thereon with respect to any Loan shall not limit, expand or
otherwise affect the obligations of any Company hereunder or under any such
Note to such Bank or Designated Bidder.
2.3 Procedure for Syndicated Borrowing.
(1) Each Syndicated Borrowing shall be made upon the borrowing
Company's irrevocable written notice delivered to the Agent in the form of an
Irrevocable Notice of Syndicated Activity (which notice must be received by the
Agent prior to 11:00 a.m. (Charlotte time) in the case of a Base Rate Loan and
12:00 noon (Charlotte time) in the case of Offshore Rate Loans) (i) three
Business Days prior to the requested Borrowing Date, in the case of Offshore
Rate Loans denominated in Dollars or Offshore Currency Loans; (ii) one Business
Day prior to the requested Borrowing Date in the case of a Base Rate Loan to a
Foreign Subsidiary; and (iii) on the same Business Day as a requested Borrowing
Date in the case of Base Rate Loans to other than a Foreign Subsidiary (with
settlement of Base Rate Loans to be made in the United States), specifying:
(1) the Company by which such Syndicated Borrowing is to be
made;
(2) whether such Syndicated Borrowing is a Revolving
Borrowing or 364 Day Borrowing;
(3) the amount of such Syndicated Borrowing, which shall be
in an aggregate amount not less than the applicable Minimum Tranche;
(4) the requested Borrowing Date, which shall be a Business
Day;
(5) in the case of a Syndicated Borrowing which is a
Revolving Borrowing comprised of Offshore Currency Loans if permitted
hereunder, the Applicable Currency; and
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(6) in the case of a Syndicated Borrowing comprised of
Offshore Rate Loans, the duration of the Interest Period applicable to
such Syndicated Borrowing included in such notice. If the Irrevocable
Notice of Syndicated Activity fails to specify the duration of the
Interest Period for any Syndicated Borrowing comprised of Offshore
Rate Loans, such Interest Period shall be one month.
(2) Upon receipt of an Irrevocable Notice of Syndicated Activity by
the Agent, the Agent shall determine the availability of the Commitments
hereunder as of the date of receipt by the Agent of such Irrevocable Notice of
Syndicated Activity. In the case of the Xxxxxxx Page Pound Loan or any other
Offshore Currency Loan, an indicative Dollar Equivalent Amount of any
Syndicated Borrowing in an Offshore Currency will be determined by the Agent
for the related Borrowing on the Valuation Date therefor in accordance with
Section 2.5(a). Upon receipt of such Irrevocable Notice of Syndicated Activity,
the Agent will promptly notify each Bank thereof at such Bank's respective
applicable Lending Office and of the amount of such Bank's Pro Rata Share of
such Borrowing. In the case of a Borrowing comprised of Offshore Currency
Loans, such notice will provide the amounts in the Applicable Currency of each
Bank's Pro Rata Share of such Borrowing, and the Agent will, on the Valuation
Date therefor, promptly notify each Bank of the Dollar Equivalent Amount of
such Bank's Pro Rata Share of such Borrowing. In the case of a Revolving
Borrowing comprised of Offshore Currency Loans, if the determination by the
Agent of the Dollar Equivalent Amount of such Revolving Borrowing as described
in the immediately preceding sentence shall result in the Dollar Equivalent
Amount of all Revolving Loan Outstandings plus the proposed Revolving Borrowing
being in excess of the combined Revolving Commitments, then such Borrowing
shall be reduced by the amount necessary to comply with Section 2.1(a)
regardless of the Minimum Tranche requirement. For purposes of the immediately
preceding sentences, the Agent shall value the Dollar Equivalent Amount of all
Loans, Letters of Credit and Interim Note Obligations other than the applicable
Borrowing as at the most recent Valuation Date for each Loan or Letter of
Credit.
(3) Each Bank will make the amount of its Pro Rata Share of each
Syndicated Borrowing available to the Agent for the account of the Company
specified in the Irrevocable Notice of Syndicated Activity at the Agent's
Payment Office on the Borrowing Date requested by the applicable Company in
Same Day Funds and in the requested currency (i) in the case of a Borrowing
comprised of Loans in Dollars, by 2:00 p.m. Charlotte time and (ii) in the case
of a Borrowing comprised of Offshore Currency Loans by such time as the Agent
may reasonably specify. The proceeds of all such Loans will then be made
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available to the Company specified in the Irrevocable Notice of Syndicated
Activity by the Agent in Same Day Funds by wire transfer in accordance with
written instructions provided to the Agent by such Company of like funds as
received by the Agent.
(4) After giving effect to any Syndicated Borrowing, unless the Agent
shall otherwise consent, there may not be more than ten (10) different Interest
Periods in effect in respect of all Syndicated Loans and Bid Loans together
then outstanding.
2.4 Conversion and Continuation Elections - Syndicated Loans.
(1) Each Company may, upon irrevocable written notice to the Agent in
accordance with Section 2.4(b) with respect to Syndicated Loans made to such
Company:
(1) elect, as of any Business Day, in the case of Base Rate Loans, or
as of the last day of the applicable Interest Period, in the case
of Offshore Rate Loans, to convert any such Loans (or any part
thereof in an amount not less than the Minimum Tranche) into
Syndicated Loans of any other Type; or
(2) elect, as of the last day of the applicable Interest Period, to
continue any Syndicated Loans having Interest Periods expiring on
such day (or any part thereof in an amount not less than the
Minimum Tranche);
provided that Syndicated Loans may not be converted into or continued as
Syndicated Loans in a different currency; and provided further, that if at any
time the aggregate amount of Offshore Rate Loans in respect of any Syndicated
Borrowing is reduced by payment, prepayment, or conversion of part thereof to
be less than $10,000,000, such Offshore Rate Loans, if in Dollars, shall
automatically convert into Base Rate Loans, and on and after such date the
right of such Company to continue such Syndicated Loans as, and convert such
Syndicated Loans into, Offshore Rate Loans shall terminate.
(2) Each Company shall deliver an Irrevocable Notice of Syndicated
Activity to be received by the Agent not later than 11:00 a.m. (Charlotte time)
in the case of Base Rate Loans and 12:00 noon (Charlotte time) in the case of
Offshore Rate Loans, with respect to Syndicated Loans made to such Company, (i)
at least three Business Days in advance of the Conversion/Continuation Date for
the conversion into or continuation of any Offshore Rate Loan; (ii) one
Business Day prior to the requested Borrowing Date in the case of a Base Rate
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Loan to a Foreign Subsidiary; and (iii) on the same Business Day as the
Conversion/Continuation Date for the conversion into or continuation of a Base
Rate Loan to other than a Foreign Subsidiary, specifying:
(1) the proposed Conversion/Continuation Date;
(2) the aggregate amount of Syndicated Loans to be converted
or continued; (1)
(3) whether such Syndicated Loans are Revolving Loans or 364
Day Loans;
(4) the Type of Syndicated Loans resulting from the proposed
conversion or continuation; and
(5) other than in the case of conversions into Base Rate
Loans, the duration of the requested Interest Period.
(3) If the Company that has borrowed Offshore Rate Loans in Dollars
has failed to select a new Interest Period to be applicable to such Offshore
Rate Loans in Dollars upon the expiration of any Interest Period applicable to
such Offshore Rate Loans in Dollars on or prior to the third Business Day in
advance of the expiration of the current Interest Period applicable thereto as
provided in Section 2.4(b), or if any Event of Default then exists, unless the
Required Banks otherwise agree, such Company shall be deemed to have elected to
convert such Offshore Rate Loans in Dollars into Base Rate Loans effective as
of the expiration date of such Interest Period. If the Company to whom any
Offshore Rate Loans in currencies other than Dollars were made has failed to
select a new Interest Period to be applicable to such Offshore Currency Loans
on or prior to the third Business Day in advance of the expiration date of the
current Interest Period applicable thereto as provided in Section 2.4(b), such
Company shall be deemed to have elected to continue such Offshore Currency
Loans in the same currency on the basis of a one month Interest Period.
(4) Upon receipt of an Irrevocable Notice of Syndicated Activity under
Section 2.4(b), the Agent will promptly notify each Bank of its receipt of such
Irrevocable Notice of Syndicated Activity, or, if no notice is provided by the
applicable Company, the Agent will promptly notify each Bank of the details of
any automatic conversion. All conversions and continuations shall be made
ratably according to the respective outstanding principal amounts of the
Syndicated Loans with respect to which the notice was given held by each Bank.
(5) Unless the Required Banks otherwise consent, during the
continuance of a Default or an Event of Default, a Company may not elect to
have a Syndicated Loan converted into or continued as an Offshore Rate Loan.
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(6) After giving effect to any conversion or continuation of
Syndicated Loans, unless the Agent shall otherwise consent, there may not be
more than ten (10) different Interest Periods in effect for all Syndicated
Loans and Bid Loans.
2.5 Utilization of Revolving Commitments in Offshore Currencies. (a)
The Agent will determine the Dollar Equivalent Amount with respect to (i) any
Syndicated Borrowing comprised of Offshore Currency Loans, L/C Obligations or
Interim Note Obligations in Offshore Currencies as of a date two Business Days
prior to the requested Borrowing Date or Issuance Date, respectively, (ii) all
Interim Note Obligations and L/C Obligations in Offshore Currencies then
outstanding as at the last Business Day of each calendar quarter,
(iii)outstanding Offshore Currency Loans having an Interest Period greater than
three (3) months at least once in each three month period, and (iv) outstanding
Offshore Currency Loans as of any date of redenomination of a Loan in an
Applicable Currency into another Applicable Currency or Dollars pursuant to
Section 2.5(c) or Section 5.5 (each such date under clauses (i) through (iv) of
this Section 2.5 a "Valuation Date").
(1) The Companies shall be entitled to request with respect to any
given Revolving Loan hereunder that it be made in any Offshore Currency or
other lawful currency that is approved by all of the Banks and the Agent, and
that in the opinion of all of the Banks and the Agent is at such time freely
traded in the offshore interbank foreign exchange markets and is freely
transferable and freely convertible into Dollars (an "Alternate Currency").
Unless all of the Banks agree to fund the Loan in the requested Alternate
Currency, such Loan may be funded only in Dollars (each of the Banks agreeing
that the Interim Pound Loan to be continued on the Effective Date is funded in
pounds sterling). No Bank shall be under any obligation to fund any Loan or
Loans in any Alternate Currency, whether or not such Alternate Currency is
freely transferable and freely convertible into Dollars. Any agreement by the
Banks to fund a particular Loan or Loans in an Alternate Currency shall not
create any obligation on the part of any Bank to fund any subsequent Loan or
Loans in that or any other Alternate Currency. Each Company shall deliver to
the Agent any request for designation of an Alternate Currency in accordance
with Section 12.2, to be received by the Agent not later than 12:00 noon
(Charlotte time) at least two Business Days in advance of the date of any
Irrevocable Notice of Syndicated Activity hereunder proposed to be made in such
Alternate Currency. Upon receipt of any such request, the Agent will promptly
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notify the Banks thereof, and each Bank shall respond to such request within
one Business Day of receipt thereof. Each Bank may grant or accept such request
in its sole discretion. The Agent shall promptly notify the Companies of the
acceptance or rejection of any such request. The acceptance of any such request
may be conditioned, at the discretion of the Agent, upon such amendments to the
procedures for borrowing with respect to such Alternate Currency as the Agent
may require. If such request is accepted, then the Alternate Currency shall be
deemed to be an "Applicable Currency" for all purposes hereunder with respect
to the Loan for which such request was made.
(2) Notwithstanding anything herein to the contrary, during the
continuance of a Default or Event of Default, all or any part of any
outstanding Offshore Currency Loans shall be redenominated and converted into
Base Rate Loans in Dollars at the end of the existing Interest Period. The
Agent shall promptly notify each Company and each Bank of any such
redenomination and conversion.
2.6 Bid Borrowings. In addition to Syndicated Borrowings pursuant to
Section 2.3, each Bank severally agrees that the Companies may, as set forth in
Section 2.7, from time to time request the Banks prior to the Termination Date
to submit offers to make Bid Loans to the Companies; provided, however, that
the Banks may, but shall have no obligation to, submit such offers and the
Companies may, but shall have no obligation to, accept any such offers, and any
Bank may designate one Designated Bidder to make such offers from time to time
and, if such offers are accepted by the Companies, to make such Bid Loans; and
provided, further, that at no time shall (a) the outstanding aggregate
principal amount of all Bid Loans, plus the outstanding aggregate principal
amount of all Revolving Loans, plus the outstanding L/C Obligations, plus the
Swing Line Outstandings, plus the Interim Note Obligations exceed the combined
Revolving Commitments; or (b) the outstanding aggregate principal amount of all
Bid Loans exceed $525,000,000. All Bid Loans shall be in Dollars for settlement
in the United States. The Agent shall notify each Bank not less frequently than
quarterly of the amount of Bid Loans outstanding based on information provided
to it from the Agent.
2.7 Procedure for Bid Borrowings.
(1) When the Companies wish to request the Banks to submit offers to
make Bid Loans hereunder, they shall transmit to the Agent by telephone call
followed promptly by facsimile transmission a notice with a copy to the Agent
in substantially the form of Exhibit J (a "Competitive Bid Request") so as to
be received no later than 11:00 a.m. (Charlotte time) two Business Days prior
to the date of a proposed Bid Borrowing, specifying:
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(1) the date of such Bid Borrowing, which shall be a Business Day;
(2) the aggregate amount of such Bid Borrowing, which shall be a
minimum amount of $10,000,000 or in multiples of $1,000,000 in
excess thereof; and
(3) the duration of each Interest Period applicable thereto, subject
to the provisions of the definition of "Interest Period" herein.
The Companies may not request or invite Competitive Bids for more than
three Interest Periods in a single Competitive Bid Request and may not request
Competitive Bids more than twice in any period of five consecutive Business
Days.
(2) Upon receipt of a Competitive Bid Request, the Agent will
determine the availability of Bid Borrowings under Section 2.6 and the Agent
will promptly send to the Banks and Designated Bidders by facsimile
transmission an Invitation for Competitive Bids. Each Invitation for
Competitive Bids transmitted by the Agent shall constitute an invitation by the
Companies to each Bank and Designated Bidder to submit Competitive Bids
offering to make the Bid Loans to which such Competitive Bid Request relates in
accordance with this Section 2.7.
(3) (i) Each Bank and Designated Bidder may at its discretion submit a
Competitive Bid containing an offer or offers to make Bid Loans in response to
any Invitation for Competitive Bids. Each Competitive Bid must comply with the
requirements of this Section 2.7(c) and must be submitted to the Agent by
facsimile transmission not later than 10:00 a.m. (Charlotte time) on the
proposed Borrowing Date; provided that, Competitive Bids submitted by the Agent
(or any Affiliate of the Agent) in the capacity of a Bank or a Designated
Bidder must be submitted not later than 9:45 a.m. (Charlotte time) on the
proposed Borrowing Date, and the Agent shall notify the Company thereof
promptly.
(1) Each Competitive Bid shall be in substantially the form of Exhibit
K, specifying therein:
(1) the proposed Borrowing Date;
(2) the principal amount of each Bid Loan for which such
Competitive Bid is being made, which principal amount (x) may be equal
to or less than $525,000,000, (y) must be $5,000,000 or in multiples
of $1,000,000 in excess thereof, and (z) may not exceed the aggregate
principal amount of Bid Loans for which Competitive Bids were
requested;
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(3) the Interest Period;
(4) the rate of interest per annum (rounded upward to the
next 1/1000th of 1%) (the "Absolute Rate") offered for each Bid Loan;
and
(5) the identity of the quoting Bank or Designated Bidder.
A Competitive Bid may contain up to three separate offers by the
quoting Bank or Designated Bidder with respect to each Interest Period
specified in the related Invitation for Competitive Bids.
(2) Any Competitive Bid shall be disregarded if it:
(1) is not substantially in conformity with Exhibit K or does
not specify all of the information required by subsection (c)(ii) of
this Section;
(2) contains qualifying, conditional or similar language;
(3) proposes terms other than or in addition to those set
forth in the applicable Invitation for Competitive Bids; or
(4) arrives after the time set forth in Section 2.7(c)(i).
(3) Notwithstanding anything to the contrary contained in this Section
2.7(c), a Competitive Bid by a Bank may contain, and will not be
disregarded if it does contain, a restriction on the use of
proceeds thereof related to such Bank's subsidiary exercising
powers related to securities; provided that the Companies shall
disregard such Competitive Bid unless the Companies agree to be
bound by such restriction (which agreement shall be manifested by
accepting such Competitive Bid).
(4) Promptly on receipt, but not later than 10:30 a.m. (Charlotte
time) on the proposed Borrowing Date, the Agent shall notify the Companies of
the terms of any Competitive Bid submitted by a Bank or Designated Bidder that
is in accordance with Section 2.7(c) or, if no Competitive Bids have been
submitted, the absence of any Competitive Bids. Subject only to the provisions
of Section 6.3, any Competitive Bid shall be irrevocable.
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(5) Not later than 12:00 noon (Charlotte time) on the proposed
Borrowing Date, the Companies shall notify the Agent of their acceptance or
non-acceptance of the Competitive Bids of which they have received notice
pursuant to Section 2.7(d) or which have been sent to them pursuant to Section
2.7(c). The Companies shall be under no obligation to accept any Competitive
Bid and may choose to reject all or, subject to the remaining provisions of
this paragraph (e), one or more, Competitive Bids. In the case of acceptance,
such notice shall specify the Bid Loan lenders and their respective principal
amounts and the aggregate amount of Competitive Bids for each Interest Period
that are accepted. The Companies may accept any Competitive Bid in whole or in
part; provided that:
(1) the aggregate principal amount of each Bid Borrowing may not
exceed the applicable amount set forth in the related Competitive
Bid Request;
(2) the principal amount of each Bid Borrowing must be $1,000,000 or
in any multiple of $500,000 in excess thereof;
(3) acceptance of Competitive Bids may only be made on the basis of
ascending Absolute Rates within each Interest Period, as the case
may be; and
(4) the Companies may not accept any Competitive Bid that is described
in Section 2.7(c)(iii) (other than to the extent permitted
pursuant to Section 2.7(c)(iv)) or that otherwise fails to comply
with the requirements of this Agreement.
(6) If Competitive Bids are made by two or more Banks or Designated
Bidders with the same Absolute Rates for a greater aggregate principal amount
than the amount in respect of which such Competitive Bids are permitted to be
accepted for the related Interest Period, the principal amount of Bid Loans in
respect of which such Competitive Bids are accepted shall be allocated by the
Agent among such Banks or Designated Bidders in proportion to the aggregate
principal amounts of such Competitive Bids. Determination by the Agent of the
amounts of Bid Loans shall be conclusive in the absence of manifest error.
(g) (i) Agent will promptly notify each Bank or Designated Bidder
having submitted a Competitive Bid if its Competitive Bid has been
accepted or not and, if its offer has been accepted, of the amount of
the Bid Loan or Bid Loans to be made on the date of the Bid Borrowing
together with the Absolute Rate or Rates and the Interest Period or
the Interest Periods with respect thereto.
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(ii) Each Bank or Designated Bidder which has received notice
pursuant to Section 2.7(g)(i) that its Competitive Bid has been
accepted shall, subject to the satisfaction of all conditions
precedent, make the amounts of such Bid Loans available to the Agent
for the account of the Companies by 2:00 p.m. (Charlotte time) on the
Borrowing Date.
(iii) Promptly following each Bid Borrowing, the Agent shall
notify each Bank and each Designated Bidder, of the ranges of
Competitive Bids submitted and the highest and lowest Absolute Rates
accepted for each Interest Period requested by the Companies and the
aggregate amount borrowed pursuant to such Bid Borrowing.
(iv) From time to time, the Companies and the Banks and the
Designated Bidders shall furnish such information to the Agent as the
Agent may request relating to the making of Bid Loans, including the
amounts, Absolute Rates, Borrowing Dates and maturities thereof, for
purposes of the allocation of amounts received from the Companies for
payment of all amounts owing hereunder.
2.8 Voluntary Termination or Reduction of Commitments. The Companies,
acting jointly, may, upon not less than five Business Days' prior notice to the
Agent, permanently reduce or terminate the Revolving Commitments or 364 Day
Commitments, or both, by (a) an aggregate minimum Dollar Equivalent Amount of
$10,000,000 or any Dollar Equivalent Amount multiple of $1,000,000 in excess
thereof or (b) such other amount as represents the entire unused amount of
Revolving Commitments or 364 Day Commitments, or both; unless, after giving
effect thereto and to any prepayments of (i) Revolving Loans made on the
effective date thereof, (x) the Dollar Equivalent Amount of the principal
amount of the Revolving Loans, Bid Loans and Swing Line Outstandings, and the
Dollar Equivalent Amount of the L/C Obligations and Interim Note Obligations
then outstanding would exceed the amount of the combined Revolving Commitments
then in effect, or (y) the Dollar Equivalent Amount of the L/C Obligations then
outstanding would exceed the L/C Commitment or (ii) 364 Day Loans made on the
effective date thereof, the principal amount of 364 Day Loans Outstanding would
exceed the combined 364 Day Commitments. Once reduced in accordance with this
Section, neither the Revolving Commitments nor the 364 Day Commitments may be
increased. Any reduction of the Revolving Commitments or 364 Day Commitments
shall be applied to each Bank according to its Pro Rata Share. All accrued
commitment fees to, but not including, the effective date of any reduction or
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termination of Revolving Commitments or 364 Day Commitments, shall be paid on
the effective date of such reduction or termination. The Agent shall promptly
notify each Bank of the Agent's receipt of and the contents of any notice
received by it pursuant to this Section 2.8.
2.9 Optional Prepayments. (a) Subject to Section 5.5, each Company
may, at any time or from time to time, upon notice to the Agent, ratably prepay
Syndicated Loans, L/C Borrowings or Interim Note Borrowings in whole or in
part, in the Minimum Tranche (other than in the case of an L/C Borrowing or
Interim Note Borrowing where there shall be no minimum). The Company prepaying
such Loans shall deliver a notice of prepayment to be received by the Agent not
later than 11:00 a.m. (Charlotte time) (i) at least three Business Days in
advance of the prepayment date if the Syndicated Loans to be prepaid are
Offshore Rate Loans, (ii) at least one Business Day in advance of the
prepayment date if the Loans to be prepaid are Base Rate Loans, if settlement
is to be made outside the United States, and (iii) on the prepayment date if
the Syndicated Loans, L/C Borrowings or Interim Note Borrowings to be prepaid
are Base Rate Loans, if settlement is to be made in the United States. Such
notice of prepayment shall specify the date and amount of such prepayment and
the Type(s) of Syndicated Loans, L/C Borrowings or Interim Note Borrowings and
the Applicable Currency to be prepaid. Such notice shall not thereafter be
revocable by the Companies and the Agent will promptly notify each Bank of its
receipt of any such notice, and of such Bank's Pro Rata Share of such
prepayment. If such notice is given by a Company, such Company shall make such
prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein, together with accrued interest to each
such date on the amount prepaid and any amounts required pursuant to Section
5.5.
(b) Bid Loans may not be voluntarily prepaid, except with the consent
of the Bank holding the applicable Bid Loan and upon payment of any additional
costs associated with such prepayment, such costs to be determined by the Bank
making such Bid Loan.
(c) Any prepayment under this Section 2.9 shall be made together with
any amounts required to be paid in connection with such prepayment under
Section 5.5.
2.10 Use of Proceeds. The proceeds of Revolving Loans and 364 Day
Loans shall be used as follows: (i) up to $175,000,000 to purchase the voting
shares of Xxxxxxx, (ii) to repay the Xxxxxxx Indebtedness in full, (iii) to pay
expenses associated with the Acquisition of Xxxxxxx and (iv) the balance for
working capital and general corporate purposes, including the continuation of
Loans outstanding under the Original Agreement and Existing Letters of Credit,
and Acquisitions to the extent permitted herein.
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2.11 Currency Exchange Fluctuations. (a) If on any Valuation Date the
Agent shall have determined that the aggregate Dollar Equivalent Amount of the
principal amount of all Revolving Loan Outstandings exceeds the combined
Revolving Loan Commitments of the Banks, due to a change in applicable rates of
exchange between Dollars and Offshore Currencies, then the Agent shall give
notice to each Company and upon notice thereof by the Agent to each Company,
each Company agrees to make prepayments, on the Business Day after notice from
the Agent, of Revolving Loans (and if required under Section 3.7, Cash
Collateralize outstanding Letters of Credit and the Interim Note Guarantee)
such that, after giving effect to such prepayment or Cash Collateralization,
the aggregate Dollar Equivalent Amount of all Revolving Loan Outstandings (net
of any Cash Collateralization) does not exceed the combined Revolving
Commitments, it being understood that a prepayment in the amount by which the
Dollar Equivalent Amount of Revolving Loan Outstandings exceeds the combined
Revolving Commitments need not equal or exceed the Minimum Tranche. Any
prepayment under this Section shall be made together with any amounts required
pursuant to Section 5.5.
(b) Without limiting the foregoing provisions of this Section 2.11, in
the event that the Agent shall determine (in accordance with the valuation
procedures provided for in Section 2.5) at any time that the aggregate Dollar
Equivalent Amount of all Revolving Loan Outstandings in Offshore Currencies
shall exceed the Total Offshore Currency Sublimit by an amount in excess of
$10,000,000, then, upon notice thereof by the Agent to each Company, each
Company agrees thereupon to make prepayments, on not later than the third
Business Day after notice from the Agent, of Revolving Loan Outstandings (and
if required under Section 3.7, Cash Collateralize outstanding Letters of Credit
and Interim Note Guarantee) such that, after giving effect to such prepayment
or Cash Collateralization, the aggregate Dollar Equivalent Amount of all
Revolving Loan Outstandings (net of any Cash Collateralization) in Offshore
Currencies does not exceed the lesser of Total Offshore Currency Sublimit or
the Revolving Commitments of all Banks, it being understood that (a) a
prepayment in the amount by which the Dollar Equivalent Amount of Revolving
Loan Outstandings in Offshore Currencies exceeds the Total Offshore Currency
Sublimit need not equal or exceed the Minimum Tranche, and (b) no such
prepayment shall be required unless the excess referred to above shall exceed
$10,000,000. Any prepayment under this Section shall be made together with any
amounts required pursuant to Section 5.5.
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2.12 Repayment. (a) The Companies shall repay to the Banks on the
Termination Date the aggregate principal amount of Loans outstanding on such
date.
(b) The Companies shall repay each Bid Loan on the last day of the
relevant Interest Period.
(c) Each payment required to be made under clause (a) of this Section
2.12 shall, if made in an Offshore Currency, be accompanied by such additional
amounts of such Offshore Currency, or additional Dollars, such that the amount
of such Offshore Currency and Dollars so paid shall in the aggregate equal the
Dollar Equivalent Amount (determined as of such date) of the payment required
to be paid on such date.
2.13 Interest.
(a) Each Syndicated Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to the Offshore Rate or the Base Rate, as the case may be (and subject to
the Companies' right to convert to other Types of Loans under Section 2.4),
plus the Applicable Margin. Each Bid Loan shall bear interest on the
outstanding principal amount thereof from the relevant Borrowing Date to the
last day of the applicable Interest Period at a rate per annum equal to the
Absolute Rate.
(b) Interest on each Loan shall be paid in arrears on each Interest
Payment Date. Interest shall also be paid on the date of any prepayment of
Loans under Section 2.9 or 2.11 for the portion of the Loans so prepaid and
upon payment (including prepayment) in full thereof and, during the existence
of any Event of Default, interest shall be paid on demand of the Agent at the
request or with the consent of the Required Banks.
(c) Notwithstanding subsection (a) of this Section or any other
provision of the Loan Documents, while any Event of Default exists or after
acceleration, interest shall accrue (after as well as before entry of judgment
thereon to the extent permitted by law) on the principal amount of all
outstanding Obligations, at a rate per annum which is determined by adding 2%
per annum to the Applicable Margin then in effect for such Loans and, in the
case of Obligations not subject to an Applicable Margin, at a rate per annum
equal to the Base Rate (or in the case of Bid Loans, the Absolute Rate) plus
2%.
(d) Anything herein to the contrary notwithstanding, the obligations
of the Companies to any Bank or Designated Bidder hereunder shall be subject to
the limitation that payments of interest shall not be required for any period
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for which interest is computed hereunder, to the extent (but only to the
extent) that contracting for or receiving such payment by such Bank or
Designated Bidder would be contrary to the provisions of any law applicable to
such Bank or Designated Bidder limiting the highest rate of interest that may
be lawfully contracted for, charged or received by such Bank or Designated
Bidder, and in such event the Companies shall pay such Bank interest at the
highest rate permitted by applicable law.
2.14 Fees.
(a) Arrangement and Agency Fees. The Companies jointly and severally
shall pay the fees to the Arranger, NationsBank and the Agent, as required by
the letter agreement ("Fee Letter") between each Company and the Arranger and
the Agent (or an affiliate of the Agent) each dated March 25, 1999, as amended
or supplemented from time to time, or as may otherwise be agreed to in a
separate writing or writings executed by the Companies and the Agent shall pay
to each Bank such amount relating to certain of such fees as previously agreed
to by the Agent and such Bank.
(b) Facility Fees. The Companies jointly and severally shall pay to
the Agent, for the pro rata benefit of the Banks based upon such Bank's
Commitment the following facility fees:
(i) a facility fee equal to the Applicable Fee Percentage of
the 364 Day Commitment of each Bank; and
(ii) a facility fee equal to the Applicable Fee Percentage of
the Revolving Commitment of each Bank.
Such facility fees shall accrue from the Effective Date to the
Termination Date and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December commencing on
September 30, 1999 for the quarter (or shorter period, as applicable) ending
the prior Business Day and on the Termination Date; provided that, in
connection with any reduction or termination of Commitments under Section 2.8,
the accrued facility fee calculated for the period ending on such date shall
also be paid on the date of such reduction or termination, with the following
quarterly payment being calculated on the basis of the period from such
reduction or termination date to such quarterly payment date. The facility fees
provided in this subsection shall accrue at all times after the date hereof,
including at any time during which one or more conditions in Article V are not
met.
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2.15 Computation of Fees and Interest.
(a) All computations of interest for Base Rate Loans when the Base
Rate is determined by NationsBank's "prime rate" and for Offshore Currency
Loans shall be made on the basis of a year of 365 or 366 days when such basis
is customary, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed. Interest and fees shall accrue during each period
during which interest or such fees are computed from the first day thereof to
the last day thereof.
(b) Each determination of an interest rate or a Dollar Equivalent
Amount by the Agent shall be conclusive and binding on each Company, the Banks
and the Designated Bidders in the absence of manifest error.
(c) The Applicable Margin and the Applicable Fee Percentage shall be
adjusted, to the extent applicable, on the earlier of the first Business Day
next following receipt by the agent of the Compliance Certificate required
pursuant to Section 8.1(c) or 60 days (or, in the case of the last fiscal
quarter of any year, 110 days) after the end of each fiscal quarter, based on
the Consolidated Total Leverage Ratio as of the last day of such fiscal quarter
and measured for the four fiscal quarters then ended; it being understood that
if Interim fails to deliver the financial statements required by Section 8.1(a)
or 8.1(b), as applicable, and the related Compliance Certificate required by
Section 8.1(c), by the 60th day (or, if applicable, the 110th day) after any
fiscal quarter, the Applicable Margin for Revolving Loans shall be 1.20% and
for 364 Day Loans shall be 1.25% and the Applicable Fee Percentage for
Revolving Commitments shall be 0.30% and for 364 Day Commitments shall be 0.25%
until such financial statements and Compliance Certificate are delivered. The
Applicable Margin shall be 1.00% and 1.05% for Revolving Loans and 364 Day
Loans, respectively, and the Applicable Fee Percentage shall be 0.25% and 0.20%
for Revolving Commitments and 364 Day Commitments, respectively, until the
Business Day next following the date of receipt by the Agent of the Compliance
Certificate and related financial statements of Interim and its Subsidiaries
for the fiscal quarter ending September 24, 1999.
2.16 Payments by the Companies.
(a) Except as otherwise expressly provided herein, all payments by any
Company shall be made to the Agent for the account of the Banks and the
Designated Bidders, or the Agent, as the case may be, at the Agent's Payment
Office; and with respect to the principal of, interest on, and any other
amounts relating to, any Offshore Currency Loan, shall be made to the Agent in
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the Offshore Currency in which such Loan is denominated or payable, and, with
respect to all other amounts payable hereunder, shall be made in Dollars. Such
payments shall be made in Same Day Funds, and (i) in the case of Offshore
Currency payments, no later than such time on the dates specified herein as may
be determined by the Agent to be necessary for such payment to be credited on
such date in accordance with normal banking procedures in the place of payment,
and (ii) in the case of any Dollar payments, no later than 2:00 p.m. (Charlotte
time) on the date specified herein. The Agent will promptly distribute to each
Bank and Designated Bidder its Pro Rata Share (or other applicable share as
expressly provided herein) of such amounts, in like funds as received. Any
payment which is received by the Agent later than 2:00 p.m. (Charlotte time),
or later than the time specified by the Agent as provided in clause (i) above
(in the case of Offshore Currency payments), shall be deemed to have been
received on the following Business Day and any applicable interest or fee shall
continue to accrue.
(b) Subject to the provisions set forth in the definition of "Interest
Period" herein, whenever any payment is due on a day other than a Business Day,
such payment shall be made on the following Business Day, and such extension of
time shall in such case be included in the computation of interest or fees, as
the case may be.
(c) Unless the Agent receives notice from a Company prior to the date
on which any payment is due to the Banks that such Company will not make such
payment in full as and when required, the Agent may assume that such Company
has made such payment in full to the Agent on such date in Same Day Funds and
the Agent may (but shall not be so required), in reliance upon such assumption,
distribute to each Bank or Designated Bidder on such due date an amount equal
to the amount then due such Bank or Designated Bidder. If and to the extent a
Company has not made such payment in full to the Agent, each Bank or Designated
Bidder shall repay to the Agent on demand such amount distributed to such Bank
or Designated Bidder, together with interest thereon at the Federal Funds Rate
or, in the case of a payment in an Offshore Currency, the Overnight Rate as
determined by the Agent and specified to such Bank for amounts in such Offshore
Currency, for each day from the date such amount is distributed to such Bank or
Designated Bidder until the date repaid.
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2.17 Payments by the Banks to the Agent.
(a) Unless the Agent receives notice from a Bank on or prior to the
Effective Date or, with respect to any Syndicated Borrowing, after the
Effective Date, at least two Business Days prior to the date of such Borrowing,
that such Bank will not make available as and when required hereunder to the
Agent for the account of the applicable Company the amount of that Bank's Pro
Rata Share of such Syndicated Borrowing, the Agent may assume that each Bank
has made such amount available to the Agent in Same Day Funds on such Borrowing
Date and the Agent may (but shall not be so required), in reliance upon such
assumption, make available to such Company on such date a corresponding amount.
If and to the extent any Bank shall not have made its full amount available to
the Agent in Same Day Funds and the Agent in such circumstances has made
available to the applicable Company such amount, that Bank shall on the
Business Day following such Borrowing Date make such amount available to the
Agent, together with interest at the Federal Funds Rate or, in the case of any
Syndicated Borrowing consisting of Offshore Currency Loans, the Overnight Rate
specified to such Bank for amounts in such Offshore Currency plus any
reasonable administrative fee charged by the Agent. A notice of the Agent
submitted to any Bank with respect to amounts owing under this Section 2.17(a)
shall be conclusive, absent manifest error. If such amount is so made
available, such payment to the Agent shall constitute such Bank's Loan on the
applicable Borrowing Date for all purposes of this Agreement. If such amount is
not made available to the Agent on the Business Day following the applicable
Borrowing Date, the Agent will notify each Company of such failure to fund and,
upon demand by the Agent, the Companies shall pay, within one (1) Business Day,
such amount to the Agent for the Agent's account, together with interest
thereon for each day elapsed since the date of such Syndicated Borrowing, at a
rate per annum equal to the interest rate applicable at the time to the Loans
comprising such Borrowing.
(b) The failure of any Bank to make any Syndicated Loan on any
Borrowing Date shall not relieve any other Bank of any obligation hereunder to
make a Syndicated Loan on such Borrowing Date, but neither the Agent nor any
Bank shall be responsible for the failure of any other Bank to make the Loan to
be made by such other Bank on any Borrowing Date.
2.18 Sharing of Payments Etc. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Syndicated Loans made
by it any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder), such Bank shall immediately (a) notify the Agent of
such fact, and (b) purchase from the other Banks such participations in the
Syndicated Loans made by them as shall be necessary to cause such purchasing
Bank to share the excess payment pro rata with each of them; provided, however,
that if all or any portion of such excess payment is thereafter recovered from
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the purchasing Bank, such purchase shall to that extent be rescinded and each
other Bank shall repay to the purchasing Bank the purchase price paid therefor,
together with an amount equal to such paying Bank's ratable share (according to
the proportion of (i) the amount of such paying Bank's required repayment to
(ii) the total amount so recovered from the purchasing Bank) of any interest or
other amount paid or payable by the purchasing Bank in respect of the total
amount so recovered. Each Company agrees that any Bank so purchasing a
participation from another Bank may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off, but subject
to Section 12.9) with respect to such participation as fully as if such Bank
were the direct creditor of such Company in the amount of such participation.
The Agent will keep records (which shall be conclusive and binding in the
absence of manifest error) of participations purchased under this Section and
will in each case notify the Banks following any such purchases or repayments.
2.19 Swing Line. (a) Notwithstanding any other provision of this
Agreement to the contrary, in order to administer the Revolving Commitments in
an efficient manner and to minimize the transfer of funds between the Agent and
each Bank, NationsBank shall make available Swing Line Loans in Dollars to each
of the Companies, jointly and severally, from the Effective Date to the
Termination Date (or such earlier date as the Revolving Commitments of all
Banks shall have terminated in accordance with the terms hereof). NationsBank
shall not make any Swing Line Loan pursuant hereto (i) if to the actual
knowledge of NationsBank the Companies are not in compliance with all the
conditions to the making of Revolving Loans set forth in this Agreement, (ii)
if after giving effect to such Swing Line Loan, the Swing Line Outstandings
would exceed $40,000,000, or (iii) if after giving effect to such Swing Line
Loan, to the actual knowledge of NationsBank the Dollar Equivalent Amount of
Revolving Loan Outstandings would exceed the aggregate Revolving Commitments.
The Companies may borrow, repay and reborrow under this Section 2.19. Unless
notified to the contrary by NationsBank, borrowings under the Swing Line shall
be made in integral multiples of $100,000, upon written request by
telefacsimile transmission, effective upon receipt, by a Responsible Officer
made to NationsBank not later than 1:00 P.M. on the Business Day of the
requested borrowing. Each such Swing Line Borrowing Notice shall specify the
amount of the borrowing and the date of borrowing, and shall be in the form of
Exhibit L, with appropriate insertions. Unless notified to the contrary by
NationsBank, each repayment of a Swing Line Loan shall be in an amount which is
an integral multiple of $100,000 or the aggregate amount of all Swing Line
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Outstandings. If any Company instructs NationsBank to debit any demand deposit
account of such Company in the amount of any payment with respect to a Swing
Line Loan, or NationsBank otherwise receives repayment, after 1:00 P.M. on a
Business Day, such payment shall be deemed received on the next Business Day.
(b) Swing Line Loans shall bear interest at the Base Rate or at such
other rate or rates as the applicable Company and NationsBank may agree from
time to time, the interest payable on Swing Line Loans is solely for the
account of NationsBank, and all accrued and unpaid interest on Swing Line Loans
shall be payable on the dates and in the manner provided in this Article II
with respect to interest on Base Rate Loans (except as NationsBank and the
applicable Company may otherwise agree in connection with any particular Swing
Line Loan). The Swing Line Loans shall be evidenced by the Swing Line Note.
(c) Upon the making of a Swing Line Loan in accordance with this
Section 2.19, each Bank shall be deemed to have purchased from NationsBank a
Swing Line Participation therein in an amount equal to that Bank's Pro Rata
Share of such Swing Line Loan. For purposes of Section 2.1(a), each Swing Line
Loan shall be deemed to utilize the Revolving Commitment of each Bank by an
amount equal to its Pro Rata Share of such Loan. Upon demand made by
NationsBank, each Bank shall, according to its Pro Rata Share of such Swing
Line Loan, promptly provide to NationsBank its purchase price therefor in an
amount equal to its Swing Line Participation and, upon any such demand by
NationsBank, such Swing Line Loan shall without further action be converted to
a Base Rate Loan. Any such payment made by a Bank pursuant to demand of
NationsBank of the purchase price of its Swing Line Participation shall be
deemed (i) provided that the conditions to making Revolving Loans shall be
satisfied, a Base Rate Loan under Section 2.1(a) until the Companies convert
such Base Rate Loan in accordance with the terms of Section 2.4, and (ii) in
all other cases, the funding by each Bank of the purchase price of its Swing
Line Participation in such Swing Line Loan. The obligation of each Bank to so
provide its purchase price to NationsBank shall be absolute and unconditional
and shall not be affected by the occurrence of a Default or Event of Default or
any other occurrence or event. Upon (and only upon) receipt by NationsBank of
funds from the Companies in repayment of principal of or interest on Swing Line
Loans with respect to which any Bank has funded the purchase of its
participation in accordance with clause (ii) of the fourth sentence of Section
2.19(c), NationsBank will promptly pay over to the Agent (in the kind of funds
so received or applied) for the account of each such Bank (other than
NationsBank) in accordance with their Pro Rata Shares the aggregate amount of
such payment as shall equal the aggregate amount of the Pro Rata Shares of such
payment of each such Bank (other than NationsBank).
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The Companies, at their option and subject to the terms hereof, may
request a Revolving Borrowing pursuant to and of a denomination permitted under
Section 2.1(a) in an amount sufficient to repay Swing Line Outstandings on any
date and the Agent shall provide from the proceeds of such Borrowing to
NationsBank the amount necessary to repay such Swing Line Outstandings (which
NationsBank shall then apply to such repayment) and credit any balance of such
Borrowing in immediately available funds in the manner directed by the
Companies. The Swing Line shall continue in effect until the Termination Date
(or such earlier date as the Revolving Commitments of all Banks shall have
terminated in accordance with the terms hereof), at which time all Swing Line
Outstandings and accrued interest thereon shall be due and payable in full.
2.20 Designation of Borrowing Subsidiaries. Interim may from time to
time designate any Foreign Subsidiary of Interim which has not joined in the
execution of this Agreement as a "Borrowing Subsidiary" hereunder by causing
such Foreign Subsidiary to execute and deliver a duly completed Assumption
Letter in the form attached hereto as Exhibit M to the Administrative Agent,
with the written consent of Interim at the foot thereof. Upon such execution,
delivery and consent such Foreign Subsidiary shall for all purposes be a party
hereto as a Borrowing Subsidiary as fully as if it had executed and delivered
this Agreement. So long as the principal of and interest on all Borrowings made
to any Borrowing Subsidiary under this Agreement shall have been paid in full
and all other obligations of such Borrowing Subsidiary shall have been fully
performed, such Borrowing Subsidiary may, by not less than five Business Days'
prior notice to the Administrative Agent (which shall promptly notify the Banks
thereof), terminate its status as a "Borrowing Subsidiary" hereunder.
2.21 364 Day Extension and Term Loan Option.
(a) With the consent of the Banks (the "Consenting Banks") having more
than fifty percent (50%) of the aggregate Commitments of all Banks (any Bank
not so consenting being referred to as a "Non-Consenting Bank"), at each 364
Day Extension Date the Companies can elect to extend the 364 Day Termination
Date for an additional period of 364 days commencing on such 364 Day Extension
Date; provided, however, that in no event shall the 364 Day Termination Date be
extended beyond the Termination Date.
(b) Interim shall notify the Banks of its request for an extension by
delivering to the Agent notice of such request signed by a Responsible Officer
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not more than sixty (60) days nor less than forty-five (45) days prior to the
applicable 364 Day Extension Date. Notice of receipt of such request shall be
provided by the Agent to the Banks. The Agent shall notify the Companies in
writing not less than thirty (30) days nor more than forty-five (45) days prior
to the applicable 364 Day Extension Date of the decision of the Banks. Failure
by any Bank to respond to a request for an extension shall constitute a refusal
of such Bank to give its consent to such extension. Failure by the Agent to
give such notice to the Companies as a result of not receiving the consent of
Banks having more than fifty percent (50%) of the aggregate Commitments of all
Banks to such extension shall constitute refusal by the Banks to extend the 364
Day Termination Date.
(c) If less than all of the Banks consent to any such request which
has been approved pursuant to subsection (a) of this Section 2.21, the
Companies shall arrange not less than fifteen (15) days prior to the 364 Day
Termination Date (the "Replacement Date") for one or more Consenting Banks, or
for one or more other banks or financial institutions complying with the
requirements set forth in Section 12.8 (any of the foregoing referred to as an
"Assuming Bank"), as of the 364 Day Extension Date to effect an assignment of
all of the 364 Day Commitment (along with an equivalent pro rata portion of the
Revolving Commitment) of Non-Consenting Banks for a purchase price equal to the
aggregate principal balance of 364 Day Loans and Revolving Loans then owing to
the Non-Consenting Banks, plus accrued interest and fees owing to the
Non-Consenting Bank, as well as any amounts payable under Section 5.5. The
Companies shall deliver written notice to the Agent and each Consenting Bank of
such arrangement with any Assuming Bank not less than fifteen (15) days prior
to the 364 Day Termination Date.
(d) On each 364 Day Extension Date, each Assuming Bank shall become a
Bank for all purposes under this Agreement and the other Loan Documents without
any further acknowledgment by or the consent of the other Banks; provided,
however, that the Agent shall have received not less than ten (10) days prior
to such 364 Day Extension Date an Assignment and Acceptance, effective as of
such 364 Day Extension Date, from each Assuming Bank duly executed by such
Assuming Bank and the applicable Non-Consenting Bank with respect to both the
364 Day Commitment and the Revolving Commitment of such Non-Consenting Bank.
The aggregate 364 Day Commitments on the 364 Day Extension Date shall be equal
to the sum, without duplication, of the 364 Day Commitments of each Assuming
Bank and each Consenting Bank.
(e) If on any 364 Day Extension Date the Companies have not so elected
to extend the 364 Day Termination Date then in effect, or if Consenting Banks
with more than fifty percent (50%) of the aggregate Commitments have not
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consented to such extension, or if the Companies shall not have satisfied
requirements of clause (c) of this Section 2.21 with respect to Non-Consenting
Banks, then as of such 364 Day Termination Date, except as provided otherwise
in, and subject to the Companies' compliance with the terms of, Section 2.21(f)
below, (i) the aggregate 364 Day Commitments shall be reduced to zero, and (ii)
all 364 Day Loan Outstandings shall be due and payable in full.
(f) If with respect to any 364 Day Extension Date the Companies do not
so elect to extend the 364 Day Termination Date then in effect, or if
Consenting Banks with more than fifty percent (50%) of the aggregate
Commitments have not consented to such extension, then not less than fifteen
(15) days prior to the 364 Day Termination Date, the Companies can elect to
convert any or all 364 Day Loan Outstandings as of such date into a term loan
on such date in the original principal amount equal to such 364 Day Loan
Outstandings. 364 Day Loan Outstandings so converted by the Companies in
accordance with this Section 2.21 shall be referred to as the "Term Loans." The
aggregate 364 Day Commitment shall be permanently reduced on the 364 Day
Termination Date to an amount equal to the aggregate principal amount of the
Term Loans on such date. The Term Loans shall be repaid upon the earlier of one
year following the 364 Day Termination or the Termination Date. The Term Loans
may be comprised of Base Rate Loans and Offshore Rate Loans as the borrowing
Company may elect in accordance with the provisions of this Article II for 364
Day Loans. The Term Loans shall bear interest on the same terms as the 364 Day
Loans prior to the conversion to Term Loans until the Continuation or
Conversion thereof pursuant to Section 2.9 hereof; provided, however, that on
the effective date of conversion to Term Loans the Applicable Margin for
Offshore Rate Loans shall be increased by .125% at all times thereafter.
Amounts repaid or prepaid on the Term Loans may not be reborrowed, and the 364
Day Commitment shall be permanently reduced by any such amounts. Each Bank
shall have its Pro Rata Share of the Term Loans.
(g) If on the 364 Day Termination Date the Company does not so elect
to convert all of 364 Day Loan Outstandings as of such date to Term Loans as
described in (f) above, then on the 364 Day Termination Date, (i) all 364 Day
Loan Outstandings as of such date which are not so converted shall be due and
payable in full and (ii) the aggregate 364 Day Commitments shall be reduced to
the amount, if any, of 364 Day Loan Outstandings so converted to Term Loans.
2.22 The Euro.
(a) If, as a result of the implementation of the EMU, (i) any currency
available for borrowing under this Agreement ( a "national currency") ceases to
be lawful currency of the state issuing the same and is replaced by the euro or
(ii) any national currency and the euro are at the same time both recognized by
the central bank or comparable governmental authority of the state issuing such
currency as lawful currency of such state, then any amount payable hereunder by
any party hereto in such national currency (including, without limitation, any
Loan to be made under this Agreement) shall instead be payable in the euro and
the amount so payable shall be determined by redenominating or converting such
amount into the euro at the exchange rate officially fixed by the European
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Central Bank for the purpose of implementing the EMU, provided, that to the
extent any EMU legislation provides that an amount denominated either in the
euro or in the applicable national currency can be paid either in euros or in
the applicable national currency, each party to this Agreement shall be
entitled to pay or repay such amount in euros or in the applicable national
currency. Prior to the occurrence of the event or events described in clause
(i) or (ii) of the preceding sentence, each amount payable hereunder in any
such national currency will, except as otherwise provided herein, continue to
be payable only in that national currency.
(b) In addition, this Agreement (including, without limitation, the
definition of Offshore Rate) will be amended to the extent determined by the
Agent and Required Banks (acting reasonably and in consultation with Interim)
to be necessary to reflect such implementation of the EMU and change in
currency and to put the Banks and the Companies in the same position, so far as
possible, that they would have been in if such implementation and change in
currency had not occurred. Except as provided in the foregoing provisions of
this Section, no such implementation or change in currency nor any economic
consequences resulting therefrom shall (i) give rise to any right to terminate
prematurely, contest, cancel, rescind, alter, modify or renegotiate the
provisions of this Agreement or (ii) discharge, excuse or otherwise affect the
performance of any obligations of the Companies or the Banks under this
Agreement, any Notes or other Loan Documents.
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ARTICLE III
THE LETTERS OF CREDIT
3.1 The Letter of Credit Facilities.
(a) On the terms and conditions set forth herein (i) the Issuing Bank
agrees (A) from time to time on any Business Day during the period from the
Effective Date to the Termination Date (or such earlier date as the Revolving
Commitments of all Banks shall have terminated in accordance with the terms
hereof) to Issue Letters of Credit for the account of a Company, and to amend
or renew Letters of Credit previously issued by it, in accordance with Sections
3.2(c) and 3.2(d), and (B) to honor drafts drawn under and in strict compliance
with the terms and conditions of Letters of Credit; and (ii) the Banks
severally agree to participate in Letters of Credit Issued for the account of a
Company; provided, that the Issuing Bank shall not be obligated to Issue, and
no Bank shall be obligated to participate in, any Letter of Credit if, as of
the date of Issuance of such Letter of Credit (the "Issuance Date") (1) the
Dollar Equivalent Amount of the Revolving Loan Outstandings exceeds or would
exceed the combined Revolving Commitments, or (2) the Dollar Equivalent Amount
of the L/C Obligations exceeds or would exceed the L/C Commitment, or (3) the
Dollar Equivalent Amount of all Revolving Loan Outstandings in Offshore
Currencies exceeds or would exceed the Total Offshore Currency Sublimit. Within
the foregoing limits, and subject to the other terms and conditions hereof, a
Company's ability to obtain Letters of Credit shall be fully revolving and,
accordingly, a Company may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit which have expired or which have been drawn
upon and reimbursed.
(b) The Issuing Bank shall not issue any Letter of Credit if, to its
knowledge:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the Issuing Bank from Issuing such Letter of Credit, or any
Requirement of Law applicable to the Issuing Bank shall prohibit or
any request or directive (whether or not having the force of law) from
any Governmental Authority with jurisdiction over the Issuing Bank
shall prohibit, or request that the Issuing Bank refrain from, the
Issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon the Issuing Bank with respect to such
Letter of Credit any restriction, reserve or capital requirement (for
which the Issuing Bank is not otherwise compensated hereunder) not in
effect on the Closing Date, or shall impose upon the Issuing Bank any
unreimbursed loss, cost or expense which was not applicable on the
Closing Date and which the Issuing Bank in good xxxxx xxxxx material
to it;
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(ii) the Issuing Bank has received written notice from any
Bank, the Agent or a Company, or has actual knowledge, on or prior to
the Business Day prior to the requested date of Issuance of such
Letter of Credit, that one or more of the applicable conditions
contained in Article VI is not then satisfied;
(iii) the expiry date of any requested Letter of Credit is
more than one year after the date of Issuance or is after the
Termination Date;
(iv) any requested Letter of Credit does not provide for
drafts, or is not otherwise in form and substance acceptable to the
Issuing Bank, or the Issuance of a Letter of Credit shall violate any
applicable policies of the Issuing Bank;
(v) any Letter of Credit is for the purpose of supporting the
issuance of any letter of credit by any other Person; or
(vi) such Letter of Credit is in a face amount less than the
Dollar Equivalent Amount of $1,000,000 (or such other lesser amount as
agreed to by the Issuing Bank) or denominated in a currency other than
Dollars or Offshore Currencies.
3.2 Issuance, Amendment and Renewal of Letters of Credit.
(a) Each Letter of Credit shall be Issued upon the irrevocable written
request of a Company and Interim, respectively, received by the Issuing Bank
three Business Days prior to the proposed date of Issuance. Each such request
for Issuance of a Letter of Credit shall be by facsimile, confirmed immediately
in an original writing, in the form of an L/C Application, and shall specify in
form and detail satisfactory to the Issuing Bank: (i) the Company on the
application of which such Letter of Credit is being Issued; (ii) the Applicable
Currency; (iii) the proposed date of Issuance of such Letter of Credit (which
shall be a Business Day); (iv) the face amount of such Letter of Credit; (v)
the expiry date of such Letter of Credit; (vi) the name and address of the
beneficiary thereof; (vii) the documents to be presented by the beneficiary of
such Letter of Credit in case of any drawing thereunder; (viii) the full text
of any certificate to be presented by the beneficiary in case of any drawing
thereunder; and (ix) such other matters as the Issuing Bank may reasonably
require.
(b) Two Business Days prior to the Issuance of any Letter of Credit,
the Issuing Bank shall confirm with the Agent the availability of the
Commitments with respect to such Issuance and that the conditions specified in
Article VI have been satisfied. Subject to the terms and conditions hereof, the
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Issuing Bank shall, on the requested date, Issue a Letter of Credit for the
account of the applicable Company in accordance with the Issuing Bank's usual
and customary business practices.
(c) From time to time while a Letter of Credit is outstanding and
prior to the Termination Date (or such earlier date as the Revolving
Commitments of all Banks shall have terminated in accordance with the terms
hereof), the Issuing Bank shall, upon the written request of a Company (with a
copy sent to the Agent) three Business Days prior to the proposed date of
amendment, amend any Letter of Credit Issued by it. Each such request for
amendment of a Letter of Credit shall be made in writing in the form of an L/C
Amendment Application and shall specify in form and detail satisfactory to the
Issuing Bank: (i) the Letter of Credit to be amended; (ii) the proposed date of
amendment of such Letter of Credit (which shall be a Business Day); (iii) the
nature of the proposed amendment; and (iv) such other matters as the Issuing
Bank may reasonably require. The Issuing Bank shall be under no obligation to
amend any Letter of Credit if: (A) the Issuing Bank would have no obligation at
such time to Issue such Letter of Credit in its amended form under the terms of
this Agreement; or (B) the beneficiary of such Letter of Credit does not accept
the proposed amendment to such Letter of Credit. The Agent will promptly notify
the Banks of a request of Issuance or renewal or amendment of a Letter of
Credit.
(d) The Issuing Bank and the Banks agree that, while a Letter of
Credit is outstanding and prior to the Termination Date (or such earlier date
as the Revolving Commitments of all Banks shall have terminated in accordance
with the terms hereof), the Issuing Bank shall be entitled to authorize the
automatic renewal of any Letter of Credit Issued by it unless (A) the Issuing
Bank would have no obligation at such time to Issue or amend such Letter of
Credit in its renewed form under the terms of this Agreement; (B) the
beneficiary of such Letter of Credit does not accept the proposed renewal of
such Letter of Credit; or (C) the Issuing Bank receives written request from a
Company (with a copy sent to the Agent) three Business Days prior to the
proposed date of notification of non-renewal, not to renew any Letter of
Credit. Each such request for non-renewal of a Letter of Credit shall be made
in writing and shall specify (i) the Letter of Credit number; (ii) the
beneficiary's name; and (iii) that the Issuing Bank is instructed to notify the
beneficiary of non-renewal.
(e) The Issuing Bank shall deliver to the Agent any notices of
termination or other communications to any Letter of Credit beneficiary or
transferee, and take any other action as necessary or appropriate, at any time
and from time to time, in order to cause the expiry date of such Letter of
Credit to be a date not later than the Termination Date.
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(f) This Agreement shall control in the event (and to the extent) of
any conflict with any L/C-Related Document (other than any Letter of Credit).
(g) The Issuing Bank will also deliver to the Agent, concurrently with
or promptly following its delivery of a Letter of Credit, or amendment to or
renewal of a Letter of Credit, to an advising bank or a beneficiary, a true and
complete copy of each such Letter of Credit or amendment to or renewal of a
Letter of Credit.
(h) The Agent shall furnish to each Bank quarterly a summary of
outstanding Letters of Credit.
3.3 Risk Participations, Drawings and Reimbursements.
(a) Immediately upon the Issuance of each Letter of Credit, each Bank
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Issuing Bank a participation in such Letter of Credit and
each drawing thereunder in an amount equal to the product of (i) the Pro Rata
Share of such Bank, times (ii) the maximum amount available to be drawn under
such Letter of Credit and the amount of such drawing, respectively, in the
currency in which such Letter of Credit is stated. For purposes of Section
2.1(a), each Issuance of a Letter of Credit shall be deemed to utilize the
Revolving Commitment of each Bank by an amount equal to the amount of such
participation.
(b) In the event of any drawing under a Letter of Credit by the
beneficiary or transferee thereof, the Issuing Bank will promptly notify the
Agent and the Companies of the request and of the day on which the Issuing Bank
is to pay the beneficiary (which payment date is not to be less than one day
later). The Companies jointly and severally agree to reimburse the Issuing Bank
prior to 11:00 a.m. (Charlotte time), on each date that any amount is paid by
the Issuing Bank under any Letter of Credit (each such date, an "Honor Date"),
in an amount equal to the Dollar Equivalent Amount, as determined by the
Issuing Bank, such determination to be conclusive absent manifest error, of the
amount so paid by the Issuing Bank. In the event the Companies fail to
reimburse the Issuing Bank for the full amount of any drawing under any Letter
of Credit by 11:00 a.m. (Charlotte time) on the Honor Date, the Issuing Bank
will promptly notify the Agent who will in turn promptly notify each Bank.
Unless notified by the Companies to convert an unreimbursed drawing into
Revolving Loans or, if the Companies request a conversion of an unreimbursed
drawing into Revolving Loans but the unreimbursed drawing is not converted
because of the Companies' failure to satisfy the conditions set forth in
Section 6.3 (such unreimbursed drawing which has not been converted
constituting an L/C Borrowing), each Bank will be deemed to be obligated to
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make an L/C Advance in Dollars in the full Dollar Equivalent Amount of each
Bank's Pro Rata Share of such L/C Borrowing and such L/C Advances shall bear
interest at a rate per annum equal to the Base Rate plus 2% per annum. Any
notice given by the Issuing Bank or the Agent pursuant to this Section 3.3(b)
may be oral if promptly confirmed in writing (including by facsimile); provided
that the lack of such a prompt confirmation shall not affect the conclusiveness
or binding effect of such notice.
(c) With respect to any unreimbursed drawing that the applicable
Company requests be converted into a Revolving Loan and that satisfies the
conditions set forth in Section 6.3, each Bank shall upon any notice make
available to the Agent for the account of the relevant Issuing Bank an amount
in Dollars equal to the Dollar Equivalent Amount (as indicated in such notice)
of the currency in which such Letter of Credit is denominated and in
immediately available funds equal to its Pro Rata Share of the amount of such
drawing, whereupon the participating Banks shall each be deemed to have made a
Revolving Loan consisting of a Base Rate Loan to the Company in that amount. If
any Bank so notified fails to make available to the Agent for the account of
the Issuing Bank the amount of such Bank's Pro Rata Share of the amount of such
drawing by no later than 2:00 p.m. (Charlotte time) on the Honor Date, then
interest shall accrue on such Bank's obligation to make such payment, from the
Honor Date to the date such Bank makes such payment, at a rate per annum equal
to the Federal Funds Rate in effect from time to time during such period. The
Agent shall promptly give notice of the occurrence of the Honor Date, but
failure of the Agent to give any such notice on the Honor Date or in sufficient
time to enable any Bank to effect such payment on such date shall not relieve
such Bank from its obligations under this Section 3.3.
(d) Provided that the Issuing Bank has paid a drawing under a Letter
of Credit in accordance with its terms, each Bank's obligation in accordance
with this Agreement to make the Revolving Loans or L/C Advances, as
contemplated by this Section 3.3, as a result of a drawing under a Letter of
Credit, shall be absolute and unconditional and without recourse to the Issuing
Bank and shall not be affected by any circumstance, including (i) any set-off,
counterclaim, recoupment, defense or other right which such Bank may have
against the Issuing Bank, the Companies or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default, an Event of
Default or a Material Adverse Effect; or (iii) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing;
provided that if the conditions to making any Loan pursuant to Section 6.3
shall not then be satisfied, each Bank's payment of such amount shall be deemed
to constitute its payment of the purchase price for its participation in the
applicable drawing under the applicable Letter of Credit.
3.4 Repayment of Participations. (a) Upon (and only upon) receipt by
the Agent for the account of the Issuing Bank of immediately available funds
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from the Companies (i) in reimbursement of any payment made by the Issuing Bank
under the Letter of Credit with respect to which any Bank has paid the Agent
for the account of the Issuing Bank for such Bank's participation in such
Letter of Credit pursuant to Section 3.3 or (ii) in payment of interest
thereon, the Agent will pay to such Bank, in the same funds as those received
by the Agent for the account of the Issuing Bank, the amount of such Bank's Pro
Rata Share of such funds, and the Issuing Bank shall receive the amount of the
Pro Rata Share of such funds of any Bank that did not so pay the Agent for the
account of the Issuing Bank.
(b) If the Agent or the Issuing Bank is required at any time to pay to
the Companies, or to a trustee, receiver, liquidator, custodian, or any
official in any Insolvency Proceeding, any portion of the payments made by the
Companies to the Agent for the account of the Issuing Bank pursuant to Section
3.4(a) in reimbursement of a payment made under any Letter of Credit or
interest thereon, each Bank shall, on demand of the Agent, forthwith pay to the
Agent or the Issuing Bank the amount of its Pro Rata Share of any amounts so
paid by the Agent or the Issuing Bank plus interest thereon from the date such
demand is made to the date such amounts are paid by such Bank to the Agent or
the Issuing Bank, at a rate per annum equal to the Federal Funds Rate in effect
from time to time.
3.5 Role of the Issuing Bank. (a) Each Bank and the Companies agree
that, in paying any drawing under a Letter of Credit, the Issuing Bank shall
not have any responsibility to obtain any document (other than any sight draft,
certificates and any other documents expressly required by the applicable
Letter of Credit) or to ascertain or inquire as to the validity or accuracy of
any such document or the authority of the Person executing or delivering any
such document.
(b) No Agent-Related Person nor any of the respective correspondents,
participants or assignees of the Issuing Bank shall be liable to any Bank for:
(i) any action taken or omitted in connection herewith at the request or with
the approval of the Required Banks; (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any L/C-Related Document.
(c) The Companies hereby assume all risks of the acts or omissions of
any beneficiary or transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended to, and shall not,
preclude the Companies' pursuing such rights and remedies as they may have
against the beneficiary or transferee at law or under any other agreement. No
Agent-Related Person, nor any of the respective correspondents, participants or
assignees of the Issuing Bank (including the Banks), shall be liable or
responsible for any of the matters described in clauses (i) through (vii) of
Section 3.6; provided, however, anything in such clauses to the contrary
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notwithstanding, that the Companies may have a claim against the Issuing Bank,
and the Issuing Bank may be liable to the Companies, to the extent, but only to
the extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Companies which the Companies prove were caused by the Issuing
Bank's willful misconduct or gross negligence or the Issuing Bank's willful
failure to pay under any Letter of Credit except as a result of a court order
after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing: (i) the Issuing
Bank may accept documents that appear on their face to be in order, without
responsibility for further investigation; and (ii) the Issuing Bank shall not
be responsible for the validity or sufficiency of any instrument transferring
or purporting to transfer a Letter of Credit or the rights or benefits
thereunder or assigning the proceeds thereof, in whole or in part, in
accordance with the terms of such Letter of Credit which may prove to be
invalid or ineffective for any reason.
3.6 Obligations Absolute. Provided that the Issuing Bank has paid a
drawing under a Letter of Credit in accordance with its terms, the obligations
of the Companies under this Agreement and any L/C-Related Document to reimburse
the Issuing Bank for a drawing under a Letter of Credit, and to repay any L/C
Borrowing and any drawing under a Letter of Credit converted into any
Syndicated Loan or Syndicated Loans, shall be unconditional and irrevocable,
and shall be paid strictly in accordance with the terms of this Agreement and
each such other L/C Related Document under all circumstances, including the
following:
(i) any lack of validity or enforceability of this Agreement
or any L/C-Related Document;
(ii) any change in the time, manner or place of payment of,
or in any other term of, all or any of the obligations of the
Companies in respect of any Letter of Credit or any other amendment or
waiver of or any consent to departure from all or any of the
L/C-Related Documents, which have been previously agreed to by the
respective Company;
(iii) the existence of any claim, set-off, defense or other
right that the Companies may have at any time against any beneficiary
or any transferee of any Letter of Credit (or any Person for whom any
such beneficiary or any such transferee may be acting), the Issuing
Bank or any other Person, whether in connection with this Agreement,
the transactions contemplated hereby or by the L/C-Related Documents
or any unrelated transaction;
(iv) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged, fraudulent,
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invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under any Letter of Credit;
(v) any payment by the Issuing Bank under any Letter of
Credit against presentation of a draft or certificate that reasonably
complies with the terms of such Letter of Credit; or any payment made
by the Issuing Bank under any Letter of Credit to any Person
purporting to be (and providing reasonable evidence of its status as)
a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative of
or successor to any beneficiary or any transferee of any Letter of
Credit, including any arising in connection with any Insolvency
Proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guarantee, for all or any of the obligations
of the Companies in respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever (other
than failure to pay a Letter of Credit in accordance with its terms),
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to,
or a discharge of, the Companies or a guarantor.
3.7 Cash Collateral Pledge. Upon (i) the written request of the Agent,
(A) if the Issuing Bank has honored any full or partial drawing request on any
Letter of Credit and such drawing has resulted in an L/C Borrowing hereunder,
or (B) if, as of the Termination Date (or such earlier date as the Revolving
Commitments shall have terminated in accordance with the terms hereof), any
Letters of Credit may for any reason remain outstanding and partially or wholly
undrawn, or (ii) the occurrence of the circumstances described in Section 2.11
requiring the Companies to Cash Collateralize Letters of Credit, then the
Companies shall immediately Cash Collateralize the L/C Obligations in an amount
equal to such L/C Obligations or in the amount required under Section 2.11. If
any Letter of Credit expires without the application of such Cash Collateral in
full, or if all L/C Borrowings with respect to any Letter of Credit have been
paid in full by the Companies, then as long as there is no Event of Default in
existence and so long as no such application shall be made within 25 days of
the expiration of a Letter of Credit, the Agent shall return to the Companies
any cash or deposit account balances that were used by the Companies to Cash
Collateralize such Letters of Credit pursuant to this Section 3.7 and were not
applied to L/C Borrowings.
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3.8 Letter of Credit Fees. (a) The Companies shall pay to the Agent
for the account of each of the Banks a letter of credit fee with respect to the
Letters of Credit equal to the Applicable Margin for Revolving Loans with
respect to the Offshore Rate Loans times the average daily maximum Dollar
Equivalent Amount (computed based on currency exchange rates in effect as of
the most recent Valuation Date) available to be drawn under the outstanding
Letters of Credit computed on a quarterly basis in arrears on the last Business
Day of each calendar quarter based upon Letters of Credit outstanding for that
quarter as calculated by the Agent. Such letter of credit fees shall be due and
payable quarterly in arrears on the first Business Day following the calendar
quarter during which Letters of Credit are outstanding, commencing on the first
such quarterly date to occur after the Effective Date, through the Termination
Date (or such later date upon which the outstanding Letters of Credit shall
expire), with the final payment to be made on the Termination Date (or such
later expiration date).
(b) The Companies shall pay to the Agent for the account of the
Issuing Bank a letter of credit fee with respect to the Letters of Credit equal
to 1/8th of 1% per annum of the average daily maximum Dollar Equivalent Amount
(computed based on currency exchange rates in effect as of the most recent
Valuation Date) available to be drawn under the outstanding Letters of Credit,
computed on a quarterly basis in arrears on the last Business Day of each
calendar quarter based upon Letters of Credit outstanding for that quarter as
calculated by the Agent. Such letter of credit fees shall be due and payable
quarterly in arrears on the first Business Day following the calendar quarter
during which Letters of Credit are outstanding, commencing on the first such
quarterly date to occur after the Effective Date, through the Termination Date
(or such later date upon which the outstanding Letters of Credit shall expire),
with the final payment to be made on the Termination Date (or such later
expiration date).
(c) The Companies shall pay to the Issuing Bank from time to time on
demand the normal issuance, presentation, amendment and other processing fees,
and other standard costs and charges, of the Issuing Bank relating to Letters
of Credit as from time to time in effect.
3.9 Uniform Customs and Practice. The Uniform Customs and Practice for
Documentary Credits as published by the International Chamber of Commerce
("UCP") most recently at the time of issuance of any Letter of Credit shall
(unless otherwise expressly provided in the Letters of Credit) apply to the
Letters of Credit or, if the Issuing Bank shall elect by express reference in
an affected Letter of Credit, the International Chamber of Commerce
International Standby Practices commonly referred to as "ISP98", or any
subsequent amendment or revision of either thereof.
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ARTICLE IV
INTERIM NOTE GUARANTEE
4.1 Interim Notes Guarantee. At the time of the entering into of the
Original Agreement, (i) NationsBank executed the Interim Note Instrument
containing the Interim Note Guarantee of the Interim Note Obligations; and (ii)
the Original Banks severally agreed to participate in the Interim Note
Guarantee for the account of Xxxxxxx Page. As a condition to entering into this
Agreement NationsBank and the Banks hereby agree to continue the Interim Note
Guarantee and to participate therein.
4.2 Risk Participation, Advances and Reimbursements.
(a) Each Bank is hereby deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from NationsBank a participation in the
Interim Note Guarantee and each payment thereunder in an amount equal to the
product of (i) the Pro Rata Share of such Bank, times (ii) the maximum amount
payable under the Interim Note Guarantee and the amount paid, respectively, in
British pounds sterling. For purposes of Section 2.1(a), the execution and
delivery of the Interim Note Instrument shall be deemed to utilize the
Revolving Commitment of each Bank by an amount equal to the amount of such
participation.
(b) In the event of any payment pursuant to the Interim Note Guarantee
to the holder of an Interim Note, NationsBank will promptly notify the Agent
and the Companies of the demand and of the day on which NationsBank is to pay
the holder (which payment date is not to be less than one day later). The
Companies jointly and severally agree to reimburse NationsBank prior to 11:00
a.m. (Charlotte time), on each date that any amount is paid by NationsBank
under the Interim Note Guarantee (each such date, a "Payment Date"), in an
amount equal to the Dollar Equivalent Amount, as determined by NationsBank, of
the amount so paid by NationsBank. In the event the Companies fail to reimburse
NationsBank for the full amount of any payment under the Interim Note Guarantee
by 11:00 a.m. (Charlotte time) on the Payment Date, NationsBank will promptly
notify the Agent who will in turn promptly notify each Bank. Unless notified by
the Companies to convert an unreimbursed payment into Revolving Loans or, if
the Companies request a conversion of an unreimbursed payment into Revolving
Loans but the unreimbursed payment is not converted because of the Companies'
failure to satisfy the conditions set forth in Section 6.3, each Bank will be
deemed to be obligated to make an Interim Note Advance in Dollars in the full
Dollar Equivalent Amount of each Bank's Pro Rata Share of such payment and such
Interim Note Advances shall bear interest at a rate per annum equal to the Base
Rate plus 2% per annum. Any notice given by NationsBank or the Agent pursuant
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to this Section 4.2(b) may be oral if immediately confirmed in writing
(including by facsimile); provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such
notice.
(c) With respect to any unreimbursed payment that Interim (Europe)
requests be converted into a Revolving Loan and that satisfies the conditions
set forth in Section 6.3, each Bank shall upon any notice make available to the
Agent for the account of NationsBank an amount in Dollars equal to the Dollar
Equivalent Amount (as indicated in such notice) of British pounds sterling and
in immediately available funds equal to its Pro Rata Share of the amount of
such payment, whereupon the participating Banks shall each be deemed to have
made a Revolving Loan consisting of a Base Rate Loan to Interim (Europe) in
that amount. If any Bank so notified fails to make available to the Agent for
the account of NationsBank the amount of such Bank's Pro Rata Share of the
amount of such payment by no later than 2:00 p.m. (Charlotte time) on the
Payment Date, then interest shall accrue on such Bank's obligation to make such
payment, from the Payment Date to the date such Bank makes such payment, at a
rate per annum equal to the Federal Funds Rate in effect from time to time
during such period. The Agent shall promptly give notice of the occurrence of
the Payment Date, but failure of the Agent to give any such notice on the
Payment Date or in sufficient time to enable any Bank to effect such payment on
such date shall not relieve such Bank from its obligations under this Section
4.2.
(d) Provided that NationsBank has made a payment pursuant to the
Interim Note Guarantee substantially in accordance with its terms, each Bank's
obligation in accordance with this Agreement to make the Syndicated Loans or
Interim Note Advances, as contemplated by this Section 4.2, as a result of a
payment under the Interim Note Guarantee, shall be absolute and unconditional
and without recourse to NationsBank and shall not be affected by any
circumstance, including (i) any set-off, counterclaim, recoupment, defense or
other right which such Bank may have against NationsBank, the Companies or any
other Person for any reason whatsoever; (ii) the occurrence or continuance of a
Default, an Event of Default or a Material Adverse Effect; or (iii) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing; provided that if the conditions to making any Loan pursuant to
Section 6.3 shall not then be satisfied, each Bank's payment of such amount
shall be deemed to constitute its payment of the purchase price for its
participation in the applicable payment under the Interim Note Guarantee.
4.3 Repayment of Participations. (a) Upon (and only upon) receipt by
the Agent for the account of NationsBank of immediately available funds from
the Companies (i) in reimbursement of any payment made by NationsBank under the
Interim Note Guarantee with respect to which any Bank has paid the Agent for
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the account of NationsBank for such Bank's participation in such Interim Note
Guarantee pursuant to Section 4.2 or (ii) in payment of interest thereon, the
Agent will pay to such Bank, in the same funds as those received by the Agent
for the account of NationsBank, the amount of such Bank's Pro Rata Share of
such funds, and NationsBank shall receive the amount of the Pro Rata Share of
such funds of any Bank that did not so pay the Agent for the account of
NationsBank.
(b) If the Agent or NationsBank is required at any time to pay to the
Companies, or to a trustee, receiver, liquidator, custodian, or any official in
any Insolvency Proceeding, any portion of the payments made by the Companies to
the Agent for the account of NationsBank pursuant to Section 4.3(a) in
reimbursement of a payment made under the Interim Note Guarantee or interest
thereon, each Bank shall, on demand of the Agent, forthwith pay to the Agent or
NationsBank the amount of its Pro Rata Share of any amounts so paid by the
Agent or NationsBank plus interest thereon from the date such demand is made to
the date such amounts are paid by such Bank to the Agent or NationsBank, at a
rate per annum equal to the Federal Funds Rate in effect from time to time.
4.4 Role of NationsBank. (a) Each Bank and the Companies agree that,
in making a payment pursuant to the Interim Note Guarantee, NationsBank shall
not have any responsibility to obtain any document (other than written demand
and certificates expressly required by the Interim Note Guarantee) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document.
(b) No Agent-Related Person nor any of the respective correspondents,
participants or assignees of NationsBank shall be liable to any Bank for: (i)
any action taken or omitted in connection herewith at the request or with the
approval of the Required Banks; (ii) any action taken or omitted in the absence
of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any Interim Note Related
Documents.
(c) The Companies hereby assume all risks of the acts or omissions of
any beneficiary or transferee with respect to its use of the Interim Note
Guarantee; provided, however, that this assumption is not intended to, and
shall not, preclude the Companies' pursuing such rights and remedies as they
may have against the beneficiary or transferee at law or under any other
agreement. No Agent-Related Person, nor any of the respective correspondents,
participants or assignees of NationsBank (including the Banks), shall be liable
or responsible for any of the matters described in clauses (i) through (vii) of
Section 4.5; provided, however, anything in such clauses to the contrary
notwithstanding, that the Companies may have a claim against NationsBank, and
NationsBank may be liable to the Companies, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Companies which the Companies prove were caused by the willful
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misconduct or gross negligence or willful failure of NationsBank to pay under
the Interim Note Guarantee except as a result of a court order after the
presentation to it by the beneficiary of a written demand and certificate(s)
strictly complying with the terms and conditions of the Interim Note Guarantee.
In furtherance and not in limitation of the foregoing: (i) NationsBank may
accept documents that appear on their face to be in order, without
responsibility for further investigation; and (ii) NationsBank shall not be
responsible for the validity or sufficiency of any instrument transferring or
purporting to transfer an Interim Note or the rights or benefits thereunder or
assigning the proceeds thereof, in whole or in part, in accordance with the
terms of such Interim Note which may prove to be invalid or ineffective for any
reason.
4.5 Obligations Absolute. Provided that NationsBank has made a payment
under the Interim Note Guarantee in accordance with its terms, the obligations
of the Companies under this Agreement and any Interim Note Related Documents to
reimburse NationsBank for a payment under the Interim Note Guarantee, and to
repay any Interim Note Borrowing and any payment under the Interim Note
Guarantee converted into any Revolving Loan or Revolving Loans, shall be
unconditional and irrevocable, and shall be paid strictly in accordance with
the terms of this Agreement and each such other Interim Note Related Document
under all circumstances, including the following:
(i) any lack of validity or enforceability of this Agreement
or any Interim Note Related Documents;
(ii) any change in the time, manner or place of payment of,
or in any other term of, all or any of the obligations of the
Companies in respect of the Interim Note Guarantee or any other
amendment or waiver of or any consent to departure from all or any of
the Interim Note Related Documents, which have been previously agreed
to by the respective Company;
(iii) the existence of any claim, set-off, defense or other
right that the Companies may have at any time against any beneficiary
or any transferee of any Interim Note Guarantee (or any Person for
whom any such beneficiary or any such transferee may be acting),
NationsBank or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by the Interim Note
Related Documents or any unrelated transaction;
(iv) any draft, demand, certificate or other document
presented under the Interim Note Guarantee proving to be forged,
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fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a
payment under the Interim Note Guarantee;
(v) any payment by NationsBank under the Interim Note
Guarantee pursuant to a demand for payment that reasonably complies
with the terms of the Interim Note Guarantee; or any payment made by
NationsBank under the Interim Note Guarantee to any Person purporting
to be (and providing reasonable evidence of its status as) a trustee
in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or
successor to any beneficiary or any transferee of any Interim Note
Guarantee, including any arising in connection with any Insolvency
Proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guarantee, for all or any of the obligations
of the Companies in respect of any Interim Note Guarantee; or
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to,
or a discharge of, the Companies or a guarantor.
4.6 Cash Collateral Pledge. Upon (i) the request of the Agent, (A) if
NationsBank has honored any full or partial payment request on the Interim Note
Guarantee and such payment has resulted in an Interim Note Borrowing hereunder,
or (B) if, as of the Termination Date (or such earlier date as the Revolving
Commitments shall have terminated in accordance with the terms hereof), the
Interim Note Guarantee may for any reason remain outstanding, or (ii) the
occurrence of the circumstances described in Section 2.11 requiring the
Companies to Cash Collateralize, then the Companies shall immediately Cash
Collateralize the Interim Note Guarantee Obligations in an amount equal to such
Interim Note Guarantee Obligations or in the amount required under Section
2.11. If the Interim Note Guarantee expires without the application of such
Cash Collateral in full, or if all Interim Note Borrowings with respect to the
Interim Note Guarantee have been paid in full by the Companies, then as long as
there is no Event of Default in existence and so long as no such application
shall be made within 25 days of the expiration of the Interim Note Guarantee,
the Agent shall return to the Companies any cash or deposit account balances
that were used by the Companies to Cash Collateralize such Interim Note
Guarantee pursuant to this Section 4.6 and were not applied to Interim Note
Borrowings.
4.7 Interim Note Guarantee Fees. (a) The Companies shall pay to the
Agent for the account of each of the Banks an Interim Note Guarantee fee with
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respect to the Interim Note Guarantee equal to the Applicable Margin for
Revolving Loans with respect to the Offshore Rate Loans times the Interim Note
Obligations computed on a quarterly basis in arrears on the last Business Day
of each calendar quarter based upon the Interim Note Obligations outstanding
for that quarter as calculated by the Agent. Such Interim Note Guarantee fees
shall be due and payable quarterly in arrears on the first Business Day
following the calendar quarter during which there are Interim Note Obligations,
commencing on the Effective Date through the Termination Date (or such later
date upon which the Interim Note Guarantee shall expire), with the final
payment to be made on the Termination Date (or such later expiration date).
(b) The Companies shall pay to the Agent for the account of
NationsBank a fee with respect to the Interim Note Guarantee equal to 1/8th of
1% per annum of the average daily Interim Note Obligations (computed based on
currency exchange rates in effect as of the most recent Valuation Date),
computed on a quarterly basis in arrears on the last Business Day of each
calendar quarter based upon Interim Note Obligations outstanding for that
quarter as calculated by the Agent. Such fees shall be due and payable
quarterly in arrears on the first Business Day following the calendar quarter
during which the Interim Note Guarantee remains outstanding, commencing on the
Effective Date, through the Termination Date (or such later date upon which the
Interim Note Guarantee shall expire), with the final payment to be made on the
Termination Date (or such later expiration date).
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ARTICLE V
CHANGE IN CIRCUMSTANCES
5.1 Increased Cost and Reduced Return.
(a) If, after the date hereof, the adoption of any applicable law,
rule, or regulation, or any change in any applicable law, rule, or regulation,
or any change in the interpretation or administration thereof by any
governmental authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank or
Designated Bidder (or its Lending Office) with any request or directive
(whether or not having the force of law) of any such governmental authority,
central bank, or comparable agency:
(1) shall subject such Bank (or its Lending Office) to any tax, duty,
or other charge with respect to any Offshore Rate Loans, its Note,
or its obligation to make Offshore Rate Loans, or change the basis
of taxation of any amounts payable to such Bank (or its Lending
Office) under this Agreement or its Note in respect of any
Offshore Rate Loans (other than taxes imposed on the overall net
income of such Bank or Designated Bidder by the jurisdiction in
which such Bank or Designated Bidder has its principal office or
such Lending Office);
(2) shall impose, modify, or deem applicable any reserve, special
deposit, assessment, or similar requirement (other than the
Eurocurrency Reserve Percentage utilized in the determination of
the Offshore Rate) relating to any extensions of credit or other
assets of, or any deposits with or other liabilities or
commitments of, such Bank or Designated Bidder (or its Lending
Office), including the Revolving Commitment or 364 Day Commitment
of such Bank or Designated Bidder hereunder; or
(3) shall impose on such Bank or Designated Bidder (or its Lending
Office) or on the London interbank market any other condition
affecting this Agreement or its Note or any of such extensions of
credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Bank or
Designated Bidder (or its Lending Office) of making, converting into,
continuing, or maintaining any Loans or to reduce any sum received or
receivable by such Bank or Designated Bidder (or its Lending Office) under this
Agreement or its Note with respect to any Offshore Rate Loans, then the
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Companies shall pay to such Bank or Designated Bidder within ten (10) Business
Days of demand such amount or amounts as will compensate such Bank or
Designated Bidder for such increased cost or reduction, provided, that no
Company shall be obligated to reimburse any Bank for any cost incurred pursuant
to this Section more than 180 days prior to notice to the Companies of the
incurrence of such cost; except that if any change or compliance requirement
described above shall have a retroactive application, the Companies shall be
obligated to make such reimbursement with respect to such retroactive effect,
if such Bank shall give the Companies notice thereof within 30 days of such
Bank's having notice thereof. If any Bank requests compensation by the
Companies under this Section 5.1(a), the Companies may, by notice to such Bank
(with a copy to the Agent), suspend the obligation of such Bank to make or
continue Loans of the Type with respect to which such compensation is
requested, or to convert Loans of any other Type into Loans of such Type, until
the event or condition giving rise to such request ceases to be in effect (in
which case the provisions of Section 5.4 shall be applicable); provided that
such suspension shall not affect the right of such Bank to receive the
compensation so requested.
(b) If, after the date hereof, any Bank shall have determined that the
adoption of any applicable law, rule, or regulation regarding capital adequacy
or any change therein or in the interpretation or administration thereof by any
governmental authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or any request or directive regarding
capital adequacy (whether or not having the force of law) of any such
governmental authority, central bank, or comparable agency, has or would have
the effect of reducing the rate of return on the capital of such Bank or any
corporation controlling such Bank as a consequence of such Bank's obligations
hereunder to a level below that which such Bank or such corporation could have
achieved but for such adoption, change, request, or directive (taking into
consideration its policies with respect to capital adequacy), then from time to
time upon demand the Companies shall pay to such Bank such additional amount or
amounts as will compensate such Bank for such reduction; provided, that no
Company shall be obligated to reimburse any Bank for any cost described in this
Section more than 180 days prior to notice to the Companies of the incurrence
of such cost; except that if any change or compliance required described above
shall have a retroactive application, the Companies shall be obligated to make
such reimbursement with respect to such retroactive effect, if such Bank shall
give the Companies notice thereof within 30 days of such Bank's having notice
thereof.
(c) Without limiting the foregoing but without duplication for any
Associated Costs reimbursed pursuant to Section 5.1(a) or (b), as to any
Offshore Currency Loans denominated in British pounds sterling, the Companies
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will pay the Associated Costs. Any Bank requesting reimbursement under this
Section 5.3(c) shall give the Companies written notice, including a detailed
calculation, within thirty (30) days of having notice of the incurrence of any
Associated Costs.
(d) Each Bank shall promptly notify the Companies and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section 5.1 and will
designate a different Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the judgment
of such Bank, be otherwise disadvantageous to it. Any Bank claiming
compensation under this Section 5.1 shall furnish to the Companies and the
Agent a statement setting forth the additional amount or amounts to be paid to
it hereunder, which shall be conclusive in the absence of manifest error,
together with an explanation of the event giving rise to such claim. In
determining such amount, such Bank may use any reasonable averaging and
attribution methods.
5.2 Limitation on Types of Loans. If on or prior to the first day of
any Interest Period for any Offshore Rate Loan:
(a) the Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining
the Offshore Rate for such Interest Period; or
(b) the Required Banks determine (which determination shall
be conclusive) and notify the Agent that the Offshore Rate will not
adequately and fairly reflect the cost to the Banks of funding
Offshore Rate Loans for such Interest Period;
then the Agent shall give the Companies prompt notice thereof specifying the
relevant Type of Loans and the relevant amounts or periods, and so long as such
condition remains in effect, the Banks shall be under no obligation to make
additional Loans of such Type, continue Loans of such Type, or to convert Loans
of any other Type into Loans of such Type and the Companies shall, on the last
day(s) of the then current Interest Period(s) for the outstanding Loans of the
affected Type, either prepay such Loans or convert such Loans into another Type
of Loan in accordance with the terms of this Agreement.
5.3 Illegality. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Bank or its Lending Office to
make, maintain, or fund Offshore Rate Loans hereunder, then such Bank shall
promptly notify the Companies thereof and such Bank's obligation to make or
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continue Offshore Rate Loans and to convert other Types of Loans into Offshore
Rate Loans shall be suspended until such time as such Bank may again make,
maintain, and fund Offshore Rate Loans (in which case the provisions of Section
5.4 shall be applicable).
5.4 Treatment of Affected Loans. If the obligation of any Bank to make
an Offshore Rate Loan or to continue, or to convert Loans of any other Type
into, Loans of a particular Type shall be suspended pursuant to Section 5.2 or
5.3 hereof (Loans of such Type being herein called "Affected Loans" and such
Type being herein called the "Affected Type"), such Bank's Affected Loans shall
be automatically converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for Affected Loans (or, in the case of a conversion
required by Section 5.3 hereof, on such earlier date as such Bank may specify
to the Companies with a copy to the Agent) and, unless and until such Bank
gives notice as provided below that the circumstances specified in Section 5.1
or 5.3 hereof that gave rise to such conversion no longer exist:
(a) to the extent that such Bank's Affected Loans have been
so converted, all payments and prepayments of principal that would
otherwise be applied to such Bank's Affected Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or continued by
such Bank as Loans of the Affected Type shall be made or continued
instead as Base Rate Loans, and all Loans of such Bank that would
otherwise be converted into Loans of the Affected Type shall be
converted instead into (or shall remain as) Base Rate Loans.
If such Bank gives notice to the Companies (with a copy to the Agent) that the
circumstances specified in Section 5.1 or 5.3 hereof that gave rise to the
conversion of such Bank's Affected Loans pursuant to this Section 5.4 no longer
exist (which such Bank agrees to do promptly upon such circumstances ceasing to
exist) at a time when Loans of the Affected Type made by other Banks are
outstanding, such Bank's Base Rate Loans shall be automatically converted, on
the first day(s) of the next succeeding Interest Period(s) for such outstanding
Loans of the Affected Type, to the extent necessary so that, after giving
effect thereto, all Loans held by the Banks holding Loans of the Affected Type
and by such Bank are held pro rata (as to principal amounts, Types, and
Interest Periods) in accordance with their respective 364 Day Commitments and
Revolving Credit Commitments.
5.5 Compensation. Upon the request of any Bank, the Companies shall
pay to such Bank such amount or amounts as shall be sufficient (in the
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reasonable opinion of such Bank) to compensate it for any loss, cost, or
expense (including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or conversion of a Offshore Rate
Loan for any reason (including, without limitation, the acceleration
of the Loans pursuant to Section 10.1) on a date other than the last
day of the Interest Period for such Loan; or
(b) any failure by the Companies for any reason (including,
without limitation, the failure of any condition precedent specified
in Article VI to be satisfied) to borrow, convert, continue, or prepay
an Offshore Rate Loan on the date for such borrowing, conversion,
continuation, or prepayment specified in the relevant notice of
borrowing, prepayment, continuation, or conversion under this
Agreement.
5.6 Taxes.
(a) Any and all payments by the Companies to or for the account of any
Bank or the Agent hereunder or under any other Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Bank,
Designated Bidder and the Agent, taxes imposed on or measured by its income,
and franchise taxes imposed on it, by the jurisdiction under the laws of which
such Bank, Designated Bidder (or its Lending Office) or the Agent (as the case
may be) is organized or any political subdivision thereof (all such
non-excluded taxes, duties, levies, imposts, deductions, charges, withholdings,
and liabilities being hereinafter referred to as "Taxes"). If the Companies
shall be required by law to deduct any Taxes from or in respect of any sum
payable under this Agreement or any other Loan Document to any Bank or the
Agent, (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 5.6) such Bank or the Agent receives an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Companies shall make such deductions, (iii) the Companies shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law, and (iv) the Companies shall furnish to the
Agent, at its address referred to in Section 12.2, the original or a certified
copy of a receipt evidencing payment thereof.
(b) In addition, the Companies agree to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under this
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Agreement or any other Loan Document or from the execution or delivery of, or
otherwise with respect to, this Agreement or any other Loan Document
(hereinafter referred to as "Other Taxes").
(c) The Companies agree to indemnify each Bank and the Agent for the
full amount of Taxes and Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 5.6) paid by such Bank or the Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto.
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Companies or
the Agent (but only so long as such Bank remains lawfully able to do so), shall
provide the Companies and the Agent with (i) Internal Revenue Service Form 1001
or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Bank is entitled to benefits under an
income tax treaty to which the United States is a party which reduces the rate
of withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the conduct
of a trade or business in the United States, (ii) Internal Revenue Service Form
W-8 or W-9, as appropriate, or any successor form prescribed by the Internal
Revenue Service, and (iii) any other form or certificate required by any taxing
authority (including any certificate required by Sections 871(h) and 881(c) of
the Internal Revenue Code), certifying that such Bank is entitled to an
exemption from or a reduced rate of tax on payments pursuant to this Agreement
or any of the other Loan Documents.
(e) For any period with respect to which a Bank has failed to provide
the Companies and the Agent with the appropriate form pursuant to Section
5.6(d) (unless such failure is due to a change in treaty, law, or regulation
occurring subsequent to the date on which a form originally was required to be
provided), such Bank shall not be entitled to indemnification under Section
5.6(a) or 5.6(b) with respect to Taxes imposed by the United States; provided,
however, that should a Bank, which is otherwise exempt from or subject to a
reduced rate of withholding tax, become subject to Taxes because of its failure
to deliver a form required hereunder, the Companies shall take such steps as
such Bank shall reasonably request to assist such Bank to recover such Taxes.
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(f) If the Companies are required to pay additional amounts to or for
the account of any Bank pursuant to this Section 5.6, then such Bank will agree
to use reasonable efforts to change the jurisdiction of its Lending Office so
as to eliminate or reduce any such additional payment which may thereafter
accrue if such change, in the judgment of such Bank, is not otherwise
disadvantageous to such Bank.
(g) Within thirty (30) days after the date of any payment of Taxes,
the Companies shall furnish to the Agent the original or a certified copy of a
receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement of the
Companies hereunder, the agreements and obligations of the Companies contained
in this Section 5.6 shall survive the termination of the Revolving Credit
Commitments and 364 Day Commitments and the payment in full of the Notes.
5.7 Replacement Banks. The Companies may, in their sole discretion, on
10 Business Days' prior written notice to the Agent and a Bank (except in the
case of the replacement of a Bank after notice from such Bank to the Companies
pursuant to Section 5.1, in which case no prior notice from the Companies is
required), cause a Bank who has incurred increased costs or is unable to make
Offshore Rate Loans to (and such Bank shall) assign, pursuant to Section 12.8,
all of its rights and obligations under this Agreement (other than with respect
to outstanding Bid Loans) to an Eligible Assignee designated by the Companies
which is willing to become a Bank for a purchase price equal to the outstanding
principal amount of the Syndicated Loans payable to such Bank plus any accrued
but unpaid interest on such Loans, any accrued but unpaid fees with respect to
such Bank's Commitment and any other amount payable to such Bank under this
Agreement (other than with respect to outstanding Bid Loans); provided, that
any expenses or other amounts which would be owing to such Bank pursuant to any
indemnification provision hereof (including, if applicable, Section 5.5) shall
be payable by the Companies as if the Companies had prepaid the Loans of such
Bank rather than such Bank having assigned its interest hereunder. The
Companies or the Assignee shall pay the applicable processing fee under Section
12.8.
5.8 Mitigation. Each Bank agrees that, with reasonable promptness
after the officer of such Bank responsible for administering the Loans of such
Bank becomes aware that such Bank has become an affected Bank under Section
5.3, is entitled to receive payments under Section 5.5, or is or has become
subject to U.S. or United Kingdom withholding taxes payable by any Company in
respect of its Loans, it will, to the extent not inconsistent with any internal
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policy of such Bank or any applicable legal or regulatory restriction, (i) use
all reasonable efforts to make, fund or maintain the Commitment of such Bank or
the Loans of such Bank through another lending office of such Bank, or (ii)
take such other reasonable measures, if, as a result thereof, the circumstances
which would cause such Bank to be an affected Bank under Section 5.3 would
cease to exist, or the additional amounts which would otherwise be required to
be paid to such Bank pursuant to Section 5.5 would be reduced, or such
withholding taxes would be reduced, and if the making, funding or maintaining
of such Commitment or Loans through such other lending office or in accordance
with such other measures, as the case may be, would not otherwise adversely
affect such Commitment or Loans or the interests of such Bank; provided that
such Bank will not be obligated to utilize such other lending office pursuant
to this Section 5.8 unless the Companies agree to pay all incremental expenses
incurred by such Bank as a result of utilizing such other lending office as
described in clause (i) above. A certificate as to the amount of any such
expenses (setting forth in reasonable detail the basis for requesting such
amount and the calculation thereof) submitted by such Bank to the Companies
(with a copy to the Agent) shall be prima facie evidence of such expenses.
5.9 Survival. The agreements and obligations of the Companies in this
Article V shall survive the payment of all other Obligations.
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ARTICLE VI
CONDITIONS PRECEDENT
6.1 Conditions to Execution of Agreement. (a) As a condition precedent
to the occurrence of the Effective Date and to the making of additional
Syndicated Loans, the Agent shall have received on or before the Effective
Date, in form and substance satisfactory to the Agent and the Banks, the
following:
(i) executed originals of each of this Agreement,
Guaranties, Pledge Agreements and the Notes, together with
all schedules and exhibits thereto and documents deliverable
thereunder;
(ii) the favorable written opinion or opinions with
respect to the Loan Documents and the transactions
contemplated thereby of special counsel to the Companies and
Guarantors dated the Effective Date, addressed to the Agent
and the Banks and reasonably satisfactory to the Agent and
the Banks;
(iii) resolutions of the boards of directors or
other appropriate governing body (or of the appropriate
committee thereof) of each Company and Guarantor certified by
its secretary or assistant secretary or other appropriate
representative of such Company and Guarantor as of the
Effective Date, approving and adopting the Loan Documents and
Interim Note Instruments to be executed by such Person, and
authorizing the execution and delivery and performance
thereof;
(iv) specimen signatures of officers or other
appropriate representatives of each Company and Guarantor
executing the Loan Documents and Interim Note Instruments on
behalf of such Company and Guarantor, which signature, and
the office and incumbency of such person, shall be certified
by the appropriate representative of such Company or
Guarantor, as the case may be;
(v) the charter documents and bylaws or deed of
incorporation and articles of association or other
organizational document of each Company and Guarantor
certified by the appropriate representative of such Company;
(vi) Pro Forma Historical Statements;
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(vii) Pro Forma Projections;
(viii) the Registration Statement;
(ix) evidence satisfactory to the Agent that all
fees payable by the Companies on the Effective Date to the
Agent, the Arranger, NationsBank and the Banks have been paid
in full;
(x) evidence reasonably satisfactory to the Agent of
consummation of the merger pursuant to the terms of the
Merger Agreement as previously furnished to the Agent, with
only such amendments or waivers of the provisions thereof as
are reasonably acceptable to the Agent.
(xi) evidence satisfactory to the Agent that Interim
has become a party to a Permitted Receivable Securitization
providing at least $150,000,000 to Interim;
(xii) closing statement containing a detailed
disbursement of proceeds of the Loans in accordance with
Section 2.10; and
(xiii) such other documents, instruments,
certificates and opinions as the Agent or the Banks may
reasonably request on or prior to the Effective Date in
connection with the Acquisition.
(b) There shall not have occurred or become known to the Agent or any
of the Banks any event, condition, litigation, action, suit, investigation or
other arbitral, administrative or judicial proceeding or other situation or
status since the date of the information contained in the financial and
business projections, budgets, pro forma data and forecasts concerning Interim
and its Subsidiaries, or of Xxxxxxx, delivered to the Agent prior to the
Effective Date that (x) has had or could reasonably be expected to result in a
Material Adverse Effect or materially adversely affect the business,
properties, operations or condition, financial or otherwise, of Interim and its
Subsidiaries or Xxxxxxx and Subsidiaries , taken as a whole or (y) does or
could reasonably be expected to restrain or enjoin or otherwise materially and
adversely affect the ability of any Person to fulfill their respective
obligations with respect to the Acquisition of Xxxxxxx; and
(c) Each Company and its Subsidiaries shall have received all
approvals, consents and waivers (including the expiration of early termination
of any waiting period without notice of intent to challenge or request for
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further information by any Governmental Authority), and shall have made or
given all necessary filings and notices, as shall be required to consummate the
transactions contemplated hereby except for such approvals, consents, waivers,
filings and notices as to which the failure to receive, make or give will not
have a Material Adverse Effect or materially adversely affect the business,
properties, operations or condition, financial or otherwise, of the acquired
business of Xxxxxxx, taken as a whole.
6.2 Condition of Extension of Credit to Borrowing Subsidiary. The
obligation of each Bank to make any Credit Extension to a Borrowing Subsidiary
is subject to the condition that such Borrowing Subsidiary has furnished to the
Agent the following items.
(i) Copies of the articles of incorporation or similar
organizational documents of such Borrowing Subsidiary, together with
all amendments, and a certificate of good standing (if available),
both certified by the appropriate governmental officer in its
jurisdiction of incorporation.
(ii) Copies, certified by an appropriate officer or director
of such Borrowing Subsidiary, of its by-laws or similar organizational
documents and of its Board of Directors' resolutions (and resolutions
of other bodies, if any are deemed necessary by counsel for any Bank)
authorizing the execution of the Loan Documents to which such
Borrowing Subsidiary is a party.
(iii) An incumbency certificate, executed by an appropriate
officer or director of such Borrowing Subsidiary, which shall identify
by name and title and bear the signature of the officers or directors
of such Borrowing Subsidiary authorized to sign the Loan Documents and
to request Loans hereunder, upon which certificate the Administrative
Agent and the Banks shall be entitled to rely until informed of any
change in writing by such Borrowing Subsidiary.
(iv) A written opinion of counsel to such Borrowing
Subsidiary, addressed to the Banks in form and substance satisfactory
to the Agent.
(v) Notes issued by such Borrowing Subsidiary to the order of
each of the Banks.
(vi) Such other documents as the Agent or its counsel may
have reasonably requested.
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6.3 Conditions to All Credit Extensions. The obligation of each Bank
and each Designated Bidder to make any Loan to be made by it (including its
initial Loan) other than, so long as no Event of Default shall have occurred
and be continuing, the continuation or conversion of any Loan previously made
(which shall remain subject to the limitations contained in Article II), and
the obligation of the Issuing Bank to Issue any Letter of Credit (including the
initial Letter of Credit), other than, so long as no Event of Default shall
have occurred and be continuing, the renewals of existing Letters of Credit, is
subject to the satisfaction of the following conditions precedent on the
relevant Borrowing Date or Issuance Date:
(a) Irrevocable Notice of Syndicated Activity, L/C
Application. For each Syndicated Loan, the Agent shall have received
an Irrevocable Notice of Syndicated Activity and, in the case of any
Issuance of any Letter of Credit, the Issuing Bank and the Agent shall
have received an L/C Application or L/C Amendment Application;
(b) Continuation of Representations and Warranties. The
representations and warranties in Article VII and in the other Loan
Documents shall be true and correct on and as of such Borrowing Date
or Issuance Date with the same effect as if made on and as of such
Borrowing Date or Issuance Date (except (i) to the extent such
representations and warranties expressly refer to an earlier date, in
which case they shall be true and correct as of such earlier date,
(ii) that references to financial statements described in Section
7.10(a) shall be to the financial statements most recently furnished
pursuant to Section 8.1(a) or (b), and (iii) that the reference to
November 1, 1998 in Section 7.10(c) shall refer to the date of the
financial statements most recently furnished pursuant to Section
8.1(a) or (b)); and
(c) No Existing Default. No Default or Event of Default shall
exist or shall result from such Borrowing or Issuance.
Each Irrevocable Notice of Syndicated Activity and L/C Application or L/C
Amendment Application submitted by any Company hereunder shall constitute a
representation and warranty by each Company hereunder, as of the date of each
such notice and as of each Borrowing Date, or Issuance Date, as applicable,
that the conditions in this Section 6.3 are satisfied. Nothing contained in
this Section 6.3 shall limit the obligation of the Banks to make an L/C Advance
and Interim Note Advance pursuant to Section 3.3 and Section 4.2, respectively.
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6.4 Supplements to Schedules. The Companies may, from time to time but
in no event less than five (5) Business Days prior to delivery of any
Irrevocable Notice of Syndicated Activity hereunder, amend or supplement
Schedules 7.5, 7.10, 7.12 and 7.13 to this Agreement by delivering (effective
upon receipt) to the Agent and each Bank a copy of such revised Schedule or
Schedules which shall (i) be dated the date of delivery, (ii) be certified by a
Responsible Officer as true, complete and correct as of such date and as
delivered in replacement for the corresponding Schedule or Schedules previously
in effect, and (iii) show in reasonable detail (by blacklining or other
appropriate graphic means) the changes from each such corresponding predecessor
Schedule. Notwithstanding anything to the contrary contained herein or in any
of the other Loan Documents, in the event that the Required Banks determine
based upon such revised Schedules (whether individually or in the aggregate or
cumulatively) that there has been a change which could have a Material Adverse
Effect since the Closing Date, or such later date as the Companies shall have
most recently furnished supplements to Schedules under this Section 6.4 or
financial statements under Section 8.1(a) or (b), in the business, operations
or affairs, financial or otherwise, of Interim and its Subsidiaries, taken as a
whole, the Banks shall have no further obligation to fund Credit Extensions or
continue or convert any Loan previously made or renew or extend existing
Letters of Credit.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Each Company represents and warrants to the Agent and each Bank that:
7.1 Existence and Power. Such Company and each of its Subsidiaries:
(a) is a corporation, partnership or limited liability
company duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or formation;
(b) has the power and authority and governmental licenses,
authorizations, consents and approvals to own its assets, carry on its
business and to execute, deliver, and perform its obligations under
the Loan Documents;
(c) is duly qualified and is licensed and in good standing
under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification or license, except to the extent failure to so qualify
would not have a Material Adverse Effect; and
(d) is in compliance with all Requirements of Law, except to
the extent the failure to so comply would not have a Material Adverse
Effect.
7.2 Authorization; No Contravention. The execution, delivery and
performance by such Company and its Subsidiaries of this Agreement and each
other Loan Document to which such Person is party have been duly authorized by
all necessary action and do not and will not:
(a) contravene the terms of any of that Person's Organization
Documents;
(b) conflict with or result in a material breach or
contravention of, or the creation of any Lien under, any document
evidencing any material Contractual Obligation to which such Person is
a party or any order, injunction, writ or decree of any Governmental
Authority to which such Person or its property is subject; or
(c) violate any Requirement of Law.
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7.3 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, such Company or
any of its Subsidiaries of the Agreement or any other Loan Document.
7.4 Binding Effect. This Agreement and each other Loan Document to
which such Company or any of its Subsidiaries is a party constitute the legal,
valid and binding obligations of such Company and any of its Subsidiaries to
the extent it is a party thereto, enforceable against such Person in accordance
with their respective terms (except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability).
7.5 Litigation: Labor Controversies. There are no actions, suits,
labor controversies, proceedings, claims or disputes pending, or to the best
knowledge of such Company, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against such Company, or its
Subsidiaries or any of their respective properties which:
(a) purport to affect or pertain to this Agreement or any
other Loan Document, or any of the transactions contemplated hereby or
thereby; or
(b) if determined adversely to such Company or its
Subsidiaries, would reasonably be expected to have a Material Adverse
Effect, except as set forth in Schedule 7.5.
No injunction, writ, temporary restraining order or order of any nature has
been issued by any court or other Governmental Authority purporting to enjoin
or restrain the execution, delivery or performance of this Agreement or any
other Loan Document, or directing that the transactions provided for herein or
therein not be consummated as herein or therein provided.
7.6 No Default. No Default or Event of Default exists or would result
from the incurring of any Obligations by such Company. As of the Effective
Date, neither such Company nor any of its Subsidiaries is in default under or
with respect to any Contractual Obligation in any respect which, individually
or together with all such defaults, could reasonably be expected to have a
Material Adverse Effect, or that would, if such default had occurred after the
Effective Date, create a Default or an Event of Default under Section 10.1(e).
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7.7 Use of Proceeds; Margin Regulations. The Credit Extensions are to
be used solely for the repayment of the Xxxxxxx Indebtedness in full, the
acquisition of shares of Xxxxxxx and the costs associated with such Acquisition
and for general corporate purposes, including the continuation of Loans
outstanding under the Original Agreement and Existing Letters of Credit. The
shares of Xxxxxxx do not constitute Margin Stock. Neither such Company nor any
of its Subsidiaries is generally engaged in the business of purchasing or
selling Margin Stock or extending credit for the purpose of purchasing or
carrying Margin Stock. Less than 25% of the Property of the Companies and their
Subsidiaries consists of Margin Stock.
7.8 Title to Properties. Such Company and each of its Subsidiaries
have good record and marketable title in fee simple to, or valid leasehold
interests in, all real property necessary or used in the ordinary conduct of
their respective businesses, except for such defects in title as could not,
individually or in the aggregate, have a Material Adverse Effect. As of the
Effective Date, the property of such Company and its Subsidiaries is subject to
no Liens, other than Liens permitted under Section 9.2.
7.9 Taxes. Such Company and its Subsidiaries have filed all Federal
and other material tax returns and reports required to be filed, and have paid
all Federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or assets
otherwise due and payable, except those which are being contested in good faith
by appropriate proceedings and for which adequate reserves have been provided
in accordance with GAAP. To the best of Interim's knowledge, there is no
proposed tax assessment against such Company or any of its Subsidiaries that
would, if made, have a Material Adverse Effect.
7.10 Financial Condition.
(a) The audited consolidated financial statements of Interim
and its Subsidiaries dated December 26, 1997 and December 25, 1998,
and the related consolidated statements of income or operations,
shareholders' equity and cash flows for the fiscal periods ended on
such dates:
(i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein;
(ii) present fairly the financial condition of
Interim and its Subsidiaries as of the dates thereof and
results of operations for the periods covered thereby; and
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(iii) except as specifically disclosed in Schedule
7.10, show all material indebtedness and other liabilities,
direct or contingent, of Interim and its Subsidiaries as of
the date thereof, including liabilities for taxes, material
commitments and Contingent Obligations, which are required to
be disclosed in accordance with GAAP.
(b) Since December 25, 1998, there has been no Material
Adverse Effect.
(c) To the best knowledge of Interim, after due inquiry, the
audited consolidated financial statements of Xxxxxxx and its
Subsidiaries dated November 2, 1997 and November 1, 1998, and the
related consolidated statements of income or operations, shareholders'
equity and cash flows for the fiscal periods ended on such dates:
(i) were prepared in accordance with GAAP,
consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein;
(ii) present fairly the financial condition of
Xxxxxxx and its Subsidiaries as of the dates thereof and
results of operations for the periods covered thereby; and
(iii) except as specifically disclosed in Schedule
7.10, show all material indebtedness and other liabilities,
direct or contingent, of Xxxxxxx and its Subsidiaries as of
the date thereof, including liabilities for taxes, material
commitments and Contingent Obligations, which are required to
be disclosed in accordance with GAAP.
(d) The Pro Forma Historical Statements provided to the Agent
and the Banks fairly present the historical pro forma financial
condition and results of operations of Interim and its Subsidiaries
and, to the best knowledge of Interim, Xxxxxxx and its Subsidiaries
for the respective periods covered thereby, giving effect to the
acquisition of Xxxxxxx.
(e) The Pro Forma Projections provided to the Agent and the
Banks were prepared by Interim in good faith and are based upon
assumptions which Interim believed, to the best of its knowledge, to
have been reasonable in all material respects as of the time of
preparation thereof and as of the Effective Date.
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7.11 Support Documents.
(a) The provisions of each of the Support Documents (and the
actions contemplated to be taken thereunder) are effective to create
in favor of the Agent for the benefit of the Banks, a legal, valid and
enforceable (i) guaranty of the obligations described therein except
as limited by bankruptcy, insolvency and similar laws affecting the
enforcement of creditors' rights generally and equitable principles of
general application and (ii) duly perfected pledge of all ownership
interest (other than directors' qualifying shares) in the Subsidiaries
described in Schedule II.
(b) All representations and warranties of such Company's
Subsidiaries contained in the Support Documents are true and correct
in all material respects.
7.12 Copyrights, Patents, Trademarks and Licenses, etc. Except as set
forth on Schedule 7.12, such Company and its Subsidiaries own or are licensed
or otherwise have the right to use all of the patents, trademarks, service
marks, trade names, copyrights, contractual franchises, authorizations and
other rights that are reasonably necessary for the operation of their
respective businesses, without material conflict with the rights of any other
Person. To the best knowledge of such Company, except as set forth in Schedule
7.12, no slogan or other advertising device, product, process, method,
substance, part or other material now employed by such Company or any of its
Subsidiaries infringes in any material respect upon any rights held by any
other Person. Except as set forth in Schedule 7.12, no claim or litigation
regarding any of the foregoing is pending or known to be threatened, and no
patent, invention, device, application, principle, statute, law, rule,
regulation, standard or code is pending or, to the knowledge of such Company,
proposed, which, in either case, could reasonably be expected to have a
Material Adverse Effect.
7.13 Subsidiaries. As of the Effective Date, such Company has no
Subsidiaries other than those specifically disclosed (and identified as being
Subsidiaries of such Company) in part (a) of Schedule 7.13 and has no equity
investments in any other corporation or entity other than those specifically
disclosed in Part (b) of Schedule 7.13 and each Subsidiary (other than a
Foreign Subsidiary or an Excluded Subsidiary) is a party to the Guaranty
Agreement and is listed as a "Guarantor" in Schedule 1.2(b) hereof.
7.14 Insurance. The Properties of such Company and its Subsidiaries
are insured with financially sound and reputable insurance companies not
Affiliates, other than Spectrum, of any Company, in such amounts, with such
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deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where
such Company or such Subsidiary operates; provided, however, Interim and its
Subsidiaries may maintain self insurance as to risks of the types and in the
amounts (and with such reserves) as are customarily maintained by Persons
conducting similar businesses in the same localities.
7.15 ERISA Compliance.
(a) All pension plans governed by laws other than the laws of
the United States have been funded in amounts at least equal to the
present value of the probable liabilities of the Companies and their
Subsidiaries thereunder.
(b) Except as set forth in Schedule 7.15, each Plan is in
compliance in all material respects with the applicable provisions of
ERISA, the Code and other federal or state law. Each Plan which is
intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS and to the best knowledge
of the Companies, nothing has occurred which would cause the loss of
such qualification. Interim and each ERISA Affiliate has made all
required contributions to any Plan subject to Section 412 of the Code,
and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made
with respect to any Plan.
(c) There are no pending or, to the best knowledge of the
Companies, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan which has resulted or
could reasonably be expected to result in a Material Adverse Effect.
There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan which has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(d) (i) No ERISA Event has occurred within the last six (6)
years or is reasonably expected to occur; (ii) no Pension Plan has any
Unfunded Pension Liability; (iii) neither Interim nor any ERISA
Affiliate has incurred within the last six (6) years, or reasonably
expects to incur, any liability under Title IV of ERISA with respect
to any Pension Plan (other than premiums due and not delinquent under
Section 4007 of ERISA) (iv) neither Interim nor any ERISA Affiliate
has incurred within the last six (6) years, or reasonably expects to
incur, any liability (and no event has occurred within the last six
(6) years which, with the giving of notice under Section 4219 of
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ERISA, would result in such liability) under Section 4201 or 4243 of
ERISA with respect to a Multiemployer Plan; and (v) neither Interim
nor any ERISA Affiliate has engaged in a transaction that could be
subject to Section 4069 or 4212(c) of ERISA.
7.16 Environmental Matters. Environmental Laws and Environmental
Claims could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
7.17 Regulated Entities. None of such Company, any Person controlling
such Company, or any Subsidiary, is an "Investment Company" within the meaning
of the Investment Company Act of 1940. Such Company is not subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act, any state public utilities code, or any
other Federal, state or foreign statute or regulation limiting its ability to
incur Indebtedness.
7.18 No Burdensome Restrictions. Neither such Company nor any of its
Subsidiaries is a party to or bound by any Contractual Obligation, or subject
to any restriction in any Organization Document, or any Requirement of Law,
which could reasonably be expected to have a Material Adverse Effect.
7.19 Full Disclosure. Neither this Agreement nor any other Loan
Document or certificate or document executed and delivered by or on behalf of
any Company or any Subsidiary in accordance with Section 6.1 (other than
Section 6.1(vi) and (vii)) or Section 6.2 contains any misrepresentation or
untrue statement of material fact or omits to state a material fact necessary,
in light of the circumstance under which it was made, in order to make any such
representation or statement contained therein not misleading in any material
respect.
7.20 Immunity. The Companies and the Guarantors are generally subject
to suit and none of them nor any of their properties or revenues enjoys any
right of immunity from judicial proceedings.
7.21 Year 2000 Compliance. Interim and its Subsidiaries have (i)
initiated a review and assessment of all areas within its and each of its
Subsidiaries' business and operations (including those affected by information
received from suppliers and vendors) that could reasonably be expected to be
adversely affected by the Year 2000 Problem, (ii) developed a plan and timeline
for addressing the Year 2000 Problem on a timely basis, and (iii) to date,
implemented that plan substantially in accordance with that timetable. Interim
reasonably believes that all computer applications (including those affected by
information received from its suppliers and vendors) that are material to its
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or any of its Subsidiaries' business and operations will on a timely basis be
Year 2000 Compliant, except to the extent that a failure to do so could not
reasonably be expected to have a Material Adverse Effect.
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ARTICLE VIII
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Banks waive compliance in
writing:
8.1 Financial Information, Reports, Notices, etc. The Companies will
furnish, or will cause to be furnished, to the Agent copies, with sufficient
copies for the Banks, of the following financial statements, reports, notices
and information:
(a) as soon as available and in any event within 60 days
after the end of each of the first three fiscal quarters of each
fiscal year of Interim, (x) the consolidated balance sheet of Interim
and its Subsidiaries, as of the end of such fiscal quarter and (x)
related consolidated statements of profits and losses and cash flows
of Interim and its Subsidiaries, for such fiscal quarter and for the
period commencing at the end of the previous fiscal year and ending
with the end of such fiscal quarter, such balance sheets and
statements of profit and losses and cash flow to be prepared in
accordance with GAAP in a manner consistent with past practices of
Interim, certified by the chief financial officer, treasurer or the
secretary-controller of Interim;
(b) as soon as available and in any event within 110 days
after the end of each fiscal year of Interim, a copy of the annual
audit report for such fiscal year for Interim and its Subsidiaries,
including therein the consolidated balance sheet of Interim and its
Subsidiaries as of the end of such fiscal year and consolidated
statements of profits and losses and cash flow of Interim and its
Subsidiaries for such fiscal year, certified without any Impermissible
Qualification by Deloitte & Touche LLP or other internationally
recognized independent public accountants, together with a certificate
from such accountants to the effect that (i) the consolidated
financial statements have been prepared in accordance with GAAP
consistently applied and present fairly the financial condition and
results of operations of Interim and its Subsidiaries and (ii) in
making the examination necessary for the signing of such annual report
by such accountants, they have not become aware of any Default or
Event of Default that has occurred and is continuing, or, if they have
become aware of such Default or Event of Default, describing such
Default or Event of Default and the steps, if any, being taken to cure
it;
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(c) together with the financial statements furnished under
preceding clauses (a) and (b), a certificate substantially in the form
of Exhibit B, as the same may be amended, modified or supplemented
from time to time (the "Compliance Certificate"), signed by a
Responsible Officer dated the date of such annual or such quarterly
financial statement, as the case may be, to the effect that no Default
or Event of Default has occurred and is continuing, or, if there is
any such event, describing it and the steps, if any, being taken to
cure it, and containing a computation of each of the financial ratios
and restrictions contained in Article IX;
(d) promptly and in any event within 30 days after receiving
such reports, copies of all management reports submitted to a Company
by its independent public accountants in connection with each audit
made by such accountants of the books of a Company or any Subsidiary;
(e) as soon as possible and in any event within five Business
Days of any material change in its customary accounting practices,
notice thereof and copies of all documentation relating thereto;
(f) as soon as such Company has become aware of the
occurrence of each Default or Event of Default, a statement of a
Responsible Officer of such Company setting forth details of such
Default or Event of Default and the action which such Company has
taken and proposes to take with respect thereto;
(g) as soon as (x) such Company has become aware of the
occurrence of any known material adverse development with respect to
any litigation, action, proceeding or labor controversy described in
Section 7.5 or (y) the commencement of any known labor controversy,
litigation, action or proceeding of the type described in Section 7.5,
notice thereof and copies of all documentation relating thereto;
(h) as soon as possible and in any event within 10 days after
the sending or filing thereof, copies of all reports which Interim
sends to any of its security holders, and all reports and registration
statements which any Company or any of its Subsidiaries files with the
Securities and Exchange Commission or any national (including any
foreign) securities exchange;
(i) not later than 45 days after each fiscal year end an
annual budget for the current fiscal year for Interim and its
Subsidiaries, on a consolidated basis, with respect to such fiscal
year;
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(j) immediately upon becoming aware of the occurrence of any
of the following events affecting Interim or any ERISA Affiliate,
notice with respect to the occurrence of any of the following:
(i) an ERISA Event;
(ii) a material increase in the Unfunded Pension
Liability of any Pension Plan;
(iii) the adoption of, or the commencement of
contributions to, any Plan subject to Section 412 of the Code
by such Company or any ERISA Affiliate; or
(iv) the adoption of any amendment to a Plan subject
to Section 412 of the Code, if such amendment results in a
material increase in contributions or Unfunded Pension
Liability;
(k) immediately upon becoming aware of any other event or
circumstance (but in no event more than 10 Business Days after such
event or circumstance) which has had or is reasonably likely to have a
Material Adverse Effect, notice thereof and copies of all
documentation relating thereto;
(l) within 10 Business Days after the confirmed loss of any
contracts with a vendor the sales under which contracts aggregate at
least 10% of the revenues of Interim and its Subsidiaries on a
consolidated basis for the most recent four fiscal quarter period,
notice thereof;
(m) promptly after the issuance of any guaranty in excess of
$10,000,000 for the benefit of any Person, notice thereof and copies
of all documentation relating thereto;
(n) such other information respecting the financial condition
or operations of each Company or any of its Subsidiaries as any Bank
through the Agent may from time to time reasonably request.
8.2 Compliance with Laws, etc. Each Company will, and will cause each
of its Subsidiaries to, comply in all material respects with applicable laws,
rules, regulations and orders, such compliance to include (without limitation):
(a) subject to Section 9.6 and Section 9.7, the maintenance
and preservation of its corporate existence and qualification as a
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foreign corporation where such qualification is appropriate and, as to
qualification only, where the failure to be so qualified would have or
be reasonably likely to have a Material Adverse Effect on such Person
(for purposes of this Section 8.2(a), in the definition of "Material
Adverse Effect" all references to any Company or any Subsidiary shall
be deemed to refer solely to such Person); and
(b) the payment, before the same become delinquent, of all
material taxes, assessments and governmental charges imposed upon it
or upon its property the failure to pay or satisfy which could
reasonably be expected to have a Material Adverse Effect, except to
the extent being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books.
8.3 Maintenance of Properties. Each Company will, and will cause each
of its Subsidiaries to, maintain, preserve, protect and keep its properties in
good repair, working order and condition, and make necessary and required
repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times unless such Company
determines in good faith that the continued maintenance of any of its
properties is no longer economically desirable, except where the failure to do
so could not reasonably be expected to have a Material Adverse Effect.
8.4 Insurance. Each Company will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained with responsible insurance
companies insurance with respect to its material properties and business
(including business interruption insurance) against such casualties and
contingencies and of such types and in such amounts as is customary in the case
of similar businesses and will, upon request of the Agent or any Bank, furnish
to each Bank at reasonable intervals a certificate of a Responsible Officer of
such Company setting forth the nature and extent of all insurance maintained by
such Company and its Subsidiaries in accordance with this Section.
8.5 Books and Records. Each Company will, and will cause each of its
Subsidiaries to, keep books and records which accurately reflect all of its
business affairs and transactions, and permit the Agent and each Bank or any of
their respective representatives to visit all of its offices during normal
business hours, to discuss its and its Subsidiaries' financial matters with its
officers and independent public accountants (and each Company hereby authorizes
such independent public accountants to discuss such Company's and its
Subsidiaries' financial matters with each Bank or its representatives whether
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or not any representative of such Company is present) and to examine (and
photocopy extracts from) any of its books or other corporate records. Each
Company shall pay any photocopy charges (or such Company shall provide
photocopies) and any fees of such independent public accountants incurred in
connection with the Agent's or any Bank's exercise of its rights pursuant to
this Section.
8.6 Maintenance of Existence, etc. Subject to the provisions of
Section 9.7, each Company will, and will cause each of its Subsidiaries to,
conduct its business as it is conducted as of the Closing Date subject to
changes in the ordinary course and do such things as are reasonably necessary
to maintain, preserve, renew and keep in full force and effect its rights,
privileges, licenses, patents, patent rights, copyrights, trademarks, trade
names, franchises and other authority to the extent material and necessary for
the conduct of its respective business in the ordinary course as conducted from
time to time.
8.7 Additional Support Documents. (a) Interim will, and will cause
each Subsidiary that is an Active Subsidiary and not a Foreign Subsidiary other
than Spectrum, Spectrum Financial Corporation, Interim Receivables (but only so
long as Interim Receivables engages in no business other than as an
intermediary in a Permitted Receivable Securitization), whether on the
Effective Date or thereafter to execute and deliver as promptly as practical
but in any event within 45 days after (A) the creation or Acquisition of any
such Subsidiary or (B) such Subsidiary ceasing to be an Inactive Subsidiary, a
Guaranty, together with such resolutions, stock certificates, opinions of
counsel, incumbency certificates and other documentation as the Agent may
reasonably require.
(b) Interim will, and will cause each Subsidiary, to take such actions
as are necessary or as the Agent may from time to time request to ensure that
the Obligations are secured by a perfected Lien on 65% of each class of the
capital stock of each Direct Foreign Subsidiary which is an Active Subsidiary
(other than an Excluded Subsidiary) it being understood that within 45 days of
the creation or Acquisition of any Direct Foreign Subsidiary which is an Active
Subsidiary or any Inactive Subsidiary which is a Direct Foreign Subsidiary
becoming an Active Subsidiary, Interim will, or will cause its subsidiary, to
execute and deliver a Pledge Agreement (in such form and substance satisfactory
to the Agent) pledging such stock together with such resolutions, stock
certificates, opinions of counsel, incumbency certificates and other
documentation as the Agent may reasonably require.
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(c) Interim shall deliver to the Agent and the Banks a revised
Schedule 7.13 showing the addition of such Subsidiaries, and such revised
Schedule shall replace the existing Schedule and shall be deemed to have become
a part of this Agreement.
(d) Interim shall cause to be delivered to the Agent such other
documents as may be reasonably requested by the Agent from time to time with
respect to the Support Documents, including without limitation such documents
as may be necessary to continue the liens in property pledged in favor of the
Agent in connection with the transactions contemplated hereby.
8.8 Compliance with ERISA. Each Company will, and will cause each of
its ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law; (b) cause each Plan which is qualified under Section 401(a) of the
Code to maintain such qualification; and (c) make all required contributions to
any Plan subject to Section 412 of the Code, if the failure to do any or all of
the foregoing could reasonably be expected to have a Material Adverse Effect.
8.9 Release of Pledge or Guaranty. In connection with any merger or
consolidation transaction permitted under Section 9.6 and in which transaction
any Person whose equity interests have been pledged to the Agent pursuant to
any Support Document shall not be the survivor thereof, upon the written
request to the Agent by, and at the expense of, the Companies, the Agent shall
take such action as shall be necessary, without impairing any remaining rights
under the Loan Documents, to release such equity interests from such pledge
under the applicable Support Documents; provided, however, that substantially
simultaneously with such release the Agent shall receive such Support Documents
and related share certificates, evidences of registration of lien, opinions and
other items as the Agent may reasonably require conferring upon the Agent (or
providing assurances as to) a perfected lien (of substantially equivalent or
higher priority as the released lien) in the equity interests (other than
directors' qualifying shares) of such resulting or surviving entity. In the
event of any merger or consolidation permitted under Section 9.6 or sale of all
ownership interest in any Subsidiary which is permitted hereunder, the Agent
shall be entitled to release the Guaranty of such Guarantor without the consent
of the Banks.
8.10 Swap Contracts. Not later than 90 days following the Closing
Date, cause outstanding Indebtedness for money borrowed as defined under
subclause (a) of the definition of Indebtedness (i) which bears interest at a
fixed rate or (ii) which is subject to a Swap Contract or other similar
arrangement, containing terms acceptable to the Agent, providing protection
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from material fluctuations in interest rates, to equal not less than 30% of
outstanding Indebtedness for money borrowed. Interim shall have a period of 90
days following the incurrence of additional Indebtedness for money borrowed
subsequent to the Closing Date to cause floating rate Indebtedness to become
fixed if required hereunder.
8.11 Year 2000 Compliant. Interim will promptly notify the Agent and
the Banks in the event Interim discovers or determines that any computer
application (including those affected by information received from its
suppliers and vendors) that is material to its or any of its Subsidiaries'
business and operations will not be Year 2000 Compliant on a timely basis,
except to the extent that such failure could not reasonably be expected to have
a Material Adverse Effect.
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ARTICLE IX
NEGATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Banks waive compliance in
writing:
9.1 Business Activities. Each Company will not, and will not permit
any of its Subsidiaries to, engage in any business activity, except the fields
of enterprise presently being conducted subject to changes in the ordinary
course, and such activities as may be incidental or related thereto.
9.2 Liens.
(a) Negative Pledge. Each Company will not, and will not
permit any Subsidiary to, cause or permit, or agree or consent to
cause or permit in the future (upon the happening of a contingency or
otherwise), any of their respective Property whether now owned or
hereafter acquired, to be subject to a Lien except the following (none
of which (except as expressly permitted under the Pledge Agreements)
shall be permitted to exist in respect of any collateral pledged to
the Agent under any of the Loan Documents):
(i) Liens for taxes, assessments or governmental
charges or levies on its Property if the same shall not at
the time be delinquent or thereafter can be paid without
penalty, or are being contested in good faith and by
appropriate proceedings and for which adequate reserves in
accordance with generally accepted accounting shall have been
set aside on its books;
(ii) Liens imposed by law, such as carriers',
warehousemen's, materialmen's and mechanics liens and other
similar liens arising in the ordinary course of business
which secure payment of obligations not more than 60 days
past due;
(iii) Liens arising out of pledges or deposits under
worker's compensation laws, unemployment insurance, old age
pensions, or other social security or retirement benefits, or
similar legislation;
(iv) Utility easements, building restrictions and
such other encumbrances or charges against real property as
are of a nature generally existing with respect to properties
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of a similar character and which do not in any material way
affect the marketability of the same or interfere with the
use thereof in the business of Interim of the Subsidiaries;
(v) Liens arising under one or more Pledge
Agreements;
(vi) Other Liens securing Indebtedness not exceeding
an aggregate amount of $40,000,000.
(b) Financing Statements. Each Company will not, and will not
permit any Subsidiary to, sign or file a financing statement under the
Uniform Commercial Code of any jurisdiction that names such Company or
such Subsidiary as debtor, or sign any security agreement authorizing
any secured party thereunder to file any such financing statement,
except, in any such case, a financing statement filed or to be filed
to perfect or protect a security interest that such Company or such
Subsidiary is entitled to create, assume or incur, or permit to exist,
under the foregoing provisions of this Section 9.2, or to evidence for
informational purposes a lessor's interest in Property leased to such
Company or any such Subsidiary.
9.3 Financial Condition. Interim will not permit:
(i) As at the end of any fiscal quarter ending on or
after the Effective Date, for the four fiscal quarters then
ending, the Consolidated Interest Coverage Ratio to be less
than 3.50 to 1.00.
(ii) At any time on or after the Effective Date, the
Consolidated Net Worth of Interim and its Subsidiaries
(excluding in all events any losses) to be less than
$1,000,000,000 plus (A) 50% of the quarterly Consolidated Net
Income of Interim and its Subsidiaries (if positive) for each
fiscal quarter ending after the Effective Date (on a
cumulative basis) plus (B) 100% of net proceeds of equity
interests issued by Interim after the Effective Date.
(iii) The Consolidated Total Leverage Ratio as at
the end of any fiscal quarter ending on or after the
Effective Date for the four fiscal quarters then ending to
exceed 3.50 to 1.00.
9.4 Investments. Each Company will not, and will not permit any of its
Subsidiaries to, make, incur, assume or suffer to exist any Investment in any
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other Person, except, subject to the provisions of Section 8.7:
(a) Investments existing on the Effective Date and identified
in Schedule 9.4(a);
(b) Cash Equivalent Investments;
(c) so long as such Company demonstrates, in writing,
compliance with clause (h) below, Investments by such Company or any
of its Subsidiaries by way of acquisitions of an entity or entities or
assets of an entity or entities, within such Company's line of
business; provided, that the (i) Acquisition Price of an Acquisition
may not exceed 5% of Consolidated Net Worth without the prior written
consent of the Required Banks, and (ii) the consideration for an
Acquisition, other than cash and deferred cash payments (notes or
securities other than common equity securities), may not exceed 25% of
Consolidated Net Worth at the time of the Acquisition without the
prior written consent of the Required Banks, and no Acquisition
through a stock purchase may be made unless approved by the acquired
entity's Board of Directors or similar governing body; for the
purposes of this clause (c) "Acquisition Price" shall equal the cash
paid to the seller plus all notes or securities (other than common
equity securities of Interim) received by or delivered to the seller
in connection with such Acquisition;
(d) Investments in the capital stock of Active Subsidiaries
(including Atrium (U.S.-B) LLC); provided that after giving effect
thereto Interim is in compliance with Section 8.7;
(e) loans and advances to any Active Subsidiary; provided
that the aggregate amount of all loans and advances by Interim and its
Subsidiaries other than Foreign Subsidiaries to Foreign Subsidiaries
shall not at any time exceed a Dollar Equivalent amount equal to 10%
of Consolidated Net Worth, excluding the investment as at the Closing
Date in Xxxxxxx Page and any Investments occurring pursuant to the
Financing Transaction;
(f) Investments by Interim in Spectrum at any time; provided
that, after giving effect to such Investments, Spectrum's total assets
are less than 5% of Consolidated Net Worth;
(g) in addition to the Investments permitted under the
foregoing clauses (a) through (f), Investments in Affiliates,
licensees and franchisees; provided, however, that the aggregate
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amount of all Investments permitted solely by this clause does not at
any time exceed 5% of Consolidated Net Worth (it being understood that
any such Investment which passes through more than one entity shall be
counted only once in determining compliance herewith);
(h) no Investment otherwise permitted by clause (c) shall be
permitted to be made if, immediately before or after giving effect
thereto, any Default or Event of Default shall have occurred and be
continuing. In determining whether or not a Default or Event of
Default would occur, the calculations set forth in Section 9.3 shall
be made on a pro forma basis, as of the end of the last fiscal quarter
prior thereto, as if the Investment had been made prior to the period
of any such calculations; and
(i) Investments permitted under Section 9.6.
9.5 Restricted Payments, etc. On and at all times after the date
hereof, Interim will not, and will not permit any of its Subsidiaries to,
declare, pay or make any dividend or distribution (in cash, property or
obligations) on any shares of any class of capital stock (now or hereafter
outstanding) of Interim or on any warrants, options or other rights with
respect to any shares of any class of capital stock (now or hereafter
outstanding) of Interim (other than dividends or distributions payable in its
common stock or warrants to purchase its common stock or splitups or
reclassifications of its stock into additional or other shares of its common
stock), or apply, or permit any of its Subsidiaries to apply, any of its funds,
property or assets to the purchase, redemption, sinking fund or other
retirement of, or agree or permit any of its Subsidiaries to purchase or
redeem, any shares of any class of capital stock (now or hereafter outstanding)
of Interim, or warrants, options or other rights with respect to any shares of
any class of capital stock (now or hereafter outstanding) of Interim.
Notwithstanding the foregoing and so long as there shall not exist an
Event of Default which is continuing,
(a) Interim may declare and pay dividends with respect to any
fiscal year in an amount not to exceed 10% of Consolidated Net Income
for such fiscal year;
(b) any wholly owned (other than with respect to directors'
qualifying shares) Subsidiary of Interim may pay dividends or other
distributions to Interim or any other such wholly owned Subsidiary of
Interim;
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(c) Interim may purchase or redeem or make open market
purchases of any class of capital stock in any fiscal year at an
aggregate cost not to exceed 7 1/2% of Consolidated Net Worth as at
the end of such fiscal year; and
(d) Interim or a Subsidiary may purchase and repurchase
certificates of membership interest in Atrium (U.S.-B) LLC, a
Subsidiary, as provided in the Financing Transaction.
9.6 Consolidation Merger, etc. Except as permitted by Section 9.4(c),
each Company will not, and will not permit any of its Subsidiaries to,
liquidate or dissolve, consolidate with, or merge into or with, any other
corporation, or (except as permitted by Section 9.4(c)) purchase or otherwise
acquire all or substantially all of the assets of any Person (or of any
division thereof) except:
(a) any Subsidiary may liquidate or dissolve voluntarily
into, and may merge with and into, such Company or any Subsidiary, and
the assets or stock of any Subsidiary may be purchased or otherwise
acquired by such Company or any Subsidiary; provided, however, that
(i) Agent shall have received at least 15 days' prior written notice
thereof and (ii) the applicable requirements of Section 8.7 shall have
been complied with in connection with such transaction and the Agent
shall have first received such additional documents as necessary, in
the opinion of the Agent, to ensure that the Banks continue to have a
first priority perfected security interest in any property pledged in
their favor as contemplated under the Support Documents and to
otherwise protect the interests of the Banks ; and
(b) such Company or any Subsidiary may merge with any other
Person if (i) no Default or Event of Default has occurred or would
occur after giving effect thereto, (ii) the general nature of its
business is not changed and (iii) the surviving entity is a Company
(in the case of a merger involving a Company) or a Subsidiary or an
entity which is wholly-owned by a wholly-owned Subsidiary (in the case
of a merger involving a Subsidiary); provided, however, that (i) Agent
shall have received at least 15 days' prior written notice thereof and
(ii) Companies shall have complied with the applicable requirements of
Section 8.7 in connection with such transaction and the Agent shall
have first received such additional documents as necessary, in the
opinion of the Agent, to ensure that the Banks continue to have a
first priority perfected security interest in any property pledged in
their favor as contemplated under the Support Documents and to
otherwise protect the interests of the Banks.
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9.7 Asset Dispositions, etc. Each Company will not, and will not
permit any of its Subsidiaries to, sell, transfer, lease, contribute or
otherwise convey, or grant options, warrants or other rights with respect to,
all or any substantial part of its assets (including accounts receivable and
capital stock of Subsidiaries) to any Person except for the sale of Xxxxxxx'x
healthcare business, unless:
(a) such sale, transfer, lease, contribution or conveyance is
in the ordinary course of its business or is permitted by Section 9.6
or is the sale of accounts receivable in connection with a Permitted
Receivables Securitization;
(b) the net book value of such assets which are sold other
than those sold, transferred, leased, contributed or conveyed in the
ordinary course of business by Interim and its Subsidiaries since the
Closing Date or permitted pursuant to Section 9.7(a) does not exceed
in the aggregate $75,000,000; and
(c) such assets are not responsible for more than 15% of
consolidated revenues of Interim and its Subsidiaries (including
Xxxxxxx and its Subsidiaries) for the four fiscal quarter period
ending during the fiscal quarter in which such sale, lease or transfer
occurs.
9.8 Transactions with Affiliates. Each Company will not, and will not
permit any of its Subsidiaries to, enter into, or cause, suffer or permit to
exist, any arrangement or contract with any of its Affiliates that is not a
Guarantor unless such arrangement or contract is fair and equitable to such
Company or such Subsidiary and is an arrangement or contract of the kind which
would be entered into by a prudent Person in the position of such Company or
such Subsidiary with a Person that is not one of its Affiliates.
9.9 Negative Pledges, Restrictive Agreements, etc. Each Company will
not, and will not permit any of its Subsidiaries to, enter into any agreement
(excluding (A) this Agreement, (B) any other Loan Document, (C) the agreements
giving rise to a Permitted Receivables Securitization (with respect to
restrictions on the creation of Liens on accounts receivable transferred in
such Permitted Receivables Securitization only), (D) other Indebtedness
permitted under Section 9.12 (with respect to restrictions on the creation of
Liens on property, plant and equipment acquired with the proceeds of such
Property) and (E) those described on Schedule 9.9) prohibiting:
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(a) the creation or assumption of any Lien upon its
properties, revenues or assets, whether now owned or hereafter
acquired, or the ability of such Company or any Subsidiary to amend or
otherwise modify this Agreement or any other Loan Document; or
(b) the ability of any Subsidiary to make any payments,
directly or indirectly, to such Company by way of dividends, advances,
repayments of loans or advances, reimbursements of management and
other intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the
ability of any such Subsidiary to make any payment, directly or
indirectly, to such Company.
9.10 Subsidiaries' Voting Share. Each Company will not (a) permit any
of its Subsidiaries to issue voting shares to anyone other than such Company or
another wholly-owned Subsidiary, or (b) permit any of its wholly-owned
Subsidiaries to sell, transfer or otherwise dispose of the voting shares of any
Subsidiaries to any Person other than such Company or another of its
wholly-owned Subsidiaries, except as such events may occur under the Financing
Transaction.
9.11 ERISA. Interim shall not, and shall not suffer or permit any of
its ERISA Affiliates to: (a) engage in a prohibited transaction or violation of
the fiduciary responsibility rules with respect to any Plan which has resulted
or could reasonably be expected to result in liability of such Company in an
aggregate amount in excess of $5,000,000; or (b) engage in a transaction that
could be subject to Section 4069 or 4212(c) of ERISA.
9.12 Limitation on Indebtedness. The Companies shall not, and shall
not permit any of their Subsidiaries to, create, incur, assume, suffer to
exist, or otherwise become or remain directly or indirectly liable with respect
to, any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness existing on the date hereof and set forth in
Schedule 9.12, including any renewals or replacements on substantially
similar terms;
(c) Indebtedness arising in connection with Permitted
Receivables Securitizations;
(d) Subordinated Indebtedness; and
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(e) Additional Indebtedness of the Companies and the
Subsidiaries not to exceed an outstanding amount of $100,000,000;
provided, that the amount of such outstanding Indebtedness incurred by
Subsidiaries that are not Guarantors shall not at any time exceed
$50,000,000.
9.13 Change Fiscal Year. The Companies shall not change their fiscal
year.
9.14 Subordinated Indebtedness. Interim shall not, and shall not
permit any Subsidiary to, purchase, repay or redeem any Subordinated
Indebtedness other than in accordance with its terms and then only so long as
no Default or Event of Default shall exist both before and after giving effect
to such payment; provided, however, that Interim may purchase or redeem during
any fiscal year up to a principal amount of its 4.5% Subordinated Convertible
Notes due 2005 (the "Convertible Notes") not exceeding in the aggregate 5% of
Consolidated Net Worth at any time prior to the conversion of Convertible Notes
into common stock of Interim so long as (i) after giving effect to any such
redemption or repurchase there shall be available for borrowing pursuant to
Section 2.1 not less than $50,000,000, (ii) no Default or Event of Default
exists before giving effect to such purchase or redemption and (iii) Interim
shall have furnished to the Agent a Compliance Certificate as of the most
recent fiscal quarter end demonstrating that after giving effect to such
purchase or redemption no Default or Event of Default exists.
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ARTICLE X
EVENTS OF DEFAULT
10.1 Events of Default. Any of the following shall constitute an
"Event of Default":
(a) Non-Payment. Any Company fails to make, (i) when and as
required to be made herein, payments of any amount of principal of any
Loan or any L/C Borrowing or Interim Note Borrowing (including without
limitation any cash collateral deposits with respect thereto), or (ii)
within five days after the same becomes due, payment of any amount of
interest, fees or any other amount payable hereunder or under any
other Loan Document; provided that any interest, fees or other amounts
which are not paid on the due date shall bear interest at the Base
Rate plus 2% per annum after such due date; or
(b) Representation or Warranty. Any representation or
warranty by any Company or any Subsidiary made or deemed made herein
or in any other Loan Document, or which is contained in any
certificate, document or financial or other statement by any Company,
any Subsidiary, or any Responsible Officer of any Company, furnished
at any time under this Agreement, or in or under any other Loan
Document, is incorrect in any material respect on or as of the date
made or deemed made; or
(c) Specific Defaults. Any Company fails to perform or
observe any term, covenant or agreement contained in any of Section
8.1(f), 8.1(j) or 8.7 or in Article IX; or
(d) Other Defaults. Any Company or any Subsidiary party
thereto fails to perform or observe any other term or covenant
contained in this Agreement or any other Loan Document, and such
default shall continue unremedied for a period of 30 days after the
earlier to occur of (i) the date upon which written notice thereof is
given to each Company by the Agent or any Bank and (ii) the date any
of the Companies becomes aware thereof; or
(e) Cross-Default. (i) Any Company or any Subsidiary (A)
fails to make any payment in respect of any Indebtedness or Contingent
Obligations having an aggregate principal amount (including amounts
owing to all creditors under any combined or syndicated credit
arrangement) of more than $10,000,000 when due (whether by scheduled
maturity, required prepayment, acceleration, demand, or otherwise)
other than a default under any of the agreements entered into among
Interim and its Subsidiaries under the Financing Transaction but
including a default under the Financing and Interest Purchase
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Agreement between Interim and Bank of America National Trust and
Savings Association; or (B) fails to perform or observe any other
condition or covenant, or any other event shall occur or condition
exist, under any agreement or instrument relating to any such
Indebtedness or Contingent Obligation, if the effect of such failure,
event or condition is to cause, or to permit the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Indebtedness
(or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause such Indebtedness to be
declared to be due and payable prior to its stated maturity, or such
Contingent Obligation to become payable or cash collateral in respect
thereof to be demanded; or (ii) there occurs under any Swap Contract
an Early Termination Date (as defined in such Swap Contract) resulting
from (1) any event of default under such Swap Contract as to which any
Company or any Subsidiary is the Defaulting Party (as defined in such
Swap Contract) or (2) any Termination Event (as so defined) as to
which any Company or any Subsidiary is an Affected Party (as so
defined), and, in either event, the Swap Termination Value owed by
such Company or such Subsidiary as a result thereof is greater than
$10,000,000; or
(f) Insolvency; Voluntary Proceedings. Any Company or any
Guarantor (i) is unable to pay its debts as they fall due, ceases or
fails to be solvent, or generally fails to pay, or admits in writing
its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or
otherwise; (ii) voluntarily ceases to conduct its business in the
ordinary course (except as permitted under Section 8.7); (iii)
commences any Insolvency Proceeding with respect to itself; or (iv)
takes any action to effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against any Company or any Guarantor,
or any writ, judgment, warrant of attachment, execution or similar
process is issued or levied against a material part of any Company's
or any Guarantor's properties, and any such proceeding or petition
shall not be dismissed, or such writ, judgment, warrant of attachment,
execution or similar process shall not be released, vacated or fully
bonded, within 60 days after commencement, filing or levy; (ii) any
Company or any Guarantor admits the material allegations of a petition
against it in any Insolvency Proceeding, or an order for relief (or
similar order) is ordered in any Insolvency Proceeding; or (iii) any
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Company or any Guarantor acquiesces in the appointment of a receiver,
trustee, custodian, conservator, liquidator, mortgagee in possession
(or agent therefor), or other similar Person for itself or a material
portion of its property or business; or
(h) Monetary Judgments. One or more non-interlocutory
judgments, non-interlocutory orders, decrees or arbitration awards is
entered against any Company or any Guarantor involving in the
aggregate a liability (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute
coverage) as to any single or related series of transactions,
incidents or conditions, of $10,000,000 or more, and the same shall
remain unsatisfied, unvacated and unstayed pending appeal for a period
of 30 days after the entry thereof; or
(i) Non-Monetary Judgments. Any non-monetary judgment, order
or decree is entered against a Company or any Subsidiary which does or
would reasonably be expected to have a Material Adverse Effect, and
there shall be any period of 10 consecutive days during which a stay
of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(j) Change of Control. There occurs any Change of Control
other than at the Effective Date as a result of the Acquisition of
Xxxxxxx; or
(k) Guarantor/Pledgor Defaults. (i) Any Guarantor, or any
Company or Subsidiary party to a Pledge Agreement, fails in any
material respect to perform or observe any term, covenant or agreement
in its Guaranty or Pledge Agreement; or (ii) any Guaranty or Pledge
Agreement is for any reason partially (including with respect to
future advances) or wholly revoked or invalidated, or otherwise ceases
to be in full force and effect; or
(l) ERISA. (i) An ERISA Event shall occur with respect to a
Pension Plan or Multiemployer Plan which has resulted or could
reasonably be expected to result in liability of a Company under Title
IV of ERISA to such Pension Plan, such Multiemployer Plan or the PBGC
in an aggregate amount in excess of $1,000,000; (ii) the aggregate
amount of Unfunded Pension Liability among all Pension Plans at any
time exceeds $1,000,000; or (iii) any Company or any ERISA Affiliate
shall fail to pay when due, after the expiration of any applicable
grace period, any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan in an
aggregate amount in excess of $1,000,000; or
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(m) Interim Notes. The Companies fail to make payment of any
portion of the principal or interest on any of the Interim Notes when
the same shall be due.
10.2 Remedies. If any Event of Default occurs, the Agent shall, at the
request of, or may, with the consent of, the Required Banks,
(a) declare the commitments of each Bank to make Loans and
any obligation of any Issuing Bank to Issue Letters of Credit to be
terminated, whereupon such commitments shall be terminated;
(b) declare an amount equal to the maximum aggregate amount
that is or at any time thereafter may become available for payment
under any outstanding Letters of Credit or the Interim Note Guarantee
(whether or not any beneficiary shall have presented, or shall be
entitled at such time to present, the drafts or other documents
required to draw under such Letters of Credit or the Interim Note
Guarantee) to be immediately due and payable, declare the unpaid
principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or
under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by each Company;
(c) apply any cash or deposit account balances that were used
by the Companies to Cash Collateralize any Letters of Credit or the
Interim Note Guarantee that the Agent would otherwise be required to
return to the Companies pursuant to Section 3.7 or Section 4.6, as
applicable, to any outstanding Obligations; and
(d) exercise on behalf of itself and the Banks all rights and
remedies available to it and the Banks under the Loan Documents or
applicable law;
provided, however, that upon the occurrence of any event specified in
subsection (f) or (g) of Section 10.1 (in the case of clause (i) of subsection
(g) upon the expiration of the 60-day period mentioned therein), the obligation
of each Bank to make Loans and any obligation of the Issuing Bank to Issue
Letters of Credit shall automatically terminate and the unpaid principal amount
of all outstanding Loans and all interest and other amounts as aforesaid shall
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automatically become due and payable without further act of the Agent, the
Issuing Bank or any Bank and without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Companies;
and provided, further, that after any obligations with respect to any undrawn
Letter of Credit shall have been accelerated under clause (b) and if such
accelerated amount has been paid, the Banks shall return to the Companies
within 10 days after the expiration of such Letter of Credit, any amount not
drawn thereunder so long as no Obligations shall be due and payable.
10.3 Rights Not Exclusive. The rights provided for in this Agreement
and the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
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ARTICLE XI
THE AGENT
11.1 Appointment, Powers and Immunities. (a) Each Bank hereby
irrevocably appoints and authorizes the Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and discretion as are
specifically delegated to the Agent by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably
incidental thereto. The Agent (which term as used in this sentence and in
Section 11.5 and the first sentence of Section 11.6 hereof shall include its
Affiliates and its own and its Affiliates' officers, directors, employees, and
agents):
(i) shall not have any duties or responsibilities except
those expressly set forth in this Agreement and shall not be a trustee
or fiduciary for any Bank;
(ii) shall not be responsible to the Banks for any recital,
statement, representation, or warranty (whether written or oral) made
in or in connection with any Loan Document or any certificate or other
document referred to or provided for in, or received by any of them
under, any Loan Document, or for the value, validity, effectiveness,
genuineness, enforceability, or sufficiency of any Loan Document, or
any other document referred to or provided for therein or for any
failure by any Company or Guarantor or any other Person to perform any
of its obligations thereunder;
(iii) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of
any covenants or agreements by any Company or Guarantor or the
satisfaction of any condition or to inspect the property (including
the books and records) of any Company or Guarantor or any of its
Subsidiaries or Affiliates;
(iv) except as set forth in Section 11.3, shall not be
required to initiate or conduct any litigation or collection
proceedings under any Loan Document; and
(v) shall not be responsible for any action taken or omitted
to be taken by it under or in connection with any Loan Document,
except for its own gross negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care; provided, that nothing contained herein
shall relieve such agents and attorneys-in-fact for its or their gross
negligence or wilful misconduct.
(b) The Issuing Bank shall act on behalf of the Banks with respect to
any Letters of Credit Issued by it and the documents associated therewith until
such time and except for so long as the Agent may agree at the request of the
Required Banks to act for such Issuing Bank with respect thereto; provided,
however, that the Issuing Bank shall have all of the benefits and immunities,
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including without limitation the right to resign under Section 11.7, (i)
provided to the Agent in this Article XI with respect to any acts taken or
omissions suffered by the Issuing Bank in connection with Letters of Credit
Issued by it or proposed to be Issued by it and the Application and Agreements
for Letters of Credit pertaining to the Letters of Credit as fully as if the
term "Agent" as used in this Article XI, included the Issuing Bank with respect
to such acts or omissions, and (ii) as additionally provided in this Agreement
with respect to the Issuing Bank.
11.2 Reliance by Agent. Each Agent-Related Person shall be entitled to
rely upon any certification, notice, instrument, writing, or other
communication (including, without limitation, any thereof by telephone or
telefacsimile) believed by it to be genuine and correct and to have been
signed, sent or made by or on behalf of the proper Person or Persons, and upon
advice and statements of legal counsel (including counsel for any Company or
Guarantor), independent accountants, and other experts selected by the Agent.
The Agent may deem and treat the payee of any Note as the holder thereof for
all purposes hereof unless and until the Agent receives and accepts an
Assignment and Acceptance executed in accordance with Section 12.8 hereof. As
to any matters not expressly provided for by this Agreement, the Agent shall
not be required to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Banks,
and such instructions shall be binding on all of the Banks; provided, however,
that the Agent shall not be required to take any action that exposes the Agent
to personal liability or that is contrary to any Loan Document or applicable
law or unless it shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred by it by reason
of taking any such action.
11.3 Defaults. The Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Event of Default unless the Agent has
received written notice from a Bank or a Company specifying such Default or
Event of Default and stating that such notice is a "Notice of Default." In the
event that the Agent receives such a notice of the occurrence of a Default or
Event of Default, the Agent shall give prompt notice thereof to the Banks. The
Agent shall (subject to Section 11.2 hereof) take such action with respect to
such Default or Event of Default as shall reasonably be directed by the
Required Banks, provided that, unless and until the Agent shall have received
such directions, the Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interest of the Banks.
11.4 Rights as Bank. With respect to its Revolving Commitment and 364
Day Loan Commitment and the Loans made by it and Letters of Credit issued by
it, NationsBank (and any successor acting as Agent) in its capacity as a Bank
hereunder shall have the same rights and powers hereunder as any other Bank and
may exercise the same as though it were not acting as the Agent, and the term
"Bank" or "Banks" shall, unless the context otherwise indicates, include the
Agent in its individual capacity. NationsBank (and any successor acting as
Agent) and its Affiliates may (without having to account therefor to any Bank)
accept deposits from, lend money to, make investments in, provide services to,
and generally engage in any kind of lending, trust, or other business with any
Company or Guarantor or any of its Subsidiaries or Affiliates as if it were not
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acting as Agent, and NationsBank (and any successor acting as Agent) and its
Affiliates may accept fees and other consideration from any Company or
Guarantor or any of its Subsidiaries or Affiliates for services in connection
with this Agreement or otherwise without having to account for the same to the
Banks.
11.5 Indemnification. The Banks agree to indemnify the Agent-Related
Persons (to the extent not reimbursed under Section 12.4 hereof, but without
limiting the obligations of the Companies under such Section) ratably in
accordance with their respective Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees), or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against the
Agent-Related Persons (including by any Bank) in any way relating to or arising
out of any Loan Document or the transactions contemplated thereby or any action
taken or omitted by the Agent-Related Persons under any Loan Document; provided
that no Bank shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the Agent-Related Person to
be indemnified. Without limitation of the foregoing, each Bank agrees to
reimburse the Agent promptly upon demand for its ratable share of any costs or
expenses payable by the Companies under Section 12.4, to the extent that the
Agent is not promptly reimbursed for such costs and expenses by the Companies.
The agreements contained in this Section 11.5 shall survive payment in full of
the Loans and all other amounts payable under this Agreement.
11.6 Non-Reliance on Agent and Other Banks. Each Bank agrees that it
has, independently and without reliance on the Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Companies and Guarantors and their Subsidiaries and
decision to enter into this Agreement and that it will, independently and
without reliance upon the Agent or any other Bank, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own analysis and decisions in taking or not taking action under the Loan
Documents. Except for notices, reports, and other documents and information
expressly required to be furnished to the Banks by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Bank with any
credit or other information concerning the affairs, financial condition, or
business of any Company or Guarantor or any of its Subsidiaries or Affiliates
that may come into the possession of the Agent or any of its Affiliates.
11.7 Successor Agent and Successor Issuing Bank. Either the Agent or
the Issuing Bank, respectively, may resign as Agent or Issuing Bank upon 30
days' notice to the Banks. If the Agent or Issuing Bank resigns under this
Agreement, the Required Banks shall appoint from among the Banks a successor
agent for the Banks or successor issuing bank, respectively. The appointment of
a successor issuing bank shall be subject to the consent of the Companies which
shall not be unreasonably withheld. If no successor agent or successor issuing
bank is appointed prior to the effective date of the resignation of the Agent
or the Issuing Bank respectively, the Agent or the Issuing Bank may appoint,
after consulting with the Banks and the Companies, a successor agent or
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successor issuing bank from among the Banks, subject to such Bank's acceptance
of such appointment. Upon the acceptance of its appointment as successor agent
or successor issuing bank hereunder, such successor agent or successor issuing
bank, respectively, shall succeed to all the rights, powers and duties of the
retiring Agent or the retiring Issuing Bank and the term "Agent" or "Issuing
Bank" shall mean such successor agent or successor issuing bank and the
retiring Agent's or the retiring Issuing Bank's appointment, powers and duties
as Agent or Issuing Bank shall be terminated. After any retiring Agent's or
retiring Issuing Bank's resignation hereunder as Agent or Issuing Bank, the
provisions of this Article XI and Sections 12.4 and 12.5 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
or Issuing Bank under this Agreement. If no successor agent or successor
issuing bank has accepted appointment as Agent or Issuing Bank by the date
which is 30 days following a retiring Agent's or retiring Issuing Bank's notice
of resignation, the retiring Agent's or retiring Issuing Bank's resignation
shall nevertheless thereupon become effective and the Banks shall perform all
of the duties of the Agent or Issuing Bank hereunder until such time, if any,
as the Required Banks appoint a successor agent or successor issuing bank as
provided for above.
11.8 Security Trustee. The Agent shall be the "Security Trustee" under
any of those Pledge Agreements which are expressed to be governed by English
law and shall accept without investigation, requisition or objection such title
as any person may have to the assets which are subject to the English Pledge
Agreements and shall not (a) be bound or concerned to examine or inquire into
the title of any person; (b) be liable for any defect or failure in the title
of any person, whether such defect or failure was known to it or might have
been discovered upon examination or inquiry and whether capable of remedy or
not; (c) be liable for any failure on its part to give notice of such Pledge
Agreement to any third party or otherwise perfect or register the security
created by such Pledge Agreement.
The Security Trustee shall hold the benefit of the English Pledge
Agreements upon trust for itself, the Banks and the Agent. Upon the appointment
of any successor Security Trustee, the resigning Security Trustee shall execute
and deliver such documents and do such other acts and things as may be
necessary to vest in the successor Security Trustee all the rights, title and
interests vested in the resigning Security Trustee.
11.9 Dutch Pledge Agreements. Without prejudice to any of the other
provisions of this Agreement or any of the other Loan Documents and solely for
the purpose of ensuring and preserving the validity and continuity of the
Pledge Agreements to be governed by Dutch law ("Dutch Pledge Agreements"),
Interim and the Companies hereby irrevocably and unconditionally acknowledge
and agree with the Banks, that the Agent shall, by way of joint and several
creditorship, in its own right be entitled to and be creditor of the
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Obligations. Interim, the Companies, the Banks and the Agent agree and
acknowledge that the Agent is entitled to collect and enforce any and all
rights under the Dutch Pledge Agreements in respect of the Obligations and it
is further agreed among the parties that the security granted by means of
execution of the Dutch Pledge Agreements to the Agent, is granted to the Agent
in its capacity as joint and several creditor of the Obligations.
11.10 Documentation Agent. None of the Banks identified in this
Agreement or any other Loan Document as the "Documentation Agent" shall have
any right, power, obligation, liability, responsibility or duty under this
Agreement or any other Loan Document other than those applicable to all Banks
as such. Each Bank acknowledges that it has not relied, and will not rely, on
any of the Banks so identified in deciding to enter into this Agreement or any
other Loan Document or in taking or refraining from taking any action hereunder
or thereunder or pursuant hereto or thereto.
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ARTICLE XII
MISCELLANEOUS
12.1 Amendments and Waivers. No amendment or waiver of any provision
of this Agreement or any other Loan Document, and no consent with respect to
any departure by any Company or any applicable Subsidiary therefrom, shall be
effective unless the same shall be in writing and signed by the Required Banks
(or by the Agent at the written request of the Required Banks) and each Company
and delivered to the Agent, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no such waiver, amendment, or consent shall,
unless in writing and signed by all the Banks and each Company and delivered to
the Agent, do any of the following:
(a) increase or extend the Commitment of any Bank (or
reinstate any Commitment terminated pursuant to Section 10.2) or the
aggregate amount of Loans which may be made under this Agreement;
(b) postpone or delay any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest, fees or
other amounts due to the Banks (or any of them) hereunder or under any
other Loan Document;
(c) reduce the principal of, or the rate of interest
specified herein on, any Loan, or (subject to clause (ii) of the
proviso below) any fees or other amounts payable hereunder or under
any other Loan Document;
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required for
the Banks or any of them to take any action hereunder; or
(e) amend this Section, or Section 2.16, or any provision
herein providing for consent or other action by all Banks; or
(f) release any party to a Guaranty or, except as expressly
provided for herein, release any collateral for any obligations
arising under the Loan Documents;
and, provided further, that (i) no amendment, waiver or consent shall, unless
in writing and signed by the Issuing Bank in addition to the Required Banks or
all the Banks, as the case may be, affect the rights or duties of the Issuing
Bank under this Agreement or any L/C-Related Document relating to any Letter of
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Credit Issued or to be Issued by it, (ii) no amendment, waiver or consent
shall, unless in writing and signed by NationsBank in addition to the Required
Banks or all the Banks, as the case may be, affect the rights or duties of
NationsBank as maker of the Interim Note Guarantee under this Agreement or any
Interim Note Related Documents, (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Agent in addition to the Required Banks or
all the Banks, as the case may be, affect the rights or duties of the Agent
under this Agreement or any other Loan Document or (iv) the Fee Letters may be
amended, or rights or privileges thereunder waived, in a writing executed by
the parties thereto. The Banks hereby consent to the termination of and release
by the Agent of stock of Subsidiaries held by the Agent pursuant ot the Stock
Pledge Agreement (U.S. Pledgors) dated as of May 1, 1997 and any supplement
thereto.
12.2 Notices.
(a) All notices, requests, consents, approvals, waivers and other
communications may be in writing or oral if confirmed in writing (which
includes confirmation by facsimile) at the address or number specified in
Schedule 12.2.
(b) All such notices, requests and communications shall, when sent by
overnight delivery, or transmitted by facsimile, be effective when delivered to
the recipient or transmitted in legible form by facsimile machine,
respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if hand delivered, upon delivery; except that
notices pursuant to Article II, Article III or Article XI to the Agent shall
not be effective until actually received by the Agent, and notices pursuant to
Article III to the Issuing Bank shall not be effective until actually received
by the Issuing Bank at the address specified for the "Issuing Bank" on Schedule
12.2.
(c) Any agreement of the Agent and the Banks herein to receive certain
notices by telephone or facsimile is solely for the convenience and at the
request of the Companies. The Agent and the Banks shall be entitled to rely on
the authority of any Person purporting to be a Person authorized by a Company
to give such notice and the Agent and the Banks shall not have any liability to
a Company or other Person on account of any action taken or not taken by the
Agent or the Banks in reliance upon such telephonic or facsimile notice. The
obligation of the Companies to repay the Loans, L/C Obligations and the Interim
Note Obligations shall not be affected in any way or to any extent by any
failure by the Agent and the Banks to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Agent and the Banks of a
confirmation which is at variance with the terms reasonably understood by the
Agent and the Banks to be contained in the telephonic or facsimile notice.
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12.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Agent or any Bank, any right, remedy,
power or privilege hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege.
12.4 Costs and Expenses. The Companies shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse NationsBank (including in its capacity as Agent
and Issuing Bank) and the Arranger for all reasonable costs and expenses
incurred by NationsBank (including in its capacity as Agent and Issuing Bank)
and the Arranger in connection with the development, preparation, delivery, and
execution of, and any amendment, supplement, waiver or modification to (in each
case, whether or not consummated but only if requested or caused by a Company
or a Subsidiary), this Agreement, any other Loan Document and any other
documents prepared in connection herewith or therewith, and the consummation of
the transactions contemplated hereby and thereby, including reasonable Attorney
Costs incurred by NationsBank (including in its capacity as Agent and Issuing
Bank) and the Arranger with respect thereto such Attorney Costs of the Agent's
counsel, Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P., to be limited as set forth in a
letter between the Agent and Interim; and
(b) pay or reimburse the Agent, the Arranger and each Bank within
thirty days after invoice for all reasonable costs and expenses (including
Attorney Costs) incurred by them in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under this Agreement or
any other Loan Document during the existence of an Event of Default or after
acceleration of the Loans (including in connection with any "workout" or
restructuring regarding the Loans, and including in any Insolvency Proceeding
or appellate proceeding).
The agreements in this Section shall survive payment of all other
Obligations.
12.5 Company Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Companies shall indemnify, defend and
hold harmless the Agent-Related Persons, and each Bank and each of its
respective officers, directors, employees, counsel, agents and
attorneys-in-fact (each, an "Indemnified Person") from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, charges, expenses and disbursements (including Attorney Costs) of
any kind or nature whatsoever (other than expenses described in Section 12.4
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whether or not required to be reimbursed thereunder) which may at any time
(including at any time following repayment of the Loans, the termination of the
Letters of Credit and Interim Note Guarantee and the termination, resignation
or replacement of the Agent or replacement of any Bank) be imposed on, incurred
by or asserted against any such Person in any way relating to or arising out of
this Agreement or any document contemplated by or referred to herein or
therein, or the transactions contemplated hereby or thereby, or any action
taken or omitted by any such Person under or in connection with any of the
foregoing, including with respect to any investigation, litigation or
proceeding (including any Insolvency Proceeding or appellate proceeding)
related to or arising out of this Agreement or the Loans or Letters of Credit
or Interim Note Guarantee or the use of the proceeds thereof, or related to any
Offshore Currency transactions entered into in connection herewith, whether or
not any Indemnified Person is a party thereto (all the foregoing, collectively,
the "Indemnified Liabilities"); provided, that the Companies shall have no
obligation hereunder to any Indemnified Person with respect to Indemnified
Liabilities resulting solely from the bad faith, gross negligence or willful
misconduct of such Indemnified Person; and provided further the Companies shall
have no obligations with respect to tax liabilities, funding costs or capital
costs of any Indemnified Person except as set forth in this Agreement. The
agreements in this Section shall survive payment of all other Obligations. The
Companies agree that they shall not enter into any settlement with respect to
any Indemnified Liabilities without the consent of the Indemnified Person
unless such settlement (i) does not result in any liability or admission of
wrong doing by the Indemnified Person and (ii) results in total and complete
release of all claims against such Indemnified Person.
At the election of any Indemnified Person, the Companies shall defend
such Indemnified Person using legal counsel mutually acceptable to the
Companies, the Agent, the Required Banks and such Indemnified Person, at the
sole cost and expense of the Companies. All amounts owing under this Section
shall be paid within 30 days after demand.
12.6 Marshalling; Payments Set Aside. Neither the Agent nor the Banks
shall be under any obligation to xxxxxxxx any assets in favor of any Company or
any other Person or against or in payment of any or all of the Obligations. To
the extent that a Company makes a payment to the Agent or the Banks, or the
Agent or the Banks exercise their right of set-off, and such payment or the
proceeds of such set-off or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by the Agent or such Bank in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any Insolvency Proceeding or otherwise, then (a) to the extent
of such recovery the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred, and (b) each Bank
severally agrees (to the extent it shall have shared in any such recovery) to
pay to the Agent upon demand its pro rata share of any amount so recovered from
or repaid by the Agent.
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12.7 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Companies may not assign or
transfer any of their rights or obligations under this Agreement without the
prior written consent of the Agent and each Bank.
12.8 Assignments, Participations, etc.
(a) Any Bank may, with the written consent of Interim (at all times
other than during the existence of an Event of Default) and the Agent and the
Issuing Bank, which consents shall not be unreasonably withheld (provided that
the withholding of consent by reason of any proposed assignment resulting in
the incurrence by the Companies of increased costs under Article V shall not be
deemed to be unreasonable), at any time assign and delegate to one or more
Eligible Assignees (provided that no written consent of the Companies, the
Agent or the Issuing Bank shall be required in connection with any assignment
and delegation by a Bank to an Eligible Assignee that is an Affiliate of such
Bank) (each an "Assignee") all, or any part of all, of the Loans, the
Commitment, the L/C Commitment, the L/C Obligations, the Interim Note
Commitment, the Interim Note Obligations, Swing Line Participations and the
other rights and obligations of such Bank hereunder, in a minimum aggregate
amount of $5,000,000; provided, however, that each Company and the Agent may
continue to deal solely and directly with such Bank in connection with the
interest so assigned to an Assignee until (A) written notice of such
assignment, together with payment instructions, addresses and related
information with respect to the Assignee, shall have been given to each Company
and the Agent by such Bank and the Assignee; (B) such Bank and its Assignee
shall have delivered to each Company and the Agent an Assignment and Acceptance
in the form of Exhibit N ("Assignment and Acceptance") together with any Note
or Notes subject to such assignment; and (C) the assignor Bank or Assignee has
paid to the Agent a processing fee in the amount of $3,500; and provided,
further, the assignment may at the option of the assigning Bank and the
Assignee not assign any portion of any outstanding Bid Loans. Notwithstanding
the foregoing, no Bank may effect an assignment under this Section 12.8(a) if
after giving effect thereto its remaining aggregate Commitment shall be less
than $5,000,000, unless such assignment shall be part of a series of
transactions disclosed by such Bank to the Agent to effect the disposition of
all of such Bank's interests in the Loan Documents. A Bank may not assign a
portion of its 364 Day Commitment without the assignment of a ratable portion
of its Revolving Commitment.
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(b) From and after the date that the Agent notifies the assignor Bank
that it has received (and provided its consent with respect to) an executed
Assignment and Acceptance and payment of the above-referenced processing fee,
(i) the Assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations of a Bank
under the Loan Documents, and (ii) the assignor Bank shall, to the extent that
rights and obligations hereunder and under the other Loan Documents have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Loan Documents. Upon the
request of the Assignee, the Companies shall issue Notes to the Assignee in
lieu of and to replace the Notes then held by the assignor Bank, which assigned
Notes shall be returned by the assignor to the Companies.
(c) Within five Business Days after their receipt of notice from the
Agent that it has received an executed Assignment and Acceptance and payment of
the processing fee (and provided that they consent to such assignment in
accordance with Section 12.8(a)), the Companies shall execute and deliver to
the Agent a new Revolving Loan Note evidencing such Assignee's assigned
Revolving Loans and Revolving Commitment and a Bid Loan Note and a new 364 Day
Note evidencing such Assignee's assigned 364 Day Commitment and, if the
assignor Bank has retained a portion of its Revolving Loans and its Revolving
Commitment and 364 Day Loans and its 364 Day Commitment, a replacement
Revolving Loan Note in the principal amount of the Revolving Commitment it has
retained (such Revolving Loan Note to be in exchange for, but not in payment
of, the Revolving Loan Note held by such Bank) and a replacement 364 Day Note
in the principal amount of the 364 Day Commitment it has retained (such 364 Day
Note to be in exchange for, but not in payment of, the 364 Day Note held by
such Bank). Immediately upon payment of the processing fee under the Assignment
and Acceptance, this Agreement shall be deemed to be amended to the extent, but
only to the extent, necessary to reflect the addition of the Assignee and the
resulting adjustment of the Commitments arising therefrom. The Commitment
allocated to each Assignee shall reduce such Commitment of the assigning Bank
pro tanto.
(d) Any Bank or Designated Bidder may at any time sell to one or more
commercial banks or other Persons not Affiliates of a Company (a "Participant")
participating interests in any Loans, the Commitment of that Bank and the other
interests of that Bank or Designated Bidder (the "originating Bank") hereunder
and under the other Loan Documents; provided, however, that (i) the originating
Bank's obligations under this Agreement shall remain unchanged, (ii) the
originating Bank shall remain solely responsible for the performance of such
obligations, (iii) each Company, the Issuing Bank and the Agent shall continue
to deal solely and directly with the originating Bank in connection with the
originating Bank's rights and obligations under this Agreement and the other
Loan Documents, and (iv) no Bank shall transfer or grant any participating
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interest under which the Participant has rights to approve any amendment to, or
any consent or waiver with respect to, this Agreement or any other Loan
Document, except to the extent such amendment, consent or waiver would require
unanimous consent of the Banks as described in the first proviso to Section
12.1. In the case of any such participation, the Participant shall be entitled
to the benefit of Sections 5.1, 5.2, 5.4, 5.5, 5.6 and 12.5 as though it were
also a Bank or Designated Bidder hereunder (provided that no Participant shall
be entitled to any payment under Section 5.1, 5.5 or 5.6 in excess of the
payment which would have been payable to the originating Bank if it had not so
sold a participation), and not have any rights under this Agreement, or any of
the other Loan Documents, and all amounts payable by the Companies hereunder
shall be determined as if such Bank had not sold such participation; except
that, if amounts outstanding under this Agreement are due and unpaid, or shall
have been declared or shall have become due and payable upon the occurrence of
an Event of Default, each Participant shall be deemed to have the right of
set-off in respect of its participating interest, subject in all events to
Section 2.18 as if such Participant were a Bank, in amounts owing under this
Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Bank or Designated Bidder under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Bank or
Designated Bidder may at any time create a security interest in, or pledge all
or any portion of its rights under and interest in this Agreement and the Notes
held by it in favor of any Federal Reserve Bank in accordance with Regulation A
of the FRB or U.S. Treasury Regulation 31 CFR ss.203.14, and such Federal
Reserve Bank may enforce such pledge or security interest in any manner
permitted under applicable law.
(f) Any assignment or participation shall be subject to the assignee's
or the participant's agreement to be bound by all applicable confidentiality
restrictions set forth herein.
(g) Notwithstanding an assignment, the Bank making the assignment
shall continue to have the benefits of Article V and Sections 12.4 and 12.5
with respect to the period prior to the assignment.
12.9 Designated Bidders. Any Bank may designate one Designated Bidder
to have a right to offer and make Bid Loans pursuant to Section 2.6; provided,
however, that (i) no such Bank may make more than one such designation, (ii)
each such Bank making any such designation shall retain the right to make Bid
Loans, and (iii) the parties to each such designation shall execute and deliver
to the Agent a Designation Agreement. Upon its receipt of an appropriately
completed Designation Agreement executed by a designating Bank and a designee
representing that it is a Designated Bidder, the Agent will accept such
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Designation Agreement and give prompt notice thereof to the Company, whereupon
such designation of such Designated Bidder shall become effective and such
designee shall become a party to this Agreement as a "Designated Bidder."
12.10 Confidentiality. Each Bank and Designated Bidder agrees to take
and to cause its Affiliates to take normal and reasonable precautions and
exercise due care to maintain the confidentiality of all information provided
to it by each Company or any Subsidiary, or by the Agent on such Company's or
Subsidiary's behalf, under this Agreement or any other Loan Document, and
neither it nor any of its Affiliates shall use any such information other than
in connection with or in enforcement of this Agreement and the other Loan
Documents or in connection with other business now or hereafter existing or
contemplated with the Companies or any Subsidiary; except to the extent such
information (i) was or becomes generally available to the public other than as
a result of disclosure by the Agent, such Bank or Designated Bidder, or (ii)
was or becomes available from a source other than the Companies, provided that
such source is not bound by a confidentiality agreement with the Companies
known to the Bank or Designated Bidder; provided, however, that any Bank or
Designated Bidder may disclose such information (A) at the request or pursuant
to any requirement of any Governmental Authority to which such Bank or
Designated Bidder is subject or in connection with an examination of such Bank
or Designated Bidder by any such authority; (B) pursuant to subpoena or other
court process; (C) when required to do so in accordance with the provisions of
any applicable Requirement of Law; (D) to the extent reasonably required in
connection with any litigation or proceeding to which the Agent, any Bank, any
Designated Bidder or their respective Affiliates may be party; (E) to the
extent reasonably required in connection with the exercise of any remedy
hereunder or under any other Loan Document; (F) to such Bank's or Designated
Bidder's independent auditors and other professional advisors provided that
such Person shall be notified of its obligation to keep such information
confidential to the same extent required of the Banks hereunder; (G) to any
Participant or Assignee, actual or potential, provided that such Person agrees
in writing to keep such information confidential to the same extent required of
the Banks hereunder; (H) as to any Bank, any Designated Bidder or its
Affiliate, as expressly permitted under the terms of any other document or
agreement regarding confidentiality to which the Companies or any Subsidiary is
party or is deemed party with such Bank or such Affiliate; and (i) to its
Affiliates. The Bank disclosing information pursuant to the above proviso
(except pursuant to clauses (A) , (E) , (F) , (G) , (H) or (I) shall to the
extent permitted by law give prior notice thereof to the Companies and shall
limit such disclosures to the information so required.
12.11 Set-off. In addition to any rights and remedies of the Banks
provided by law, if an Event of Default exists or the Loans have been
accelerated, each Bank (or Affiliate) and Designated Bidder (any Affiliate) is
authorized at any time and from time to time, without prior notice to any
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Company, any such notice being waived by each Company 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, but excluding deposits in
accounts which have been designated by Interim to the applicable Bank as
Payroll Accounts) at any time held by, and other indebtedness at any time owing
by, such Bank (or Affiliate) or Designated Bidder (or any Affiliate) to or for
the credit or the account of such Company against any and all Obligations then
due and owing, or in case of Letters of Credit, which may become due and owing,
to such Bank or Designated Bidder, now or hereafter existing, irrespective of
whether or not the Agent or such Bank or Designated Bidder shall have made
demand under this Agreement or any Loan Document. Each Bank and Designated
Bidder agrees promptly to notify each Company and the Agent after any such
set-off and application made by such Bank or Designated Bidder; provided,
however, that the failure to give such notice shall not affect the validity of
such set-off and application.
12.12 Notification of Addresses of Lending Offices, Etc. Each Bank and
Designated Bidder shall notify the Agent in writing of any changes in the
address to which notices to such Bank and Designated Bidder should be directed,
of addresses of any Lending Office, of payment instructions in respect of all
payments to be made to it hereunder and of such other administrative
information as the Agent shall reasonably request.
12.13 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
12.14 Severability. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
12.15 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Companies, the Banks, the
Designated Bidders, the Agent and the Agent-Related Persons, and their
permitted successors and assigns, and no other Person shall be a direct or
indirect legal beneficiary of, or have any direct or indirect cause of action
or claim in connection with, this Agreement or any of the other Loan Documents.
12.16 Governing Law and Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF FLORIDA NOTWITHSTANDING ITS EXECUTION OUTSIDE OF
THE STATE OF FLORIDA; PROVIDED THAT THE AGENT AND THE BANKS SHALL RETAIN ALL
RIGHTS ARISING UNDER FEDERAL LAW.
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(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF FLORIDA OR
OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF FLORIDA, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANIES, THE AGENT AND THE BANKS
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH OF THE COMPANIES, THE DESIGNATED BIDDERS,
THE AGENT AND THE BANKS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO. THE COMPANIES, THE AGENT, THE DESIGNATED BIDDERS AND THE BANKS
EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH
MAY BE MADE BY ANY OTHER MEANS PERMITTED BY FLORIDA LAW.
12.17 Waiver of Jury Trial. THE COMPANIES, THE BANKS, THE DESIGNATED
BIDDERS AND THE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON,
PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS,
OR OTHERWISE. THE COMPANIES, THE BANKS, THE DESIGNATED BIDDERS AND THE AGENT
EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT
TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE
THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS
SECTION 12.17 AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS,
IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
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12.18 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the Companies,
the Banks and the Agent, and supersedes all prior or contemporaneous agreements
and understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof.
12.19 Judgment Currency. Each Company, the Agent and each Bank hereby
agree that if, in the event that a judgment is given in relation to any sum due
to the Agent or any Bank hereunder, such judgment is given in a currency (the
"Judgment Currency") other than that in which such sum was originally
denominated (the "Original Currency"), such Company agrees to indemnify the
Agent or such Bank, as the case may be, to the extent that the amount of the
Original Currency which could have been purchased by the Agent in accordance
with normal banking procedures on the Business Day following receipt of such
sum is less than the sum originally due hereunder in the Original Currency, and
if the amount so purchased exceeds the amount which could have been so
purchased had such purchase been made on the day on which such judgment was
given or, if such day is not a Business Day, on the Business Day immediately
preceding such judgment, the Agent or the applicable Bank agrees to remit such
excess to the Companies. If for the purposes of obtaining judgment in any court
it is necessary to convert a sum due hereunder in an Original Currency into a
Judgment Currency, the parties hereto agree,to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase such
Judgment Currency with such Original Currency on the Business Day preceding
that on which final judgment is given. The agreements in this Section shall
survive payment of all other Obligations.
12.20 Confirmation of Foreign Pledge Agreements. By execution of this
Agreement, each Company acknowledges that the Charge Over Shares dated as of
May 1, 1997 between Interim Services Inc. and the Agent, and the Charge Over
Shares dated as of May 1, 1997 between Interim Services (Europe) Inc. and the
Agent (collectively, the "Foreign Pledge Agreements") are, and shall continue
to be, in full force and effect as security for the Obligations and are hereby
ratified and confirmed in all respects. Each Company further agrees that all
references to the "Credit Agreement" in the Foreign Pledge Agreements shall be
to the Credit Agreement as amended and restated hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in Charlotte by their proper and duly authorized
officers as of the day and year first above written.
WITNESS: INTERIM SERVICES INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
INTERIM SERVICES (EUROPE) INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
XXXXXXX PAGE GROUP PLC
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
INTERIM SERVICES WORLDWIDE HOLDING BV
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
146
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent and Issuing Bank
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
NATIONSBANK, NATIONAL ASSOCIATION,
as a Bank
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
147
THE FIRST NATIONAL BANK OF CHICAGO,
as Documentation Agent and as a Bank
By:
--------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Lending Office:
One First Xxxxxxxx Xxxxx
Xxxxx 0000, 0-00
Xxxxxxx, Xxxxxxxx 00000
Wire Transfer Instructions:
The First National Bank of Chicago
Chicago, Illinois
ABA #000000000
Account #4811528600000
Account Name: Loan Processing Dept.
Attention: Xxxxx Xxxxxxxx
Reference: Interim Services Inc.
148
ABN AMRO BANK N.V., as a Managing Agent
and as a Bank
By:
--------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
By:
--------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Lending Office:
000 X. XxXxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Credit Administration
Wire Transfer Instructions:
ABN AMRO Bank N.V.
New York, New York
ABA #0000000000
F/O ABN AMRO Bank N.V.
Chicago Branch CPU
Account #650-001-1789-41
Reference: CPU (#00408972)
Interim Services Inc.
000
XXX XXXXX XXXXXXXXX BANK, as a
Managing Agent and as a Bank
By:
--------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Lending Office:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wire Transfer Instructions:
The Chase Manhattan Bank
New York, New York
ABA #000000000
Account #I059420
Reference: Interim Services Inc.
Attention: __________________
150
CITIBANK, N.A., as a Managing Agent and
as a Bank
By:
--------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Lending Office:
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
Citibank, N.A.
New York, New York
ABA #000000000
Account #00000000
Atlanta Receipts
Reference: Interim Services Inc.
151
FIRST UNION NATIONAL BANK, as a
Managing Agent and as a Bank
By:
--------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Lending Office:
000 X. Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
First Union National Bank
Miami, Florida
ABA #000000000
Account #GL 0000000000
Account Name: Commercial Loan Services
Attention: Xxxxx Xxxxx
Reference: Interim Services Inc.
152
FLEET NATIONAL BANK, as a Managing Agent
and as a Bank
By:
--------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Lending Office:
0 Xxxxxxx Xxxxxx
XXXXXX00
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Wire Transfer Instructions:
Fleet National Bank
Boston, Massachusetts
ABA # 000-000-000
Account # __________
Attention: _______________________
Reference: Interim Services Inc.
000
XXXXXXXX XXXX, XXXXX XXXXXXX, N.A.,
as a Managing Agent and as a Bank
By:
--------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Lending Office:
00 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
SunTrust Bank, South Florida, N.A.
ABA #000-000-000
Account #9607004110, Corporate Banking
Attention: Xxxxxxxx Xxxxxxxx
Reference: Interim Services Inc.
154
WACHOVIA BANK, N.A., as a Managing
Agent and as a Bank
By:
--------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Lending Office:
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
Wachovia Bank, N.A.
Atlanta, Georgia
ABA #000000000
Account #00-000 000
Attention: Xxxxxxxx Xxxxxx
Reference: Interim Services Inc.
155
ING BANK N.V.
By:
--------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
By:
--------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Lending Office:
X.X. Xxx 0000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Wire Transfer Instructions:
Northern Trust Int. Banking Corp.
Account #100628-20230, SWIFT
CNORUS 33
In Favor of: ING Rotterdam
For Further Credit to:
Account #00.00.00.000 (ING)
Reference: Interim Services Inc.
000
XXX XXXXXXXXXX XXXX XX XXXXX,
XXXXXXX, XXXXXXX AGENCY
By:
--------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Lending Office:
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Wire Transfer Instructions:
The Industrial Bank of Japan, Limited
New York Branch
New York, New York
ABA #000000000
For further credit to: IBJ Atlanta Agency
Account #2601-21014
Reference: Interim Services Inc.
000
XXX XXXX XX XXX XXXX
By:
--------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Lending Office:
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wire Transfer Instructions:
The Bank of New York
New York, New York
ABA #000000000
Commercial Loan Servicing Department
Reference: Interim Services Inc.
158
BANQUE NATIONALE DE PARIS
By:
--------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Lending Office:
000 Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Wire Transfer Instructions:
BNP New York
New York, New York
ABA #000000000
Account #141011-001-69
Account Name: BNP Houston Agency
Attention: Xxxxx Xxxx
Reference: Interim Services Inc.
159
COMERICA BANK
By:
--------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Lending Office:
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
XX 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Wire Transfer Instructions:
Comerica Bank
ABA #000000000
Account Name: Commercial Loan Servicing
Account #00-00000-00000
Reference: Interim Services, Inc.
160
CREDIT SUISSE FIRST BOSTON
By:
--------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
By:
--------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Lending Office:
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Wire Transfer Instructions:
The Bank of New York
New York, New York
ABA # 000000000
Name of Account: CSFB NY Trade Services
Account #000-0000-000
Reference: Interim Services Inc.
161
HSBC BANK USA
By:
--------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Lending Office:
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Wire Transfer Instructions:
HSBC Bank USA
ABA #000-000-000
Account #000-000-000
Attention: Asset Syndications
Reference: Interim Services Inc.
162
KBC BANK N.V.
By:
--------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Lending Office:
New York Branch
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wire Transfer Instructions:
Bank of New York
ABA #000-000-000
Name of Account: KBC Bank N.V.,
New York Branch
Account #000 000 0000
Reference: Interim Services Inc.
163
THE NORTHERN TRUST COMPANY
By:
--------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Lending Office:
00 X. XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Wire Transfer Instructions:
The Northern Trust Company
ABA #000000000
Commercial Loan Account #5186401000
Credit to: Commercial Loan Dept.
Reference: Interim Services Inc.
