1
EXHIBIT 10.9
================================================================================
$700,000,000
AMENDED AND RESTATED 5-YEAR CREDIT AGREEMENT
Dated as of December 31, 1999
among
▇▇▇▇▇▇ WORLDWIDE, INC.,
as the Company,
the SUBSIDIARY BORROWERS,
THE INSTITUTIONS FROM TIME TO TIME
PARTIES HERETO AS LENDERS,
ABN AMRO BANK N.V.,
as Administrative Agent, Issuing Bank,
and Dollar Swing Line Bank,
ABN AMRO BANK N.V.,
BELGIUM BRANCH,
as Multicurrency Swing Line Bank,
SUNTRUST BANK, ATLANTA,
as Syndication Agent,
and
WACHOVIA BANK N.A.,
as Documentation Agent,
Arranged By
ABN AMRO BANK N.V.,
as Lead Arranger and Book Runner,
SUNTRUST EQUITABLE SECURITIES CORPORATION,
as Lead Arranger and Book Runner,
and
WACHOVIA SECURITIES, INC.,
as Co-Lead Arranger
===============================================================================
2
TABLE OF CONTENTS
SECTION PAGE
------- ----
ARTICLE I: DEFINITIONS...........................................................................................1
1.1 CERTAIN DEFINED TERMS....................................................................................1
1.2 REFERENCES..............................................................................................31
1.3 ROUNDING AND OTHER CONSEQUENTIAL CHANGES................................................................32
ARTICLE II: LOAN FACILITIES.....................................................................................32
2.1 REVOLVING LOANS.........................................................................................32
2.2 COMPETITIVE BID ADVANCES................................................................................34
2.3 SWING LINE LOANS........................................................................................37
2.4 RATE OPTIONS FOR ALL ADVANCES; MAXIMUM INTEREST PERIODS.................................................41
2.5 OPTIONAL PAYMENTS; MANDATORY PREPAYMENTS................................................................41
2.6 REDUCTIONS IN COMMITMENTS...............................................................................43
2.7 METHOD OF BORROWING.....................................................................................44
2.8 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR ADVANCES.............................................44
2.9 MINIMUM AMOUNT OF EACH ADVANCE..........................................................................45
2.10 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR CONVERSION AND.......................................45
2.11 DEFAULT RATE............................................................................................47
2.12 METHOD OF PAYMENT.......................................................................................47
2.13 EVIDENCE OF DEBT........................................................................................48
2.14 TELEPHONIC NOTICES......................................................................................49
2.15 PROMISE TO PAY; INTEREST AND FEES; INTEREST PAYMENT DATES; INTEREST AND.................................49
2.16 NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND AGGREGATE.....................................55
2.17 LENDING INSTALLATIONS...................................................................................55
2.18 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT........................................................55
2.19 TERMINATION DATE........................................................................................56
2.20 REPLACEMENT OF CERTAIN LENDERS..........................................................................56
2.21 ALTERNATE CURRENCY LOANS................................................................................57
2.22 JUDGMENT CURRENCY.......................................................................................59
2.23 MARKET DISRUPTION; DENOMINATION OF AMOUNTS IN DOLLARS; DOLLAR...........................................60
2.24 SUBSIDIARY BORROWERS....................................................................................61
ARTICLE III: THE LETTER OF CREDIT FACILITY.......................................................................61
3.1 OBLIGATION TO ISSUE LETTERS OF CREDIT...................................................................61
3.2 TRANSITIONAL PROVISION..................................................................................62
3.3 TYPES AND AMOUNTS.......................................................................................62
3.4 CONDITIONS..............................................................................................62
3.5 PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT.............................................................62
3.6 LETTER OF CREDIT PARTICIPATION..........................................................................63
3.7 REIMBURSEMENT OBLIGATION................................................................................63
3.8 LETTER OF CREDIT FEES...................................................................................64
3.9 ISSUING BANK REPORTING REQUIREMENTS.....................................................................65
3.10 INDEMNIFICATION; EXONERATION............................................................................65
3.11 CASH COLLATERAL.........................................................................................66
ARTICLE IV: CHANGE IN CIRCUMSTANCES.............................................................................67
4.1 YIELD PROTECTION........................................................................................67
4.2 CHANGES IN CAPITAL ADEQUACY REGULATIONS.................................................................67
4.3 AVAILABILITY OF TYPES OF ADVANCES.......................................................................68
4.4 FUNDING INDEMNIFICATION.................................................................................68
4.5 LENDER STATEMENTS; SURVIVAL OF INDEMNITY................................................................68
-i-
3
ARTICLE V: CONDITIONS PRECEDENT.................................................................................69
5.1 INITIAL ADVANCES AND LETTERS OF CREDIT..................................................................69
5.2 INITIAL ADVANCE TO EACH NEW SUBSIDIARY BORROWER.........................................................71
5.3 EACH ADVANCE, EACH CONVERSION OR CONTINUATION OF AN ADVANCE, AND EACH LETTER OF CREDIT..................72
5.4 EFFECTIVENESS OF AMENDMENT AND RESTATEMENT..............................................................73
ARTICLE VI: REPRESENTATIONS AND WARRANTIES......................................................................73
6.1 ORGANIZATION; CORPORATE POWERS..........................................................................73
6.2 AUTHORIZATION AND VALIDITY..............................................................................74
6.3 NO CONFLICT; GOVERNMENT CONSENT.........................................................................74
6.4 FINANCIAL STATEMENTS....................................................................................74
6.5 MATERIAL ADVERSE CHANGE.................................................................................74
6.6 TAXES...................................................................................................74
6.7 LITIGATION AND CONTINGENT OBLIGATIONS...................................................................75
6.8 SUBSIDIARIES............................................................................................75
6.9 ERISA...................................................................................................75
6.10 ACCURACY OF INFORMATION.................................................................................75
6.11 REGULATION U............................................................................................75
6.12 MATERIAL AGREEMENTS.....................................................................................76
6.13 COMPLIANCE WITH LAWS....................................................................................76
6.14 OWNERSHIP OF PROPERTIES.................................................................................76
6.15 STATUTORY INDEBTEDNESS RESTRICTIONS.....................................................................76
6.16 ENVIRONMENTAL MATTERS...................................................................................76
6.17 INSURANCE...............................................................................................77
6.18 LABOR MATTERS...........................................................................................77
6.19 SOLVENCY................................................................................................77
6.20 YEAR 2000 ISSUES........................................................................................77
6.21 DEFAULT.................................................................................................77
6.22 REPRESENTATIONS AND WARRANTIES OF EACH SUBSIDIARY BORROWER..............................................77
6.23 FOREIGN EMPLOYEE BENEFIT MATTERS........................................................................79
ARTICLE VII: COVENANTS..........................................................................................80
7.1 REPORTING...............................................................................................80
7.2 AFFIRMATIVE COVENANTS...................................................................................84
7.3 NEGATIVE COVENANTS......................................................................................88
7.4 FINANCIAL COVENANTS.....................................................................................95
ARTICLE VIII: DEFAULTS..........................................................................................96
8.1 DEFAULTS................................................................................................96
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES..................................98
9.1 TERMINATION OF REVOLVING LOAN COMMITMENTS; ACCELERATION.................................................98
9.2 AMENDMENTS..............................................................................................99
9.3 PRESERVATION OF RIGHTS.................................................................................100
ARTICLE X: GUARANTY............................................................................................100
10.1 GUARANTY...............................................................................................100
10.2 WAIVERS................................................................................................100
10.3 GUARANTY ABSOLUTE......................................................................................101
10.4 ACCELERATION...........................................................................................102
10.5 MARSHALING; REINSTATEMENT..............................................................................102
10.6 SUBROGATION............................................................................................102
10.7 TERMINATION DATE.......................................................................................102
ARTICLE XI: GENERAL PROVISIONS.................................................................................103
-ii-
4
11.1 SURVIVAL OF REPRESENTATIONS............................................................................103
11.2 GOVERNMENTAL REGULATION................................................................................103
11.3 HEADINGS...............................................................................................103
11.4 ENTIRE AGREEMENT.......................................................................................103
11.5 SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT........................................................103
11.6 EXPENSES; INDEMNIFICATION..............................................................................103
11.7 NUMBERS OF DOCUMENTS...................................................................................104
11.8 ACCOUNTING.............................................................................................104
11.9 SEVERABILITY OF PROVISIONS.............................................................................104
11.10 NONLIABILITY OF LENDERS................................................................................104
11.11 GOVERNING LAW..........................................................................................105
11.12 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL................................................105
11.13 OTHER TRANSACTIONS.....................................................................................106
ARTICLE XII: THE ADMINISTRATIVE AGENT..........................................................................107
12.1 APPOINTMENT; NATURE OF RELATIONSHIP....................................................................107
12.2 POWERS.................................................................................................107
12.3 GENERAL IMMUNITY.......................................................................................107
12.4 NO RESPONSIBILITY FOR LOANS, CREDITWORTHINESS, RECITALS, ETC...........................................107
12.5 ACTION ON INSTRUCTIONS OF LENDERS......................................................................108
12.6 EMPLOYMENT OF AGENTS AND COUNSEL.......................................................................108
12.7 RELIANCE ON DOCUMENTS; COUNSEL.........................................................................108
12.8 THE ADMINISTRATIVE AGENT'S, ISSUING BANKS', SWING LINE BANKS' AND ALTERNATE CURRENCY BANKS'
REIMBURSEMENT AND INDEMNIFICATION....................................................................108
12.9 RIGHTS AS A LENDER.....................................................................................109
12.10 LENDER CREDIT DECISION.................................................................................109
12.11 SUCCESSOR ADMINISTRATIVE AGENT.........................................................................109
12.12 NO DUTIES IMPOSED UPON SYNDICATION AGENT, DOCUMENTATION AGENT OR LEAD ARRANGERS........................110
12.13 COLLATERAL AGENT.......................................................................................110
ARTICLE XIII: SETOFF; RATABLE PAYMENTS.........................................................................110
13.1 SETOFF.................................................................................................110
13.2 RATABLE PAYMENTS.......................................................................................110
13.3 APPLICATION OF PAYMENTS................................................................................111
13.4 RELATIONS AMONG LENDERS................................................................................111
ARTICLE XIV: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.................................................111
14.1 SUCCESSORS AND ASSIGNS.................................................................................111
14.2 PARTICIPATIONS.........................................................................................112
14.3 ASSIGNMENTS............................................................................................112
14.4 CONFIDENTIALITY........................................................................................115
14.5 DISSEMINATION OF INFORMATION...........................................................................115
ARTICLE XV: NOTICES............................................................................................115
15.1 GIVING NOTICE..........................................................................................115
15.2 CHANGE OF ADDRESS......................................................................................116
15.3 AUTHORITY OF COMPANY...................................................................................116
ARTICLE XVI: COUNTERPARTS......................................................................................116
-iii-
5
EXHIBITS AND SCHEDULES
EXHIBITS
EXHIBIT A -- Loan Commitments
(Definitions)
EXHIBIT A-1 -- Eurocurrency Payment Offices
EXHIBIT B -- Form of Borrowing/Conversion/Continuation Notice
(Section 2.3 and Section 2.8 and Section 2.10)
EXHIBIT C -- Form of Request for Letter of Credit (Section 3.4)
EXHIBIT D -- Form of Assignment and Acceptance Agreement
(Sections 2.20 and 14.3)
EXHIBIT E -- Form of Officer's Certificate
(Section 7.1(A)(iii))
EXHIBIT F -- Form of Compliance Certificate
(Section 7.1(A)(iii))
EXHIBIT G-1 -- Form of Guaranty
(Definitions)
EXHIBIT G-2 -- Form of Subordination Agreement
(Definitions)
EXHIBIT H -- Form of Alternate Currency Addendum
(Definitions)
EXHIBIT I-1A -- Form of Tranche A Revolving Loan Note (If Requested)
EXHIBIT I-1B -- Form of Tranche B Revolving Loan Note (If Requested)
EXHIBIT I-2 -- Form of Term Loan Note (If Requested)
EXHIBIT I-3 -- Form of Competitive Bid Note (If Requested)
EXHIBIT J -- Form of Competitive Bid Quote Request
EXHIBIT K -- Form of Invitation for Competitive Bid Quotes
EXHIBIT L -- Form of Competitive Bid Quote
-i-
6
EXHIBIT M -- Form of Assumption Letter
SCHEDULES
Schedule 1.1.1 -- Permitted Existing Contingent Obligations (Definitions)
Schedule 1.1.2 -- Permitted Existing Indebtedness (Definitions)
Schedule 1.1.3 -- Permitted Existing Liens (Definitions)
Schedule 3.2 -- Transitional Letters of Credit (Section 3.2)
Schedule 6.8 -- Subsidiaries (Section 6.8)
Schedule 7.2 -- Subsidiaries Subject to Stock Pledge (Section 7.2 (N))
-ii-
7
AMENDED AND RESTATED 5-YEAR CREDIT AGREEMENT
This AMENDED AND RESTATED 5-YEAR CREDIT AGREEMENT dated as of December
__, 1999 is entered into by and among, ▇▇▇▇▇▇ WORLDWIDE, INC., a Delaware
corporation (the "COMPANY"), one or more Subsidiaries of the Company (whether
now existing or hereafter formed, collectively referred to herein as the
"SUBSIDIARY BORROWERS"), the institutions from time to time parties hereto as
Lenders, whether by execution of this Agreement or an Assignment Agreement
pursuant to Section 14.3, ABN AMRO BANK N.V. in its capacity as administrative
agent (the "Administrative Agent") for itself and the other Lenders, SUNTRUST
BANK, ATLANTA, as Syndication Agent (the "Syndication Agent") and WACHOVIA BANK
N.A., as Documentation Agent (the "Documentation Agent").
RECITALS
A. The Borrowers, the Agents and the Lenders are parties to that
certain 5-Year Credit Agreement dated as of October 20, 1999, as amended by that
certain Amendment No. 1 dated as of November 4, 1999 (the "Existing Agreement"),
pursuant to which the Lenders agreed to make term and revolving loans and
provide financial accommodations to the Borrowers, subject to certain
restrictions set forth therein.
B. The Borrowers, the Agents and the Required Lenders desire to
amend and restate the Existing Agreement in order to divide the revolving credit
facility established thereby into separate tranches and to make certain other
changes to the Existing Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby amend and restate the Existing Agreement as follows:
ARTICLE I: DEFINITIONS
1.1 Certain Defined Terms. In addition to the terms defined above,
the following terms used in this Agreement shall have the following meanings,
applicable both to the singular and the plural forms of the terms defined.
As used in this Agreement:
"ABN" means ABN AMRO Bank N.V., in its individual capacity, and its
successors.
"ABSOLUTE RATE" means, with respect to an Absolute Rate Loan made by a
given Lender for the relevant Absolute Rate Interest Period, the rate of
interest per annum (rounded to the nearest 1/100 of 1%) offered by such Lender
and accepted by the Company.
"ABSOLUTE RATE ADVANCE" means a borrowing hereunder consisting of the
aggregate amount of the several Absolute Rate Loans made by some or all of the
Lenders to the Company at the same time and for the same Interest Period.
8
"ABSOLUTE RATE AUCTION" means a solicitation of Competitive Bid Quotes
setting forth Absolute Rates pursuant to Section 2.2.
"ABSOLUTE RATE INTEREST PERIOD" means, with respect to an Absolute Rate
Advance, a period of not fewer than seven (7) and not more than one hundred
eighty (180) days commencing on a Business Day selected by the Company pursuant
to this Agreement. If such Absolute Rate Interest Period would end on a day
which is not a Business Day, such Absolute Rate Interest Period shall end on the
next succeeding Business Day.
"ABSOLUTE RATE LOAN" means a Loan which bears interest at the Absolute
Rate.
"ACQUISITION" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or division thereof,
whether through purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent transaction in a
series of transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election of
directors (other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage of voting power) of the
outstanding equity interests of another Person.
"ADMINISTRATIVE AGENT" means ABN in its capacity as administrative
agent for itself and the Lenders pursuant to Article XII hereof and any
successor Administrative Agent appointed pursuant to Article XII hereof.
"ADMINISTRATIVE AGENT FEE LETTER" means that certain fee letter between
the Company and the Administrative Agent, dated as of October 7, 1999.
"ADVANCE" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by some or all of the Lenders to the applicable
Borrower of the same Type (or on the same interest basis in the case of
Competitive Bid Advances) and, in the case of Eurocurrency Rate Advances and
Alternate Currency Loans, in the same currency and for the same Interest Period
and includes a Competitive Bid Advance.
"AFFECTED LENDER" is defined in Section 2.20 hereof.
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of greater than five percent (5%) or more of any class of voting
securities (or other voting interests) of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
Capital Stock, by contract or otherwise.
-2-
9
"AGENTS" means each of the Administrative Agent, the Syndication Agent
and the Documentation Agent.
"AGGREGATE COMMITMENT" means, as of any date of determination, the sum
of (i) the Aggregate Revolving Loan Commitment as of such date and (ii) the
Aggregate Term Loan Commitment as of such date.
"AGGREGATE REVOLVING LOAN COMMITMENT" means, as of any date of
determination, the sum of (i) the Aggregate Tranche A Revolving Loan Commitment
as of such date and (ii) the Aggregate Tranche B Revolving Loan Commitment as of
such date.
"AGGREGATE TERM LOAN COMMITMENT" means the aggregate of the Term Loan
Commitments of all the Lenders. The initial Aggregate Term Loan Commitment is
Two Hundred Fifty Million and 00/100 Dollars ($250,000,000.00).
"AGGREGATE TRANCHE A REVOLVING LOAN COMMITMENT" means the aggregate of
the Tranche A Revolving Loan Commitments of all the Lenders, as may be adjusted
from time to time pursuant to the terms hereof. The initial Aggregate Tranche A
Revolving Loan Commitment is Three Hundred Million and 00/100 Dollars
($300,000,000.00).
"AGGREGATE TRANCHE B REVOLVING LOAN COMMITMENT" means the aggregate of
the Tranche B Revolving Loan Commitments of all the Lenders, as may be adjusted
from time to time pursuant to the terms hereof. The initial Aggregate Tranche B
Revolving Loan Commitment is One Hundred Fifty Million and 00/100 Dollars
($150,000,000.00).
"AGREED CURRENCIES" means (i) Dollars, (ii) so long as such currency
remains an Eligible Currency, euro, and (iii) any other Eligible Currency which
the applicable Borrower requests the Administrative Agent to include as an
Agreed Currency hereunder and which is agreed to by the Multicurrency Swing Line
Bank and all of the Lenders with a Tranche B Revolving Loan Commitment; provided
that the Administrative Agent shall promptly notify each such Lender of each
such request and each such Lender shall be deemed not to have agreed to each
such request unless its written consent thereto has been received by the
Administrative Agent within five (5) Business Days from the date of such
notification by the Administrative Agent to such Lender.
"AGREEMENT" means this Amended and Restated 5-Year Credit Agreement, as
it may be amended, restated or otherwise modified and in effect from time to
time.
"AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted accounting
principles as in effect in the United States as of the date of this Agreement,
applied in a manner consistent with that used in preparing the financial
statements of the Company included in the Form 10 and referred to in Section 6.4
hereof.
"ALTERNATE BASE RATE" means, for any day, a fluctuating rate of
interest per annum equal to in the case of Loans in Dollars, the higher of (i)
the Prime Rate for such day and (ii) the sum of (a) the Federal Funds Effective
Rate for such day and (b) one half percent (.50%) per annum
-3-
10
and in the case of Loans in other Eligible Currencies, the comparable rate for
such other Eligible Currency, as reasonably determined by the Administrative
Agent, the Multicurrency Swing Line Lender or the Alternate Currency Bank, as
applicable.
"ALTERNATE CURRENCY" shall mean any Eligible Currency which is not an
Agreed Currency and which the applicable Borrower requests the applicable
Alternate Currency Bank to include as an Alternate Currency hereunder and which
is acceptable to the applicable Alternate Currency Bank and with respect to
which an Alternate Currency Addendum has been executed by a Subsidiary Borrower
or the Company and the applicable Alternate Currency Bank in connection
therewith.
"ALTERNATE CURRENCY ADDENDUM" means an addendum substantially in the
form of Exhibit H with such modifications thereto as shall be approved by the
applicable Alternate Currency Bank and the Administrative Agent.
"ALTERNATE CURRENCY BANK" means ABN and any other Lender with a Tranche
B Revolving Loan Commitment (or any Affiliate, branch or agency thereof) to the
extent it is party to an Alternate Currency Addendum as the "Alternate Currency
Bank" thereunder. If any agency, branch or Affiliate of such Lender shall be a
party to an Alternate Currency Addendum, such agency, branch or Affiliate shall,
to the extent of any commitment extended and any Loans made by it, have all the
rights of such Lender hereunder; provided, however, that such Lender shall to
the exclusion of such agency, branch or Affiliate, continue to have all the
voting rights vested in it by the terms hereof.
"ALTERNATE CURRENCY BORROWING" means any borrowing consisting of a Loan
made in an Alternate Currency.
"ALTERNATE CURRENCY COMMITMENT" means, for any Alternate Currency Bank
for each Alternate Currency, the obligation of such Alternate Currency Bank to
make Alternate Currency Loans not exceeding the Dollar Amount set forth in the
applicable Alternate Currency Addendum, as such amount may be modified from time
to time pursuant to the terms of this Agreement and the applicable Alternate
Currency Addendum.
"ALTERNATE CURRENCY INTEREST PERIOD" means, with respect to any
Alternate Currency Loan, the Interest Period as set forth in, or determined in
accordance with, the applicable Alternate Currency Addendum.
"ALTERNATE CURRENCY LOAN" means any Loan denominated in an Alternate
Currency made by the applicable Alternate Currency Bank to a Subsidiary Borrower
or the Company pursuant to Section 2.21 and an Alternate Currency Addendum.
"ALTERNATE CURRENCY RATE" means, for any day for any Alternate Currency
Loan, the per annum rate of interest selected by the applicable Borrower under
and as set forth in the applicable Alternate Currency Addendum.
-4-
11
"AMENDMENT NO. 1" means that certain Amendment No. 1, dated as of
November 4, 1999, by and among the Borrowers, the Agents and the Lenders.
"APPLICABLE COMMITMENT FEE PERCENTAGE" means, as at any date of
determination, the rate per annum then applicable in the determination of the
amount payable under Section 2.15(C)(i) hereof determined in accordance with the
provisions of Section 2.15(D)(ii) hereof.
"APPLICABLE EUROCURRENCY MARGIN" means, as at any date of
determination, the rate per annum then applicable to Eurocurrency Rate Loans
determined in accordance with the provisions of Section 2.15(D)(ii) hereof.
"APPLICABLE FLOATING RATE MARGIN" means, as at any date of
determination, the rate per annum then applicable to Floating Rate Loans
determined in accordance with the provisions of Section 2.15(D)(ii) hereof.
"APPLICABLE L/C FEE PERCENTAGE" means, as at any date of determination,
a rate per annum equal to the Applicable Eurocurrency Margin for Eurocurrency
Rate Loans in effect on such date.
"APPROVED FUND" means, with respect to any Lender that is a fund or
commingled investment vehicle that invests in commercial loans, any other fund
that invests in commercial loans and is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment advisor.
"APPROXIMATE EQUIVALENT AMOUNT" of any currency with respect to any
amount of Dollars shall mean the Equivalent Amount of such currency with respect
to such amount of Dollars at such date, rounded up to the nearest amount of such
currency as determined by the Administrative Agent from time to time.
"ASSET SALE" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its assets
(including by way of a sale-leaseback transaction) to any Person other than the
Company or any of its wholly-owned Subsidiaries other than (i) the sale, rental
or lease of Inventory in the ordinary course of business (including sales of
leased Inventory and rental Inventory), (ii) the sale or other disposition of
any obsolete, excess, damaged or worn-out Equipment disposed of in the ordinary
course of business, (iii) the sale or liquidation of Cash Equivalents and (iv)
the sale-leaseback of Equipment used in the facilities management business of
the Company and its Subsidiaries, to the extent such Equipment has an aggregate
net depreciated book value of no more than $25,000,000 at any one time.
"ASSIGNMENT AGREEMENT" means an assignment and acceptance agreement
entered into in connection with an assignment pursuant to Section 14.3 hereof in
substantially the form of Exhibit D.
"ASSUMPTION LETTER" means a letter of a Subsidiary of the Company
addressed to the Lenders in substantially the form of Exhibit M hereto pursuant
to which such Subsidiary agrees to become a Subsidiary Borrower and agrees to be
bound by the terms and conditions hereof.
-5-
12
"AUTHORIZED OFFICER" means any of the Chairman of the Board, the
President, the Treasurer, any Vice President or the Chief Financial Officer of
the Company, acting singly.
"BENEFIT PLAN" means a defined benefit plan as defined in Section 3(35)
of ERISA (other than a Multiemployer Plan or a Foreign Employee Benefit Plan)
covered by Title IV of ERISA and in respect of which the Company or any other
member of the Controlled Group is, or within the immediately preceding six (6)
years was, an "employer" as defined in Section 3(5) of ERISA.
"BORROWER" means, as applicable, any of the Company and the Subsidiary
Borrowers, together with their respective successors and assigns; and
"BORROWERS" shall mean, collectively, the Company and the Subsidiary Borrowers.
"BORROWING DATE" means a date on which a Loan is made hereunder.
"BORROWING/CONVERSION/CONTINUATION NOTICE" is defined in Section 2.8
hereof.
"BUSINESS DAY" means (i) with respect to any borrowing, payment or rate
selection of Loans bearing interest at the Eurocurrency Rate or Eurocurrency Bid
Rate Advances, a day (other than a Saturday or Sunday) on which banks are open
for business in Chicago, Illinois and New York, New York and (x) in addition,
for Loans denominated in Agreed Currencies (other than euro), on which dealings
in Dollars and the other applicable Agreed Currencies are carried on in the
London interbank market and (y) in addition, for Loans denominated in euro, on
which dealings in euro are carried on in Brussels, Belgium interbank market, and
(ii) for all other purposes a day (other than a Saturday or Sunday) on which
banks are open for business in Chicago, Illinois and New York, New York.
"CAPITAL EXPENDITURES" means, without duplication, any expenditures for
any purchase or other acquisition of any asset which would be classified as a
fixed or capital asset on a consolidated balance sheet of the Borrower and its
Subsidiaries prepared in accordance with Agreement Accounting Principles
excluding (i) the cost of assets acquired with Capitalized Lease Obligations,
(ii) expenditures of insurance proceeds to rebuild or replace any asset after a
casualty loss and (iii) leasehold improvement expenditures for which the
Borrower or a Subsidiary is reimbursed promptly by the lessor.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person;
provided, however, that "Capital Stock" shall not include any debt securities
convertible into equity securities prior to such conversion.
"CAPITALIZED LEASE" of a Person means any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
-6-
13
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be capitalized
on a balance sheet of such Person prepared in accordance with Agreement
Accounting Principles.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued or
unconditionally guaranteed by the government of the United States and backed by
the full faith and credit of the United States government; (ii) domestic and
Eurocurrency certificates of deposit and time deposits, bankers' acceptances and
floating rate certificates of deposit issued by any commercial bank organized
under the laws of the United States, any state thereof, the District of
Columbia, any foreign bank, or its branches or agencies, the long-term
indebtedness of which institution at the time of acquisition is rated A- (or
better) by Standard & Poor's Ratings Group or A3 (or better) by ▇▇▇▇▇'▇
Investors Services, Inc., and which certificates of deposit and time deposits
are fully protected against currency fluctuations for any such deposits with a
term of more than ninety (90) days; (iii) shares of money market, mutual or
similar funds having assets in excess of $100,000,000 and the investments of
which are limited to (x) investment grade securities (i.e., securities rated at
least Baa by ▇▇▇▇▇'▇ Investors Service, Inc. or at least BBB by Standard &
Poor's Ratings Group) and (y) commercial paper of United States and foreign
banks and bank holding companies and their subsidiaries and United States and
foreign finance, commercial industrial or utility companies which, at the time
of acquisition, are rated A-1 (or better) by Standard & Poor's Ratings Group or
P-1 (or better) by ▇▇▇▇▇'▇ Investors Services, Inc. (all such institutions
being, "QUALIFIED INSTITUTIONS"); and (iv) commercial paper of Qualified
Institutions; provided that the maturities of such Cash Equivalents shall not
exceed three hundred sixty-five (365) days from the date of acquisition thereof.
"CHANGE" is defined in Section 4.2 hereof.
"CHANGE OF CONTROL" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act of 1934), becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act of 1934, provided that a person shall be
deemed to have "beneficial ownership" of all securities that
such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time),
directly or indirectly, of twenty-five percent (25%) or more
of the combined voting power of the Company's outstanding
Capital Stock ordinarily having the right to vote at an
election of directors; or
(b) the majority of the board of directors of the Company fails to
consist of Continuing Directors; or
(c) the Company consolidates with or merges into another
corporation or conveys, transfers or leases all or
substantially all of its property to any Person, or any
corporation consolidates with or merges into the Company, in
either event pursuant to a transaction in which the
outstanding Capital Stock of the Company is reclassified or
changed into or exchanged for cash, securities or other
property.
-7-
14
"CLOSING DATE" means the date upon which the applicable conditions
precedent set forth in Article V of the Existing Agreement were satisfied and
the initial Loans thereunder made, which was November 4, 1999.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"COLLATERAL AGENT" means ABN in its capacity as collateral agent for
the Lenders and the "Lenders" under the 364-Day Agreement.
"COMMISSION" means the Securities and Exchange Commission of the United
States of America and any Person succeeding to the functions thereof.
"COMMITMENT", as to each Lender, means (i) such Lender's Term Loan
Commitment, (ii) such Lender's Tranche A Revolving Loan Commitment and (iii)
such Lender's Tranche B Revolving Loan Commitment.
"COMPANY" means ▇▇▇▇▇▇ Worldwide, Inc., a Delaware corporation,
together with its successors and assigns, including a debtor-in-possession on
behalf of the Company.
"COMPETITIVE BID ADVANCE" means a borrowing hereunder consisting of the
aggregate amount of the several Competitive Bid Loans made by some or all of the
Lenders to the Company at the same time and for the same Interest Period.
"COMPETITIVE BID BORROWING NOTICE" is defined in Section 2.2(F).
"COMPETITIVE BID LOAN" means a Eurocurrency Bid Rate Loan or an
Absolute Rate Loan, or both, as the case may be and in either case in Dollars.
"COMPETITIVE BID MARGIN" means the margin above or below the applicable
Eurocurrency Base Rate offered for a Eurocurrency Bid Rate Loan, expressed as a
percentage (rounded to the nearest 1/100 of 1%) to be added to or subtracted
from such Eurocurrency Base Rate.
"COMPETITIVE BID RATE" means, for any day for any Competitive Bid Loan
for the relevant Interest Period, the per annum rate of interest selected by the
Company in accordance with Section 2.2.
"COMPETITIVE BID QUOTE" means a Competitive Bid Quote substantially in
the form of Exhibit L hereto completed and delivered by a Lender to the
Administrative Agent in accordance with Section 2.2(D).
"COMPETITIVE BID QUOTE REQUEST" means a Competitive Bid Quote Request
substantially in the form of Exhibit J hereto completed and delivered by the
Company to the Administrative Agent in accordance with Section 2.2(B).
-8-
15
"CONSOLIDATED NET ASSETS" means the total assets of the Company and its
Subsidiaries on a consolidated basis (determined in accordance with Agreement
Accounting Principles), but excluding therefrom all goodwill and other
intangible assets under Agreement Accounting Principles.
"CONSOLIDATED NET SALES" means all product and supply sales and
rentals, facilities management revenues and service income (net of returns and
allowances and excluding financial income) shown on a consolidated income
statement of the Company and its Subsidiaries, prepared in accordance with
Agreement Accounting Principles.
"CONSOLIDATED NET WORTH" means, at a particular date, all amounts which
would be included under shareholders' equity on the consolidated balance sheet
for the Company and its consolidated Subsidiaries, in each case as determined in
accordance with Agreement Accounting Principles; excluding the effects, whether
positive or negative, of foreign exchange translation adjustments after the
Closing Date.
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos, polychlorinated biphenyls ("PCBS"), or any
constituent of any such substance or waste, and includes but is not limited to
these terms as defined in Environmental, Health or Safety Requirements of Law.
"CONTINGENT OBLIGATION", as applied to any Person, means any
Contractual Obligation, contingent or otherwise, of that Person with respect to
any Indebtedness of another or other obligation or liability of another,
including, without limitation, any such Indebtedness, obligation or liability of
another directly or indirectly guaranteed, endorsed (otherwise than for
collection or deposit in the ordinary course of business), co-made or discounted
or sold with recourse by that Person, or in respect of which that Person is
otherwise directly or indirectly liable, including Contractual Obligations
(contingent or otherwise) arising through any agreement to purchase, repurchase,
or otherwise acquire such Indebtedness, obligation or liability or any security
therefor, or to provide funds for the payment or discharge thereof (whether in
the form of loans, advances, stock purchases, capital contributions or
otherwise), or to maintain solvency, assets, level of income, or other financial
condition, or to make payment other than for value received. The amount of any
Contingent Obligation shall be equal to the portion of the obligation so
guaranteed or otherwise supported, in the case of known recurring obligations,
and the maximum reasonably anticipated liability in respect of the portion of
the obligation so guaranteed or otherwise supported assuming such Person is
required to perform thereunder, in all other cases.
"CONTINUING DIRECTOR" means, with respect to any Person as of any date
of determination, any member of the board of directors of such Person who (a)
was a member of such board of directors on the Closing Date or, with respect to
the Company, was identified in the Form 10 as a Person who would become a member
of such board of directors in connection with the Spin-off, or (b) was nominated
for election or elected to such board of directors with the approval of the
Continuing Directors who were members of such board at the time of such
nomination or election.
-9-
16
"CONTRACTUAL OBLIGATION", as applied to any Person, means any provision
of any equity or debt securities issued by that Person or any indenture,
mortgage, deed of trust, security agreement, pledge agreement, guaranty,
contract, undertaking, agreement or instrument, in any case in writing, to which
that Person is a party or by which it or any of its properties is bound, or to
which it or any of its properties is subject.
"CONTROLLED GROUP" means the group consisting of (i) any corporation
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as the Company; (ii) a partnership or
other trade or business (whether or not incorporated) which is under common
control (within the meaning of Section 414(c) of the Code) with the Company; and
(iii) a member of the same affiliated service group (within the meaning of
Section 414(m) of the Code) as the Company, in each case ((i), (ii) or (iii))
giving effect to the consummation of the transactions contemplated by the Loan
Documents and the Spinoff Materials.
"CUSTOMARY PERMITTED LIENS" means:
(i) Liens (other than Environmental Liens and Liens in
favor of the IRS or the PBGC) with respect to the payment of taxes,
assessments or governmental charges in all cases which are not yet due
or (if foreclosure, distraint, sale or other similar proceedings shall
not have been commenced or any such proceeding after being commenced is
stayed) which are being contested in good faith by appropriate
proceedings properly instituted and diligently conducted and with
respect to which adequate reserves or other appropriate provisions are
being maintained in accordance with Agreement Accounting Principles;
(ii) Statutory Liens of landlords and Liens of suppliers,
mechanics, carriers, materialmen, warehousemen, service providers or
workmen and other similar Liens imposed by law created in the ordinary
course of business for amounts not more than sixty (60) days past due
or which thereafter can be paid without penalty or which are being
contested in good faith by appropriate proceedings properly instituted
and diligently conducted and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
Agreement Accounting Principles;
(iii) Liens (other than Environmental Liens and Liens in
favor of the IRS or the PBGC) incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance or other types of social security benefits;
provided that all such Liens do not in the aggregate materially detract
from the value of the Company's or its Subsidiaries' assets or property
taken as a whole or materially impair the use thereof in the operation
of their businesses taken as a whole;
(iv) Liens arising with respect to zoning restrictions,
easements, encroachments, licenses, reservations, covenants,
rights-of-way, utility easements, building restrictions and other
similar charges, restrictions or encumbrances on the use of real
property which do not in any case materially detract from the value of
the property subject thereto or materially interfere with the ordinary
use or occupancy of the real
-10-
17
property or with the ordinary conduct of the business of the Company or
any of its Subsidiaries;
(v) Any interest or title of the lessor in the property
subject to any operating lease entered into by the Company or any of
its Subsidiaries in the ordinary course of business; and
(vi) Liens securing the performance of bids, tenders,
contracts, surety and appeal bonds, incurred in the ordinary course of
business, not to exceed at any time $10,000,000 in the aggregate.
"DEFAULT" means an event described in Article VIII hereof.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
date that is ninety-one (91) days after the Revolving Loan Termination Date.
"DIVIDEND" means the cash distribution of approximately $568,000,000
(which amount gives effect to a positive cash adjustment of approximately
$23,000,000 in favor of the Company pursuant to the Spin-off Materials) paid by
the Company to ▇▇▇▇▇▇ in connection with the Spin-off. Notwithstanding anything
in this Agreement to the contrary, (i) such distribution may take the form of a
redemption by the Company of shares in the Company held by ▇▇▇▇▇▇ in exchange
for cash or for promissory notes in the approximate amount of $568,000,000
followed by the repayment or redemption of such notes in full for cash on the
Closing Date and (ii) such transactions shall not be deemed to give rise to a
Default or Unmatured Default or to result in any representation or warranty of
the Borrowers in any Loan Document being untrue or incorrect.
"DOCUMENTATION AGENT" means Wachovia Bank N.A., in its capacity as
documentation agent for the loan transaction evidenced by this Agreement,
together with its successors and assigns.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"DOLLAR" and "$" means dollars in the lawful currency of the United
States of America.
"DOLLAR AMOUNT" of any currency at any date shall mean (i) the amount
of such currency if such currency is Dollars or (ii) the Equivalent Amount of
Dollars if such currency is any currency other than Dollars.
"DOLLAR SWING LINE BANK" means the Administrative Agent or any other
Lender as a successor Swing Line Bank pursuant to the terms hereof.
-11-
18
"DOLLAR SWING LINE COMMITMENT" means the obligation of the Dollar Swing
Line Bank to make Dollar Swing Line Loans up to a maximum principal amount of
$25,000,000 at any one time outstanding.
"DOLLAR SWING LINE LOAN" means a Loan made to the Company by the Dollar
Swing Line Bank pursuant to Section 2.3 hereof.
"DOMESTIC SUBSIDIARY" means a Subsidiary of the Company organized under
the laws of a jurisdiction located in the United States of America (excluding
the Commonwealth of Puerto Rico).
"EBITDA" means, for any period, on a consolidated basis for the Company
and its Subsidiaries, the sum of the amounts for such period, without
duplication, of (i) Net Income, plus (ii) Interest Expense to the extent
deducted in computing Net Income, plus (iii) charges against income for foreign,
federal, state and local taxes to the extent deducted in computing Net Income,
plus (iv) depreciation expense to the extent deducted in computing Net Income,
plus (v) amortization expense, including, without limitation, amortization of
goodwill and other intangible assets to the extent deducted in computing Net
Income, plus (vi) other extraordinary non-cash charges to the extent deducted in
computing Net Income, minus (vii) other extraordinary non-cash credits to the
extent added in computing Net Income, plus (viii) nonrecurring after-tax losses
(or minus nonrecurring after-tax gains); provided that, with respect to fiscal
quarters ending on or before December 31, 1999, EBITDA shall be adjusted (x) to
add back all professional fees and expenses incurred by the Company in
connection with the Spin-off and this Agreement (not to exceed $15,000,000), to
the extent deducted in computing Net Income; (y) to add back the special charges
incurred by the Company for the fiscal quarter ended July 2, 1999, totaling
$18,700,000, and deducted in computing Net Income; and (z) to add back any
management fee charged by ▇▇▇▇▇▇ to the Company, to the extent deducted in
computing Net Income, and to subtract the sum of $1,750,000 for each such fiscal
quarter (pro rated for the fiscal year ending December 31, 1999), representing
the pro forma legal, audit and other similar expenses that the Company is
expected to incur after the Spin-off, all on the basis set forth in the pro
forma adjustments described in Note (A) of the Unaudited Pro Forma Consolidated
Income Statement of the Company for the Fiscal Year ended July 2, 1999 set forth
in the Form 10.
"EBITDAR" means, for any period, on a consolidated basis for the
Company and its Subsidiaries, the sum of the amounts for such period, without
duplication, of (i) EBITDA, plus Rentals to the extent deducted in computing Net
Income.
"EFFECTIVE DATE" means the date upon which this Agreement becomes
effective in accordance with Section 5.4.
"ELIGIBLE CURRENCY" means any currency other than Dollars with respect
to which the Administrative Agent or the applicable Borrower has not given
notice in accordance with Section 2.23 and that is readily available, freely
traded, in which deposits are customarily offered to banks in the London
interbank market (or other market where the Administrative Agent's or Alternate
Currency Bank's, as applicable, foreign currency operations in respect of such
currency are then being conducted), convertible into Dollars in the
international interbank market
-12-
19
available to the Lenders in such market and as to which an Equivalent Amount may
be readily calculated. If, after the designation pursuant to the terms of this
Agreement of any currency as an Agreed Currency or Alternate Currency, (i)
currency control or other exchange regulations are imposed in the country in
which such currency is issued with the result that different types of such
currency are introduced, such country's currency is, in the determination of the
Administrative Agent, no longer readily available or freely traded or (ii) in
the determination of the Administrative Agent, an Equivalent Amount for such
currency is not readily calculable (each of clause (i) and (ii), a
"DISQUALIFYING EVENT"), then the Administrative Agent shall promptly notify the
Lenders and the Company, and such country's currency shall no longer be an
Agreed Currency or Alternate Currency until such time as the Disqualifying
Event(s) no longer exist, but in any event within five (5) Business Days of
receipt of such notice from the Administrative Agent, the applicable Borrowers
shall repay all Loans in such currency to which the Disqualifying Event applies
or convert such Loan into Loans in Dollars or another Agreed Currency or
Alternate Currency, subject to the other terms contained in Articles II and IV.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to foreign, federal, state and
local laws or regulations relating to or addressing pollution or protection of
the environment, or protection of worker health or safety, including, but not
limited to, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. ss. 9601 et seq., the Occupational Safety and Health Act of 1970,
29 U.S.C. ss. 651 et seq., and the Resource Conservation and Recovery Act of
1976, 42 U.S.C. ss. 6901 et seq., in each case including any amendments thereto,
any successor statutes, and any regulations or guidance promulgated thereunder,
and any state or local equivalent thereof.
"ENVIRONMENTAL LIEN" means a lien in favor of any Governmental
Authority for (a) any liability under Environmental, Health or Safety
Requirements of Law, or (b) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"EQUIPMENT" means all of the Company's and its Subsidiaries' present
and future (i) equipment, including, without limitation, machinery,
manufacturing, distribution, selling, data processing and office equipment,
assembly systems, tools, molds, dies, fixtures, appliances, furniture,
furnishings, vehicles, vessels, aircraft, aircraft engines, and trade fixtures,
(ii) other tangible personal property (other than the Company's or its
Subsidiaries' Inventory), and (iii) any and all accessions, parts and
appurtenances attached to any of the foregoing or used in connection therewith,
and any substitutions therefor and replacements, products and proceeds thereof.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock). Equity Interests will not
include any Incentive Arrangements or obligations or payments thereunder.
"EQUIVALENT AMOUNT" of any currency with respect to any amount of
Dollars at any date shall mean the equivalent in such currency of such amount of
Dollars, calculated on the basis of the arithmetic mean of the buy and sell spot
rates of exchange of the Administrative Agent or
-13-
20
Alternate Currency Bank, as applicable, in the London interbank market (or other
market where the Administrative Agent's or Alternate Currency Bank's, as
applicable, foreign exchange operations in respect of such currency are then
being conducted) for such other currency at or about 11:00 a.m. (local time) two
(2) Business Days prior to the date on which such amount is to be determined,
rounded up to the nearest amount of such currency as determined by the
applicable Alternate Currency Bank from time to time; provided, however, that if
at the time of any such determination, for any reason, no such spot rate is
being quoted, the Administrative Agent or Alternate Currency Bank, as
applicable, may use any reasonable method it deems appropriate to determine such
amount, and such determination shall be conclusive absent manifest error.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time including (unless the context otherwise requires) any
rules or regulations promulgated thereunder.
"EURO" means the euro referred to in the Council Regulation (EC) No.
1103/97 dated 17 June 1997 passed by the Council of the European Union, or, if
different, the then lawful currency of the member states of the European Union
that participate in the third stage of the Economic and Monetary Union.
"EUROCURRENCY AUCTION" means a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Margins pursuant to Section 2.2.
"EUROCURRENCY BASE RATE" means, with respect to a Eurocurrency Rate
Loan or Eurocurrency Bid Rate Loan for any specified Interest Period, (a) for
any Eurocurrency Bid Rate Loan or Eurocurrency Rate Loan in any Agreed Currency
other than euro, either (i) the rate of interest per annum equal to the rate for
deposits in the applicable Agreed Currency in the approximate amount of the Pro
Rata Tranche A Revolving Share, Pro Rata Tranche B Revolving Share or Pro Rata
Term Share, as applicable, of the Administrative Agent of such Eurocurrency Rate
Advance with a maturity approximately equal to such Interest Period which
appears on Telerate Page 3740 or Telerate Page 3750, as applicable, or, if there
is more than one such rate, the average of such rates rounded to the nearest
1/100 of 1%, as of 11:00 a.m. (London time) two (2) Business Days prior to the
first day of such Interest Period or (ii) if no such rate of interest appears on
Telerate Page 3740 or Telerate Page 3750, as applicable, for any specified
Interest Period, the rate at which deposits in the applicable Agreed Currency
are offered by the Administrative Agent to first-class banks in the London
interbank market at approximately 11:00 a.m. (London time) two (2) Business Days
prior to the first day of such Interest Period, in the approximate amount of the
Pro Rata Tranche A Revolving Share, Pro Rata Tranche B Revolving Share or Pro
Rata Term Share, as applicable, of the Administrative Agent of such Eurocurrency
Rate Loan, or, in the case of a Eurocurrency Bid Rate Loan, the amount of the
Eurocurrency Bid Rate Loan requested by the Company, and having a maturity
approximately equal to such Interest Period; and (b) with respect to any
Eurocurrency Rate Loan in euro for any Interest Period, the interest rate per
annum equal to the rate determined by the Administrative Agent to be the rate at
which deposits in euro appear on Telerate Page 248 as of 11:00 a.m. (Brussels
time), on the date that is two (2) TARGET Settlement Days preceding the first
day of such Interest Period; provided, that if such rate does not appear on
Telerate Page 248, then the
-14-
21
Eurocurrency Base Rate shall be an interest rate per annum equal to the
arithmetic mean determined by the Administrative Agent (rounded upwards to the
nearest .01%) of the rates per annum at which deposits in euro are offered by
the three (3) leading banks in the euro-zone interbank market on or about 11:00
a.m. (Brussels time), on the date which is two (2) TARGET Settlement Days prior
to the first day of such Interest Period to other leading banks in the euro-zone
interbank market, in the case of each of clause (a) and clause (b), as adjusted
for Reserves. The terms "Telerate Page 3740", "Telerate Page 3750" and "Telerate
Page 248" mean the display designated as "Page 3740", "Page 3750" and "Page
248", as applicable, on the Associated Press-Dow ▇▇▇▇▇ Telerate Service (or such
other page as may replace Page 3740, Page 3750 or Page 248, as applicable, on
the Associated Press-Dow ▇▇▇▇▇ Telerate Service or such other service as may be
nominated by the British Bankers' Association as the information vendor for the
purpose of displaying British Bankers' Association interest rate settlement
rates for the relevant Agreed Currency). Any Eurocurrency Base Rate determined
on the basis of the rate displayed on Telerate Page 3740 or Telerate Page 3750
or Telerate Page 248 in accordance with the foregoing provisions of this
subparagraph shall be subject to corrections, if any, made in such rate and
displayed by the Associated Press-Dow ▇▇▇▇▇ Telerate Service within one hour of
the time when such rate is first displayed by such service.
"EUROCURRENCY BID RATE" means, with respect to a Eurocurrency Bid Rate
Loan made by a given Lender for the relevant Interest Period, the sum of (a) the
Eurocurrency Base Rate and (b) the Competitive Bid Margin offered by such Lender
and accepted by the Company.
"EUROCURRENCY BID RATE ADVANCE" means a Competitive Bid Advance which
bears interest at a Eurocurrency Bid Rate.
"EUROCURRENCY BID RATE LOAN" means a Loan which bears interest at the
Eurocurrency Bid Rate.
"EUROCURRENCY PAYMENT OFFICE" of the Administrative Agent shall mean,
for each of the Agreed Currencies, any agency, branch or Affiliate of the
Administrative Agent, specified as the "Eurocurrency Payment Office" for such
Agreed Currency in Exhibit A-1 hereto or such other agency, branch, Affiliate or
correspondence bank of the Administrative Agent, as it may from time to time
specify to the applicable Borrowers and each Lender as its Eurocurrency Payment
Office.
"EUROCURRENCY RATE" means, with respect to a Eurocurrency Rate Loan for
the relevant Interest Period, the Eurocurrency Base Rate applicable to such
Interest Period plus the then Applicable Eurocurrency Margin, changing as and
when the Applicable Eurocurrency Margin changes.
"EUROCURRENCY RATE ADVANCE" means an Advance (other than a Eurocurrency
Bid Rate Advance) which bears interest at the Eurocurrency Rate.
"EUROCURRENCY RATE LOAN means a Loan made by a Lender pursuant to
Section 2.1, which bears interest at the Eurocurrency Rate.
-15-
22
"EXISTING AGREEMENT" means that certain 5-Year Credit Agreement, dated
as of October 20, 1999, by and among the Borrowers, the Agents and certain
Lenders, as amended by Amendment No. 1.
"FACILITY TERMINATION DATE" shall mean the date on which all of the
Termination Conditions have been satisfied.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 11:00 a.m. (New
York time) on such day on such transactions received by the Administrative Agent
from three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"FEE LETTERS" means, collectively, the Administrative Agent Fee Letter
and that certain fee letter, dated as of October 7, 1999, by and among the
Company, the Lead Arrangers and the Agents and the related letter dated October
20, 1999 from the Administrative Agent to the Company.
"FIXED-RATE ADVANCE" means an Advance which bears interest at the
Eurocurrency Rate, the Eurocurrency Bid Rate, the Absolute Rate or at a fixed
Alternate Currency Rate.
"FIXED-RATE LOANS" means, collectively, the Eurocurrency Rate Loans,
the Eurocurrency Bid Rate Loans, the Absolute Rate Loans and the Alternate
Currency Loans.
"FLOATING RATE" means, for any day for any Loan, a rate per annum equal
to (a) in the case of Loans in Dollars or Multicurrency Swing Line Loans in any
Agreed Currency, the Alternate Base Rate for such day, changing when and as the
Alternate Base Rate changes, plus the then Applicable Floating Rate Margin, and
(b) in the case of Alternate Currency Loans, the rate specified as such in the
applicable Alternate Currency Addendum.
"FLOATING RATE ADVANCE" means an Advance which bears interest at the
Floating Rate.
"FLOATING RATE LOAN" means a Loan, or portion thereof, which bears
interest at the Floating Rate.
"FOREIGN EMPLOYEE BENEFIT PLAN" means any employee benefit plan as
defined in Section 3(3) of ERISA which is maintained or contributed to for the
benefit of the employees of the Company, any of its Subsidiaries or any members
of its Controlled Group and is not covered by ERISA pursuant to ERISA Section
4(b)(4).
"FOREIGN SUBSIDIARY" means a Subsidiary of the Company which is not a
Domestic Subsidiary.
-16-
23
"FOREIGN PENSION PLAN" means any employee benefit plan as described in
Section 3(3) of ERISA for which the Company or any member of its Controlled
Group is a sponsor or administrator and which (i) is maintained or contributed
to for the benefit of employees of the Company, any of its Subsidiaries or any
member of its Controlled Group, (ii) is not covered by ERISA pursuant to Section
4(b)(4) of ERISA, and (iii) under applicable local law, is required to be funded
through a trust or other funding vehicle.
"FORM 10" means the Form 10/A (Amendment No. 3) Registration Statement
filed by the Company with the Commission on October 20, 1999 regarding the
Spin-off.
"GOVERNMENTAL ACTS" is defined in Section 3.10(A) hereof.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative authority or
functions of or pertaining to government, including any authority or other
quasi-governmental entity established to perform any of such functions.
"GUARANTEED OBLIGATIONS" is defined in Section 10.1 hereof.
"GUARANTOR" means each Subsidiary of the Company that from time to time
is party to a Guaranty.
"GUARANTY" means each of (i) that certain Guaranty (and any and all
supplements thereto) executed from time to time by each Subsidiary Borrower that
is a Domestic Subsidiary and each other Domestic Subsidiary of the Company as
required pursuant to Section 7.2(K) in favor of the Administrative Agent for the
benefit of itself and the Holders of Obligations, in substantially the form of
Exhibit G-1 attached hereto, and (ii) the guaranty by the Company of all of the
Obligations of the Subsidiary Borrowers pursuant to this Agreement and the
Alternate Currency Addenda, in each case as amended, restated, supplemented or
otherwise modified from time to time.
"▇▇▇▇▇▇" means ▇▇▇▇▇▇ Corporation, a Delaware corporation, and its
successors and assigns.
"HEDGING AGREEMENTS" is defined in Section 7.3(P) hereof.
"HEDGING OBLIGATIONS" of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, commodity prices,
exchange rates or forward rates applicable to such party's assets, liabilities
or exchange transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any of the
foregoing.
-17-
24
"HOLDERS OF OBLIGATIONS" means the holders of the Obligations from time
to time and shall include (i) each Lender in respect of its Loans, (ii) each
Issuing Bank in respect of Reimbursement Obligations owed to it, (iii) the
Agents, the Lenders and the Issuing Banks in respect of all other present and
future obligations and liabilities of the Company or any of its Subsidiaries of
every type and description arising under or in connection with this Agreement or
any other Loan Document, (iv) each Indemnitee in respect of the obligations and
liabilities of the Company or any of its Subsidiaries to such Person hereunder
or under the other Loan Documents, and (v) their respective successors,
transferees and assigns.
"INCENTIVE ARRANGEMENTS" means any stock appreciation rights, "phantom"
stock plans, employment agreements, non-competition agreements, subscription and
stockholders agreements and other incentive and bonus plans and similar
arrangements made in connection with the retention of executives, officers or
employees of the Company and its Subsidiaries.
"INDEBTEDNESS" of a Person means, without duplication, such Person's
(i) obligations for borrowed money, including, without limitation, subordinated
indebtedness, (ii) obligations representing the deferred purchase price of
property or services (other than accounts payable arising in the ordinary course
of such person's business payable on terms customary in the trade), (iii)
obligations, whether or not assumed, secured by liens on or payable out of the
proceeds or production from property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, acceptances, or other
similar instruments, (v) Capitalized Lease Obligations, (vi) Hedging
Obligations, (vii) Contingent Obligations, (viii) actual and contingent
reimbursement obligations in respect of letters of credit, (ix) outstanding
principal balances (representing securitized but unliquidated assets) under
asset securitization agreements (including, without limitation, the outstanding
principal balance of Receivables under Receivables transactions) and (x) the
implied debt component of synthetic leases of which such Person is lessee or any
other off-balance sheet financing arrangements (including, without limitation,
any such arrangements giving rise to any Off-Balance Sheet Liabilities).
"INTEREST EXPENSE" means, for any period, the total interest expense of
the Company and its consolidated Subsidiaries, whether paid or accrued
(including the interest component of Capitalized Leases, commitment fees and
fees for stand-by letters of credit), all as determined in conformity with
Agreement Accounting Principles.
"INTEREST PERIOD" means (i) any Alternate Currency Interest Period,
(ii) any Absolute Rate Interest Period, and (iii) with respect to a Eurocurrency
Rate Loan or a Eurocurrency Bid Rate Loan, a period of one (1), two (2), three
(3) or six (6) months, commencing on a Business Day selected by the applicable
Borrower on which a Eurocurrency Rate Advance is made to such Borrower pursuant
to this Agreement. Such Interest Period described in clause (iii) above shall
end on (but exclude) the day which corresponds numerically to such date one,
two, three or six months thereafter; provided, however, that if there is no such
numerically corresponding day in such next, second, third or sixth succeeding
month, such Interest Period shall end on the last Business Day of such next,
second, third or sixth succeeding month. If an Interest Period would otherwise
end on a day which is not a Business Day, such Interest Period shall end on the
next
-18-
25
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"INVENTORY" shall mean any and all goods, including, without
limitation, goods in transit, wheresoever located, whether now owned or
hereafter acquired by the Company or any of its Subsidiaries, which are held for
sale, rental or lease, furnished under any contract of service or held as raw
materials, work in process or supplies, and all materials used or consumed in
the business of the Company or any of its Subsidiaries.
"INVESTMENT" means, with respect to any Person, (i) any purchase or
other acquisition by that Person of any Indebtedness, Equity Interests or other
securities, or of a beneficial interest in any Indebtedness, Equity Interests or
other securities, issued by any other Person, (ii) any purchase by that Person
of all or substantially all of the assets of a business (whether of a division,
branch, unit operation, or otherwise) conducted by another Person, and (iii) any
loan, advance (other than deposits with financial institutions available for
withdrawal on demand, prepaid expenses, accounts receivable, advances to
employees and similar items made or incurred in the ordinary course of business)
or capital contribution by that Person to any other Person, including all
Indebtedness to such Person arising from a sale of property by such Person other
than in the ordinary course of its business.
"INVITATION FOR COMPETITIVE BID QUOTES" means an Invitation for
Competitive Bid Quotes substantially in the form of Exhibit K hereto, completed
and delivered by the Administrative Agent to the Lenders in accordance with
Section 2.2(C).
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"ISSUING BANKS" means ABN or any of its Affiliates or any of the Agents
in its separate capacity as an issuer of Letters of Credit pursuant to Section
3.1. The designation of any Lender as an Issuing Bank after the date hereof
shall be subject to the prior written consent of the Administrative Agent, which
consent shall not be unreasonably withheld, and of the Company and such Lender.
"L/C DOCUMENTS" is defined in Section 3.4 hereof.
"L/C DRAFT" means a draft drawn on an Issuing Bank pursuant to a Letter
of Credit.
"L/C INTEREST" shall have the meaning ascribed to such term in Section
3.6 hereof.
"L/C OBLIGATIONS" means, without duplication, an amount equal to the
sum of (i) the aggregate of the Dollar Amount then available for drawing under
each of the Letters of Credit, (ii) the Dollar Amount equal to the face amount
of all outstanding L/C Drafts corresponding to the Letters of Credit, which L/C
Drafts have been accepted by the applicable Issuing Bank, (iii) the aggregate
outstanding Dollar Amount of all Reimbursement Obligations at such time and (iv)
the aggregate Dollar Amount equal to the face amount of all Letters of Credit
requested by the
-19-
26
Borrowers but not yet issued (unless the request for an unissued Letter of
Credit has been denied).
"LEAD ARRANGERS" means each of ABN, as Lead Arranger, SunTrust
Equitable Securities Corporation, as Lead Arranger, and Wachovia Securities,
Inc., as Co-Lead Arranger, in their respective capacities as arrangers for the
loan transaction evidenced by this Agreement.
"LENDERS" means the lending institutions listed on the signature pages
of Amendment No. 1, and their successors and assigns.
"LENDING INSTALLATION" means, with respect to a Lender or the
Administrative Agent, any office, branch, subsidiary or Affiliate of such Lender
or the Administrative Agent.
"LETTER OF CREDIT" means standby letters of credit to be (a) issued by
the Issuing Banks pursuant to Section 3.1 hereof or (b) deemed issued by the
Issuing Banks pursuant to Section 3.2 hereof.
"LEVERAGE RATIO" means, as of any date of determination, the ratio of
(a) Total Indebtedness on such date of determination to (b) EBITDA for the
period of four fiscal quarters ending on the fiscal quarter end occurring on
such date of determination.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, the interest of a vendor or lessor
under any conditional sale, Capitalized Lease or other title retention
agreement).
"LOAN(S)" means, (i) in the case of any Lender, such Lender's portion
of any Advance made pursuant to Section 2.1 hereof, in the case of any Alternate
Currency Bank, any Alternate Currency Loan made by it pursuant to Section 2.21
and the applicable Alternate Currency Addendum, in the case of any Lender which
has made a Competitive Bid Loan, any Competitive Bid Loan made by it pursuant to
Section 2.2, and in the case of any Swing Line Bank, any Swing Line Loan made by
it pursuant to Section 2.3, and (ii) collectively, all Revolving Loans, Term
Loans, Alternate Currency Loans, Competitive Bid Loans and Swing Line Loans.
"LOAN ACCOUNT" is defined in Section 2.13(A) hereof.
"LOAN DOCUMENTS" means this Agreement, each Alternate Currency Addendum
executed hereunder, each Assumption Letter executed hereunder, the Pledge
Agreement, the Guaranty, the Subordination Agreement, the Fee Letters and all
other documents, instruments, notes and agreements executed in connection
therewith or contemplated thereby (other than the 364-Day Credit Agreement and
the documents related thereto), as the same may be amended, restated or
otherwise modified and in effect from time to time.
"LOAN PARTIES" means each of the Company, each Subsidiary Borrower and
each of the Guarantors.
-20-
27
"MARGIN STOCK" shall have the meaning ascribed to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Company or the Company and its Subsidiaries,
taken as a whole, (b) the ability of the Company or any of its Subsidiaries to
perform their respective obligations under the Loan Documents, or (c) the
ability of the Lenders or the Agents to enforce the Obligations.
"MATERIAL SUBSIDIARY" means each Subsidiary Borrower and each other
Subsidiary having assets in excess of $10,000,000 or annual sales (determined as
of the most recently ended fiscal quarter) in excess of $20,000,000.
"MULTICURRENCY SWING LINE BANK" means ABN AMRO Bank N.V., Belgium
Branch or any other Lender as a successor Multicurrency Swing Line Bank pursuant
to the terms hereof.
"MULTICURRENCY SWING LINE COMMITMENT" means the obligation of the
Multicurrency Swing Line Bank to make Multicurrency Swing Line Loans up to a
maximum principal Dollar Amount of $25,000,000 at any one time outstanding.
"MULTICURRENCY SWING LINE LOAN" means a Loan made to the Company by the
Multicurrency Swing Line Bank pursuant to Section 2.3 hereof.
"MULTIEMPLOYER PLAN" means a "Multiemployer Plan" as defined in Section
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
was, contributed to by either the Company or any member of the Controlled Group.
"NATIONAL CURRENCY UNIT" means the unit of currency (other than a euro)
of each member state of the European Union that participates in the third stage
of Economic and Monetary Union.
"NET INCOME" means, for any period, the net income (or loss) after
taxes of the Company and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with
Agreement Accounting Principles.
"NOTICE OF ASSIGNMENT" is defined in Section 14.3(B) hereof.
"OBLIGATIONS" means all Loans, L/C Obligations, advances, debts,
liabilities, obligations, covenants and duties owing by the Borrowers or any of
their Subsidiaries to the Administrative Agent, any Lender, any Swing Line Bank,
any Arranger, any Affiliate of the Administrative Agent or any Lender, any
Issuing Bank or any Indemnitee, of any kind or nature, present or future,
arising under this Agreement, the L/C Documents, any Alternate Currency Addendum
or any other Loan Document, whether or not evidenced by any note, guaranty or
other instrument, whether or not for the payment of money, whether arising by
reason of an extension of credit, loan, guaranty, indemnification, or in any
other manner, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired. The term includes, without limitation,
all interest,
-21-
28
charges, expenses, fees, reasonable attorneys' fees and disbursements,
reasonable paralegals' fees (in each case whether or not allowed), and any other
sum chargeable to the Company or any of its Subsidiaries under this Agreement or
any other Loan Document.
"OFF-BALANCE SHEET LIABILITIES" of a Person means (a) any repurchase
obligation or liability of such Person or any of its Subsidiaries with respect
to Receivables sold by such Person or any of its Subsidiaries, (b) any liability
of such Person or any of its Subsidiaries under any sale and leaseback
transactions which do not create a liability on the consolidated balance sheet
of such Person, (c) any liability of such Person or any of its Subsidiaries
under any financing lease or so-called "synthetic" lease transaction, or (d) any
obligations of such Person or any of its Subsidiaries arising with respect to
any other transaction which is the functional equivalent of or takes the place
of borrowing but which does not constitute a liability on the consolidated
balance sheets of such Person and its Subsidiaries.
"OTHER TAXES" is defined in Section 2.15(E)(ii) hereof.
"PARTICIPANTS" is defined in Section 14.2(A) hereof.
"PAYMENT DATE" means the last day of each March, June, September and
December, the Termination Date (or such earlier date on which the Aggregate
Commitment shall terminate or be cancelled), and the Facility Termination Date.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"PERMITTED ACQUISITION" is defined in Section 7.3(G) hereof.
"PERMITTED EXISTING CONTINGENT OBLIGATIONS" means the Contingent
Obligations of the Company and its Subsidiaries identified as such on Schedule
1.1.1 to this Agreement.
"PERMITTED EXISTING INDEBTEDNESS" means the Indebtedness of the Company
and its Subsidiaries identified as such on Schedule 1.1.2 to this Agreement.
"PERMITTED EXISTING LIENS" means the Liens on assets of the Company and
its Subsidiaries identified as such on Schedule 1.1.3 to this Agreement.
"PERMITTED REFINANCING INDEBTEDNESS" means any replacement, renewal,
refinancing or extension of any Indebtedness permitted by this Agreement that
(i) does not exceed the aggregate principal amount (plus accrued interest and
any applicable premium and associated fees and expenses) of the Indebtedness
being replaced, renewed, refinanced or extended, (ii) does not have a Weighted
Average Life to Maturity at the time of such replacement, renewal, refinancing
or extension that is less than the Weighted Average Life to Maturity of the
Indebtedness being replaced, renewed, refinanced or extended, (iii) does not
rank at the time of such replacement, renewal, refinancing or extension senior
to the Indebtedness being replaced, renewed, refinanced or extended, and (iv)
does not contain terms (including, without limitation, terms relating to
security, amortization, interest rate, premiums, fees, covenants, event of
default and remedies) materially less favorable to the Company, its Subsidiaries
or the Lenders than those applicable to
-22-
29
the Indebtedness being replaced, renewed, refinanced or extended; provided, that
Indebtedness being refinanced at maturity may be subject to then current market
rates of interest, provisions and fees.
"PERSON" means any individual, corporation, firm, enterprise,
partnership, trust, incorporated or unincorporated association, joint venture,
joint stock company, limited liability company or other entity of any kind, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"PLAN" means an employee benefit plan defined in Section 3(3) of ERISA,
other than a Multiemployer Plan, in respect of which the Company or any member
of the Controlled Group is, or within the immediately preceding six (6) years
was, an "employer" as defined in Section 3(5) of ERISA.
"PLEDGE AGREEMENT" means one or more pledge agreements, each in form
and substance reasonably satisfactory to the Administrative Agent, executed and
delivered by the Company and/or certain of its Subsidiaries pursuant to Section
7.2(N) hereof, as the same may be amended, supplemented or otherwise modified
from time to time.
"PRIME RATE" means the "prime rate" of interest announced by ABN from
time to time at its Chicago office, changing when and as said prime rate
changes.
"PRO RATA REVOLVING SHARE" means, with respect to any Lender, the
percentage obtained by dividing (x) such Lender's Revolving Loan Commitment at
such time (as adjusted from time to time in accordance with the provisions of
this Agreement) by (y) the Aggregate Revolving Loan Commitment at such time (as
adjusted from time to time in accordance with the provisions of this Agreement);
provided, however, if all of the Revolving Loan Commitments are terminated
pursuant to the terms of this Agreement, then "Pro Rata Revolving Share" means,
with respect to any Lender, the percentage obtained by dividing (x) the sum of
(A) such Lender's Revolving Loans, plus (B) such Lender's share of the
obligations to purchase participations in Alternate Currency Loans and Letters
of Credit plus (C) such Lender's share of the obligations to refund or purchase
participations in Swing Line Loans plus (D) such Lender's Competitive Bid
Advances, by (y) the sum of (A) the aggregate outstanding amount of all
Revolving Loans, plus (B) the aggregate outstanding amount of all Alternate
Currency Loans and all Letters of Credit, plus (C) the aggregate outstanding
amount of all Swing Line Loans, plus (D) the aggregate outstanding amount of all
Competitive Bid Advances.
"PRO RATA SHARE" means, with respect to any Lender, the percentage
obtained by dividing (x) such Lender's Commitment at such time (as adjusted from
time to time in accordance with the provisions of this Agreement) by (y) the
Aggregate Commitment at such time (as adjusted from time to time in accordance
with the provisions of this Agreement); provided, however, if all of the
Revolving Loan Commitments are terminated pursuant to the terms of this
Agreement, then "Pro Rata Share" means, with respect to any Lender, the
percentage obtained by dividing (x) the sum of (A) such Lender's Revolving
Loans, plus (B) such Lender's Term Loans, plus (C) such Lender's share of the
obligations to purchase participations in Alternate Currency Loans and Letters
of Credit plus (D) such Lender's share of
-23-
30
the obligations to refund or purchase participations in Swing Line Loans plus
(E) such Lender's Competitive Bid Advances, by (y) the sum of (A) the aggregate
outstanding amount of all Revolving Loans, plus (B) the aggregate outstanding
amount of all Term Loans, plus (C) the aggregate outstanding amount of all
Alternate Currency Loans and all Letters of Credit, plus (D) the aggregate
outstanding amount of all Swing Line Loans, plus (E) the aggregate outstanding
amount of all Competitive Bid Advances.
"PRO RATA TERM SHARE" means, with respect to any Lender, the percentage
obtained by dividing such Lender's Term Loan Commitment by the Aggregate Term
Loan Commitment.
"PRO RATA TRANCHE A REVOLVING SHARE" means, with respect to any Lender,
the percentage obtained by dividing (x) such Lender's Tranche A Revolving Loan
Commitment at such time (as adjusted from time to time in accordance with the
provisions of this Agreement) by (y) the Aggregate Tranche A Revolving Loan
Commitment at such time (as adjusted from time to time in accordance with the
provisions of this Agreement); provided, however, if all of the Tranche A
Revolving Loan Commitments are terminated pursuant to the terms of this
Agreement, then "Pro Rata Tranche A Revolving Share" means, with respect to any
Lender, the percentage obtained by dividing (x) the sum of (A) such Lender's
Tranche A Revolving Loans, plus (B) such Lender's share of the obligations to
purchase participations in Letters of Credit plus (C) such Lender's share of the
obligations to refund or purchase participations in Dollar Swing Line Loans plus
(D) such Lender's Competitive Bid Advances, by (y) the sum of (A) the aggregate
outstanding amount of all Tranche A Revolving Loans, plus (B) the aggregate
outstanding amount of all Letters of Credit, plus (C) the aggregate outstanding
amount of all Dollar Swing Line Loans, plus (D) the aggregate outstanding amount
of all Competitive Bid Advances.
"PRO RATA TRANCHE B REVOLVING SHARE" means, with respect to any Lender,
the percentage obtained by dividing (x) such Lender's Tranche B Revolving Loan
Commitment at such time (as adjusted from time to time in accordance with the
provisions of this Agreement) by (y) the Aggregate Tranche B Revolving Loan
Commitment at such time (as adjusted from time to time in accordance with the
provisions of this Agreement); provided, however, if all of the Tranche B
Revolving Loan Commitments are terminated pursuant to the terms of this
Agreement, then "Pro Rata Tranche B Revolving Share" means, with respect to any
Lender, the percentage obtained by dividing (x) the sum of (A) such Lender's
Tranche B Revolving Loans plus (B) such Lender's share of the obligations to
purchase Alternate Currency Loans, plus (C) such Lender's share of the
obligations to refund or purchase participations in Multicurrency Swing Line
Loans by (y) the sum of (A) the aggregate outstanding amount of all Tranche B
Revolving Loans, plus (B) the aggregate outstanding amount of all Alternate
Currency Loans, plus (C) the aggregate outstanding amount of all Multicurrency
Swing Line Loans.
"PURCHASERS" is defined in Section 14.3(A) hereof.
"RATE OPTION" means the Eurocurrency Rate, the Floating Rate, the
Competitive Bid Rate or the Alternate Currency Rate, as applicable.
-24-
31
"RECEIVABLE(S)" means and includes all of the Company's and its
Subsidiaries' presently existing and hereafter arising or acquired accounts,
accounts receivable, notes receivable, and all present and future rights of the
Company or its Subsidiaries, as applicable, to payment for goods sold or leased
or for services rendered (except those evidenced by instruments or chattel
paper), whether or not they have been earned by performance, and all rights in
any merchandise or goods which any of the same may represent, and all rights,
title, security and guaranties with respect to each of the foregoing, including,
without limitation, any right of stoppage in transit.
"REGISTER" is defined in Section 14.3(C) hereof.
"REGULATION T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by and to brokers and dealers of securities for the purpose
of purchasing or carrying margin stock (as defined therein).
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks, non-banks and non-broker lenders for the purpose
of purchasing or carrying Margin Stock applicable to member banks of the Federal
Reserve System.
"REGULATION X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"REIMBURSEMENT OBLIGATION" is defined in Section 3.7 hereof.
"RELEASE" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including the movement of Contaminants
through or in the air, soil, surface water or groundwater.
"RENTALS" of a Person means the aggregate fixed amounts payable by such
Person under any lease of real or personal property.
"REPLACEMENT LENDER" is defined in Section 2.20 hereof.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation or otherwise
waived the requirement of Section 4043(a) of ERISA that it be notified within
thirty (30) days after such event occurs, provided, however, that a failure to
meet the minimum funding standards of Section 412 of the Code and of Section 302
of ERISA shall be a Reportable Event regardless of the issuance of any such
waiver of the notice requirement in accordance with either Section 4043(a) of
ERISA or Section 412(d) of the Code.
-25-
32
"REQUIRED LENDERS" means Lenders hereunder whose Pro Rata Shares, in
the aggregate, are at least fifty-one percent (51%); provided, however, that
solely with respect to any waiver or amendment of the provisions of Section 7.4,
until such time as the aggregate amount of Revolving Loan Commitments hereunder
and "Commitments" under the 364-Day Credit Agreement of the Agents (in their
individual capacities) and their Affiliates are $330,000,000 or less, "Required
Lenders" shall mean Lenders hereunder whose Pro Rata Shares, in the aggregate,
are at least sixty-six and two-thirds percent (66-2/3%).
"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws
or other organizational or governing documents of such Person, and any law, rule
or regulation, or determination of an arbitrator or a court or other
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
including, without limitation, the Securities Act of 1933, the Securities
Exchange Act of 1934, Regulations T, U and X, ERISA, the Fair Labor Standards
Act, the Worker Adjustment and Retraining Notification Act, the Americans with
Disabilities Act of 1990, and any environmental, labor, employment, occupational
safety or health law, rule or regulation, including Environmental, Health or
Safety Requirements of Law.
"RESERVES" shall mean the maximum reserve requirement, as prescribed by
the Board of Governors of the Federal Reserve System (or any successor) with
respect to "Eurocurrency liabilities" or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Eurocurrency Rate Loans is determined or category of extensions of credit or
other assets which includes loans by a non-United States office of any Lender to
United States residents.
"RESTRICTED PAYMENT" means (i) any dividend or other distribution,
direct or indirect, on account of any Equity Interests of the Company or any of
its Subsidiaries now or hereafter outstanding, except a dividend payable solely
in the Company's Capital Stock (other than Disqualified Stock) or in options,
warrants or other rights to purchase such Capital Stock, (ii) any redemption,
retirement, purchase or other acquisition for value, direct or indirect, of any
Equity Interests of the Company or any of its Subsidiaries now or hereafter
outstanding, other than in exchange for other Equity Interests of the Company
(other than Disqualified Stock), (iii) any redemption, purchase, retirement,
defeasance, prepayment or other acquisition for value, direct or indirect, of
any Indebtedness subordinated to the Obligations, and (iv) any payment of a
claim for the rescission of the purchase or sale of, or for material damages
arising from the purchase or sale of, any Indebtedness (other than the
Obligations) or any Equity Interests of the Company, or any of its Subsidiaries,
or of a claim for reimbursement, indemnification or contribution arising out of
or related to any such claim for damages or rescission.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the sum
of (i) the Tranche A Revolving Credit Obligations at such time, plus (ii) the
Tranche B Revolving Credit Obligations at such time.
"REVOLVING LOAN" is defined in Section 2.1 hereof.
-26-
33
"REVOLVING LOAN COMMITMENT" means, for each Lender, the aggregate of
such Lender's Tranche A Revolving Loan Commitment and such Lender's Tranche B
Revolving Loan Commitment.
"REVOLVING LOAN TERMINATION DATE" means October 20, 2004.
"SALE AND LEASEBACK TRANSACTION" shall mean any lease, whether an
operating lease or a Capitalized Lease, of any property (whether real or
personal or mixed), (i) which the Company or one of its Subsidiaries sold or
transferred or is to sell or transfer to any other Person, or (ii) which the
Company or one of its Subsidiaries intends to use for substantially the same
purposes as any other property which has been or is to be sold or transferred by
the Company or one of its Subsidiaries to any other Person in connection with
such lease.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time
to time.
"SINGLE EMPLOYER PLAN" means a Benefit Plan maintained by the Company
or any member of the Controlled Group for employees of the Company or any member
of the Controlled Group.
"SOLVENT" means, when used with respect to any Person, that at the time
of determination:
(i) the fair value of its assets (both at fair valuation
and at present fair saleable value) is equal to or in excess of the
total amount of its liabilities, including, without limitation,
contingent liabilities; and
(ii) it is then able and expects to be able to pay its
debts as they mature; and
(iii) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
With respect to contingent liabilities (such as litigation, guarantees and
pension plan liabilities), such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the time,
represent the amount which can be reasonably be expected to become an actual or
matured liability.
"SPIN-OFF" means the distribution of approximately ninety percent (90%)
of the Capital Stock of the Company by ▇▇▇▇▇▇ to ▇▇▇▇▇▇'▇ stockholders.
"SPIN-OFF MATERIALS" means the Form 10, the Distribution Agreement
referred to therein, the Tax Disaffiliation Agreement referred to therein and
the Transition Services Agreement referred to therein, the Registration Rights
Agreement referred to therein and the Employee Benefits and Compensation
Allocation Agreement referred to therein.
"SUBORDINATION AGREEMENT" means that certain Subordination Agreement
(and any and all supplements thereto) executed from time to time by each
Subsidiary of the Company listed on Schedule 6.8 and each other Subsidiary of
the Company as required pursuant to Section 7.2(K) in favor of the
Administrative Agent for the benefit of itself and the Holders of Obligations,
in
-27-
34
substantially the form of Exhibit G-2 attached hereto, as the same may be
amended, restated, supplemented or otherwise modified from time to time.
"SUBSIDIARY" of a Person means (i) any corporation more than fifty
(50%) of the outstanding securities having ordinary voting power of which shall
at the time be owned or controlled, directly or indirectly, by such Person or by
one or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries, or (ii) any partnership, association, limited liability company,
joint venture or similar business organization more than fifty percent (50%) of
the ownership interests having ordinary voting power of which shall at the time
be so owned or controlled. Unless otherwise expressly provided, all references
herein to a "Subsidiary" mean a Subsidiary of the Company.
"SUBSIDIARY BORROWER" means each of the Company's Subsidiaries listed
on the signature pages hereto and any other Subsidiaries of the Company duly
designated by the Company pursuant to Section 2.24 to request Advances
hereunder, which Subsidiary shall have delivered to the Administrative Agent an
Assumption Letter in accordance with Section 2.24 and such other documents as
may be required pursuant to this Agreement, in each case together with its
respective successors and assigns, including a debtor-in-possession on behalf of
such Subsidiary Borrower.
"SWING LINE BANK" means, as applicable, the Dollar Swing Line Bank or
the Multicurrency Swing Line Bank.
"SWING LINE COMMITMENT" means the sum of the Dollar Swing Line
Commitment and the Multicurrency Swing Line Commitment.
"SWING LINE LOAN" means, as applicable, a Dollar Swing Line Loan or a
Multicurrency Swing Line Loan.
"SYNDICATION AGENT" means SunTrust Bank, Atlanta, in its capacity as
syndication agent for the loan transaction evidenced by this Agreement, together
with its successors and assigns.
"364-DAY CREDIT AGREEMENT" means that certain 364-Day Credit Agreement,
dated as of October 20, 1999 among the Company, the subsidiary borrowers from
time to time parties thereto, the Agents and the financial institutions from
time to time parties thereto as lenders, as amended by that certain Amendment
No. 1, dated as of November 4, 1999, and as the same may be amended, restated,
supplemented or otherwise modified from time to time.
"TARGET SETTLEMENT DAY" means any day on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open.
"TAXES" is defined in Section 2.15(E)(i) hereof.
"TERM LOAN" means a term loan made by a Lender pursuant to Section
2.1(D) hereof and, collectively, all such term loans.
-28-
35
"TERM LOAN COMMITMENT" means, for each Lender, (i) prior to the making
of the Term Loans, the amount set forth on Exhibit A to this Agreement opposite
its name thereon under the heading "Term Loan Commitment" and (ii) after the
making of the Term Loans, the outstanding principal balance of its Term Loan.
"TERM LOAN TERMINATION DATE" means October 20, 2001.
"TERMINATION CONDITIONS" is defined in Section 2.19.
"TERMINATION DATE" means the earlier of (a) the later of (i) the
Revolving Loan Termination Date and (ii) the Term Loan Termination Date, and (b)
the date of termination in whole of the Aggregate Revolving Loan Commitment
pursuant to Section 2.6 hereof or the Revolving Loan Commitments pursuant to
Section 9.1 hereof.
"TERMINATION EVENT" means (i) a Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of the Company or any member of the Controlled
Group from a Benefit Plan during a plan year in which the Company or such
Controlled Group member was a "substantial employer" as defined in Section
4001(a)(2) of ERISA or the cessation of operations which results in the
termination of employment of twenty percent (20%) of Benefit Plan participants
who are employees of the Company or any member of the Controlled Group; (iii)
the imposition of an obligation on the Company or any member of the Controlled
Group under Section 4041 of ERISA to provide affected parties written notice of
intent to terminate a Benefit Plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the institution by the PBGC or any similar
foreign governmental authority of proceedings to terminate a Benefit Plan or
Foreign Pension Plan; (v) any event or condition which constitutes grounds under
Section 4042 of ERISA which are reasonably likely to lead to the termination of,
or the appointment of a trustee to administer, any Benefit Plan; (vi) that a
foreign governmental authority shall appoint or institute proceedings to appoint
a trustee to administer any Foreign Pension Plan in place of the existing
administrator, or (vii) the partial or complete withdrawal of the Company or any
member of the Controlled Group from a Multiemployer Plan or Foreign Pension
Plan.
"TOTAL INDEBTEDNESS" means, without duplication, (a) all Indebtedness
of the Company and its Subsidiaries, on a consolidated basis, required to be
reflected on a balance sheet prepared in accordance with Agreement Accounting
Principles, plus, without duplication, (b) (i) the face amount of all
outstanding letters of credit (including Letters of Credit) in respect of which
the Company or any Subsidiary has any actual or contingent reimbursement
obligation, plus (ii) the principal amount of all Indebtedness of any Person in
respect of which the Company or any Subsidiary has a Contingent Obligation, plus
(iii) outstanding principal balances (representing securitized but unliquidated
assets) under asset securitization agreements (including, without limitation,
the outstanding principal balance of Receivables under Receivables
transactions), plus (iv) the implied debt component of synthetic leases of which
the Company or any Subsidiary is lessee or any other off-balance sheet financing
arrangements (including, without limitation, any such arrangements giving rise
to any Off-Balance Sheet Liabilities).
"TRANCHE A ADVANCE" means an Advance comprised of Tranche A Revolving
Loans.
-29-
36
"TRANCHE A REVOLVING CREDIT AVAILABILITY" means, at any particular
time, the amount by which (i) the Aggregate Tranche A Revolving Loan Commitment
at such time exceeds (ii) the Dollar Amount of the Tranche A Revolving Credit
Obligations outstanding at such time.
"TRANCHE A REVOLVING CREDIT OBLIGATIONS" means, at any particular time,
the sum of (i) the outstanding principal Dollar Amount of the Tranche A
Revolving Loans at such time, plus (ii) the outstanding L/C Obligations at such
time, plus (iii) the outstanding principal amount of all Competitive Bid Loans
at such time plus (iv) the outstanding principal amount of all Dollar Swing Line
Loans at such time.
"TRANCHE A REVOLVING LOAN" is defined in Section 2.1 hereof.
"TRANCHE A REVOLVING LOAN COMMITMENT" means, for each Lender, the
obligation of such Lender to make Tranche A Revolving Loans, to purchase
participations in Letters of Credit and to refund or participate in Dollar Swing
Line Loans not exceeding the amount set forth on Exhibit A to this Agreement
opposite its name thereon under the heading "Tranche A Revolving Loan
Commitment" or the signature page of the assignment and acceptance by which it
became a Lender as such amount may be modified from time to time pursuant to the
terms of this Agreement or to give effect to any applicable assignment and
acceptance.
"TRANCHE B ADVANCE" means an Advance comprised of Tranche B Revolving
Loans.
"TRANCHE B REVOLVING CREDIT AVAILABILITY" means, at any particular
time, the amount by which (i) the Aggregate Tranche B Revolving Loan Commitment
at such time exceeds (ii)(a) the Dollar Amount of the Tranche B Revolving Credit
Obligations outstanding at such time, plus (b) the aggregate unused Alternate
Currency Commitments at such time, plus (c) the unused Multicurrency Swing Line
Commitment.
"TRANCHE B REVOLVING CREDIT OBLIGATIONS" means, at any particular time,
(i) the outstanding principal Dollar Amount of the Tranche B Revolving Loans at
such time, plus (ii) the Dollar Amount of the outstanding principal amount of
the Alternate Currency Loans at such time.
"TRANCHE B REVOLVING LOAN" is defined in Section 2.1 hereof.
"TRANCHE B REVOLVING LOAN COMMITMENT" means, for each Lender, the
obligation of such Lender to make Tranche B Revolving Loans, to refund or
participate in Multicurrency Swing Line Loans and to participate in Alternate
Currency Loans not exceeding the amount set forth on Exhibit A to this Agreement
opposite its name thereon under the heading "Tranche B Revolving Loan
Commitment" or the signature page of the assignment and acceptance by which it
became a Lender as such amount may be modified from time to time pursuant to the
terms of this Agreement or to give effect to any applicable assignment and
acceptance.
"TRANSFEREE" is defined in Section 14.5 hereof.
-30-
37
"TYPE" means, with respect to any Loan, its nature as a Floating Rate
Loan or a Eurocurrency Rate Loan.
"UNFUNDED LIABILITIES" means (i) in the case of Single Employer Plans,
the amount (if any) by which the aggregate accumulated benefit obligations
exceeds the aggregate fair market value of assets of all Single Employer Plans
as of the most recent measurement date for which actuarial valuations have been
completed and certified to the Company, all as determined under FAS 87 using
the methods and assumptions used by the Company for financial accounting
purposes, and (ii) in the case of Multiemployer Plans, the withdrawal liability
that would be incurred by the Controlled Group if all members of the Controlled
Group completely withdrew from all Multiemployer Plans.
"UNMATURED DEFAULT" means an event which, but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"WEIGHTED AVERAGE LIFE TO MATURITY" means when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then outstanding
principal amount of such Indebtedness.
"WHOLLY-OWNED SUBSIDIARY" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability
company, association, joint venture or similar business organization 100% of
the ownership interests having ordinary voting power of which shall at the time
be so owned or controlled. Unless the context otherwise requires, "Wholly-Owned
Subsidiary" means a wholly-owned subsidiary of the Company.
"YEAR 2000 ISSUES" means, with respect to any Person, anticipated
costs, problems and uncertainties associated with the inability of certain
computer applications and imbedded systems to effectively handle data,
including dates, prior to, on and after January 1, 2000, as it affects the
business, operations, and financial condition of such Person and such Person's
material customers, suppliers and vendors.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms. Any accounting terms used in
this Agreement which are not specifically defined herein shall have the
meanings customarily given them in accordance with generally accepted
accounting principles in existence as of the date hereof.
1.2 References. Any references to Subsidiaries of the Company set
forth herein shall not in any way be construed as consent by the Administrative
Agent or any Lender to the
-31-
38
establishment, maintenance or acquisition of any Subsidiary, except as may
otherwise be permitted hereunder.
1.3 Rounding and Other Consequential Changes. Without prejudice
to any method of conversion or rounding prescribed by any legislative measures
of the Council of the European Union, each reference in this Agreement to a
fixed amount or to fixed amounts in a National Currency Unit to be paid to or
by the Administrative Agent shall be replaced by a reference to such comparable
and convenient fixed amount or fixed amounts in euro as the Administrative
Agent may from time to time specify unless such National Currency Unit remains
available and the Company and the Administrative Agent agree to use such
National Currency Unit instead of the euro.
ARTICLE II: LOAN FACILITIES
2.1 Revolving Loans; Term Loans.
(A) Upon the satisfaction of the conditions precedent
set forth in Sections 5.1, 5.2 and 5.3, as
applicable, from and including the Closing Date and
prior to the Revolving Loan Termination Date, each
Lender severally and not jointly agrees, on the
terms and conditions set forth in this Agreement, to
make revolving loans to the Borrowers from time to
time (i) in Dollars, in a Dollar Amount not to
exceed such Lender's Pro Rata Tranche A Revolving
Share of Tranche A Revolving Credit Availability at
such time (each individually, a "TRANCHE A REVOLVING
LOAN" and, collectively, the "TRANCHE A REVOLVING
LOANS"); and (ii) in Dollars or any Agreed Currency,
in a Dollar Amount not to exceed such Lender's Pro
Rata Tranche B Revolving Share of Tranche B
Revolving Credit Availability at such time (each
individually, a "Tranche B Revolving Loan,"
collectively, the "Tranche B Revolving Loans" and,
together with the Tranche A Revolving Loans, the
"Revolving Loans"); provided, however, that (i) at
no time shall the Dollar Amount of the Tranche A
Revolving Credit Obligations exceed the Aggregate
Tranche A Revolving Loan Commitment; (ii) at no time
shall the Dollar Amount of the Tranche B Revolving
Credit Obligations exceed the Aggregate Tranche B
Revolving Loan Commitment; (iii) at no time shall
the Dollar Amount of the Revolving Credit
Obligations of any Subsidiary Borrower that is a
Domestic Subsidiary exceed $200,000,000; (iv) at no
time shall the aggregate Dollar Amount of the
Revolving Credit Obligations of all Foreign
Subsidiaries exceed $150,000,000 and (v) Tranche A
Revolving Loans shall not be made to any Borrower
which is not organized under the laws of a
jurisdiction located in the United States of America
(excluding the Commonwealth of Puerto Rico). Subject
to the terms of this Agreement, the Borrowers may
borrow, repay and reborrow Revolving Loans at any
time prior to the Revolving Termination Date.
Revolving Loans shall be, at the option of the
applicable Borrower, selected in accordance with
Section 2.10, and shall be either Floating Rate
Loans or Eurocurrency Rate Loans. On the Revolving
Loan Termination Date, the applicable Borrower shall
repay in full the outstanding principal balance of
the Revolving Loans. Tranche A Revolving Loans shall
be made by each Lender
-32-
39
ratably in proportion to such Lender's respective
Pro Rata Tranche A Revolving Share and Tranche B
Revolving Loans shall be made by each Lender ratably
in proportion to such Lender's respective Pro Rata
Tranche B Revolving Share.
(B) Making of Tranche A Revolving Loans. Promptly after
receipt of the Borrowing/ Conversion/Continuation
Notice under Section 2.8 in respect of Tranche A
Revolving Loans, the Administrative Agent shall
notify each Lender with a Tranche A Revolving Loan
Commitment by telex or telecopy, or other similar
form of transmission, of the requested Tranche A
Revolving Loan. Each Lender with a Tranche A
Revolving Loan Commitment shall make available its
Tranche A Revolving Loan in accordance with the
terms of Section 2.7. The Administrative Agent will
promptly make the funds so received from the Lenders
available to the applicable Borrower at the
Administrative Agent's office in New York, New York
on the applicable Borrowing Date and shall disburse
such proceeds in accordance with the applicable
Borrower's disbursement instructions set forth in
such Borrowing/Conversion/Continuation Notice. The
failure of any Lender to deposit the amount
described above with the Administrative Agent on the
applicable Borrowing Date shall not relieve any
other Lender of its obligations hereunder to make
its Tranche A Revolving Loan on such Borrowing Date.
(C) Making of Tranche B Revolving Loans. Promptly after
receipt of the Borrowing/ Conversion/Continuation
Notice under Section 2.8 in respect of Tranche B
Revolving Loans, the Administrative Agent shall
notify each Lender with a Tranche B Revolving Loan
Commitment by telex or telecopy, or other similar
form of transmission, of the requested Tranche B
Revolving Loan. Each Lender with a Tranche B
Revolving Loan Commitment shall make available its
Tranche B Revolving Loan in accordance with the
terms of Section 2.7. The Administrative Agent will
promptly make the funds so received from the Lenders
available to the applicable Borrower at the
Administrative Agent's office in New York, New York
on the applicable Borrowing Date and shall disburse
such proceeds in accordance with the applicable
Borrower's disbursement instructions set forth in
such Borrowing/Conversion/Continuation Notice. The
failure of any Lender to deposit the amount
described above with the Administrative Agent on the
applicable Borrowing Date shall not relieve any
other Lender of its obligations hereunder to make
its Tranche B Revolving Loan on such Borrowing Date.
(D) Term Loans. Upon the satisfaction of the conditions
precedent set forth in Section 5.1, each Lender has
made, on the terms and conditions set forth in this
Agreement, a single term loan to the Company on the
Closing Date, in Dollars, in an amount not to exceed
such Lender's Term Loan Commitment. Amounts borrowed
as a Term Loan which are repaid or prepaid by the
Company may not be reborrowed. The Company shall
repay all outstanding principal and all accrued but
unpaid interest on the Term Loan Termination Date.
(E) Allocation of Outstanding Loans on the Effective
Date. As of the Effective Date, all Revolving Loans
then outstanding and denominated in Dollars shall be
Tranche A Revolving Loans and all Revolving Loans
then outstanding and
-33-
40
denominated in Agreed Currencies other than Dollars
shall be deemed to be Tranche B Revolving Loans.
2.2 Competitive Bid Advances.
(A) Competitive Bid Option. In addition to Advances
pursuant to Section 2.1, but subject to the terms
and conditions of this Agreement (including, without
limitation, the limitation set forth in Section
2.2(B) as to the maximum aggregate principal amount
of all outstanding Advances hereunder), the Company
may, as set forth in this Section 2.2, request the
Lenders, prior to the Revolving Loan Termination
Date, to make offers to make Competitive Bid
Advances to the Company in Dollars. Each Lender may,
but shall have no obligation to, make such offers
and the Company may, but shall have no obligation
to, accept any such offers in the manner set forth
in this Section 2.2. The aggregate outstanding
amount of Competitive Bid Advances shall reduce the
available portion of each Lender's Tranche A
Revolving Loan Commitment ratably relative to such
Lender's Pro Rata Tranche A Revolving Share
regardless of which Lender or Lenders make such
Competitive Bid Advances.
(B) Competitive Bid Quote Request. When the Company
wishes to request offers to make Competitive Bid
Loans under this Section 2.2, it shall transmit to
the Administrative Agent by facsimile a Competitive
Bid Quote Request substantially in the form of
Exhibit J hereto so as to be received no later than
(x) 11:00 a.m. (New York time) at least five (5)
Business Days prior to the Borrowing Date proposed
therein, in the case of a Eurocurrency Auction or
(y) 10:00 a.m. (New York time) at least one (1)
Business Day prior to the Borrowing Date proposed
therein, in the case of an Absolute Rate Auction
specifying:
(i) the proposed Borrowing Date, which shall be
a Business Day, for the proposed Competitive Bid Advance,
(ii) the aggregate principal amount of such
Competitive Bid Advance, which must be at least $10,000,000
(and in integral multiples of $1,000,000 if in excess
thereof),
(iii) whether the Competitive Bid Quotes
requested are to set forth a Eurocurrency Bid Rate or an
Absolute Rate, or both, and
(iv) the Interest Period applicable thereto
(which may not end after the Revolving Loan Termination
Date).
The Company may request offers to make Competitive
Bid Loans for more than one Interest Period in a
single Competitive Bid Quote Request. No Competitive
Bid Quote Request shall be given within five (5)
Business Days (or such other number of days as the
Company and the Administrative Agent may agree) of
any other Competitive Bid Quote Request. A
Competitive Bid Quote Request that does not conform
substantially to the format of Exhibit J hereto shall
be rejected, and the Administrative Agent shall
promptly notify the Company of such
-34-
41
rejection by facsimile. The aggregate amount of
outstanding Competitive Bid Advances shall not exceed
$50,000,000. All Competitive Bid Loans shall be in
Dollars.
(C) Invitation for Competitive Bid Quotes. Promptly and
in any event before the close of business on the
same Business Day of receipt of a Competitive Bid
Quote Request that is not rejected pursuant to
Section 2.2(B), the Administrative Agent shall send
to each of the Lenders by facsimile an Invitation
for Competitive Bid Quotes substantially in the form
of Exhibit K hereto, which shall constitute an
invitation by the Company to each Lender to submit
Competitive Bid Quotes offering to make the
Competitive Bid Loans to which such Competitive Bid
Quote Request relates in accordance with this
Section 2.2.
(D) Submission and Contents of Competitive Bid Quotes.
(i) Each Lender may, in its sole discretion, submit
a Competitive Bid Quote containing an offer or
offers to make Competitive Bid Loans in response to
any Invitation for Competitive Bid Quotes. Each
Competitive Bid Quote must comply with the
requirements of this Section 2.2(D) and must be
submitted to the Administrative Agent by facsimile
at its offices specified in or pursuant to Article
XVII not later than (x) 2:00 p.m. (New York time) at
least four (4) Business Days prior to the proposed
Borrowing Date, in the case of a Eurocurrency
Auction or (y) 10:00 a.m. (New York time) on the
proposed Borrowing Date, in the case of an Absolute
Rate Auction (or, in either case upon reasonable
prior notice to the Lenders, such other time and
date as the Company and the Administrative Agent may
agree); provided that Competitive Bid Quotes
submitted by the Administrative Agent may only be
submitted if the Administrative Agent notifies the
Company of the terms of the offer or offers
contained therein not later than 15 minutes prior to
the latest time at which the relevant Competitive
Bid Quotes must be submitted by the other Lenders.
Subject to Articles V and XI, any Competitive Bid
Quote so made shall be irrevocable except with the
written consent of the Administrative Agent given on
the instructions of the Company.
(ii) Each Competitive Bid Quote shall be in
substantially the form of Exhibit L hereto and shall in any
case specify:
(a) the proposed Borrowing Date, which shall be
the same as that set forth in the applicable Invitation for
Competitive Bid Quotes,
(b) the principal amount of the Competitive Bid
Loan for which each such offer is being made, which principal
amount (1) may be greater than, less than or equal to the
Revolving Loan Commitment of the quoting Lender, (2) must be
at least $5,000,000 (and in integral multiples of $1,000,000
if in excess thereof), and (3) may not exceed the principal
amount of Competitive Bid Loans for which offers were
requested,
(c) in the case of a Eurocurrency Auction, the
Competitive Bid Margin offered for each such Competitive Bid
Loan,
-35-
42
(d) the minimum amount, if any, of the
Competitive Bid Loan which may be accepted by the Company,
(e) in the case of an Absolute Rate Auction,
the Absolute Rate offered for each such Competitive Bid Loan,
(f) the identity of the quoting Lender, and
(g) the applicable Interest Period.
(iii) The Administrative Agent shall reject any
Competitive Bid Quote that:
(a) is not substantially in the form of Exhibit
L hereto or does not specify all of the information required
by Section 2.2(D)(ii);
(b) contains qualifying, conditional or similar
language, other than any such language contained in Exhibit L
hereto;
(c) proposes terms other than or in addition to
those set forth in the applicable Invitation for Competitive
Bid Quotes; or
(d) arrives after the time set forth in Section
2.2(D)(i).
If any Competitive Bid Quote shall be rejected pursuant to this
Section 2.2(D)(iii), then the Administrative Agent shall notify the
relevant Lender of such rejection as soon as practical.
(E) Notice to Company. The Administrative Agent shall
promptly notify the Company of the terms (i) of any Competitive Bid
Quote submitted by a Lender that is in accordance with Section 2.2(D)
and (ii) of any Competitive Bid Quote that amends, modifies or is
otherwise inconsistent with a previous Competitive Bid Quote submitted
by such Lender with respect to the same Competitive Bid Quote Request.
Any such subsequent Competitive Bid Quote shall be disregarded by the
Administrative Agent unless such subsequent Competitive Bid Quote
specifically states that it is submitted solely to correct a manifest
error in such former Competitive Bid Quote. The Administrative Agent's
notice to the Company shall specify the aggregate principal amount of
Competitive Bid Loans for which offers have been received for each
Interest Period specified in the related Competitive Bid Quote Request
and the respective principal amounts and Eurocurrency Bid Rates or
Absolute Rates, as the case may be, so offered.
(F) Acceptance and Notice by Company. Not later than (x)
10:00 a.m. (New York time) at least three (3) Business Days prior to
the proposed Borrowing Date, in the case of a Eurocurrency Auction or
(y) 11:00 a.m. (New York time) on the proposed Borrowing Date, in the
case of an Absolute Rate Auction (or, in either case upon reasonable
prior notice to the Lenders, such other time and date as the Company
and the Administrative Agent may agree), the Company shall notify the
Administrative Agent of its acceptance or rejection of the offers so
notified to it pursuant to Section 2.2(E); provided, however, that the
failure by the Company to give such notice to the Administrative Agent
shall be deemed to be a rejection of all such offers.
-36-
43
In the case of acceptance, such notice (a "COMPETITIVE BID BORROWING
NOTICE") shall specify the aggregate principal amount of offers for
each Interest Period that are accepted. The Company may accept any
Competitive Bid Quote in whole or in part (subject to the terms of
Section 2.2(D)(ii)(d)); provided that:
(a) the aggregate principal amount of each
Competitive Bid Advance may not exceed the applicable amount
set forth in the related Competitive Bid Quote Request,
(b) acceptance of offers may only be made on
the basis of ascending Eurocurrency Bid Rates or Absolute
Rates, as the case may be, and
(c) the Company may not accept any offer that
is described in Section 2.2(D)(iii) or that otherwise fails
to comply with the requirements of this Agreement.
(G) Allocation by Administrative Agent. If
offers are made by two or more Lenders with the same
Eurocurrency Bid Rates or Absolute Rates, as the case may be,
for a greater aggregate principal amount than the amount in
respect of which offers are accepted for the related Interest
Period, the principal amount of Competitive Bid Loans in
respect of which such offers are accepted shall be allocated
by the Administrative Agent among such Lenders as nearly as
possible (in such multiples, not greater than $1,000,000, as
the Administrative Agent may deem appropriate) in proportion
to the aggregate principal amount of such offers provided,
however, that no Lender shall be allocated a portion of any
Competitive Bid Advance which is less than the minimum amount
which such Lender has indicated that it is willing to accept.
Allocations by the Administrative Agent of the amounts of
Competitive Bid Loans shall be conclusive in the absence of
manifest error. The Administrative Agent shall promptly, but
in any event on the same Business Day, notify each Lender of
its receipt of a Competitive Bid Borrowing Notice and the
aggregate principal amount of such Competitive Bid Advance
allocated to each participating Lender.
(H) Administration Fee. The Company hereby
agrees to pay to the Administrative Agent an administration
fee as detailed in the Administrative Agent Fee Letter per
each Competitive Bid Quote Request transmitted by the Company
to the Administrative Agent pursuant to Section 2.2(B). Such
administration fee shall be payable in arrears on each
Payment Date hereafter, on the Termination Date (or such
earlier date on which the Aggregate Revolving Loan Commitment
shall terminate or be canceled), and on the Facility
Termination Date for any period then ending for which such
fee, if any, shall not have been theretofore paid.
2.3 Swing Line Loans.
(A) Amount of Swing Line Loans. Upon the satisfaction of
the conditions precedent set forth in Section 5.1,
5.2 and 5.3, as applicable, from and including the
Closing Date and prior to the Revolving Loan
Termination Date, the Dollar Swing Line Bank agrees,
on the terms and conditions set forth in this
Agreement, to make revolving swing line loans (each,
individually, a "DOLLAR SWING LINE LOAN" and
collectively, the "DOLLAR SWING LINE LOANS") to the
Company from time to time
-37-
44
in Dollars; provided, however, that at no time shall
the aggregate outstanding principal amount of all
Dollar Swing Line Loans exceed the Dollar Swing Line
Commitment; and provided further that, at no time
shall the Dollar Amount of the Tranche A Revolving
Credit Obligations exceed the Aggregate Tranche A
Revolving Loan Commitment; and provided, further,
that at no time shall the sum of (a) the outstanding
principal amount of the Dollar Swing Line Loans plus
(b) the Dollar Amount of the Dollar Swing Line
Bank's Pro Rata Tranche A Revolving Share of the
amount equal to the Tranche A Revolving Credit
Obligations less the outstanding principal amount of
Dollar Swing Line Loans, exceed the Dollar Swing
Line Bank's Tranche A Revolving Loan Commitment at
such time. Upon the satisfaction of the conditions
precedent set forth in Section 5.1, 5.2 and 5.3, as
applicable, from and including the Closing Date and
prior to the Revolving Loan Termination Date, the
Multicurrency Swing Line Bank agrees, on the terms
and conditions set forth in this Agreement, to make
revolving swing line loans (each, individually, a
"MULTICURRENCY SWING LINE LOAN" and collectively,
the "MULTICURRENCY SWING LINE LOANS") to the
Borrowers from time to time in any Agreed Currency
other than Dollars; provided, however, that, after
giving effect to any Multicurrency Swing Line Loan,
the aggregate outstanding principal Dollar Amount of
all Multicurrency Swing Line Loans shall not exceed
the Multicurrency Swing Line Commitment; provided
further that at no time shall the Dollar Amount of
the Tranche B Revolving Credit Obligations exceed
the Aggregate Tranche B Revolving Loan Commitment.
(B) Borrowing/Conversion/Continuation Notice; Interest
Rate. The Company and/or the applicable Borrower
shall deliver to the Administrative Agent and the
applicable Swing Line Bank a
Borrowing/Conversion/Continuation Notice, signed by
it, (a) not later than 1:00 p.m. (New York time) on
the Borrowing Date of each Dollar Swing Line Loan
(or at such later time as may be acceptable to the
Swing Line Bank in its sole discretion) or (b) not
later than 11:00 a.m. (Brussels time) on the
Borrowing Date of each Multicurrency Swing Line
Loan, in each case, specifying (i) the applicable
Borrowing Date (which date shall be a Business Day
and which may be the same date as the date the
Borrowing/Conversion/Continuation Notice is given,
(ii) in the case of Multicurrency Swing Line Loans,
the Agreed Currency applicable thereto, (iii) the
aggregate amount of the requested Swing Line Loan,
the Dollar Amount of which shall be not less than
$1,000,000 and (iv) payment instructions for the
disbursement of such Loans. The Swing Line Loans
shall bear interest at the Floating Rate.
(C) Making of Dollar Swing Line Loans. Not later than
4:00 p.m. (New York time) on the applicable
Borrowing Date, the Dollar Swing Line Bank shall
make available its Dollar Swing Line Loan, in funds
immediately available in New York, New York to the
Administrative Agent at its address specified
pursuant to Article XV. The Administrative Agent
will promptly make the funds so received from the
Dollar Swing Line Bank available to the Company on
the Borrowing Date at the Administrative Agent's
aforesaid address.
-38-
45
(D) Making of Multicurrency Swing Line Loans. Not later
than 4:00 p.m. (Brussels time) on the applicable
Borrowing Date, the Multicurrency Swing Line Bank
shall make available its Multicurrency Swing Line
Loan, in funds immediately available to the
applicable Borrower at the Administrative Agent's
Eurocurrency Payment Office.
(E) Repayment of Dollar Swing Line Loans. Each Dollar
Swing Line Loan shall be paid in full by the Company
on or before the seventh (7th) Business Day after
the Borrowing Date for such Dollar Swing Line Loan.
The Company may at any time pay, without penalty or
premium, all outstanding Dollar Swing Line Loans. In
addition, the Administrative Agent (i) may at any
time in its sole discretion with respect to any
outstanding Dollar Swing Line Loan, or (ii) shall on
the seventh (7th) Business Day after the Borrowing
Date of any Dollar Swing Line Loan, require (by
giving notice thereof to each Lender with a Tranche
A Revolving Loan Commitment not later than 11:00
a.m. (New York time) on the date of such Loan) each
Lender with a Tranche A Revolving Loan Commitment
(including the Dollar Swing Line Bank) to make a
Tranche A Revolving Loan in the amount of such
Lender's Pro Rata Tranche A Revolving Share of such
Dollar Swing Line Loan, for the purpose of repaying
any outstanding portion such Swing Line Loan. Not
later than 3:00 p.m. (New York time) on the date of
any notice received pursuant to this Section 2.3(E),
each Lender shall make available its required
Tranche A Revolving Loan, in funds immediately
available in Chicago to the Administrative Agent at
its address specified pursuant to Article XV.
Tranche A Revolving Loans made pursuant to this
Section 2.3(E) shall initially be Floating Rate
Loans and thereafter may be continued as Floating
Rate Loans or converted into Eurocurrency Rate Loans
in the manner provided in Section 2.10 and subject
to the other conditions and limitations therein set
forth and set forth in this Article II. Unless a
Lender shall have notified the Dollar Swing Line
Bank, prior to its making any Dollar Swing Line
Loan, that any applicable condition precedent set
forth in Sections 5.1, 5.2 and 5.3, as applicable,
had not then been satisfied, such Lender's
obligation to make Tranche A Revolving Loans
pursuant to this Section 2.3(E) to repay Dollar
Swing Line Loans shall be unconditional, continuing,
irrevocable and absolute and shall not be affected
by any circumstances, including, without limitation,
(a) any set-off, counterclaim, recoupment, defense
or other right which such Lender may have against
the Administrative Agent, a Swing Line Bank or any
other Person, (b) the occurrence or continuance of a
Default or Unmatured Default, (c) any adverse change
in the condition (financial or otherwise) of the
Company, or (d) any other circumstances, happening
or event whatsoever. In the event that any Lender
fails to make payment to the Administrative Agent of
any amount due under this Section 2.3(E), the
Administrative Agent shall be entitled to receive,
retain and apply against such obligation the
principal and interest otherwise payable to such
Lender hereunder until the Administrative Agent
receives such payment from such Lender or such
obligation is otherwise fully satisfied. In addition
to the foregoing, if for any reason any Lender fails
to make payment to the Administrative Agent of any
amount due under this Section 2.3(E) or may not make
any Revolving Loan required by this Section 2.3(E),
such Lender shall be
-39-
46
deemed, at the option of the Administrative Agent,
to have unconditionally and irrevocably purchased
from the applicable Swing Line Bank, without
recourse or warranty, an undivided interest and
participation in the applicable Swing Line Loan in
the amount of such Revolving Loan, and such interest
and participation shall be paid by such Lender upon
demand by the applicable Swing Line Bank together
with interest thereon at the Federal Funds Effective
Rate for each day during the period commencing on
the date of demand and ending on the date such
amount is received. On the Revolving Loan
Termination Date, the Company shall repay in full
the outstanding principal balance of the Dollar
Swing Line Loans.
(F) Repayment of Multicurrency Swing Line Loans. Each
Multicurrency Swing Line Loan shall be paid in full
by the Company on or before the seventh (7th)
Business Day after the Borrowing Date for such
Multicurrency Swing Line Loan. The Company may at
any time pay, without penalty or premium, all
outstanding Multicurrency Swing Line Loans upon one
(1) Business Day's prior notice to the Multicurrency
Swing Line Bank. In addition, the Administrative
Agent (i) may at any time in its sole discretion
with respect to any outstanding Multicurrency Swing
Line Loan (ii) shall at any time at the direction of
the Multicurrency Swing Line Bank in its sole
discretion with respect to any outstanding
Multicurrency Swing Line Loan, or (iii) shall on the
seventh (7th) Business Day after the Borrowing Date
of any Multicurrency Swing Line Loan, require (by
giving notice thereof to each Lender with a Tranche
B Revolving Loan Commitment not later than 10:00
a.m. (Brussels time) on the date of such Loan) each
Lender with a Tranche B Revolving Loan Commitment to
make a Revolving Loan in the Dollar Amount of such
Lender's Pro Rata Tranche B Revolving Share of such
Multicurrency Swing Line Loan, for the purpose of
repaying any outstanding portion such Swing Line
Loan. Not later than 2:00 p.m. (Brussels time) on
the date of any notice received pursuant to this
Section 2.3(F), each Lender shall make available its
required Tranche B Revolving Loan or Tranche B
Revolving Loans, in Dollars immediately available to
the Administrative Agent at its address specified in
Section 2.3(D). Tranche B Revolving Loans made
pursuant to this Section 2.3(F) shall initially be
Floating Rate Loans and thereafter may be continued
as Floating Rate Loans or converted into
Eurocurrency Rate Loans in the manner provided in
Section 2.10 and subject to the other conditions and
limitations therein set forth and set forth in this
Article II. Unless a Lender shall have notified the
Multicurrency Swing Line Bank, prior to its making
any Multicurrency Swing Line Loan, that any
applicable condition precedent set forth in Sections
5.1, 5.2 and 5.3, as applicable, had not then been
satisfied, such Lender's obligation to make Tranche
B Revolving Loans pursuant to this Section 2.3(F) to
repay Multicurrency Swing Line Loans shall be
unconditional, continuing, irrevocable and absolute
and shall not be affected by any circumstances,
including, without limitation, (a) any set-off,
counterclaim, recoupment, defense or other right
which such Lender may have against the
Administrative Agent, a Swing Line Bank or any other
Person, (b) the occurrence or continuance of a
Default or Unmatured Default, (c) any adverse change
in the condition (financial or otherwise) of the
Company, or (d) any other
-40-
47
circumstances, happening or event whatsoever. In the
event that any Lender fails to make payment to the
Administrative Agent of any amount due under this
Section 2.3(F), the Administrative Agent shall be
entitled to receive, retain and apply against such
obligation the principal and interest otherwise
payable to such Lender hereunder until the
Administrative Agent receives such payment from such
Lender or such obligation is otherwise fully
satisfied. In addition to the foregoing, if for any
reason any Lender fails to make payment to the
Administrative Agent of any amount due under this
Section 2.3(F) or may not make any Revolving Loan
required to be made by this Section 2.3(F), such
Lender shall be deemed, at the option of the
Administrative Agent or the Multicurrency Swing Line
Bank, to have unconditionally and irrevocably
purchased from the applicable Swing Line Bank,
without recourse or warranty, an undivided interest
and participation in the applicable Swing Line Loan
in the amount of such Revolving Loan, and such
interest and participation shall be paid by such
Lender upon demand by the applicable Swing Line Bank
together with interest thereon at the Federal Funds
Effective Rate for each day during the period
commencing on the date of demand and ending on the
date such amount is received. On the Termination
Date, the applicable Borrower shall repay in full
the outstanding principal balance of the
Multicurrency Swing Line Loans.
2.4 Rate Options for all Advances; Maximum Interest
Periods. The Revolving Loans and Term Loans may be Floating Rate
Advances or Eurocurrency Rate Advances, or a combination thereof,
selected by the Company or the applicable Borrower in accordance with
Section 2.10; provided that until syndication of the Aggregate
Commitment and the commitments under the 364-Day Credit Facility has
been completed to the satisfaction of the Administrative Agent, the
Revolving Loans and Term Loans shall be Floating Rate Advances. The
Company or the applicable Borrower may select, in accordance with
Section 2.10, Rate Options and Interest Periods applicable to portions
of the Revolving Loans, Term Loans and Alternate Currency Loans;
provided that there shall be no more than ten (10) Interest Periods in
effect with respect to all of the Loans at any time (unless otherwise
provided in the applicable Alternate Currency Addendum with respect to
Alternate Currency Loans). Each Alternate Currency Loan shall bear
interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at the Alternate Currency Rate as set forth
in the applicable Alternate Currency Addendum.
2.5 Optional Payments; Mandatory Prepayments.
(A) Optional Payments. The Company or the applicable
Borrower may from time to time and at any time upon
at least one (1) Business Day's prior written notice
repay or prepay without penalty or premium all or
any part of outstanding Floating Rate Advances in an
aggregate minimum amount of $10,000,000 and in
integral multiples of $1,000,000 in excess thereof.
Eurocurrency Rate Advances, Eurocurrency Bid Rate
Advances and Absolute Rate Advances may be
voluntarily repaid or prepaid prior to the last day
of the applicable Interest Period, subject to the
indemnification provisions contained in Section 4.4,
provided that the applicable Borrower may not so
prepay Eurocurrency Rate Advances, Eurocurrency Bid
Rate Advances or Absolute Rate Advances unless it
shall have
-41-
48
provided at least four (4) Business Days' prior
written notice to the Administrative Agent of such
prepayment. Each Subsidiary Borrower may, upon prior
written notice to the Administrative Agent and to
the applicable Alternate Currency Bank as prescribed
in the applicable Alternate Currency Addendum and
specifying that it is prepaying all or a portion of
its Alternate Currency Loans, prepay its Alternate
Currency Loans in whole at any time, or from time to
time in part in a Dollar Amount aggregating
$5,000,000 or any larger multiple Dollar Amount of
$1,000,000 (or as otherwise specified in the
applicable Alternate Currency Addendum) by paying
the principal amount to be paid together with all
accrued and unpaid interest thereon to and including
the date of payment; provided that any such payment
occurring prior to the last day of any Interest
Period related to such Alternate Currency Loan shall
be subject to the indemnification provisions
contained in Section 4.4.
(B) Mandatory Prepayments of Revolving Loans. (i) If at
any time and for any reason (other than fluctuations
in currency exchange rates) the Dollar Amount of the
Tranche A Revolving Credit Obligations or Tranche B
Revolving Credit Obligations is greater than the
Aggregate Tranche A Revolving Loan Commitment or the
Aggregate Tranche B Revolving Loan Commitment,
respectively, the Company shall immediately make or
cause to be made a mandatory prepayment of the
Tranche A Revolving Credit Obligations or the
Tranche B Revolving Credit Obligations, as the case
may be, in an amount equal to such excess.
(ii) On the last Business Day of each month, the
Administrative Agent shall calculate the Dollar Amount of all
outstanding Alternate Currency Loans and Revolving Credit Obligations
using, for each currency, the arithmetic mean of the buy and sell spot
rates of exchange of the Administrative Agent in the London interbank
market (or other market where the Administrative Agent's foreign
exchange operations in respect of such currency are then being
conducted) and if, on such Business Day:
(w) the Dollar Amount of the Tranche A
Revolving Credit Obligations exceeds one
hundred percent (100%) of the Aggregate
Tranche A Revolving Loan Commitment as a
result of fluctuations in currency exchange
rates, the applicable Borrower shall
immediately prepay Tranche A Revolving
Loans for the ratable benefit of the
Lenders with a Tranche A Revolving Loan
Commitment in an aggregate amount such that
after giving effect thereto the Dollar
Amount of the Tranche A Revolving Credit
Obligations is less than or equal to the
Aggregate Tranche A Revolving Loan
Commitment; or
(x) the Dollar Amount of the Tranche B
Revolving Credit Obligations exceeds one
hundred percent (100%) of the Aggregate
Tranche B Revolving Loan Commitment as a
result of fluctuations in currency exchange
rates, the applicable Borrower shall
immediately prepay Tranche B Revolving
Loans for the ratable benefit of the
Lenders with a Tranche B Revolving Loan
Commitment in an aggregate amount such that
after giving effect thereto the Dollar
Amount of the Tranche B Revolving
-42-
49
Credit Obligations is less than or equal to
the Aggregate Tranche B Revolving Loan
Commitment; or
(y) the Dollar Amount of all outstanding
Alternate Currency Loans under the
Alternate Currency Addenda exceeds one
hundred percent (100%) of the aggregate
Alternate Currency Commitments with respect
thereto as a result of fluctuations in
currency exchange rates, the applicable
Borrower shall on such date prepay, or
cause to be prepaid, Alternate Currency
Loans in an aggregate amount such that
after giving effect thereto the Dollar
Amount of all such Alternate Currency Loans
is less than or equal to the aggregate
Alternate Currency Commitments with respect
thereto; or
(z) the Dollar Amount of the aggregate
outstanding principal amount of Alternate
Currency Loans in the same Alternate
Currency exceeds the aggregate Alternate
Currency Commitments with respect thereto
as a result of fluctuations in currency
exchange rates, the applicable Borrowers
shall on such date prepay Alternate
Currency Loans in such Alternate Currency
in an aggregate amount such that after
giving effect thereto the Dollar amount of
all Alternate Currency Loans is less than
or equal to the aggregate Alternate
Currency Commitments with respect thereto.
(iii) The Company shall make all mandatory prepayments
required under Section 2.6.
(iv) All of the mandatory prepayments made under this
Section 2.5(B) shall be applied to the Tranche A Revolving Credit
Obligations or Tranche B Revolving Credit Obligations, as applicable,
first to Floating Rate Loans and to any Eurocurrency Rate Loans and
Alternate Currency Loans maturing on such date and then to
subsequently maturing Eurocurrency Rate Loans and Alternate Currency
Loans in order of maturity.
(C) Mandatory Prepayments of Term Loans. Upon the
receipt by any Borrower of (1) the proceeds from any
sale of United States domestic Receivables or (2)
the proceeds from the incurrence of any single issue
of Indebtedness in excess of $50,000,000 which is
not permitted by Section 7.3(D)(i)-(vi) hereof, the
Company shall immediately make a mandatory
prepayment of the Term Loans in an amount equal to
such proceeds (applying the same first to accrued
and unpaid interest and then to principal).
2.6 Reductions in Commitments. The Company may
permanently reduce (i) the Aggregate Tranche A Revolving Loan
Commitment in whole, or in part ratably among the Lenders with a
Tranche A Revolving Loan Commitment, in an aggregate minimum amount of
$10,000,000 and in integral multiples of $5,000,000 in excess of that
amount (unless the Aggregate Tranche A Revolving Loan Commitment is
reduced in whole), (ii) the Aggregate Tranche B Revolving Loan
Commitment in whole, or in part ratably among the Lenders with a
Tranche B Revolving Loan Commitment, in an aggregate minimum amount of
$10,000,000 and in integral multiples of $5,000,000 in excess of that
amount (unless the Aggregate Tranche B Revolving Loan Commitment is
reduced in whole), (iii) the Swing Line Commitments in whole or in
part in amounts of $5,000,000 upon at least three (3) Business Day's
prior written notice to
-43-
50
the Administrative Agent, which notice shall specify the amount of any
such reduction or (iv) in whole and terminate the Aggregate Term Loan
Commitment upon any reduction in whole of the Aggregate Revolving Loan
Commitment; provided, however, that (a) the amount of the Aggregate
Tranche A Revolving Loan Commitment may not be reduced below the
aggregate principal Dollar Amount of the outstanding Tranche A
Revolving Credit Obligations or below the aggregate amount of the
Dollar Swing Line Commitments and (b) the amount of the Aggregate
Tranche B Revolving Loan Commitment may not be reduced below the
aggregate principal Dollar Amount of the outstanding Tranche B
Revolving Obligations or below the aggregate amount of the
Multicurrency Swing Line Commitments or below the aggregate amount of
Alternate Currency Commitments. All accrued commitment fees shall be
payable on the effective date of any termination of all or any part
the obligations of the Lenders to make Loans hereunder. Each
Subsidiary Borrower may, upon three (3) Business Days prior written
notice to the Administrative Agent and to the applicable Alternate
Currency Bank, terminate entirely at any time or reduce from time to
time by an aggregate amount of $5,000,000 or any larger multiple of
$1,000,000 (or as set forth on the applicable Alternate Currency
Addendum), the unused portions of the applicable Alternate Currency
Commitment as specified by the applicable Subsidiary Borrower in such
notice to the Administrative Agent and the applicable Alternate
Currency Bank; provided, however, that at no time shall the Alternate
Currency Commitment of any Lender in respect of any Alternate Currency
be reduced to an amount less than the total outstanding principal
amount of all Alternate Currency Loans of such Lender made in such
Alternate Currency.
2.7 Method of Borrowing. Not later than 1:00 p.m. (New
York time) on each Borrowing Date, each Lender shall make available
its Revolving Loan in immediately available funds in the Agreed
Currency to the Administrative Agent at its address specified on its
signature page hereto or as otherwise specified pursuant to Article
XV, unless the Administrative Agent has notified the Lenders that such
Loan is to be made available to the applicable Borrower at the
Administrative Agent's Eurocurrency Payment office, in which case each
Lender shall make available its Loan or Loans, in funds immediately
available to the Administrative Agent at its Eurocurrency Payment
Office, not later than 12:00 noon (local time in the city of the
Administrative Agent's Eurocurrency Payment Office) in the Agreed
Currency designated by the Administrative Agent. The Administrative
Agent will promptly make the funds so received from the Lenders
available to the applicable Borrower at the Administrative Agent's
aforesaid address.
2.8 Method of Selecting Types and Interest Periods for
Advances. The applicable Borrower shall select the Type of Advance
and, in the case of each Eurocurrency Rate Advance, the Interest
Period, Agreed Currency and/or Alternate Currency applicable to each
Advance from time to time. The applicable Borrower shall give the
Administrative Agent irrevocable notice in substantially the form of
Exhibit B hereto (a "BORROWING/CONVERSION/CONTINUATION NOTICE") not
later than 10:00 a.m. (New York time) (a) on the Borrowing Date of
each Floating Rate Advance, and (b) three (3) Business Days before the
Borrowing Date for each Eurocurrency Rate Advance to be made in
Dollars, and (c) four (4) Business Days before the Borrowing Date for
each Eurocurrency Rate Advance to be made in any Agreed Currency other
than Dollars and (d) three (3) Business Days before the Borrowing Date
for each Alternate Currency Loan (or such other period as may be
agreed to by the Administrative Agent and the applicable Borrower),
and the applicable Borrower shall give the applicable Alternate
Currency Bank irrevocable notice by 10:00 a.m. (local time) three (3)
Business Days prior to the Borrowing Date for such Alternate
-44-
51
Currency Loan (or such other period as may be agreed to by the
applicable Alternate Currency Bank or specified in the applicable
Alternate Currency Addendum), specifying: (i) the Borrowing Date
(which shall be a Business Day) of such Advance; (ii) the aggregate
amount of such Advance; (iii) the Type of Advance selected; (iv)
whether the Advance will be a Tranche A Advance or a Tranche B
Advance; and (v) in the case of each Eurocurrency Rate Loan, the
Interest Period and Agreed Currency or Alternate Currency applicable
thereto. Notwithstanding the foregoing, if the Company has submitted a
Competitive Bid Quote Request pursuant to Section 2.2(B), a
Borrowing/Conversion/Continuation Notice for a Floating Rate Advance
may be given not later than one (1) hour after the time which the
Company is required to reject one or more bids offered in connection
with an Absolute Rate Auction pursuant to Section 2.2(F) and a
Borrowing/Conversion/Continuation Notice for a Eurocurrency Rate Loan
may be given not later than one (1) hour after the time the Company is
required to reject one or more bids offered in connection with a
Eurocurrency Auction pursuant to Section 2.2(F). Each Floating Rate
Advance, each Alternate Currency Loan bearing a fluctuating Alternate
Currency Rate and all Obligations other than Loans shall bear interest
from and including the date of the making of such Advance, in the case
of Loans, and the date such Obligation is due and owing in the case of
such other Obligations, to (but not including) the date of repayment
thereof at the Floating Rate or Alternate Currency Rate, as
applicable, changing when and as such Floating Rate or Alternate
Currency Rate, as applicable, changes. Changes in the rate of interest
on that portion of any Advance maintained as a Floating Rate Loan will
take effect simultaneously with each change in the Alternate Base
Rate. Changes in the rate of interest on any portion of any Alternate
Currency Loan bearing a fluctuating Alternate Currency Rate will take
effect simultaneously with each change in such Alternate Currency
Rate. Each Eurocurrency Rate Advance shall bear interest from and
including the first day of the Interest Period applicable thereto to
(but not including) the last day of such Interest Period at the
interest rate determined as applicable to such Eurocurrency Rate
Advance and shall change as and when the Applicable Eurocurrency
Margin changes.
2.9 Minimum Amount of Each Advance. Each Advance (other
than an Advance to repay a Swing Line Loan or Reimbursement
Obligation) shall be in the minimum Dollar Amount of $20,000,000 (or
the Approximate Equivalent Amount of any Agreed Currency other than
Dollars or any Alternate Currency) and in Dollar Amount multiples of
$1,000,000 (or the Approximate Equivalent Amount of any Agreed
Currency other than Dollars or any Alternate Currency) if in excess
thereof (or such other amounts as may be specified in the applicable
Alternate Currency Addendum), provided, however, that any Floating
Rate Advance may be in the amount of the unused Aggregate Tranche A
Revolving Loan Commitment or Tranche B Revolving Loan Commitment, as
the case may be.
2.10 Method of Selecting Types and Interest Periods for
Conversion and Continuation of Advances.
(A) Right to Convert. The applicable Borrower may elect
from time to time, subject to the provisions of
Section 2.4 and this Section 2.10, to convert all or
any part of a Loan (other than a Competitive Bid
Loan or Swing Line Loan) of any Type into any other
Type or Types of Loans (other than a Competitive Bid
Loan or Swing Line Loan); provided that any
conversion of any Eurocurrency Rate Advance shall be
made on, and only on, the last day of the Interest
Period applicable thereto.
-45-
52
(B) Automatic Conversion and Continuation. Floating Rate
Loans shall continue as Floating Rate Loans unless
and until such Floating Rate Loans are converted
into Eurocurrency Rate Loans. Eurocurrency Rate
Loans shall continue as Eurocurrency Rate Loans
until the end of the then applicable Interest Period
therefor, at which time such Eurocurrency Rate Loans
shall be automatically converted into Floating Rate
Loans unless the Company shall have given the
Administrative Agent notice in accordance with
Section 2.10(D) requesting that, at the end of such
Interest Period, such Eurocurrency Rate Loans
continue as a Eurocurrency Rate Loan. Unless a
Borrowing/Conversion/Continuation Notice shall have
timely been given in accordance with the terms of
this Section 2.10, Eurocurrency Rate Advances in an
Agreed Currency other than Dollars and Alternate
Currency Loans shall automatically continue as
Eurocurrency Rate Advances in the same Agreed
Currency or Alternate Currency Loans in the same
Alternate Currency, as applicable, with an Interest
Period of one (1) month.
(C) No Conversion Post-Default or Post-Unmatured
Default. Notwithstanding anything to the contrary
contained in Section 2.10(A) or Section 2.10(B), no
Loan may be converted into or continued as a
Eurocurrency Rate Loan (except with the consent of
the Required Lenders) when any Default or Unmatured
Default has occurred and is continuing.
(D) Borrowing/Conversion/Continuation Notice. The
Company shall give the Administrative Agent a
Borrowing/Conversion/Continuation Notice with
respect to each conversion of a Floating Rate Loan
into a Eurocurrency Rate Loan or continuation of a
Eurocurrency Rate Loan not later than 10:00 a.m.
(New York time) (x) three (3) Business Days prior to
the date of the requested conversion or
continuation, with respect to any Loan to be
converted or continued as a Eurocurrency Rate Loan
in Dollars, (y) four (4) Business Days prior to the
date of the requested conversion or continuation
with respect to any Loan to be converted or
continued as a Eurocurrency Rate Loan in an Agreed
Currency other than Dollars, and (z) five (5)
Business Days before the date of the requested
conversion or continuation Borrowing Date with
respect to the conversion or continuation of any
Alternate Currency Loan (or such other period as may
be agreed to by the Administrative Agent), and the
applicable Subsidiary Borrower shall give the
applicable Alternate Currency Bank irrevocable
notice by 10:00 a.m. (local time) three (3) Business
Days prior to the conversion or continuation of such
Alternate Currency Loan (or such other period as may
specified in the applicable Alternate Currency
Addendum), specifying: (1) the requested date (which
shall be a Business Day) of such conversion or
continuation; (2) the amount and Type of the Loan to
be converted or continued; and (3) the amount of
Eurocurrency Rate Loan(s) or Alternate Currency
Loan(s), as applicable, into which such Loan is to
be converted or continued, the Agreed Currency or
Alternate Currency, as applicable, and the duration
of the Interest Period applicable thereto.
(E) Notwithstanding anything herein to the contrary, (w)
Eurocurrency Rate Advances in an Agreed Currency may
be continued as Eurocurrency Rate Advances only in
the same Agreed Currency, (x) Alternate Currency
Loans in an
-46-
53
Alternate Currency may be continued as Alternate
Currency Loans only in the same Alternate Currency,
(y) Tranche A Advances may only be continued as
Tranche A Advances and (z) Tranche B Advances may
only be continued as Tranche B Advances.
2.11 Default Rate. After the occurrence and during the
continuance of a Default, each outstanding Loan shall bear interest at
a rate equal to the rate otherwise applicable thereto (giving effect
to the provisions of Section 2.15(D)(ii)) plus 2% per annum.
2.12 Method of Payment. All payments of principal,
interest, fees, commissions and L/C Obligations hereunder shall be
made, without setoff, deduction or counterclaim (unless indicated
otherwise in Section 2.15(E)), in immediately available funds to the
Administrative Agent (i) at the Administrative Agent's address
specified pursuant to Article XV with respect to Advances or other
Obligations denominated in Dollars and (ii) at the Administrative
Agent's Eurocurrency Payment Office with respect to any Advance or
other Obligations denominated in an Agreed Currency other than
Dollars, or at any other Lending Installation of the Administrative
Agent specified in writing by the Administrative Agent to the Company,
by 2:00 p.m. (New York time) on the date when due and shall be applied
ratably among the Lenders with respect to any principal and interest
due in connection with Loans. Each Advance shall be repaid or prepaid
in the Agreed Currency in which it was made in the amount borrowed and
interest payable thereon shall also be paid in such currency. Each
payment delivered to the Administrative Agent for the account of any
Lender shall be delivered promptly by the Administrative Agent to such
Lender in the same type of funds which the Administrative Agent
received at its address specified pursuant to Article XV or at any
Lending Installation specified in a notice received by the
Administrative Agent from such Lender. The Company authorizes the
Administrative Agent to charge the account of the Company maintained
with ABN, after one (1) Business Day's prior written notice to the
Company, for each payment of principal, interest, fees, commissions
and L/C Obligations as it becomes due hereunder. Each reference to the
Administrative Agent in this Section 2.12 shall also be deemed to
refer, and shall apply equally, to each Issuing Bank, in the case of
payments required to be made by the Company to any Issuing Bank
pursuant to Article III.
All payments to be made by the Borrowers hereunder in respect
of any Alternate Currency Loans shall be made in the currencies in
which such Loans are denominated and in funds immediately available,
at the office or branch from which the Loan was made pursuant to
Section 2.21 and the applicable Alternate Currency Addendum not later
than 3:00 p.m. (local time) on the date on which such payment shall
become due. Promptly upon receipt of any payment of principal of the
Alternate Currency Loans the applicable Alternate Currency Bank shall
give written notice to the Administrative Agent by telex or telecopy
of the receipt of such payment.
Notwithstanding the foregoing provisions of this Section, if,
after the making of any Advance in any currency other than Dollars,
currency control or exchange regulations are imposed in the country
which issues such Agreed Currency or Alternate Currency, as
applicable, with the result that different types of such Agreed
Currency or Alternate Currency, as applicable, (the "NEW CURRENCY")
are introduced and the type of currency in which the Advance was made
(the "ORIGINAL CURRENCY") no longer exists or any Borrower is not able
to make payment to the
-47-
54
Administrative Agent for the account of the Lenders or Alternate
Currency Bank, as applicable, in such Original Currency, then all
payments to be made by the Borrowers hereunder in such currency shall
be made to the Administrative Agent or Alternate Currency Bank, as
applicable, in such amount and such type of the New Currency or
Dollars as shall be equivalent to the amount of such payment otherwise
due hereunder in the Original Currency, it being the intention of the
parties hereto that the Borrowers take all risks of the imposition of
any such currency control or exchange regulations. In addition,
notwithstanding the foregoing provisions of this Section, if, after
the making of any Advance in any currency other than Dollars, the
applicable Borrower is not able to make payment to the Administrative
Agent for the account of the Lenders or the applicable Alternate
Currency Bank in the type of currency in which such Advance was made
because of the imposition of any such currency control or exchange
regulation, then such Advance shall instead be repaid when due in
Dollars in a principal amount equal to the Dollar Amount (as of the
date of repayment) of such Advance.
2.13 Evidence of Debt.
(A) Each Lender shall maintain in accordance with its
usual practice an account or accounts (a "LOAN
ACCOUNT") evidencing the indebtedness of the
Borrowers to such Lender owing to such Lender
hereunder from time to time, including the amounts
of principal and interest payable and paid to such
Lender from time to time hereunder.
(B) The Register maintained by the Administrative Agent
pursuant to Section 14.3(C) shall include a control
account, and a subsidiary account for each Lender,
in which accounts (taken together) shall be recorded
(i) the date and the amount of each Loan made
hereunder, the Type thereof and the Interest Period,
if any, applicable thereto, (ii) the amount and the
currency of any principal or interest due and
payable or to become due and payable from the
Borrowers to each Lender hereunder, (iii) the
effective date and amount of each Assignment
Agreement delivered to and accepted by it and the
parties thereto pursuant to Section 14.3, (iv) the
amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and
each Lender's share thereof, and (v) all other
appropriate debits and credits as provided in this
Agreement, including, without limitation, all fees,
charges, expenses and interest.
(C) The entries made in the Loan Account, the Register
and the other accounts maintained pursuant to
subsections (A) or (B) of this Section shall be
presumptively correct for all purposes, absent
manifest error, unless the applicable Borrower (or
the Company on behalf of such Borrower) objects to
information contained in the Loan Accounts, the
Register or the other accounts within thirty (30)
days of the applicable Borrower's receipt of such
information; provided that the failure of any Lender
or the Administrative Agent to maintain such
accounts or any error therein shall not in any
manner affect the obligation of the Borrowers to
repay the Obligations in accordance with the terms
of this Agreement.
(D) Any Lender may request that the Tranche A Revolving
Loans, the Tranche B Revolving Loans, the Term Loans
or Competitive Bid Loans made by it each be
evidenced by a promissory note in substantially the
forms of Exhibit I-1A, Exhibit ▇-▇▇, ▇▇▇▇▇▇▇
-▇▇-
▇▇
▇-▇ or Exhibit I-3, respectively, to evidence such
Lender's Tranche A Revolving Loans, Tranche B
Revolving Loans, Term Loans or Competitive Bid
Loans, as applicable. In such event, the applicable
Borrower shall promptly prepare, execute and deliver
to such Lender a promissory note for such Loans
payable to the order of such Lender and in a form
approved by the Administrative Agent and consistent
with the terms of this Agreement. Thereafter, the
Loans evidenced by such promissory note and interest
thereon shall at all times (including after
assignment pursuant to Section 14.3) be represented
by one or more promissory notes in such form payable
to the order of the payee named therein.
Notwithstanding the foregoing, unless and until
replaced by a promissory note or notes in the form
of Exhibit I-1A and/or Exhibit I-1B, each promissory
note in the form of Exhibit I to the Existing
Agreement executed and delivered by any Borrower to
any Lender prior to the Effective Date shall
continue to evidence such Lender's Revolving Loans
to such Borrower outstanding on the Effective Date
and shall also evidence any Tranche A Revolving
Loans or Tranche B Revolving Loans made by such
Lender to such Borrower thereafter.
2.14 Telephonic Notices. The Borrowers authorize the
Lenders and the Administrative Agent to extend Loans, effect
selections of Types of Advances and submit Competitive Bid Quotes and
to transfer funds based on telephonic notices made by any person or
persons the Administrative Agent or any Lender in good faith believes
to be acting on behalf of the applicable Borrower. The Borrowers agree
to deliver promptly to the Administrative Agent a written
confirmation, signed by an Authorized Officer, if such confirmation is
requested by the Administrative Agent or any Lender, of each
telephonic notice. If the written confirmation differs in any material
respect from the action taken by the Administrative Agent and the
Lenders, the records of the Administrative Agent and the Lenders shall
govern absent manifest error. In case of disagreement concerning such
notices, if the Administrative Agent has recorded telephonic borrowing
notices, such recordings will be made available to the applicable
Borrower upon the Company's request therefor.
2.15 Promise to Pay; Interest and Fees; Interest Payment
Dates; Interest and Fee Basis; Taxes; Loan and Control Accounts.
(A) Promise to Pay. All Loans shall be paid in full by
the applicable Borrowers on the earlier of (i) the
Revolving Loan Termination Date (in the case of
Loans other than Term Loans) or Term Loan
Termination Date (in the case of Term Loans) and
(ii) the Facility Termination Date; provided, that
all Competitive Bid Advances shall be paid in full
by the Company on the last day of the Interest
Period applicable thereto, or, if earlier, on the
Termination Date or Facility Termination Date and
all Swing Line Loans shall also be paid as set forth
in Section 2.3. Each Borrower unconditionally
promises to pay when due the principal amount of
each Loan and all other Obligations incurred by it,
and to pay all unpaid interest accrued thereon, in
accordance with the terms of this Agreement and the
other Loan Documents.
(B) Interest Payment Dates. Interest accrued on each
Floating Rate Loan and each Alternate Currency Loan
bearing a fluctuating Alternate Currency Rate shall
be payable on each Payment Date, commencing with the
first such date to occur after
-49-
56
the date hereof, upon any prepayment whether by
acceleration or otherwise, and at maturity (whether
by acceleration or otherwise). Interest accrued on
each Fixed-Rate Loan shall be payable on the last
day of its applicable Interest Period, on any date
on which the Fixed-Rate Loan is prepaid, whether by
acceleration or otherwise, and at maturity. Interest
accrued on each Fixed-Rate Loan having an Interest
Period longer than three months shall also be
payable on the last day of each three-month interval
during such Interest Period. Interest accrued on the
principal balance of all other Obligations shall be
payable in arrears (i) on the last day of each
calendar month, commencing on the first such day
following the incurrence of such Obligation, (ii)
upon repayment thereof in full or in part, and (iii)
if not theretofore paid in full, at the time such
other Obligation becomes due and payable (whether by
acceleration or otherwise).
(C) Fees.
(i) The Company shall pay to the Administrative
Agent (A) for the account of the Lenders in accordance with
their Pro Rata Tranche A Revolving Shares, from and after the
date of this Agreement until the Facility Termination Date, a
commitment fee accruing at the rate of the then Applicable
Commitment Fee Percentage on the unutilized portion of such
Lender's Tranche A Revolving Loan Commitment (treating
Letters of Credit, but not Competitive Bid Loans or Dollar
Swing Line Loans, as usage) and (B) for the account of the
Lenders in accordance with their Pro Rata Tranche B Revolving
Shares, from and after the date of this Agreement until the
Facility Termination Date, a commitment fee accruing at the
rate of the then Applicable Commitment Fee Percentage on the
unutilized portion of such Lender's Tranche B Revolving Loan
Commitment (not treating Dollar Swing Line Loans as usage).
The commitment fee shall be payable in arrears on each
Payment Date hereafter, and, in addition, on any date on
which the Aggregate Revolving Loan Commitment shall be
terminated in whole or, with respect to such terminated
amount, in part.
(ii) The Company shall pay to the Administrative
Agent, for the account of the Lenders in accordance with
their Pro Rata Term Shares, from and after the date of this
Agreement until the earlier of the Facility Termination Date
and the making of the Term Loans, a commitment fee accruing
at the rate of the then Applicable Commitment Fee Percentage
on such Lender's Term Loan Commitment. The commitment fee
shall be payable in arrears at the time of the making of the
Term Loans and, in addition, on any date upon which the
Aggregate Term Loan Commitment shall be terminated.
(iii) The Company agrees to pay to the
Administrative Agent, for the sole account of the
Administrative Agent, the Lead Arrangers and the Agents
(unless otherwise agreed between the Administrative Agent,
the Lead Arrangers, the Agents and any Lender) the fees set
forth in the Fee Letters, payable at the times and in the
amounts set forth therein.
(iv) The applicable Borrower agrees to pay to
each Alternate Currency Bank, for its sole account, a
fronting fee equal to 0.25% of the average daily outstanding
Dollar Amount of all Alternate Currency Loans made by such
Alternate Currency Bank.
-50-
57
(D) Interest and Fee Basis; Applicable Floating Rate
Margin, Applicable Eurocurrency Margin and
Applicable Commitment Fee Percentage.
(i) Interest on all Fixed-Rate Loans (except as
provided otherwise in the applicable Alternate Currency
Addendum in the case of an Alternate Currency Loan) and fees
shall be calculated for actual days elapsed on the basis of a
360-day year. Interest on all Floating Rate Loans shall be
calculated for actual days elapsed on the basis of a 365-, or
when appropriate 366-, day year. Interest shall be payable
for the day an Obligation is incurred but not for the day of
any payment on the amount paid if payment is received prior
to 3:00 p.m. (New York time) at the place of payment. If any
payment of principal of or interest on a Loan or any payment
of any other Obligations shall become due on a day which is
not a Business Day, such payment shall be made on the next
succeeding Business Day and, in the case of a principal
payment, such extension of time shall be included in
computing interest, fees and commissions in connection with
such payment.
(ii) The Applicable Floating Rate Margin,
Applicable Eurocurrency Margin and Applicable Commitment Fee
Percentage shall be determined on the basis of the then
applicable Leverage Ratio as described in this Section
2.15(D)(ii), from time to time by reference to the following
table:
APPLICABLE
FLOATING RATE APPLICABLE COMMITMENT
LEVERAGE RATIO MARGIN APPLICABLE EUROCURRENCY MARGIN FEE PERCENTAGE
----------------------------------------------------------------------------------------------------------------------
Less than 1.50 0.25% 1.25% 0.300%
----------------------------------------------------------------------------------------------------------------------
1.50 or greater, but less than 2.00 0.50% 1.50% 0.375%
----------------------------------------------------------------------------------------------------------------------
2.00 or greater, but less than 2.50 0.75% 1.75% 0.450%
----------------------------------------------------------------------------------------------------------------------
2.50 or greater, but less than 3.00 1.00% 2.00% 0.500%
----------------------------------------------------------------------------------------------------------------------
3.00 or greater 1.25% 2.25% 0.500%
----------------------------------------------------------------------------------------------------------------------
The Applicable Floating Rate Margin, Applicable
Eurocurrency Margin and Applicable Commitment Fee Percentage
shall be 1.00%, 2.00% and 0.500%, respectively, until the
Administrative Agent has received the Company's financial
statements for the fiscal quarter ending September 30, 2000;
provided that if the Leverage Ratio as reflected in the most
recently delivered financial statements, delivered pursuant to
Sections 7.1(A)(i) and (ii), as applicable, is 3.00 or
greater, the Applicable Floating Rate Margin, Applicable
Eurocurrency Margin and Applicable Commitment Fee Percentage
shall be 1.25%, 2.25% and 0.500%, respectively. Thereafter,
upon receipt of the financial statements to be delivered by
the Company in accordance with Section 7.1(A)(i) or (ii), as
applicable, for any fiscal quarter or, if earlier, upon
receipt of the Company's unaudited financial statements for
any fiscal year, the Applicable Floating Rate Margin,
Applicable Eurocurrency Margin and Applicable Commitment Fee
Percentage shall be adjusted, such adjustment being effective
five (5) Business Days following the Administrative Agent's
receipt of such financial statements and the compliance
certificate required to be delivered in connection therewith
pursuant to
-51-
58
Section 7.1(A)(iii); provided, that if the Company shall not have
timely delivered its financial statements in accordance with Section
7.1(A)(i) or (ii), as applicable, then commencing on the date upon
which such financial statements should have been delivered and
continuing until such financial statements are actually delivered, it
shall be assumed for purposes of determining the Applicable Floating
Rate Margin, Applicable Eurocurrency Margin and Applicable Commitment
Fee Percentage that the Leverage Ratio was greater than 3.00 to 1.0.
Notwithstanding the foregoing, for so long as any Default shall have
occurred and been continuing, the Applicable Floating Rate Margin,
Applicable Eurocurrency Margin and Applicable Commitment Fee
Percentage shall be the highest Applicable Floating Rate Margin,
Applicable Eurocurrency Margin and Applicable Commitment Fee Margin
set forth in the foregoing table. At all times after the first
anniversary of the Closing Date until the Term Loans have been repaid
in full, each of the Applicable Floating Rate Margin and the
Applicable Eurocurrency Margin shall increase by 25 basis points.
(E) Taxes.
(i) Any and all payments by the Borrowers hereunder
(whether in respect of principal, interest, fees or otherwise) shall
be made free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or
withholdings or any interest, penalties and liabilities with respect
thereto including those arising after the date hereof as a result of
the adoption of or any change in any law, treaty, rule, regulation,
guideline or determination of a Governmental Authority or any change
in the interpretation or application thereof by a Governmental
Authority but excluding, in the case of each Lender and the
Administrative Agent, such taxes (including income taxes, franchise
taxes and branch profit taxes) as are imposed on or measured by such
Lender's or the Administrative Agent's, as the case may be, net income
by the United States of America or any Governmental Authority of the
jurisdiction under the laws of which such Lender or the Administrative
Agent, as the case may be, is organized (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings, and liabilities
which the Administrative Agent or a Lender determines to be applicable
to this Agreement, the other Loan Documents, the Revolving Loan
Commitments, the Loans or the Letters of Credit being hereinafter
referred to as "TAXES"). If any Borrower shall be required by law to
deduct or withhold any Taxes from or in respect of any sum payable
hereunder or under the other Loan Documents to any Lender or the
Administrative Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions or withholdings
(including deductions applicable to additional sums payable under this
Section 2.15(E)) such Lender or Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions
or withholdings been made, (ii) the applicable Borrower shall make
such deductions or withholdings, and (iii) the applicable Borrower
shall pay the full amount deducted or withheld to the relevant
taxation authority or other authority in accordance with applicable
law. If a withholding tax of the United States of America or any other
Governmental Authority shall be or become applicable (y) after the
date of this Agreement, to such payments by the applicable Borrower
made to the Lending Installation or any other office that a Lender may
claim as its Lending Installation, or (z) after such Lender's
selection and designation of any other Lending Installation, to such
-52-
59
payments made to such other Lending Installation, such Lender shall
use reasonable efforts to make, fund and maintain the affected Loans
through another Lending Installation of such Lender in another
jurisdiction so as to reduce the applicable Borrower's liability
hereunder, if the making, funding or maintenance of such Loans through
such other Lending Installation of such Lender does not, in the
judgment of such Lender, otherwise adversely affect such Loans, or
obligations under the Revolving Loan Commitments of such Lender.
(ii) In addition, the Borrowers agree to pay any present
or future stamp or documentary taxes or any other excise or property
taxes, charges, or similar levies which arise from any payment made
hereunder, from the issuance of Letters of Credit hereunder, or from
the execution, delivery or registration of, or otherwise with respect
to, this Agreement, the other Loan Documents, the Revolving Loan
Commitments, the Loans or the Letters of Credit (hereinafter referred
to as "OTHER TAXES").
(iii) The Company and each Subsidiary Borrower shall
indemnify each Lender and the Administrative Agent for the full amount
of Taxes and Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any Governmental Authority on amounts payable
under this Section 2.15(E)) paid by such Lender or the Administrative
Agent (as the case may be) and any liability (including penalties,
interest, and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally
asserted. This indemnification shall be made within thirty (30) days
after the date such Lender or the Administrative Agent (as the case
may be) makes written demand therefor. If the Taxes or Other Taxes
with respect to which the Company or any Subsidiary Borrower has made
either a direct payment to the taxation or other authority or an
indemnification payment hereunder are subsequently refunded to any
Lender, such Lender will return to the applicable Borrower an amount
equal to the lesser of the indemnification payment or the refunded
amount. A certificate as to any additional amount payable to any
Lender or the Administrative Agent under this Section 2.15(E)
submitted to the applicable Borrower and the Administrative Agent (if
a Lender is so submitting) by such Lender or the Administrative Agent
shall show in reasonable detail the amount payable and the
calculations used to determine such amount and shall, absent manifest
error, be final, conclusive and binding upon all parties hereto. With
respect to such deduction or withholding for or on account of any
Taxes and to confirm that all such Taxes have been paid to the
appropriate Governmental Authorities, the applicable Borrower shall
promptly (and in any event not later than thirty (30) days after
receipt) furnish to each Lender and the Administrative Agent such
certificates, receipts and other documents as may be required (in the
reasonable judgment of such Lender or the Administrative Agent) to
establish any tax credit to which such Lender or the Administrative
Agent may be entitled.
(iv) Within thirty (30) days after the date of any
payment of Taxes or Other Taxes by the Company or any Subsidiary
Borrower, the Company shall furnish to the Administrative Agent the
original or a certified copy of a receipt evidencing payment thereof.
-53-
60
(v) Without prejudice to the survival of any other
agreement of the Company and the Subsidiary Borrowers hereunder, the
agreements and obligations of the Borrowers contained in this Section
2.15(E) shall survive the payment in full of all Obligations, the
termination of the Letters of Credit and the termination of this
Agreement.
(vi) Each Lender (including any Replacement Lender or
Purchaser) that is not created or organized under the laws of the
United States of America or a political subdivision thereof (each a
"NON-U.S. LENDER") shall deliver to the Company and the Administrative
Agent on or before the Closing Date, or, if later, the date on which
such Lender becomes a Lender pursuant to Section 12.3 hereof (and from
time to time thereafter upon the request of the Company or the
Administrative Agent, but only for so long as such Non-U.S. Lender is
legally entitled to do so), either (1) (x) two (2) duly completed
copies of either (A) IRS Form W-8BEN (or, if delivered on or before
December 31, 1999, IRS Form 1001), or (B) IRS Form W-8ECI (or, if
delivered on or before December 31, 1999, IRS Form 4224), or in either
case an applicable successor form, and (y) for periods prior to
January 1, 2000, a duly completed copy of IRS Form W-8 or W-9 or
applicable successor form; or (2) in the case of a Non-U.S. Lender
that is not legally entitled to deliver either form listed in clause
(vi)(1)(x), (x) a certificate of a duly authorized officer of such
Non-U.S. Lender to the effect that such Non-U.S. Lender is not (A) a
"bank" within the meaning of Section 881(c)(3)(A) of the Code, (B) a
"10 percent shareholder" of the Company or any Subsidiary Borrower
within the meaning of Section 881(c)(3)(B) of the Code, or (C) a
controlled foreign corporation receiving interest from a related
person within the meaning of Section 881(c)(3)(C) of the Code (such
certificate, an "EXEMPTION CERTIFICATE") and (y) two (2) duly
completed copies of IRS Form W-8BEN or applicable successor form. Each
such Lender further agrees to deliver to the Company and the
Administrative Agent from time to time a true and accurate certificate
executed in duplicate by a duly authorized officer of such Lender in a
form satisfactory to the Company and the Administrative Agent, before
or promptly upon the occurrence of any event requiring a change in the
most recent certificate previously delivered by it to the Company and
the Administrative Agent pursuant to this Section 2.15(E)(vi).
Further, each Lender which delivers a form or certificate pursuant to
this clause (vi) covenants and agrees to deliver to the Company and
the Administrative Agent within fifteen (15) days prior to the
expiration of such form, for so long as this Agreement is still in
effect, another such certificate and/or two (2) accurate and complete
original newly-signed copies of the applicable form (or any successor
form or forms required under the Code or the applicable regulations
promulgated thereunder).
Each Lender shall promptly furnish to the Company and the
Administrative Agent such additional documents as may be reasonably
required by any Borrower or the Administrative Agent to establish any
exemption from or reduction of any Taxes or Other Taxes required to be
deducted or withheld and which may be obtained without undue expense
to such Lender. Notwithstanding any other provision of this Section
2.15(E), no Borrower shall be obligated to gross up any payments to
any Lender pursuant to Section 2.15(E)(i), or to indemnify any Lender
pursuant to Section 2.15(E)(iii), in respect of United States federal
withholding taxes to the extent imposed as a result of (x) the failure
-54-
61
of such Lender to deliver to the Company the form or forms and/or an
Exemption Certificate, as applicable to such Lender, pursuant to
Section 2.15(E)(vi), (y) such form or forms and/or Exemption
Certificate not establishing a complete exemption from U.S. federal
withholding tax or the information or certifications made therein by
the Lender being untrue or inaccurate on the date delivered in any
material respect, or (z) the Lender designating a successor Lending
Installation at which it maintains its Loans which has the effect of
causing such Lender to become obligated for tax payments in excess of
those in effect immediately prior to such designation; provided,
however, that the applicable Borrower shall be obligated to gross up
any payments to any such Lender pursuant to Section 2.15(E)(i), and to
indemnify any such Lender pursuant to Section 2.15(E)(iii), in respect
of United States federal withholding taxes if (x) any such failure to
deliver a form or forms or an Exemption Certificate or the failure of
such form or forms or exemption certificate to establish a complete
exemption from U.S. federal withholding tax or inaccuracy or untruth
contained therein resulted from a change in any applicable statute,
treaty, regulation or other applicable law or any interpretation of
any of the foregoing occurring after the date hereof, which change
rendered such Lender no longer legally entitled to deliver such form
or forms or Exemption Certificate or otherwise ineligible for a
complete exemption from U.S. federal withholding tax, or rendered the
information or the certifications made in such form or forms or
Exemption Certificate untrue or inaccurate in any material respect,
(y) the redesignation of the Lender's Lending Installation was made at
the request of the Company or (z) the obligation to gross up payments
to any such Lender pursuant to Section 2.15(E)(i), or to indemnify any
such Lender pursuant to Section 2.15(E)(iii), is with respect to a
Purchaser that becomes a Purchaser as a result of an assignment made
at the request of the Company.
2.16 Notification of Advances, Interest Rates, Prepayments and
Aggregate Revolving Loan Commitment Reductions. Promptly after receipt thereof,
the Administrative Agent will notify each Lender of the contents of each
Aggregate Revolving Loan Commitment reduction notice,
Borrowing/Conversion/Continuation Notice, and repayment notice received by it
hereunder. The Administrative Agent will notify the applicable Borrower and
each Lender of the interest rate and Agreed Currency applicable to each
Fixed-Rate Loan promptly upon determination of such interest rate and Agreed
Currency and will give each Lender prompt notice of each change in the
Alternate Base Rate.
2.17 Lending Installations. Each Lender may book its Loans or
Letters of Credit at any Lending Installation selected by such Lender and may
change its Lending Installation from time to time. All terms of this Agreement
shall apply to any such Lending Installation. Each Lender may, by written or
facsimile notice to the Administrative Agent and the Company, designate a
Lending Installation through which Loans will be made by it and for whose
account Loan payments and/or payments of L/C Obligations are to be made.
2.18 Non-Receipt of Funds by the Administrative Agent. Unless a
Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the
Administrative Agent of (i) in the case of a Lender, the proceeds of a Loan or
(ii) in the case of any Borrower, a payment of principal, interest or fees to
the Administrative Agent for the account of the Lenders, that it does not
intend to make such payment, the Administrative Agent may assume that such
payment has been made. The
-55-
62
Administrative Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance upon such
assumption. If such Lender or the applicable Borrower, as the case may be, has
not in fact made such payment to the Administrative Agent, the recipient of
such payment shall, on demand by the Administrative Agent, repay to the
Administrative Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Administrative Agent until the date the
Administrative Agent recovers such amount at a rate per annum equal to (i) in
the case of payment by a Lender, the Federal Funds Effective Rate for such day
or (ii) in the case of payment by a Borrower, the interest rate applicable to
the relevant Loan.
2.19 Termination Date. This Agreement shall be effective until the
Facility Termination Date. Notwithstanding the termination of this Agreement,
until (A) all of the Obligations (other than contingent indemnity obligations)
shall have been fully and indefeasibly paid and satisfied, (B) all commitments
of the Lenders to extend credit hereunder have expired or have been terminated
and (C) all of the Letters of Credit shall have expired, been canceled or
terminated (collectively, the "TERMINATION CONDITIONS"), all of the rights and
remedies under this Agreement and the other Loan Documents shall survive.
2.20 Replacement of Certain Lenders. In the event a Lender
("AFFECTED LENDER") shall have: (i) failed to fund its Pro Rata Tranche A
Revolving Share or Pro Rata Tranche B Revolving Share of any Advance requested
by the applicable Borrower, or to make payment in respect of any Alternate
Currency Loan purchased by such Lender pursuant to Section 2.21(E), which such
Lender is obligated to fund under the terms of this Agreement and which failure
has not been cured, (ii) requested compensation from any Borrower under
Sections 2.15(E), 4.1 or 4.2 to recover Taxes, Other Taxes or other additional
costs incurred by such Lender which are not being incurred generally by the
other Lenders except as provided under any applicable Alternate Currency
Addendum, or (iii) delivered a notice pursuant to Section 4.3 claiming that
such Lender is unable to extend Eurocurrency Rate Loans to the Company for
reasons not generally applicable to the other Lenders, then, in any such case,
after the engagement of one or more "Replacement Lenders" (as defined below) by
the Company and/or the Administrative Agent, the Company or the Administrative
Agent may make written demand on such Affected Lender (with a copy to the
Administrative Agent in the case of a demand by the Company and a copy to the
Company in the case of a demand by the Administrative Agent) for the Affected
Lender to assign, and such Affected Lender shall use commercially reasonable
efforts to assign pursuant to one or more duly executed Assignment Agreements
five (5) Business Days after the date of such demand, to one or more financial
institutions that comply with the provisions of Section 14.3(A) which the
Company or the Administrative Agent, as the case may be, shall have engaged for
such purpose ("REPLACEMENT LENDER"), all of such Affected Lender's rights and
obligations under this Agreement and the other Loan Documents (including,
without limitation, its Revolving Loan Commitment, all Loans owing to it, all
of its participation interests in existing Letters of Credit, and its
obligation to participate in additional Letters of Credit and Alternate
Currency Loans hereunder) in accordance with Section 14.3. The Administrative
Agent is authorized to execute one or more of such assignment agreements as
attorney-in-fact for any Affected Lender failing to execute and deliver the
same within five (5) Business Days after the date of such demand. With respect
to such assignment the Affected Lender shall be entitled to receive, in cash,
all amounts due and owing to the Affected Lender hereunder or under any
-56-
63
other Loan Document, including, without limitation, the aggregate outstanding
principal amount of the Loans owed to such Lender, together with accrued
interest thereon through the date of such assignment, amounts payable under
Sections 2.15(E), 4.1, and 4.2 with respect to such Affected Lender and
compensation payable under Section 2.15(C) in the event of any replacement of
any Affected Lender under clause (ii) or clause (iii) of this Section 2.20;
provided that upon such Affected Lender's replacement, such Affected Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15(E), 4.1, 4.2, 4.4, and 11.6, as well as to any fees
accrued for its account hereunder and not yet paid, and shall continue to be
obligated under Section 12.8.
2.21 Alternate Currency Loans.
(A) Upon the satisfaction of the conditions precedent set forth
in Article V hereof and set forth in the applicable Alternate
Currency Addendum, from and including the later of the date
of this Agreement and the date of execution of the applicable
Alternate Currency Addendum and prior to the Termination Date
(or such earlier termination date as shall be specified in or
pursuant to the applicable Alternate Currency Addendum), each
Alternate Currency Bank agrees, on the terms and conditions
set forth in this Agreement and in the applicable Alternate
Currency Addendum, to make Alternate Currency Loans under
such Alternate Currency Addendum to the applicable Borrower
party to such Alternate Currency Addendum from time to time
in the applicable Alternate Currency, in an amount not to
exceed each such Alternate Currency Bank's applicable
Alternate Currency Commitment; provided, further, at no time
shall the Dollar Amount of the Alternate Currency Loans for
any specific Alternate Currency exceed the maximum amount
specified as the maximum amount for such Alternate Currency
in the applicable Alternate Currency Addendum other than as a
result of currency fluctuations and then only to the extent
permitted in Section 2.5(B)(ii) and provided, further that at
no time shall the Dollar Amount of the Tranche B Revolving
Credit Obligations exceed the Aggregate Tranche B Revolving
Loan Commitments. Subject to the terms of this Agreement and
the applicable Alternate Currency Addendum, the applicable
Borrowers may borrow, repay and reborrow Alternate Currency
Loans in the applicable Alternate Currency at any time prior
to the Termination Date (or such earlier termination date as
shall be specified in or pursuant to the applicable Alternate
Currency Addendum). On the Termination Date (or such earlier
termination date as shall be specified in or pursuant to the
applicable Alternate Currency Addendum), the outstanding
principal balance of the Alternate Currency Loans shall be
paid in full by the applicable Borrower and prior to the
Termination Date (or such earlier termination date as shall
be specified in or pursuant to the applicable Alternate
Currency Addendum) prepayments of the Alternate Currency
Loans shall be made by the applicable Borrower if and to the
extent required by Section 2.5(B)(ii). For the avoidance of
doubt, it is understood that no Lender shall have any
obligation hereunder to execute an Alternate Currency
Addendum and so to become an Alternate Currency Bank.
-57-
64
(B) Borrowing Notice. When the applicable Borrower desires to
borrow under this Section 2.21, the applicable Borrower shall
deliver to the applicable Alternate Currency Bank and the
Administrative Agent a Borrowing/Conversion/Continuation
Notice, signed by it, as provided in this Section 2.21, and
the Administrative Agent shall give prompt notice to the
Lenders with a Tranche B Revolving Loan Commitment of any
such request for an Alternate Currency Loan. Any
Borrowing/Conversion/Continuation Notice given pursuant to
this Section 2.21 shall be irrevocable.
(C) Termination. Except as otherwise required by applicable law,
in no event shall any Alternate Currency Bank have the right
to accelerate the Alternate Currency Loans outstanding under
any Alternate Currency Addendum or to terminate its
commitments (if any) thereunder to make Alternate Currency
Loans prior to the stated termination date in respect
thereof, except that each Alternate Currency Bank shall have
such rights upon an acceleration of the Loans and a
termination of the Revolving Credit Commitments pursuant to
Article IX.
(D) Statements. Each Alternate Currency Bank shall furnish to the
Administrative Agent not less frequently than monthly, at the
end of each Fiscal Quarter, and at any other time at the
reasonable request of the Administrative Agent, a statement
setting forth the outstanding Alternate Currency Loans made
and repaid during the period since the last such report under
such Alternate Currency Addendum.
(E) Risk Participation. Immediately and automatically upon the
occurrence of an Event of Default under Sections 8.1(A), (E)
or (F), each Lender with a Tranche B Revolving Loan
Commitment shall be deemed to have unconditionally and
irrevocably purchased from the applicable Alternate Currency
Bank, without recourse or warranty, an undivided interest in
and participation in each Alternate Currency Loan ratably in
an amount equal to such Lender's Pro Rata Tranche B Revolving
Share of the amount of principal and accrued interest of such
Loan, and immediately and automatically all Alternate
Currency Loans shall be converted to and redenominated in
Dollars equal to the Dollar Amount of each such Alternate
Currency Loan determined as of the date of such conversion;
provided, that to the extent such conversion shall occur
other than at the end of an Interest Period, the applicable
Borrower shall pay to the applicable Alternate Currency Bank,
all losses and breakage costs related thereto in accordance
with Section 4.4. Each of the Lenders shall pay to the
applicable Alternate Currency Bank not later than two (2)
Business Days following a request for payment from such
Alternate Currency Bank, in Dollars, an amount equal to the
undivided interest in and participation in the Alternate
Currency Loan purchased by such Lender pursuant to this
Section 2.21(E). In the event that any Lender fails to make
payment to the applicable Alternate Currency Bank of any
amount due under this Section 2.21(E), the Administrative
Agent shall be entitled to receive, retain and apply against
such obligation the principal and interest otherwise payable
to such Lender hereunder until the Administrative Agent
receives from such Lender an amount sufficient to discharge
such Lender's payment obligation
-58-
65
as prescribed in this Section 2.21(E) together with interest
thereon at the Federal Funds Effective Rate for each day
during the period commencing on the date of demand by the
applicable Alternate Currency Bank and ending on the date
such obligation is fully satisfied. The Administrative Agent
will promptly remit all payments received as provided above
to the applicable Alternate Currency Bank. In consideration
of the risk participations prescribed in this Section
2.21(E), each Lender shall receive, from the accrued interest
paid for periods prior to the conversion of any Alternate
Currency Loan as described above by the applicable Borrower
on each Alternate Currency Loan, a fee equal to such Lender's
Pro Rata Tranche B Revolving Share of the Applicable
Eurocurrency Margin component of the interest accrued on such
Loan, as in effect from time to time during the period such
interest accrued. Such portion of the interest paid by the
applicable Borrower on Alternate Currency Loans to the
applicable Alternate Currency Bank shall be paid as promptly
as possible by such Alternate Currency Bank to the
Administrative Agent, and the Administrative Agent shall as
promptly as possible convert such amount into Dollars at the
spot rate of exchange in accordance with its normal banking
practices and apply such resulting amount ratably among the
Lenders (including the Alternate Currency Banks) in
proportion to their Pro Rata Tranche B Revolving Share.
(F) Other Provisions Applicable to Alternate Currency Loans. The
specification of payment of Alternate Currency Loans in the
related Alternate Currency at a specific place pursuant to
this Agreement is of the essence. Such Alternate Currency
shall be the currency of account and payment of such Loans
under this Agreement and the applicable Alternate Currency
Addendum. Notwithstanding anything in this Agreement, the
obligation of the applicable Borrower in respect of such
Loans shall not be discharged by an amount paid in any other
currency or at another place, whether pursuant to a judgment
or otherwise, to the extent the amount so paid, on prompt
conversion into the applicable Alternate Currency and
transfer to such Lender under normal banking procedure, does
not yield the amount of such Alternate Currency due under
this Agreement or the applicable Alternate Currency Addendum.
In the event that any payment, whether pursuant to a judgment
or otherwise, upon conversion and transfer, does not result
in payment of the amount of such Alternate Currency due under
this Agreement or the applicable Alternate Currency Addendum,
such Lender shall have an independent cause of action against
each of the Borrowers for the currency deficit.
2.22 Judgment Currency. If, for the purposes of obtaining judgment
in any court, it is necessary to convert a sum due from any Borrower hereunder
in the currency expressed to be payable herein (the "SPECIFIED CURRENCY") into
another 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 Administrative Agent could
purchase the specified currency with such other currency at the Administrative
Agent's office in New York, New York on the Business Day preceding that on
which the final, non-appealable judgment is given. The obligations of each
Borrower in respect of any sum due to any Lender or the Administrative Agent
hereunder shall, notwithstanding any judgment in a currency other than the
specified currency, be discharged only to the extent that on the Business Day
following receipt
-59-
66
by such Lender or the Administrative Agent (as the case may be) of any sum
adjudged to be so due in such other currency such Lender or the Administrative
Agent (as the case may be) may in accordance with normal, reasonable banking
procedures purchase the specified currency with such other currency. If the
amount of the specified currency so purchased is less than the sum originally
due to such Lender or the Administrative Agent, as the case may be, in the
specified currency, each Borrower agrees, to the fullest extent that it may
effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender or the Administrative Agent, as the case may
be, against such loss, and if the amount of the specified currency so purchased
exceeds (a) the sum originally due to any Lender or the Administrative Agent,
as the case may be, in the specified currency and (b) any amounts shared with
other Lenders as a result of allocations of such excess as a disproportionate
payment to such Lender under Section 13.2, such Lender or the Administrative
Agent, as the case may be, agrees to remit such excess to such Borrower.
2.23 Market Disruption; Denomination of Amounts in Dollars; Dollar
Equivalent of Reimbursement Obligations.
(A) Notwithstanding the satisfaction of all conditions referred
to in this Article II with respect to any Advance in any
Agreed Currency other than Dollars or an Alternate Currency,
as applicable, if there shall occur on or prior to the date
of such Advance any change in national or international
financial, political or economic conditions or currency
exchange rates or exchange controls which would in the
reasonable opinion of the Company, any Subsidiary Borrower,
any Alternate Currency Bank, the Administrative Agent or the
Required Lenders make it impracticable for the Eurocurrency
Rate Loans or Alternate Currency Loans comprising such
Advance to be denominated in the Agreed Currency or Alternate
Currency, as applicable, specified by the applicable
Borrower, then the Administrative Agent shall forthwith give
notice thereof to such Borrower, the applicable Alternate
Currency Bank and the Lenders, or the applicable Borrower
shall give notice to the Administrative Agent, the applicable
Alternate Currency Bank and the Lenders, as the case may be,
and such Eurocurrency Rate Loans or Alternate Currency Loans
shall not be denominated in such currency but shall be made
on such Borrowing Date in Dollars, in an aggregate principal
amount equal to the Dollar Amount of the aggregate principal
amount specified in the related Borrowing Notice, as Floating
Rate Loans, unless the applicable Borrower notifies the
Administrative Agent at least one (1) Business Day before
such date that (i) it elects not to borrow on such date or
(ii) it elects to borrow on a date at least three (3)
Business Days thereafter in a different Agreed Currency or
Alternate Currency, as the case may be, in which the
denomination of such Loans would in the opinion of the
Administrative Agent, any Alternate Currency Bank, if
applicable, and the Required Lenders be practicable and in an
aggregate principal amount equal to the Dollar Amount of the
aggregate principal amount specified in the related Borrowing
Notice.
(B) Except as set forth in Sections 2.1, 2.5 and 2.21, all
amounts referenced in this Article II shall be calculated
using the Dollar Amount determined based upon the Equivalent
Amount in effect as of the date of any determination thereof;
provided,
-60-
67
however, to the extent that any Borrower shall be obligated
hereunder to pay in Dollars any Advance denominated in a
currency other than Dollars, such amount shall be paid in
Dollars using the Dollar Amount of the Advance (calculated
based upon the Equivalent Amount in effect on the date of
payment thereof) and in the event that the applicable
Borrower does not reimburse the Administrative Agent and the
Lenders are required to fund a purchase of a participation in
such Advance, such purchase shall be made in Dollars in an
amount equal to the Dollar Amount of such Advance (calculated
based upon the Equivalent Amount in effect on the date of
payment thereof). Notwithstanding anything herein to the
contrary, the full risk of currency fluctuations shall be
borne by the Borrowers and the Borrowers agree to indemnify
and hold harmless each Issuing Bank, the Alternate Currency
Banks, the Administrative Agent and the Lenders from and
against any loss resulting from any borrowing denominated in
a currency other than in Dollars and for which the Lenders
are not reimbursed on the day of such borrowing.
2.24 Subsidiary Borrowers. The Company may at any time or from
time to time, with the consent of the Administrative Agent add as a party to
this Agreement any Wholly-Owned Subsidiary to be a "Subsidiary Borrower"
hereunder by the execution and delivery to the Administrative Agent and the
Lenders of (a) a duly completed Assumption Letter by such Subsidiary, with the
written consent of the Company at the foot thereof and (b) such other guaranty
and subordinated intercompany indebtedness documents as may be reasonably
required by the Administrative Agent, such documents with respect to any
additional Subsidiaries to be substantially similar in form and substance to
the Loan Documents executed on or about the date of the Existing Agreement by
the Subsidiaries parties hereto as of the Closing Date. Upon such execution,
delivery and consent such Subsidiary shall for all purposes be a party hereto
as a Subsidiary Borrower as fully as if it had executed and delivered this
Agreement. So long as the principal of and interest on any Advances made to any
Subsidiary Borrower under this Agreement shall have been repaid or paid in
full, all Letters of Credit issued for the account of such Subsidiary Borrower
have expired or been returned and terminated and all other obligations of such
Subsidiary Borrower under this Agreement shall have been fully performed, the
Company may, by not less than five (5) Business Days' prior notice to the
Administrative Agent (which shall promptly notify the Lenders thereof),
terminate such Subsidiary Borrower's status as a "Subsidiary Borrower".
Notwithstanding anything contained in this Section 2.24, the Company may not
add as a Subsidiary Borrower any Subsidiary that is organized by the Company to
serve as a so-called "bankruptcy remote subsidiary" in connection with a
securitization of Receivables.
ARTICLE III: THE LETTER OF CREDIT FACILITY
3.1 Obligation to Issue Letters of Credit. Subject to the terms
and conditions of this Agreement and in reliance upon the representations,
warranties and covenants of the Company herein set forth, each Issuing Bank
hereby agrees to issue for the account of the Company or any Subsidiary
Borrower through such Issuing Bank's branches as it and the Company may jointly
agree, one or more Letters of Credit denominated in Dollars, in an Agreed
Currency or in any other Eligible Currency agreed to by the Company and the
applicable Issuing Bank in accordance with this Article III, from time to time
during the period, commencing on the Closing Date and ending on the Business
Day prior to the Termination Date.
-61-
68
3.2 Transitional Provision. Schedule 3.2 contains a schedule of
certain letters of credit issued by ABN for the account of the Company (or in
certain cases, ▇▇▇▇▇▇) and its Subsidiaries prior to the Closing Date. From and
after the Closing Date, such letters of credit shall be deemed to be Letters of
Credit issued pursuant to this Article III. All Letters of Credit issued prior
to the Effective Date pursuant to Article III of the Existing Agreement shall be
deemed to be Letters of Credit issued pursuant to this Article III.
3.3 Types and Amounts. No Issuing Bank shall have any obligation
to and no Issuing Bank shall:
(A) issue (or amend) any Letter of Credit if on the date
of issuance (or amendment), before or after giving effect to the Letter
of Credit requested hereunder, (i) the Dollar Amount of the Tranche A
Revolving Credit Obligations at such time would exceed the Aggregate
Revolving Tranche A Loan Commitment at such time, or (ii) the aggregate
outstanding Dollar Amount of the L/C Obligations would exceed
$80,000,000; or
(B) issue (or amend) any Letter of Credit which has an
expiration date later than the date which is the earlier of one (1)
year after the date of issuance thereof or the Termination Date;
provided, that any Letter of Credit with a one-year tenor may provide
for the renewal thereof for additional one-year periods (not to extend
beyond the Termination Date) with the consent of the applicable Issuing
Bank.
3.4 Conditions. In addition to being subject to the satisfaction
of the conditions contained in Sections 5.1, 5.2 and 5.3, the obligation of an
Issuing Bank to issue any Letter of Credit is subject to the satisfaction in
full of the following conditions:
(A) the Company shall have delivered to the applicable
Issuing Bank (at such times and in such manner as such Issuing Bank may
reasonably prescribe) and the Administrative Agent, a request for
issuance of such Letter of Credit in substantially the form of Exhibit
C hereto (each such request a "REQUEST FOR LETTER OF CREDIT"), duly
executed applications for such Letter of Credit, and such other
documents, instructions and agreements as may be required pursuant to
the terms thereof (all such applications, documents, instructions, and
agreements being referred to herein as the "L/C DOCUMENTS"), and the
proposed Letter of Credit shall be reasonably satisfactory to such
Issuing Bank as to form and content; and
(B) as of the date of issuance no order, judgment or
decree of any court, arbitrator or Governmental Authority shall purport
by its terms to enjoin or restrain the applicable Issuing Bank from
issuing such Letter of Credit and no law, rule or regulation applicable
to such Issuing Bank and no request or directive (whether or not having
the force of law) from a Governmental Authority with jurisdiction over
such Issuing Bank shall prohibit or request that such Issuing Bank
refrain from the issuance of Letters of Credit generally or the
issuance of that Letter of Credit.
3.5 Procedure for Issuance of Letters of Credit. (A) Subject to
the terms and conditions of this Article III and provided that the applicable
conditions set forth in Sections 5.1,
-62-
69
5.2 and 5.3 hereof have been satisfied, the applicable Issuing Bank shall, on
the requested date, issue a Letter of Credit on behalf of the Company or a
Subsidiary Borrower, as applicable in accordance with such Issuing Bank's usual
and customary business practices and, in this connection, such Issuing Bank may
assume that the applicable conditions set forth in Section 5.3 hereof have been
satisfied unless it shall have received notice to the contrary from the
Administrative Agent or a Lender or has knowledge that the applicable conditions
have not been met.
(B) Promptly, and in any event not more than one (1) Business Day
following the date of issuance of any Letter of Credit, the applicable Issuing
Bank shall give the Administrative Agent written or telex notice, or telephonic
notice confirmed promptly thereafter in writing, of the issuance of a Letter of
Credit (provided, however, that the failure to provide such notice shall not
result in any liability on the part of such Issuing Bank), and the
Administrative Agent shall promptly give notice to the Lenders of each such
issuance.
(C) No Issuing Bank shall extend or amend any Letter of Credit
unless the requirements of this Section 3.5 are met as though a new Letter of
Credit was being requested and issued.
3.6 Letter of Credit Participation. On the date of this Agreement,
with respect to the Letters of Credit identified on Schedule 3.2, and
immediately upon the issuance of each Letter of Credit hereunder, each Lender
shall be deemed to have automatically, irrevocably and unconditionally purchased
and received from the applicable Issuing Bank an undivided interest and
participation in and to such Letter of Credit, the obligations of the Company in
respect thereof, and the liability of such Issuing Bank thereunder
(collectively, an "L/C INTEREST") in an amount equal to the Dollar Amount
available for drawing under such Letter of Credit multiplied by such Lender's
Pro Rata Tranche A Revolving Share.
3.7 Reimbursement Obligation. (a) The Company agrees
unconditionally, irrevocably and absolutely to pay immediately to the
Administrative Agent, for the account of the Lenders, the amount of each advance
drawn under or pursuant to a Letter of Credit or an L/C Draft related thereto
(such obligation of the Company to reimburse the Administrative Agent for an
advance made under a Letter of Credit or L/C Draft being hereinafter referred to
as a "REIMBURSEMENT OBLIGATION" with respect to such Letter of Credit or L/C
Draft), each such reimbursement to be made by the Company no later than the
Business Day on which the applicable Issuing Bank makes payment of each such L/C
Draft or, if the Company shall have received notice of a Reimbursement
Obligation later than 1:00 p.m. (New York time), on any Business Day or on a day
which is not a Business Day, no later than 1:00 p.m. (New York time), on the
immediately following Business Day or, in the case of any other draw on a Letter
of Credit, the date specified in the demand of such Issuing Bank. If the Company
at any time fails to repay a Reimbursement Obligation pursuant to this Section
3.7, the Issuing Bank shall promptly notify the Administrative Agent and the
Administrative Agent shall promptly notify each Lender and the Company shall be
deemed to have requested to borrow Tranche A Revolving Loans from the Lenders,
as of the date of the advance giving rise to the Reimbursement Obligation, equal
in amount to the Dollar Amount of the unpaid Reimbursement Obligation. Such
Tranche A Revolving Loans shall be made as of the date of the payment giving
rise to such Reimbursement Obligation, automatically, without notice and without
any
-63-
70
requirement to satisfy the conditions precedent otherwise applicable to an
Advance of Tranche A Revolving Loans.
(b) Each Lender with a Tranche A Revolving Loan Commitment shall
upon any notice pursuant to Section 3.7(a) make available to the Administrative
Agent for the account of the relevant Issuing Bank an amount in Dollars and in
immediately available funds equal to its Pro Rata Tranche A Revolving Share of
the Dollar Equivalent of the amount of the drawing, whereupon such Lenders shall
(subject to Section 3.7(d)) each be deemed to have made a Revolving Loan
constituting a Floating Rate Advance, the proceeds of which Advance shall be
used to repay such Reimbursement Obligation. If any Lender so notified fails to
make available to the Administrative Agent for the account of the Issuing Bank
the amount of such Lender's Pro Rata Revolving Share of the Dollar Equivalent of
the amount of the drawing by no later than 3:00 p.m. (New York time) on the date
of the advance giving rise to the Reimbursement Obligation, then interest shall
accrue on such Lender's obligation to make such payment, from such date to the
date such Lender makes such payment, at a rate per annum equal to the Federal
Funds Effective Rate in effect from time to time during such period. The
Administrative Agent will promptly give notice of the occurrence of the draw,
but failure of the Administrative Agent to give any such notice in sufficient
time to enable any Lender to effect such payment on such date shall not relieve
such Lender from its obligations under this Section 3.7.
(c) Each Lender's obligation in accordance with this Agreement to
make the Tranche A Revolving Loans, as contemplated by this Section 3.7, as a
result of a drawing under a Letter of Credit, shall be absolute and
unconditional and without recourse to the Issuing Banks and shall not be
affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Revolving Lender may have against
an Issuing Bank, the Company 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.
(d) If, for any reason, the Company fails to repay a Reimbursement
Obligation on the day such Reimbursement Obligation arises and, for any reason,
the Lenders are unable to make or have no obligation to make Revolving Loans,
then such Reimbursement Obligation shall bear interest from and after such day,
until paid in full, at the interest rate applicable to a Floating Rate Advance.
3.8 Letter of Credit Fees. The Company agrees to pay:
(A) quarterly, in arrears, to the Administrative Agent
for the ratable benefit of the Lenders with a Tranche A Revolving Loan
Commitment a letter of credit fee at a rate per annum equal to the
Applicable L/C Fee Percentage on the average daily outstanding Dollar
Amount available for drawing under all Letters of Credit;
(B) quarterly, in arrears, to the applicable Issuing
Bank, a letter of credit fronting fee in an amount agreed to between
the Company and the applicable Issuing Bank on the average daily
outstanding face amount available for drawing under all Letters of
Credit issued by such Issuing Bank; and
-64-
71
(C) to the applicable Issuing Bank, all customary fees
and other issuance, amendment, document examination, negotiation and
presentment expenses and related charges in connection with the
issuance, amendment, presentation of L/C Drafts, and the like
customarily charged by such Issuing Banks with respect to standby and
commercial Letters of Credit, including, without limitation, standard
commissions with respect to commercial Letters of Credit, payable at
the time of invoice of such amounts.
3.9 Issuing Bank Reporting Requirements. In addition to the
notices required by Section 3.5(B), each Issuing Bank shall, no later than the
tenth (10th) Business Day following the last day of each month, provide to the
Administrative Agent, upon the Administrative Agent's request, schedules, in
form and substance reasonably satisfactory to the Administrative Agent, showing
the date of issue, account party, Agreed Currency and amount in such Agreed
Currency, expiration date and the reference number of each Letter of Credit
issued by it outstanding at any time during such month and the aggregate amount
paid by the Company during such month. In addition, upon the request of the
Administrative Agent, each Issuing Bank shall furnish to the Administrative
Agent copies of any Letter of Credit and any application for or reimbursement
agreement with respect to a Letter of Credit to which the Issuing Bank is party
and such other documentation as may reasonably be requested by the
Administrative Agent. Upon the request of any Lender, the Administrative Agent
will provide to such Lender information concerning such Letters of Credit.
3.10 Indemnification; Exoneration. (A) In addition to amounts
payable as elsewhere provided in this Article III, the Company hereby agrees to
protect, indemnify, pay and save harmless the Administrative Agent, each Issuing
Bank and each Lender from and against any and all liabilities and costs which
the Administrative Agent, such Issuing Bank or such Lender may incur or be
subject to as a consequence, direct or indirect, of (i) the issuance of any
Letter of Credit other than, in the case of the applicable Issuing Bank, as a
result of its gross negligence or willful misconduct, as determined by the final
judgment of a court of competent jurisdiction, or (ii) the failure of the
applicable Issuing Bank to honor a drawing under a Letter of Credit as a result
of any act or omission, whether rightful or wrongful, of any present or future
de jure or de facto Governmental Authority (all such acts or omissions herein
called "GOVERNMENTAL ACTS").
(B) As among the Company, the Lenders, the Administrative Agent
and the Issuing Banks, the Company assumes all risks of the acts and omissions
of, or misuse of such Letter of Credit by, the beneficiary of any Letters of
Credit. In furtherance and not in limitation of the foregoing, subject to the
provisions of the Letter of Credit applications and Letter of Credit
reimbursement agreements executed by the Company at the time of request for any
Letter of Credit, neither the Administrative Agent, any Issuing Bank nor any
Lender shall be responsible (in the absence of gross negligence or willful
misconduct of such party in connection therewith, as determined by the final
judgment of a court of competent jurisdiction): (i) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document submitted by
any party in connection with the application for and issuance of the Letters of
Credit, even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) for the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; (iii) for failure of the beneficiary of a Letter of
Credit to comply duly with conditions not expressly
-65-
72
provided on the face of such Letter of Credit and required in order to draw upon
such Letter of Credit; (iv) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex, or
other similar form of teletransmission or otherwise; (v) for errors in
interpretation of technical trade terms; (vi) for any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit or of the proceeds thereof; (vii) for the
misapplication by the beneficiary of a Letter of Credit of the proceeds of any
drawing under such Letter of Credit; and (viii) for any consequences arising
from causes beyond the control of the Administrative Agent, the Issuing Banks
and the Lenders, including, without limitation, any Governmental Acts. None of
the above shall affect, impair, or prevent the vesting of any Issuing Bank's
rights or powers under this Section 3.10.
(C) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by any
Issuing Bank under or in connection with the Letters of Credit or any related
certificates shall not, in the absence of gross negligence or willful
misconduct, as determined by the final judgment of a court of competent
jurisdiction, put the applicable Issuing Bank, the Administrative Agent or any
Lender under any resulting liability to the Company or relieve the Company of
any of its obligations hereunder to any such Person.
(D) Without prejudice to the survival of any other agreement of
the Company hereunder, the agreements and obligations of the Company contained
in this Section 3.10 shall survive the payment in full of principal and interest
hereunder, the termination of the Letters of Credit and the termination of this
Agreement.
3.11 Cash Collateral. Notwithstanding anything to the contrary
herein or in any application for a Letter of Credit, after the occurrence and
during the continuance of a Default, the Company shall, on the Business Day that
it receives the Administrative Agent's demand, deliver to the Administrative
Agent for the benefit of the Lenders and the Issuing Banks, cash, or other
collateral of a type satisfactory to the Required Lenders, having a value, as
determined by such Lenders, equal to one hundred percent (100%) of the aggregate
Dollar Amount of the outstanding L/C Obligations. In addition, if the Tranche A
Revolving Credit Availability is at any time less than the Dollar Amount of all
contingent L/C Obligations outstanding at any time, the Company shall deposit
cash collateral with the Administrative Agent in Dollars in an amount equal to
one-hundred five percent (105%) of the Dollar Amount by which such L/C
Obligations exceed such Tranche A Revolving Credit Availability. Any such
collateral shall be held by the Administrative Agent in a separate account
appropriately designated as a cash collateral account in relation to this
Agreement and the Letters of Credit and retained by the Administrative Agent for
the benefit of the Lenders and the Issuing Banks as collateral security for the
Company's obligations in respect of this Agreement and each of the Letters of
Credit and L/C Drafts. Such amounts shall be applied to reimburse the Issuing
Banks for drawings or payments under or pursuant to Letters of Credit or L/C
Drafts, or if no such reimbursement is required, to payment of such of the other
Obligations as the Administrative Agent shall determine. If no Default shall be
continuing, amounts remaining in any cash collateral account established
pursuant to this Section 3.11 which are not to be applied to reimburse an
Issuing Bank for amounts actually paid or to be paid by such Issuing Bank in
respect of a Letter of
-66-
73
Credit or L/C Draft, shall be returned to the Company within one (1) Business
Day (after deduction of the Administrative Agent's expenses incurred in
connection with such cash collateral account).
ARTICLE IV: CHANGE IN CIRCUMSTANCES
4.1 Yield Protection. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law) adopted after the date of this Agreement or any
interpretation or application thereof by any Governmental Authority charged with
the interpretation or application thereof, or the compliance of any Lender
therewith,
(A) subjects any Lender or any applicable Lending Installation to
any tax, duty, charge or withholding on or from payments due
from any Borrower (excluding taxation of the overall net
income of any Lender or taxation of a similar basis, which are
governed by Section 2.15(E)), or changes the basis of taxation
of payments to any Lender in respect of its Revolving Loan
Commitment, Loans, its L/C Interests, the Letters of Credit or
other amounts due it hereunder, or
(B) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest
rate applicable to Eurocurrency Rate Loans) with respect to
its Revolving Loan Commitment, Loans, L/C Interests or the
Letters of Credit, or
(C) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation
of making, funding or maintaining its Revolving Loan
Commitment, Loans, the L/C Interests or the Letters of Credit
or reduces any amount received by any Lender or any applicable
Lending Installation in connection with its Revolving Loan
Commitment, Loans or Letters of Credit, or requires any Lender
or any applicable Lending Installation to make any payment
calculated by reference to the amount of Revolving Loan
Commitment, Loans or L/C Interests held or interest received
by it or by reference to the Letters of Credit, by an amount
deemed material by such Lender;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining its Revolving Loan Commitment, Loans, L/C
Interests, or Letters of Credit or to reduce any amount received under this
Agreement, then, within fifteen (15) days after receipt by the Company or any
other Borrower of written demand by such Lender pursuant to Section 4.5, the
applicable Borrowers shall pay such Lender that portion of such increased
expense incurred or reduction in an amount received which such Lender determines
is attributable to making, funding and maintaining its Loans, L/C Interests,
Letters of Credit and its Revolving Loan Commitment.
4.2 Changes in Capital Adequacy Regulations. If a Lender
determines (i) the amount of capital required or expected to be maintained by
such Lender, any Lending Installation of such
-67-
74
Lender or any corporation controlling such Lender is increased as a result of a
"Change" (as defined below), and (ii) such increase in capital will result in an
increase in the cost to such Lender of maintaining its Revolving Loan
Commitment, Loans, L/C Interests, the Letters of Credit or its obligation to
make Loans hereunder, then, within fifteen (15) days after receipt by the
Company or any other Borrower of written demand by such Lender pursuant to
Section 4.5, the applicable Borrowers shall pay such Lender the amount necessary
to compensate for any shortfall in the rate of return on the portion of such
increased capital which such Lender reasonably determines is attributable to
this Agreement, its Revolving Loan Commitment, its Loans, its L/C Interests, the
Letters of Credit or its obligation to make Loans hereunder (after taking into
account such Lender's policies as to capital adequacy). "CHANGE" means (i) any
change after the date of this Agreement in the "Risk-Based Capital Guidelines"
(as defined below) excluding, for the avoidance of doubt, the effect of any
phasing in of such Risk-Based Capital Guidelines or any other capital
requirements passed prior to the date hereof, or (ii) any adoption of or change
in any other law, governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the force of law)
after the date of this Agreement which affects the amount of capital required or
expected to be maintained by any Lender or any Lending Installation or any
corporation controlling any Lender. "RISK-BASED CAPITAL GUIDELINES" means (i)
the risk-based capital guidelines in effect in the United States on the date of
this Agreement, including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled "International Convergence of Capital
Measurements and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
4.3 Availability of Types of Advances. If (i) any Lender
determines that maintenance of its Eurocurrency Rate Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation or directive,
whether or not having the force of law, or (ii) the Required Lenders determine
that (x) deposits of a type, currency or maturity appropriate to match fund
Fixed-Rate Advances are not available or (y) the interest rate applicable to a
Fixed-Rate Advance does not accurately reflect the cost of making or maintaining
such an Advance, then the Administrative Agent shall suspend the availability of
the affected Type of Advance and, in the case of any occurrence set forth in
clause (i), require any Advances of the affected Type to be repaid or converted
into another Type.
4.4 Funding Indemnification. If any payment of a Fixed-Rate
Advance occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment, or otherwise, or a
Fixed-Rate Advance is not made on the date specified by the applicable Borrower
for any reason other than default by the Lenders, the Borrowers shall indemnify
each Lender for any loss or cost incurred by it resulting therefrom, including,
without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain the Fixed-Rate Advance or Swing Line Loan, as
applicable.
4.5 Lender Statements; Survival of Indemnity. If reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Fixed-Rate Loans to reduce any liability of any Borrower to such
Lender under Sections 4.1 and 4.2 or to avoid the unavailability of a Type of
Advance under Section 4.3, so long as such designation is not, in such
-68-
75
Lender's judgment, disadvantageous to such Lender. Any demand for compensation
pursuant to this Article IV shall be in writing and shall state the amount due,
if any, under Section 4.1, 4.2 or 4.4 and shall set forth in reasonable detail
the calculations upon which such Lender determined such amount. Such written
demand shall be rebuttably presumed correct for all purposes. Determination of
amounts payable under such Sections in connection with a Fixed-Rate Loan shall
be calculated as though each Lender funded its Fixed-Rate Loan through the
purchase of a deposit of the type, currency and maturity corresponding to the
deposit used as a reference in determining the Fixed-Rate applicable to such
Loan, whether in fact that is the case or not. The obligations of the Company
and the other Borrowers under Sections 4.1, 4.2 and 4.4 shall survive payment of
the Obligations and termination of this Agreement.
ARTICLE V: CONDITIONS PRECEDENT
5.1 Initial Advances and Letters of Credit. The Lenders shall not
be required to make the initial Loans or issue any Letters of Credit unless (i)
such initial Loans are made not later than November 15, 1999; and (ii) the
Company has furnished to the Administrative Agent each of the following, with
sufficient copies for the Lenders, and the other conditions set forth below have
been satisfied (and the Lenders hereby acknowledge that such conditions have
been satisfied):
(A) Copies of the Spin-off Materials and such other information
with respect to the Spin-off as the Lead Arrangers may
reasonably request, which shall be in form and substance
satisfactory to the Administrative Agent, and evidence
satisfactory to the Administrative Agent that all conditions
precedent thereunder or otherwise to the consummation of the
Spin-off (other than payment of the Dividend) shall have been
satisfied (and not waived).
(B) Arrangements satisfactory to the Administrative Agent shall
have been made for the consummation of the Spin-off promptly
following the initial Loans.
(C) Copies of the Certificate of Incorporation or equivalent
document of each of the Loan Parties, together with all
amendments thereto and, to the extent applicable, a
certificate of good standing, all certified by the appropriate
governmental officer in its jurisdiction of incorporation (or,
in the case of ▇▇▇▇▇▇ Europe AG, as may otherwise be
satisfactory to the Administrative Agent).
(D) Copies, certified by the Secretary or Assistant Secretary of
each of the Loan Parties of their respective By-Laws and of
their respective Board of Directors' resolutions (and
resolutions of other bodies, if any are deemed necessary by
counsel for any Lender) authorizing the execution of the Loan
Documents.
(E) An incumbency certificate, executed by the Secretary or
Assistant Secretary of each of the Loan Parties, which shall
identify by name and title and bear the signature of the
officers of the applicable Loan Party authorized to sign the
Loan Documents and to make borrowings hereunder, upon which
certificate the Lenders shall be entitled to rely until
informed of any change in writing by the applicable Loan
Party.
(F) A certificate, in form and substance satisfactory to the
Administrative Agent, signed by the chief financial officer of
the Company, stating that on the date of
-69-
76
the Existing Agreement (which was the initial Borrowing Date)
all the representations and warranties of the Loan Parties in
the Loan Documents are true and correct (unless such
representation and warranty is made as of a specific date, in
which case, such representation and warranty shall be true in
all material respects as of such date) and no Default or
Unmatured Default has occurred and is continuing.
(G) The written opinions of the Loan Parties' US counsel, and, if
applicable, foreign counsel, addressed to the Agents and the
Lenders, in form and substance satisfactory to the
Administrative Agent.
(H) Evidence reasonably satisfactory to the Administrative Agent
that the Company and each of its Subsidiaries (a) has made a
reasonable assessment of the Year 2000 Issues; (b) has a
program for remediating the Year 2000 Issues, including a
timetable and budget of anticipated costs; and (c) has a
source of funds as required in such budget.
(I) The capital structure and corporate structure of the Company
and its Subsidiaries is consistent in all material respects
with the Spin-off Materials, and there exists no injunction or
temporary restraining order which, in the reasonable judgment
of the Administrative Agent, could prohibit or impose material
restrictions on the Spin-off or prohibit the making of the
Loans and the other transactions contemplated by the Loan
Documents or any litigation seeking such an injunction or
restraining order.
(J) A written solvency certificate from the chief financial
officer of the Borrower in form and substance satisfactory to
the Administrative Agent, dated the initial Borrowing Date,
with respect to the value, Solvency and other factual
information of or relating to, as the case may be, the
Borrower and its Subsidiaries on a consolidated basis, after
giving effect to the Dividend, the Spin-off, and the
incurrence of Indebtedness related thereto (including the
initial extensions of credit hereunder).
(K) The Administrative Agent shall have received (i) pro forma
opening financial statements giving effect to the Spin-off
which must not be materially less favorable, in the
Administrative Agent's reasonable judgment, than the
projections previously provided to the Lead Arrangers and
which must demonstrate, in the reasonable judgment of the
Administrative Agent, together with all other information then
available to the Administrative Agent, that the Company and
its Subsidiaries can repay their debts and satisfy their
respective other obligations as and when due, and can comply
with the financial covenants set forth herein, (ii) a
certificate from an Authorized Officer demonstrating to the
satisfaction of the Administrative Agent that as of October 1,
1999, but giving pro forma effect to the Spin-off, the Company
would have been in compliance with the financial covenants in
Section 7.4 at the level prescribed for the fiscal -----------
quarter ending December 31, 1999 and (iii) such information as
the Administrative Agent may reasonably request to confirm the
tax, legal and business assumptions made in such pro forma
financial statements.
-70-
77
(L) The Administrative Agent shall have received a satisfactory
business plan for the Company for the five fiscal years
following the Closing Date, including a projected consolidated
balance sheet, consolidated statements of income, retained
earnings and cash flow with assumptions used in preparing the
statements.
(M) All governmental, shareholder and third party consents and
approvals necessary in connection with this Agreement, the
Spin-off and the other transactions contemplated hereby shall
have been obtained; all such consents and approvals shall be
in full force and effect; and all applicable waiting periods
shall have expired without any action being taken by any
Governmental Authority that could restrain, prevent or impose
any material adverse conditions on the Spin-off or such other
transactions or that could seek or threaten any of the
foregoing, and no law or regulation shall be applicable which
in the judgment of any of the Agents could have such effect.
(N) There shall not have occurred a material adverse change since
June 30, 1999 in the business, assets, liabilities (actual or
contingent), operations, condition (financial or otherwise) or
prospects of the Company and its Subsidiaries taken as a
whole.
(O) The Agents, Lenders and/or their Affiliates shall have
received all fees and expenses, including fees and expenses of
Winston & ▇▇▇▇▇▇, required to be paid on or before the Closing
Date (including, without limitation, the commitment fees
provided for in Section 2.15(C) of this Agreement, which fees,
with respect to the period prior to the effectiveness of
Amendment No. 1 to this Agreement, shall be solely for the
account of the Lenders signatory to the Agreement as of
October 20, 1999).
(P) The Administrative Agent shall have received evidence
satisfactory to it that all outstanding Indebtedness of the
Company and its Subsidiaries except for Permitted Existing
Indebtedness has been paid in full and all Liens securing such
Indebtedness shall have been terminated.
(Q) Such other documents as the Administrative Agent or any Lender
or its counsel may have reasonably requested.
5.2 Initial Advance to Each New Subsidiary Borrower. No Lender
shall be required to make an Advance hereunder or purchase participations in
Letters of Credit, Swing Line Loan or Alternate Currency Loans hereunder, no
Issuing Lender shall be required to issue a Letter of Credit hereunder, no Swing
Line Bank shall be required to make any Swing Line Loans hereunder, and no
Alternate Currency Bank shall be required to make any Alternate Currency Loans,
in each case, to a new Subsidiary Borrower added after the Closing Date unless
the Company has furnished or caused to be furnished to the Administrative Agent
with sufficient copies for the Lenders:
(A) The Assumption Letter executed and delivered by such
Subsidiary Borrower and containing the written consent of the
Company thereon, as contemplated by Section 2.24.
-71-
78
(B) Copies, certified by the Secretary, Assistant Secretary,
Director or Officer of the Subsidiary Borrower, of its Board
of Directors' resolutions (and resolutions of other bodies, if
any are deemed necessary by the Administrative Agent)
approving the Assumption Letter.
(C) An incumbency certificate, executed by the Secretary,
Assistant Secretary, Director or Officer of the Subsidiary
Borrower, which shall identify by name and title and bear the
signature of the officers of such Subsidiary Borrower
authorized to sign the Assumption Letter and the other
documents to be executed and delivered by such Subsidiary
Borrower hereunder, upon which certificate the Administrative
Agent and the Lenders shall be entitled to rely until informed
of any change in writing by the Company.
(D) An opinion of counsel to such Subsidiary Borrower, in form and
substance satisfactory to the Administrative Agent.
(E) Guaranty documentation and contribution agreement
documentation from such Subsidiary Borrower in form and
substance satisfactory to the Administrative Agent.
(F) With respect to the initial Advance or any Swing Line Loan
made to any Subsidiary Borrower organized under the laws of
England and Wales, the Administrative Agent shall have
received originals and/or copies, as applicable, of all
filings required to be made and such other evidence as the
Administrative Agent may require establishing to the
Administrative Agent's satisfaction that each Lender, Swing
Line Bank and Issuing Lender is entitled to receive payments
under the Loan Documents without deduction or withholding of
any English taxes or with such deductions and withholding of
English taxes as may be acceptable to the Administrative
Agent.
5.3 Each Advance, Each Conversion or Continuation of an Advance,
and Each Letter of Credit. The Lenders shall not be required to make any Loan,
or convert or continue any Advance, or issue any Letter of Credit, unless on the
applicable Borrowing Date, or in the case of a Letter of Credit, the date on
which the Letter of Credit is to be issued:
(A) There exists no Default or Unmatured Default;
(B) All of the representations and warranties contained
in Article VI are true and correct in all material respects as of such
Borrowing Date (unless such representation and warranty is made as of a
specific date, in which case, such representation and warranty shall be
true in all material respects as of such date);
(C) (i) The Revolving Credit Obligations do not, and
after making such proposed Advance or issuing such Letter of Credit
would not, exceed the Aggregate Revolving Loan Commitment, and (ii) the
aggregate outstanding principal Dollar Amount of all Advances in Agreed
Currencies other than Dollars and all L/C Obligations
-72-
79
in Agreed Currencies other than Dollars and all Alternate Currency
Loans does not and would not exceed the Maximum Eurocurrency Amount;
and
(D) the Administrative Agent has received a timely
Borrowing Notice with respect to the applicable Loan.
Each Borrowing/Conversion/Continuation Notice or Competitive Bid Quote
Request with respect to each such Advance and the letter of credit application
with respect to each Letter of Credit shall constitute a representation and
warranty by the Company that the conditions contained in Sections 5.3(A), (B)
and (C) have been satisfied (except, in the case of any conversion or
continuation of a Loan, Section 6.5).
5.4 Effectiveness of Amendment and Restatement. The amendments to
the Existing Agreement embodied in this Agreement shall not be effective (in
which case the Existing Agreement shall remain in full force and effect) unless
and until the Borrowers, the Agents and the Required Lenders shall have executed
and delivered this Agreement and the Company has furnished to the Administrative
Agent each of the following, with sufficient copies for the Lenders, and the
other conditions set forth below have been satisfied:
(A) A certificate, in form and substance satisfactory to the
Administrative Agent, signed by the chief financial officer of
the Company, stating that on the date of this Agreement all
the representations and warranties of the Loan Parties in the
Loan Documents are true and correct (unless such
representation and warranty is made as of a specific date, in
which case, such representation and warranty shall be true in
all material respects as of such date) and no Default or
Unmatured Default has occurred and is continuing.
(B) The written opinion of the Loan Parties' US counsel, addressed
to the Agents and the Lenders, in form and substance
satisfactory to the Administrative Agent.
(C) Executed and delivered reaffirmations of the Guaranty and the
Subordination Agreement, each in form and substance
satisfactory to the Administrative Agent.
ARTICLE VI: REPRESENTATIONS AND WARRANTIES
In order to induce the Agents and the Lenders to enter into this
Agreement and to make and continue the Loans and the other financial
accommodations to the Borrowers and to issue the Letters of Credit described
herein, the Company represents and warrants as follows to each Lender and the
Administrative Agent as of the date of this Agreement and on the Closing Date,
giving effect to the consummation of the transactions contemplated by the Loan
Documents and the Spin-off Materials as if each had occurred on the date of the
Existing Agreement, and thereafter on each date as required by Sections 5.2 and
5.3:
6.1 Organization; Corporate Powers. Each of the Company and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of its jurisdiction of
-73-
80
formation and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted, except where the failure to do
so would not have a Material Adverse Effect.
6.2 Authorization and Validity. The Company has the requisite
power and authority and legal right to execute and deliver the Loan Documents
and to perform its obligations thereunder. The execution and delivery by the
Company of the Loan Documents and the performance of its obligations thereunder
have been duly authorized by proper proceedings, and the Loan Documents
constitute legal, valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, except as enforceability may
be limited by bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally.
6.3 No Conflict; Government Consent. Neither the execution and
delivery by the Company of the Loan Documents, nor the consummation of the
transactions therein contemplated, nor compliance with the provisions thereof
will violate any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on the Company or any Subsidiary or the Company's or any
Subsidiary's articles of incorporation or by-laws or other constitutive
documents and agreements or the provisions of any indenture, instrument or
agreement to which the Company or any Subsidiary is a party or is subject, or by
which it, or its property, is bound, or conflict with or constitute a default
thereunder, or result in the creation or imposition of any Lien in, of or on the
property of the Company or any of its Subsidiaries pursuant to the terms of any
such indenture, instrument or agreement. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any governmental or public body or authority, or any subdivision
thereof, is required to authorize the Company, or is required to be obtained by
the Company in connection with the execution, delivery and performance of, or
the legality, validity, binding effect or enforceability of, any of the Loan
Documents.
6.4 Financial Statements. Each of the consolidated financial
statements of the Company and its Subsidiaries for the fiscal years ended June
30, 1996, June 27, 1997 and July 3, 1998 were prepared in accordance with
Agreement Accounting Principles except that restatements reflected in the Form
10 have not been included for the Australian write-off and the 1998
restructuring reserves; and the consolidated financial statements of the Company
and its Subsidiaries included in the Form 10 were prepared in accordance with
Agreement Accounting Principles and fairly present the consolidated financial
condition and operations of the Company and its Subsidiaries at such dates and
the consolidated results of their operations for the periods then ended.
6.5 Material Adverse Change. Since July 2, 1999, there has
occurred no change in the business, assets, liabilities (actual or contingent),
operations, condition (financial or otherwise) or prospects, of the Company, or
the Company and its Subsidiaries taken as a whole or any other event which has
had or could reasonably be expected to have a Material Adverse Effect.
6.6 Taxes. The Company and the Subsidiaries have filed all United
States federal tax returns and all other material tax returns which are required
to be filed and have paid all taxes due pursuant to said returns or pursuant to
any assessment received by the Company or any
-74-
81
Subsidiary, except such taxes, if any, as are being contested in good faith and
as to which adequate reserves have been provided. No tax liens have been filed
(other than to secure payment of contested taxes in an amount not to exceed
$5,000,000 in any one case and $10,000,000 in the aggregate) and no claims are
being asserted with respect to any such taxes. The charges, accruals and
reserves on the books of the Company and the Subsidiaries in respect of any
taxes or other governmental charges are adequate.
6.7 Litigation and Contingent Obligations. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of the Company, threatened against or affecting the Company or any
of its Subsidiaries (i) challenging the Spin-off or validity or enforceability
of any material provision of the Loan Documents or (ii) which could reasonably
be expected to have a Material Adverse Effect. There is no material loss
contingency within the meaning of Agreement Accounting Principles which has not
been reflected in the consolidated financial statements of the Company set forth
in the Form 10 or prepared and delivered pursuant to Section 7.1(A) for the
fiscal period during which such material loss contingency was incurred. Neither
the Company nor any of its Subsidiaries is subject to or in default with respect
to any final judgment, writ, injunction, restraining order or order of any
nature, decree, rule or regulation of any court or Governmental Authority which
could reasonably be expected to have a Material Adverse Effect.
6.8 Subsidiaries. Schedule 6.8 hereto contains an accurate list of
all of the Subsidiaries of the Company in existence on the date of the Existing
Agreement, setting forth their respective jurisdictions of formation and the
percentage of their respective capital stock owned directly or indirectly by the
Company or other Subsidiaries. All of the issued and outstanding Capital Stock
of such Subsidiaries have been duly authorized and issued and are fully paid and
non-assessable.
6.9 ERISA. As at March 31, 1999 the Unfunded Liabilities of all
Single Employer Plans did not in the aggregate exceed $0. Each Plan complies in
all material respects with all applicable requirements of law and regulations.
No Reportable Event has occurred with respect to any Single Employer Plan having
any Unfunded Liability which has or may reasonably be expected to result in a
liability to the Company in excess of $10,000,000. Neither the Company nor any
other members of the Controlled Group has terminated any Single Employer Plan
without in each instance funding all vested benefit obligations thereunder. Each
member of the Controlled Group has fulfilled its minimum funding obligations
with respect to each Multiemployer Plan.
6.10 Accuracy of Information. No information, exhibit or report
furnished by the Company or any Subsidiary to any Agent or to any Lender in
connection with the negotiation of, or compliance with, the Loan Documents,
including, without limitation, the Form 10, contained any material misstatement
of fact or omitted to state a material fact or any fact necessary to make the
statements contained therein not materially misleading.
6.11 Regulation U. Margin Stock constitutes less than 25% of those
assets of the Company and its Subsidiaries which are subject to any limitation
on sale, pledge, or other restriction hereunder.
-75-
82
6.12 Material Agreements. Neither the Company nor any of its
Subsidiaries is a party to any Contractual Obligation the performance of which
could reasonably be expected to have a Material Adverse Effect. Neither the
Company nor any of its Subsidiaries is subject to any charter or other
restriction in any constitutive agreement or document affecting its business,
properties, financial condition, prospects or results of operations which could
reasonably be expected to have a Material Adverse Effect. Neither the Company
nor any Subsidiary is in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any Contractual
Obligation to which it is a party, which default could reasonably be expected to
have a Material Adverse Effect.
6.13 Compliance With Laws. The Company and its Subsidiaries have
complied with all Requirements of Law except to the extent that such
non-compliance could not reasonably be expected to have a Material Adverse
Effect. Neither the Company nor any Subsidiary has received any notice to the
effect that its operations are not in material compliance with any Requirements
of Law or the subject of any federal or state investigation evaluating whether
any remedial action is needed to respond to a release of any toxic or hazardous
waste or substance into the environment, which non-compliance or remedial action
could reasonably be expected to have a Material Adverse Effect.
6.14 Ownership of Properties. On the Closing Date, the Company and
its Subsidiaries have good title, free of all Liens, to all of the properties
and assets reflected in the financial statements included in the Form 10 as
owned by it, except Liens permitted under Section 7.3(C).
6.15 Statutory Indebtedness Restrictions. Neither the Company nor
any of its Subsidiaries is subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the Interstate Commerce Act,
or the Investment Company Act of 1940, or any other federal or state statute or
regulation which limits its ability to incur indebtedness or its ability to
consummate the transactions contemplated hereby.
6.16 Environmental Matters. Each of the Company and its
Subsidiaries is in compliance with all Environmental, Health or Safety
Requirements of Laws in effect in each jurisdiction where it is presently doing
business and as to which the failure to so comply, in the aggregate for all such
failures, would not reasonably be likely to subject the Company to liability
that would have a Material Adverse Effect. Neither the Company nor any
Subsidiary is subject to any liability under the Environmental, Health or Safety
Requirements of Laws in effect in each jurisdiction where it is presently doing
business that could reasonably be expected to have a Material Adverse Effect. As
of the date hereof, neither the Company nor any Subsidiary has received any:
(A) notice from any Governmental Authority by which any of the
Company's or such Subsidiary's present or previously-owned or
leased property has been identified in any manner by any such
Governmental Authority as a hazardous substance disposal or
removal site, "Super Fund" clean-up site or candidate for
removal or closure pursuant to any Environmental, Health or
Safety Requirements of Law; or
(B) notice of any Lien arising under or in connection with any
Environmental, Health or Safety Requirements of Law that has
attached to any of the Company's or such
-76-
83
Subsidiary's owned or leased property or any revenues of the
Company's or such Subsidiary's owned or leased property; or
(C) communication, written or oral, from any Governmental
Authority concerning action or omission by the Company or such
Subsidiary in connection with its ownership or leasing of any
property resulting in the release of any hazardous substance
resulting in any violation of any Environmental, Health or
Safety Requirements of Law;
where the effect of which, in the aggregate for all such notices and
communications, could reasonably be expected to have a Material Adverse Effect.
6.17 Insurance. The properties and assets and business of the
Company and its Subsidiaries are insured with financially sound and reputable
insurance companies not Subsidiaries of the Company (unless consented to by the
Administrative Agent), in such amounts, with such deductibles and covering such
risks as are customarily carried by companies engaged in similar businesses and
are similarly situated.
6.18 Labor Matters. As of the Closing Date, no labor disputes,
strikes or walkouts affecting the operations of the Company or any of its
Subsidiaries, are pending, or, to the Company's knowledge, threatened, planned
or contemplated which could reasonably be expected to have a Material Adverse
Effect.
6.19 Solvency. After giving effect to (i) the extensions of credit
made hereunder and under the 364-Day Agreement on the Closing Date and the
Dividend paid on the Closing Date or such other date as Loans requested
hereunder were made, (ii) the other transactions contemplated by this Agreement,
the Existing Agreement and the other Loan Documents, including the Spin-off and
(iii) the payment and accrual of all transaction costs with respect to the
foregoing, the Company and its Subsidiaries taken as a whole are Solvent.
6.20 Year 2000 Issues. Each of the Company and its Subsidiaries has
made a reasonable assessment of the Year 2000 Issues and has a program for
remediating the Year 2000 Issues on a timely basis. Based on this assessment and
program, the Company does not reasonably anticipate any Material Adverse Effect
as a result of Year 2000 Issues.
6.21 Default. No Default or Unmatured Default has occurred and is
continuing.
6.22 Representations and Warranties of each Subsidiary Borrower.
Each Subsidiary Borrower represents and warrants to the Lenders that:
(A) Organization and Corporate Powers. Such Subsidiary Borrower
(i) is a company duly formed and validly existing and in good
standing under the laws of the state or country of its
organization (such jurisdiction being hereinafter referred to
as the "Home Country"); (ii) has the requisite power and
authority to own its property and assets and to carry on its
business substantially as now conducted except where the
failure to have such requisite authority would not have a
material adverse effect on such Subsidiary Borrower; and (iii)
has the requisite power and authority and legal right to
execute and deliver the Alternate Currency Addendum
-77-
84
to which it is a party and each other Loan Document to which
it is a party and the performance by it of its obligations
thereunder have been duly authorized by proper corporate
proceedings.
(B) Binding Effect. Each Loan Document, including, without
limitation, any Alternate Currency Addendum, executed by such
Subsidiary Borrower is the legal, valid and binding
obligations of such Subsidiary Borrower enforceable in
accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights
generally and general equitable principles.
(C) No Conflict; Government Consent. Neither the execution and
delivery by such Subsidiary Borrower of the Loan Documents to
which it is a party, nor the consummation by it of the
transactions therein contemplated to be consummated by it, nor
compliance by such Subsidiary Borrower with the provisions
thereof will violate any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on such
Subsidiary Borrower or any of its Subsidiaries or such
Subsidiary Borrower's or any of its Subsidiaries' memoranda or
articles of association or the provisions of any indenture,
instrument or agreement to which such Subsidiary Borrower or
any of its Subsidiaries is a party or is subject, or by which
it, or its property, is bound, or conflict with or constitute
a default thereunder, or result in the creation or imposition
of any lien in, of or on the property of such Subsidiary
Borrower or any of its Subsidiaries pursuant to the terms of
any such indenture, instrument or agreement in any such case
which violation, conflict, default, creation or imposition
could reasonably be expected to have a material adverse effect
on such Subsidiary Borrower. No order, consent, approval,
license, authorization, or validation of, or filing, recording
or registration with, or exemption by, any governmental agency
is required to authorize, or is required in connection with
the execution, delivery and performance of, or the legality,
validity, binding effect or enforceability of, any of the Loan
Documents.
(D) Filing. To ensure the enforceability or admissibility in
evidence of this Agreement and each Loan Document to which
such Subsidiary Borrower is a party (including, without
limitation, any Alternate Currency Addendum) in its Home
Country, it is not necessary that this Agreement or any other
Loan Document to which such Subsidiary Borrower is a party or
any other document be filed or recorded with any court or
other authority in its Home Country or that any stamp or
similar tax be paid to or in respect of this Agreement or any
other Loan Document of such Subsidiary Borrower. The
qualification by any Lender or the Administrative Agent for
admission to do business under the laws of such Subsidiary
Borrower's Home Country does not constitute a condition to,
and the failure to so qualify does not affect, the exercise by
any Lender or the Administrative Agent of any right,
privilege, or remedy afforded to any Lender or the
Administrative Agent in connection with the Loan Documents to
which such Subsidiary Borrower is a party or the enforcement
of any such right, privilege, or remedy against such
Subsidiary Borrower. The performance by any Lender or the
Administrative Agent of any action required or permitted under
the Loan
-78-
85
Documents will not (i) violate any law or regulation of such
Subsidiary Borrower's Home Country or any political
subdivision thereof, (ii) result in any tax or other monetary
liability to such party pursuant to the laws of such
Subsidiary Borrower's Home Country or political subdivision or
taxing authority thereof (provided that, should any such
action result in any such tax or other monetary liability to
the Lender or the Administrative Agent, the Borrowers hereby
agree to indemnify such Lender or the Administrative Agent, as
the case may be, against (x) any such tax or other monetary
liability and (y) any increase in any tax or other monetary
liability which results from such action by such Lender or the
Administrative Agent and, to the extent the Borrowers make
such indemnification, the incurrence of such liability by the
Administrative Agent or any Lender will not constitute a
Default) or (iii) violate any rule or regulation of any
federation or organization or similar entity of which the such
Subsidiary Borrower's Home Country is a member.
(E) No Immunity. Neither such Subsidiary Borrower nor any of its
assets is entitled to immunity from suit, execution,
attachment or other legal process. Such Subsidiary Borrower's
execution and delivery of the Loan Documents to which it is a
party constitute, and the exercise of its rights and
performance of and compliance with its obligations under such
Loan Documents will constitute, private and commercial acts
done and performed for private and commercial purposes.
(F) Application of Representations and Warranties. It is
understood and agreed by the parties hereto that the
representations and warranties of each Subsidiary Borrower
(other than any Subsidiary Borrower that shall be a Subsidiary
Borrower as of the original date of the Existing Agreement) in
this Section 6.22 shall only be applicable to such Subsidiary
Borrower on and after the date of its execution of an
Assumption Letter and, if applicable, an Alternate Currency
Addendum.
6.23 Foreign Employee Benefit Matters. (a) Each Foreign Employee
Benefit Plan is in compliance in all material respects with all laws,
regulations and rules applicable thereto and the respective requirements of the
governing documents for such Plan; (b) the aggregate of the accumulated benefit
obligations under all Foreign Pension Plans does not exceed to any material
extent the current fair market value of the assets held in the trusts or similar
funding vehicles for such Plans; (c) with respect to any Foreign Employee
Benefit Plan maintained or contributed to by the Company or any Subsidiary or
any member of its Controlled Group (other than a Foreign Pension Plan),
reasonable reserves have been established in accordance with prudent business
practice or where required by ordinary accounting practices in the jurisdiction
in which such Plan is maintained; and (d) there are no material actions, suits
or claims (other than routine claims for benefits) pending or, to the knowledge
of the Company and its Subsidiaries, threatened against the Company or any
Subsidiary of it or any member of its Controlled Group with respect to any
Foreign Employee Benefit Plan.
-79-
86
ARTICLE VII: COVENANTS
The Company covenants and agrees that so long as any Revolving Loan
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than contingent indemnity obligations) and termination of all
Letters of Credit, unless the Required Lenders shall otherwise give prior
written consent:
7.1 Reporting. The Company shall:
(A) Financial Reporting. Send to the Agents and the Lenders:
(i) Quarterly Reports. As soon as practicable and in any
event within forty-five (45) days after the end of the first three
quarterly periods of each of its fiscal years, for itself and the
Subsidiaries, consolidated and consolidating unaudited balance sheets
as at the end of each such period and consolidated and consolidating
statement of income and consolidated and consolidating statement of
changes in owners' equity, and a statement of cash flows for the period
from the beginning of such fiscal year to the end of such quarter,
presented on the same basis as described in Section 7.1(A)(ii) and on a
comparative basis with the statements for such period in the prior
fiscal year of the Company.
(ii) Annual Reports. As soon as practicable, and in any
event within ninety (90) days after the end of each of its fiscal
years, (a) an audit report, certified (as to consolidated, but not
consolidating statements) by internationally recognized independent
certified public accountants, prepared in accordance with generally
accepted accounting principles, on a consolidated and consolidating
basis for itself and the Subsidiaries, including balance sheets as of
the end of such period, related statement of income and consolidated
and consolidating statement of changes in owners' equity, and a
statement of cash flows, which audit report shall be unqualified and
shall state that such financial statements fairly present the
consolidated financial position of the Company and its Subsidiaries as
at the dates indicated and the results of operations and cash flows for
the periods indicated in conformity with generally accepted accounting
principles and that the examination by such accountants in connection
with such consolidated and consolidating financial statements has been
made in accordance with generally accepted auditing standards and (b)
projected balance sheets, statements of income and cash flows for the
three succeeding fiscal years, prepared in accordance with generally
accepted accounting principles, on a consolidated basis, together with
the appropriate supporting details and a statement of underlying
assumptions, all in form similar to those delivered to the Lead
Arrangers prior to the Closing Date.
(iii) Officer's Certificate. Together with each delivery of
any financial statement (a) pursuant to clauses (i) and (ii) of this
Section 7.1(A), an Officer's Certificate of the Company, substantially
in the form of Exhibit E attached hereto and made a part hereof,
-80-
87
signed by the Company's chief financial officer, chief accounting
officer or treasurer, setting forth calculations for the period then
ended for Section 2.5(B), if applicable, which demonstrate compliance,
when applicable, with the provisions of Sections 7.3(A) through (G) and
Section 7.4, and which calculate the Leverage Ratio for purposes of
determining the then Applicable Floating Rate Margin, Applicable
Eurocurrency Margin and Applicable Commitment Fee Percentage.
(B) Notice of Default. Promptly upon any of the chief executive
officer, chief operating officer, chief financial officer,
treasurer, controller or general counsel of the Company
obtaining actual knowledge (i) of any condition or event which
constitutes a Default or Unmatured Default, or becoming aware
that any Lender or Administrative Agent has given any written
notice to any Authorized Officer with respect to a claimed
Default or Unmatured Default under this Agreement, or (ii)
that any Person has given any written notice to any Authorized
Officer or any Subsidiary of the Company or taken any other
action with respect to a claimed default or event or condition
of the type referred to in Section 8.1(D), the Company shall
deliver to the Administrative Agent and the Lenders an
Officer's Certificate specifying (a) the nature and period of
existence of any such claimed default, Default, Unmatured
Default, condition or event, (b) the notice given or action
taken by such Person in connection therewith, and (c) what
action the Company has taken, is taking and proposes to take
with respect thereto.
(C) Lawsuits. (i) Promptly upon the Company obtaining actual
knowledge of the institution of, or written threat of, any
action, suit, proceeding, governmental investigation or
arbitration, by or before any Governmental Authority, against
or affecting the Company or any of its Subsidiaries or any
property of the Company or any of its Subsidiaries not
previously disclosed pursuant to Section 6.7, which action,
suit, proceeding, governmental investigation or arbitration
exposes, or in the case of multiple actions, suits,
proceedings, governmental investigations or arbitrations
arising out of the same general allegations or circumstances
which expose, in the Company's reasonable judgment, the
Company or any of its Subsidiaries to liability in an amount
aggregating $10,000,000 or more (exclusive of claims covered
by insurance policies of the Company or any of its
Subsidiaries unless the insurers of such claims have
disclaimed coverage or reserved the right to disclaim coverage
on such claims and exclusive of claims covered by the
indemnity of a financially responsible indemnitor in favor of
the Company or any of its Subsidiaries unless the indemnitor
has disclaimed or reserved the right to disclaim coverage
thereof), give written notice thereof to the Administrative
Agent and the Lenders and provide such other information as
may be reasonably available to enable each Lender and the
Administrative Agent and its counsel to evaluate such matters;
and (ii) in addition to the requirements set forth in clause
(i) of this Section 7.1(C), upon request of the Administrative
Agent or the Required Lenders, promptly give written notice of
the status of any action, suit, proceeding, governmental
investigation or arbitration covered by a report delivered
pursuant to clause (i) above and provide such other
information as may be reasonably available to it that would
not jeopardize any attorney-client
-81-
88
privilege by disclosure to the Lenders to enable each Lender
and the Administrative Agent and its counsel to evaluate such
matters.
(D) ERISA Notices. Deliver or cause to be delivered to the
Administrative Agent and the Lenders, at the Company's
expense, the following information and notices as soon as
reasonably possible, and in any event:
(i) within ten (10) Business Days after the Company, or
within twenty-five (25) Business Days after any member of the
Controlled Group, obtains knowledge that a Termination Event has
occurred which could reasonably be expected to subject the Company to
liability in excess of $25,000,000, a written statement of the chief
financial officer, treasurer or designee of the Company describing such
Termination Event and the action, if any, which the member of the
Controlled Group has taken, is taking or proposes to take with respect
thereto, and when known, any action taken or threatened by the IRS, DOL
or PBGC with respect thereto;
(ii) within ten (10) Business Days after the Company, or
within twenty-five (25) Business Days after any of its Subsidiaries,
obtains knowledge that a material non-exempt prohibited transaction
(defined in Sections 406 of ERISA and Section 4975 of the Code) has
occurred, a statement of the chief financial officer, treasurer or
designee of the Company describing such transaction and the action
which the Company or such Subsidiary has taken, is taking or proposes
to take with respect thereto;
(iii) within ten (10) Business Days after the Company, or
within twenty-five (25) Business Days after any of its Subsidiaries,
receives notice of any unfavorable determination letter from the IRS
regarding the qualification of a Plan under Section 401(a) of the Code,
copies of each such letter;
(iv) within ten (10) Business Days with respect to the
Company, and within twenty-five (25) Business Days with respect to a
member of the Controlled Group, after the filing thereof with the IRS,
a copy of each funding waiver request filed with respect to any Benefit
Plan and all communications received by the Company or a member of the
Controlled Group with respect to such request;
(v) within ten (10) Business Days after receipt by the
Company, or within twenty-five (25) Business Days after receipt by any
member of the Controlled Group, of the PBGC's intention to terminate a
Benefit Plan or to have a trustee appointed to administer a Benefit
Plan, copies of each such notice;
(vi) within ten (10) Business Days after the Company, or
within twenty-five (25) days after any member of the Controlled Group,
fails to make a required installment or any other required payment
under Section 412 of the Code on or before the due date for such
installment or payment, a notification of such failure;
(vii) within ten (10) Business Days after the establishment
of any Foreign Employee Benefit Plan or the commencement of, or
obligation to commence, contributions to any Foreign Employee Benefit
Plan to which the Company or any Subsidiary was not previously
contributing, where the aggregate annual contributions to
-82-
89
such Plan(s) resulting therefrom are or could reasonably be expected to
be in excess of $10,000,000, notification of such establishment,
commencement or obligation to commence and the amount of such
contributions; and
For purposes of this Section 7.1(D), the Company, any of its Subsidiaries and
any member of the Controlled Group shall be deemed to know all facts known by
the administrator of any Plan which is a Single Employer Plan and which is
sponsored by such Company, Subsidiary or member of the Controlled Group,
respectively, and shall be deemed to know all facts known by the administrator
of any other Plan which is a Single Employer Plan 15 days after knowledge by
such administrator.
(E) Labor Matters. Notify the Administrative Agent and the Lenders
in writing, promptly upon an Authorized Officer learning of
(i) any material labor dispute to which the Company or any of
its Subsidiaries may become a party, including, without
limitation, any strikes, lockouts or other disputes relating
to such Persons' plants and other facilities and (ii) any
material Worker Adjustment and Retraining Notification Act
liability incurred with respect to the closing of any plant or
other facility of the Company or any of its Subsidiaries.
(F) Other Indebtedness. Deliver to the Administrative Agent (i) a
copy of each regular report, notice or communication regarding
potential or actual defaults (including any accompanying
officer's certificate) delivered by or on behalf of the
Company to the holders of funded Indebtedness with an
aggregate outstanding principal amount in excess of
$10,000,000 pursuant to the terms of the agreements governing
such Indebtedness, such delivery to be made at the same time
and by the same means as such notice of default is delivered
to such holders, and (ii) a copy of each notice or other
communication received by the Company from the holders of
funded Indebtedness with an aggregate outstanding principal
amount in excess of $10,000,000 regarding potential or actual
defaults pursuant to the terms of such Indebtedness, such
delivery to be made promptly after such notice or other
communication is received by the Company.
(G) Other Reports. Deliver or cause to be delivered to the
Administrative Agent and the Lenders copies of (i) all
financial statements, reports and non-routine notices, if any,
sent or made available generally by the Company to its
securities holders or filed with the Commission by the
Company, and (ii) all notifications received from the
Commission by the Company or its Subsidiaries pursuant to the
Securities Exchange Act of 1934 and the rules promulgated
thereunder other than routine reminders or notices that do not
relate to specific violations of rules promulgated by the
Commission. The Company shall include the Administrative Agent
and the Lenders on its standard distribution lists for all
press releases made available generally by the Company or any
of the Company's Subsidiaries to the public concerning
material developments in the business of the Company or any
such Subsidiary.
(H) Environmental Notices. As soon as possible and in any event
within fifteen (15) days after receipt by the Company, deliver
to the Administrative Agent and the Lenders a copy of (i) any
notice or claim to the effect that the Company or any of
-83-
90
its Subsidiaries is or may be liable to any Person as a result
of the Release by the Company, any of its Subsidiaries, or any
other Person of any Contaminant into the environment, and (ii)
any notice alleging any violation of any Environmental, Health
or Safety Requirements of Law by the Company or any of its
Subsidiaries if, in either case, such notice or claim relates
to an event which could reasonably be expected to subject the
Company and each of its Subsidiaries to liability individually
or in the aggregate in excess of $10,000,000.
(I) Other Information. Promptly upon receiving a request therefor
from the Administrative Agent, prepare and deliver to the
Administrative Agent and the Lenders such other information
with respect to the Company or any of its Subsidiaries, as
from time to time may be reasonably requested by the
Administrative Agent.
7.2 Affirmative Covenants.
(A) Corporate Existence, Etc. The Company shall, and shall cause
each of its Subsidiaries to, at all times maintain its
corporate existence and preserve and keep, or cause to be
preserved and kept, in full force and effect its rights and
franchises material to its businesses except where, in the
case of Subsidiaries, failure to do so could not reasonably be
expected to have a Material Adverse Effect.
(B) Corporate Powers. The Company shall, and shall cause each of
its Subsidiaries to, qualify and remain qualified to do
business in each jurisdiction in which the nature of its
business requires it to be so qualified and where the failure
to be so qualified will have or could reasonably be expected
to have a Material Adverse Effect.
(C) Compliance with Laws, Etc. The Company shall, and shall cause
its Subsidiaries to, (a) comply with all Requirements of Law
and all restrictive covenants affecting such Person or the
business, prospects, properties, assets or operations of such
Person, and (b) obtain as needed all permits necessary for its
operations and maintain such permits in good standing unless
failure to comply or obtain such permits could not reasonably
be expected to have a Material Adverse Effect.
(D) Payment of Taxes and Claims; Tax Consolidation. The Company
shall pay, and cause each of its Subsidiaries to pay, (i) all
material taxes, assessments and other governmental charges
imposed upon it or on any of its properties or assets or in
respect of any of its franchises, business, income or property
before any penalty or interest accrues thereon, and (ii) all
claims (including, without limitation, claims for labor,
services, materials and supplies) for material sums which have
become due and payable and which by law have or may become a
Lien (other than a Lien permitted by Section 7.3(C)) upon any
of the Company's or such Subsidiary's property or assets,
prior to the time when any penalty or fine shall be incurred
with respect thereto; provided, however, that no such taxes,
assessments and governmental charges referred to in clause (i)
above or claims referred to in clause (ii) above (and
interest, penalties or fines relating thereto) need be paid if
being contested in good faith by appropriate proceedings
diligently instituted and
-84-
91
conducted and if such reserve or other appropriate provision,
if any, as shall be required in conformity with Agreement
Accounting Principles shall have been made therefor.
(E) Insurance. The Company will maintain, and will cause to be
maintained on behalf of each of its Subsidiaries, insurance
coverage by financially sound and reputable insurance
companies or associations, against such casualties and
contingencies, of such types and in such amounts as are
customary for companies engaged in similar businesses and
owning and operating similar properties, it being understood
that the Company and its Subsidiaries may self-insure against
hazards and risks with respect to which, and in such amounts,
as the Company in good faith determines prudent and consistent
with sound financial practice, and as are customary for
companies engaged in similar businesses and owning and
operating similar properties. The Company shall furnish to any
Lender upon request full information as to the insurance
carried.
(F) Inspection of Property; Books and Records; Discussions. The
Company shall permit and cause each of the Company's
Subsidiaries to permit, any authorized representative(s)
designated by either the Administrative Agent or any Lender
(unless a Default has occurred and is continuing, only in
conjunction with an inspection conducted by the Administrative
Agent) to visit and inspect, for a reasonable purpose, any of
the properties of the Company or any of its Subsidiaries, to
examine, audit, check and make copies of their respective
financial and accounting records, books, journals, orders,
receipts and any correspondence and other data relating to
their respective businesses or the transactions contemplated
hereby (including, without limitation, in connection with
environmental compliance, hazard or liability), and to discuss
their affairs, finances and accounts with their officers and
their independent certified public accountants, all upon
reasonable notice and at such reasonable times during normal
business hours, as often as may be reasonably requested. The
Company shall keep and maintain, and cause each of the
Company's Subsidiaries to keep and maintain proper books of
record and account in which entries in conformity with
Agreement Accounting Principles shall be made of all dealings
and transactions in relation to their respective businesses
and activities.
(G) ERISA Compliance. The Company shall, and shall cause each of
the Company's Subsidiaries to, establish, maintain and operate
all Plans to comply in all material respects with the
provisions of ERISA, the Code, all other applicable laws, and
the regulations and interpretations thereunder and the
respective requirements of the governing documents for such
Plans, except for failures to comply which, in the aggregate,
would not be reasonably likely to subject the Company or any
of its Subsidiaries to liability, individually or in the
aggregate, in excess of $10,000,000.
(H) Maintenance of Property. The Company shall cause all property
used or useful in the conduct of its business or the business
of any Subsidiary to be maintained and kept in good condition,
repair and working order and supplied with all necessary
equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof,
all as in the judgment of the
-85-
92
Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously
conducted at all times and except to the extent that the
failure to so maintain such property could not be reasonably
expected to have a Material Adverse Effect.
(I) Environmental Compliance. The Company shall, and shall cause
each of the Company's Subsidiaries to comply with, all
Environmental, Health or Safety Requirements of Law, except
where noncompliance could not reasonably be expected to have a
Material Adverse Effect.
(J) Use of Proceeds. The Borrowers shall use the proceeds of the
Advances to fund the Dividend in whole or in part and to
provide funds for the additional working capital needs and
other general corporate purposes of the Company and its
Subsidiaries, including, without limitation, the financing of
Permitted Acquisitions. The Company will not, nor will it
permit any Subsidiary to, use any of the proceeds of the
Advances to make any Acquisition other than a Permitted
Acquisition made pursuant to Section 7.3(G).
(K) Subsidiary Guarantees; Subsidiary Subordination Agreement. The
Company will:
(a) cause each Subsidiary Borrower that is a Domestic Subsidiary
and each Domestic Subsidiary which is a Wholly-Owned
Subsidiary and has assets with a book value in excess of
$10,000,000 to execute the Guaranty (and from and after the
Closing Date cause each other Subsidiary Borrower that is a
Domestic Subsidiary and each other Domestic Subsidiary which
is a Wholly-Owned Subsidiary and has such assets to execute
and deliver to the Administrative Agent, within ten (10) days
after becoming a Subsidiary Borrower or another Domestic
Subsidiary which is a Wholly-Owned Subsidiary and has such
assets, as applicable, an assumption or joinder agreement
pursuant to which it agrees to be bound by the terms and
provisions of the Guaranty (whereupon such Subsidiary shall
become a "Guarantor" under this Agreement));
(b) in the event that at any time the book value of the assets of
all Domestic Subsidiaries which are not Wholly-Owned
Subsidiaries and are not Guarantors exceeds $100,000,000,
within ten (10) days thereafter cause one or more of such
Subsidiaries to execute and deliver to the Administrative
Agent an assumption or joinder agreement pursuant to which it
or they agree to be bound by the terms and provisions of the
Guaranty (whereupon each such Subsidiary shall become a
"Guarantor" under this Agreement) such that, after giving
effect thereto, the book value of the assets of all Domestic
Subsidiaries which are not Wholly-Owned Subsidiaries and are
not Guarantors does not exceed $100,000,000;
(c) cause each Subsidiary, before it makes a loan to any of the
Borrowers, to execute the Subordination Agreement (and from
and after the Closing Date cause each other Subsidiary to
execute and deliver to the Administrative Agent, within ten
(10) days after becoming a Subsidiary, as applicable, an
assumption or joinder agreement pursuant to which it agrees to
be bound by the terms and provisions of the Subordination
Agreement);
-86-
93
(d) deliver and cause such Subsidiaries to deliver corporate
resolutions, opinions of counsel, and such other corporate
documentation as the Administrative Agent may reasonably
request, all in form and substance reasonably satisfactory to
the Administrative Agent; and
(e) cause each Subsidiary which is a Subsidiary Borrower to be a
Wholly-Owned Subsidiary for so long as it remains a Subsidiary
Borrower; provided, however, that Sections 7.2(K)(a) and
7.2(K)(b) shall not apply to any Domestic Subsidiary that is
organized by the Company to serve as a so-called "bankruptcy
remote subsidiary" in connection with a securitization of
Receivables, to the extent such securitization is permitted
under Sections 7.3(A) and 7.3(D)(vii).
(L) Year 2000 Issues. The Company shall, and shall cause each of
its Subsidiaries to, take all actions reasonably necessary to
address the Year 2000 Issues so that any such Year 2000 Issues
will not have a Material Adverse Effect. The Company shall
provide the Administrative Agent and each of the Lenders
information regarding the Company's and its Subsidiaries'
program to address Year 2000 Issues. The Company shall advise
the Administrative Agent, if after the date hereof, it
determines that Year 2000 Issues could reasonably be expected
to have a Material Adverse Effect.
(M) Foreign Employee Benefit Compliance. The Company shall, and
shall cause each of its Subsidiaries and each member of its
Controlled Group to, establish, maintain and operate all
Foreign Employee Benefit Plans to comply in all material
respects with all laws, regulations and rules applicable
thereto and the respective requirements of the governing
documents for such Plans, except for failures to comply which,
in the aggregate, would not be reasonably likely to subject
the Company or any of its Subsidiaries to liability,
individually or in the aggregate, in excess of $10,000,000.
(N) Pledge Agreements. Within 60 days after the date of the
Existing Agreement, the Company and/or its Subsidiaries shall
(a) grant, or cause to be granted, to the Collateral Agent, to
equally and ratably secure the Obligations, the "Obligations"
under the 364-Day Credit Agreement and all obligations of the
Company or its Subsidiaries under Hedging Agreements entered
into in connection with this Agreement or the 364-Day Credit
Agreement, a pledge of 65% (or such lesser percentage as is
owned by the Company or applicable Subsidiary which is not a
Foreign Subsidiary) of the shares of the capital stock of each
Subsidiary listed on Schedule 7.2, in each case pursuant to a
Pledge Agreement and (b) deliver to the Collateral Agent such
Pledge Agreements, stock certificates and stock powers
relating to such shares and such opinions of counsel and other
documentation as the Collateral Agent may reasonably request.
Notwithstanding the foregoing, the Collateral Agent may, in
its discretion, extend the time period for delivery of the
Pledge Agreements, stock certificates and stock powers
referenced in the preceding sentence. In addition, within 30
days (or, as long as the Company uses its best efforts, such
reasonably longer time as the Company may need) after the date
that any other Subsidiary is or becomes a Foreign Subsidiary
which is a
-87-
94
Wholly-Owned Subsidiary, has assets with a book value in
excess of $10,000,000 and is owned by the Company and/or one
or more Domestic Subsidiaries, the Company shall, or as
applicable shall cause its Domestic Subsidiaries to, grant or
cause to be granted to the Collateral Agent a pledge of such
Foreign Subsidiary's capital stock to the extent, in the
manner and accompanied by the documentation described in the
preceding sentence.
7.3 Negative Covenants.
(A) Sale of Receivables. The Company shall not, nor shall it
permit any Subsidiary to, sell or otherwise dispose of any
Receivables, with or without recourse, except that the Company
and the Subsidiaries may sell, transfer or pledge any of their
respective Receivables; provided, in the case of United States
domestic Receivables that the proceeds from the sale of such
Receivables are used to prepay the Term Loans in accordance
with Section 2.5(C).
(B) Sales of Assets. The Company shall not, nor shall it permit
any Subsidiary to, consummate any Asset Sale, except:
(i) Asset Sales in connection with the sale of
Receivables permitted under Section 7.3(A);
(ii) transfers of assets to any Company, between the
Company and any Guarantor which is a Domestic Subsidiary or between any
such Guarantors; and
(iii) sales, assignments, transfers, lease conveyances or
other dispositions of other assets if such transaction (a) is for not
less than fair market value (as determined in good faith by the
Company's chief financial officer), and (b) when combined with all such
other transactions (each such transaction being valued at book value)
and all Sale and Leaseback Transactions (each such Sale and Leaseback
Transaction being valued at book value) during the period from the
Closing Date to the date of such proposed transaction, represents the
disposition of not greater than ten percent (10%) of the Company's
Consolidated Net Assets at the end of the fiscal year immediately
preceding that in which such transaction is proposed to be entered
into.
(C) Liens. The Company shall not, nor shall it permit any
Subsidiary to, directly or indirectly create, incur, assume or
permit to exist a Lien on or with respect to the Capital Stock
of any Subsidiary of the Company. In addition, the Company
shall not, nor shall it permit any Subsidiary to, directly or
indirectly create, incur, assume or permit to exist any Lien
on or with respect to any of their respective other property
or assets except:
(i) Permitted Existing Liens;
(ii) Customary Permitted Liens;
(iii) Liens with respect to property acquired by the
Company or any of its Subsidiaries after the date hereof (and not
created in contemplation of such acquisition)
-88-
95
pursuant to a Permitted Acquisition; provided, that such Liens shall
extend only to the property so acquired;
(iv) Liens on Receivables created in connection with a
transaction permitted under Section 7.3(A); provided, that each such
Lien represents an interest no greater than the related purchaser's
pro-rata interest in the pool of eligible Receivables so sold;
(v) Liens securing Indebtedness of a Subsidiary to the
Company;
(vi) Additional Liens, provided the Indebtedness secured
thereby does not exceed in the aggregate $10,000,000;
(vii) Liens, if any, created by the Loan Documents or
otherwise securing the Obligations and Liens securing Indebtedness
under the 364-Day Credit Agreement only to the extent such Liens are
equal and ratable with, or subordinate to, any Liens granted to the
Administrative Agent for the benefit of the Lenders; and
(viii) The replacement, extension or renewal of any Lien
permitted above upon or in the same property theretofore subject
thereto in connection with the replacement, extension or renewal
(pursuant to Permitted Refinancing Indebtedness) of the obligations
secured thereby.
(D) Indebtedness. The Company shall not, nor shall it permit any
Subsidiary to, cause or permit, directly or indirectly create,
incur, assume or otherwise become or remain directly or
indirectly liable with respect to any Indebtedness, except:
(i) the Obligations;
(ii) Permitted Existing Indebtedness and related Permitted
Refinancing Indebtedness of the type described in clause (i) of the
definition thereof;
(iii) Indebtedness in an aggregate principal amount not to
exceed $200,000,000 at any time incurred in connection with the 364-Day
Credit Agreement and related Permitted Refinancing Indebtedness of the
type described in clause (i) of the definition thereof;
(iv) Indebtedness arising from intercompany loans and
advances from the Company or any Subsidiary to any Domestic Subsidiary
which is a Guarantor; provided, that such Indebtedness shall be
expressly subordinate to the payment in full in cash of the
Obligations;
(v) Contingent Obligations to the extent permitted under
Section 7.3(E);
(vi) Hedging Obligations;
(vii) Indebtedness incurred in connection with a
securitization to the extent such transaction is otherwise permitted
pursuant to Section 7.3(A);
-89-
96
(viii) additional unsecured Indebtedness in an aggregate
amount at any time outstanding not exceeding (a) $150,000,000, less (b)
the aggregate Dollar Amount of securitized (i) United States domestic
Receivables in excess of $250,000,000, and (ii) European Receivables in
excess of $100,000,000, less (c) the amount of Permitted Existing
Indebtedness, of which not more than $50,000,000 may be incurred by
Subsidiaries which are not Subsidiary Borrowers or Guarantors; and
(ix) additional unsecured Indebtedness, the proceeds of
which are used to repay the Term Loans.
(E) Contingent Obligations. The Company shall not, nor shall it
permit any Subsidiary to, directly or indirectly create or
become or be liable with respect to any Contingent Obligation,
except: (i) recourse obligations resulting from endorsement of
negotiable instruments for collection in the ordinary course
of business; (ii) Permitted Existing Contingent Obligations;
(iii) obligations, warranties, guaranties and indemnities, not
relating to Indebtedness of any Person, which have been or are
undertaken or made in the ordinary course of business and not
for the benefit of or in favor of an Affiliate of the Company
or such Subsidiary; (iv) Contingent Obligations of the
Subsidiaries of the Company (a) under the Guaranty to which
they are a party and (b) as guarantors of the 364-Day Credit
Agreement, (v) obligations arising under or related to the
Loan Documents; (vi) Contingent Obligations in respect of
other Indebtedness permitted by Section 7.3(D) above, and
(vii) additional Contingent Obligations in an aggregate amount
not to exceed in the aggregate five percent (5%) of
Consolidated Net Worth at any one time outstanding.
(F) Restricted Payments. The Company shall not, nor shall it
permit any Subsidiary to, make or declare any Restricted
Payments (other than (i) the Dividend, and (ii) Restricted
Payments to the Company or to a Wholly-Owned Subsidiary of the
Company); provided, however, that so long as no Default or an
Unmatured Default shall have occurred and be continuing at the
date of declaration or payment thereof or would result
therefrom, the Company may make Restricted Payments (in
addition to the Dividend) in an aggregate amount of up to 25%
of Net Income for the prior fiscal year.
(G) Conduct of Business; Subsidiaries; Acquisitions. The Company
shall not, nor shall it permit any Subsidiary to, engage in
any business other than the businesses engaged in by the
Company on the date hereof and any business or activities
which are similar, related or incidental thereto or logical
extensions thereof. The Company shall not create, acquire or
capitalize any Subsidiary after the date hereof unless (i) no
Default or Unmatured Default which is not being cured shall
have occurred and be continuing or would result therefrom;
(ii) after such creation, acquisition or capitalization, all
of the representations and warranties contained herein shall
be true and correct in all material respects (unless such
representation and warranty is made as of a specific date, in
which case, such representation or warranty shall be true in
all material respects as of such date); and (iii) after such
creation, acquisition or capitalization the Company shall be
in
-90-
97
compliance with the terms of Section 7.2(K). The Company shall
not make any Acquisitions, other than Acquisitions meeting the
following requirements (each such Acquisition constituting a
"PERMITTED ACQUISITION"):
(i) no Default or Unmatured Default shall have occurred
and be continuing or would result from such Acquisition or the
incurrence of any Indebtedness in connection therewith;
(ii) the purchase is consummated pursuant to a negotiated
acquisition agreement on a non-hostile basis and approved by the target
company's board of directors (and shareholders, if necessary) prior to
the consummation of the Acquisition;
(iii) if the purchase price payable in respect to any such
Acquisition (including, without limitation, cash or stock consideration
paid and Indebtedness or other liabilities assumed) exceeds
$25,000,000, prior to each such Acquisition, the Company shall have
delivered to the Administrative Agent and the Lenders a certificate
from one of the Authorized Officers, demonstrating that after giving
effect to such Acquisition, on a pro forma basis in respect of each
such Acquisition as if the Acquisition and such incurrence of
Indebtedness had occurred on the first day of the twelve-month period
ending on the last day of the Company's most recently completed fiscal
quarter, the Company would have been in compliance with the financial
covenants in Section 7.4 and not otherwise in Default;
(iv) if the purchase price for the Acquisition exceeds,
together with all other Permitted Acquisitions permitted under this
Section 7.3(G) during the same fiscal year, $150,000,000 (the
"Permitted Acquisition Basket") (including the incurrence or assumption
of any Indebtedness in connection therewith), the Required Lenders
shall have consented to such Acquisition; provided that (a) if the Term
Loans have been repaid and all of the Term Loan Commitments have been
irrevocably terminated, the Permitted Acquisition Basket shall be
$250,000,000 and (b) if the Term Loans have been repaid and all of the
Term Loan Commitments have been irrevocably terminated and the
Company's senior unsecured debt is rated "BBB" or better by Standard &
Poor's Ratings Group or "Baa" or better by ▇▇▇▇▇'▇ Investors Services,
Inc., the Permitted Acquisition Basket shall be $350,000,000;
(v) the businesses being acquired shall be similar to
that of the Company and its Subsidiaries as of the Closing Date,
related or incidental thereto or logical extensions thereof; and
(vi) such Acquisition shall be structured as an asset
acquisition, as an acquisition of one hundred percent (100%) of the
outstanding voting securities of the target company or as a merger
permitted hereby.
(H) Investments. Neither the Company nor any of its Subsidiaries
shall purchase or acquire, or make any commitment therefor,
any capital stock, equity interest, or any obligations or
other securities of, or any interest in, any Person, or make
or commit to make any advance, loan, extension of credit or
capital contribution to
-91-
98
or any other investment in, any Person including any Affiliate
of the Company, except for:
(i) Investments by the Company or any Subsidiary in any
Wholly-Owned Subsidiary which is a Guarantor;
(ii) Investments incurred in order to consummate Permitted
Acquisitions otherwise permitted herein;
(iii) Investments in Cash Equivalents; and
(iv) other Investments in an aggregate amount not to
exceed $20,000,000 (based on the initial amount invested).
(I) Transactions with Shareholders and Affiliates. Neither the
Company nor any of its Subsidiaries shall directly or
indirectly enter into or permit to exist any transaction
(including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service)
with, or make loans or advances to, any Affiliate of the
Company which is not its Wholly-Owned Subsidiary, on terms
that are less favorable to the Company or any of its
Subsidiaries, as applicable, than those that might be obtained
in an arm's length transaction at the time from Persons who
are not such a holder or Affiliate, except for (i) Restricted
Payments permitted by Section 7.3(F) and (ii) as otherwise
contemplated by the Spin-off Materials.
(J) Restriction on Fundamental Changes. Neither the Company nor
any of its Subsidiaries shall enter into any merger or
consolidation, or liquidate, wind-up or dissolve (or suffer
any liquidation or dissolution), or convey, lease, sell,
transfer or otherwise dispose of, in one transaction or series
of transactions, all or substantially all of the Company's
consolidated business or property (each such transaction a
"FUNDAMENTAL CHANGE"), whether now or hereafter acquired,
except (i) Fundamental Changes permitted under Sections
7.3(B), 7.3(D) or 7.3(G), (ii) a Subsidiary of the Company may
be merged into or consolidated with the Company or any
Wholly-Owned Subsidiary of the Company (in which case the
Company or such Wholly-Owned Subsidiary shall be the surviving
corporation); provided that if the predecessor Subsidiary was
a Guarantor, the surviving Subsidiary, if applicable, shall be
a Guarantor hereunder, (iii) any liquidation of any Subsidiary
of the Company into the Company or another Subsidiary of the
Company, as applicable, and (iv) the Company may merge with
any other Person, or any Subsidiary of the Company may
consolidate or merge with any other Person, provided, that (A)
no Default or Unmatured Default shall exist immediately after
giving effect to such Fundamental Change, (B) in the case of
any merger of the Company, the Company is the surviving
corporation in such merger and such merger is with a Person in
a line of business substantially similar to that of the
Company and its Subsidiaries as of the Closing Date or any
business or activities which are similar, related or
incidental thereto or logical extensions thereof, and (C) in
the case of any merger or consolidation of any Subsidiary of
the Company, the surviving corporation in such Fundamental
Change is or
-92-
99
becomes as a result thereof a Wholly-Owned Subsidiary of the
Company and if the predecessor Subsidiary was a Guarantor, the
surviving Subsidiary shall be a Guarantor hereunder, and (D)
such transaction is with a Person in a line of business
substantially similar to that of the Company and its
Subsidiaries as of the Closing Date.
(K) Margin Regulations. Neither the Company nor any of its
Subsidiaries, shall use all or any portion of the proceeds of
any credit extended under this Agreement to purchase or carry
Margin Stock.
(L) ERISA. (a) The Company shall not:
(i) engage, or permit any of its Subsidiaries to engage,
in any material prohibited transaction described in Sections 406 of
ERISA or 4975 of the Code for which a statutory or class exemption is
not available or a private exemption has not been previously obtained
from the DOL;
(ii) permit to exist any material accumulated funding
deficiency (as defined in Sections 302 of ERISA and 412 of the Code),
with respect to any Benefit Plan, whether or not waived;
(iii) fail, or permit any Controlled Group member to fail,
to pay timely required material contributions or material annual
installments due with respect to any waived funding deficiency to any
Benefit Plan;
(iv) terminate, or permit any Controlled Group member to
terminate, any Benefit Plan which would result in any material
liability of the Company or any Controlled Group member under Title IV
of ERISA;
(v) fail to make any material contribution or payment to
any Multiemployer Plan which the Company or any Controlled Group member
may be required to make under any agreement relating to such
Multiemployer Plan, or any law pertaining thereto;
(vi) permit any material unfunded liabilities with respect
to any Foreign Pension Plan except to the extent that any such unfunded
liabilities are being funded by annual contributions made by the
Borrower or any member of its Controlled Group and such annual
contributions are not less than the minimum amounts, if any, required
under applicable local law;
(vii) fail, or permit any of its Subsidiaries or Controlled
Group members to fail, to pay any required contributions or payments to
a Foreign Pension Plan on or before the due date for such required
installment or payment;
(viii) fail, or permit any Controlled Group member to fail,
to pay any required material installment or any other payment required
under Section 412 of the Code on or before the due date for such
installment or other payment; or
-93-
100
(ix) amend, or permit any Controlled Group member to
amend, a Plan resulting in a material increase in current liability for
the plan year such that the Company or any Controlled Group member is
required to provide security to such Plan under Section 401(a)(29) of
the Code.
(b) For purposes of this Section 7.3(L), "material" means any
noncompliance or basis for liability which could reasonably be likely to subject
the Company or any of its Subsidiaries to liability, individually or in the
aggregate, in excess of $25,000,000.
(M) Certain Documents. Neither the Company nor any of its
Subsidiaries shall amend, modify or otherwise change any of
the terms or provisions of the Distribution Agreement, the Tax
Disaffiliation Agreement (as such terms are referenced in the
definition of "Spin-off Materials") or of any of their
respective constituent documents as in effect on the date
hereof in any manner materially adverse to the interests of
the Lenders.
(N) Fiscal Year. Neither the Company nor any of its consolidated
Subsidiaries shall change its fiscal year for accounting or
tax purposes from a period consisting of the twelve-month
period ending on the Friday nearest to the last day of June of
each year, except as required by Agreement Accounting
Principles or by law and disclosed to the Lenders and the
Administrative Agent.
(O) Subsidiary Covenants. The Company will not, and will not
permit any Subsidiary to, create or otherwise permit to exist
or cause to become effective any consensual encumbrance or
restriction of any kind on the ability of any Subsidiary to
pay dividends or make any other distribution on its stock, or
make any other Restricted Payment, pay any Indebtedness or
other Obligation owed to the Company or any other Subsidiary,
make loans or advances or other Investments in the Company or
any other Subsidiary, or sell, transfer or otherwise convey
any of its property to the Company or any other Subsidiary.
(P) Hedging Obligations. The Company shall not and shall not
permit any of its Subsidiaries to enter into any interest
rate, commodity or foreign currency exchange, swap, collar,
cap or similar agreements evidencing Hedging Obligations,
other than interest rate, foreign currency or commodity
exchange, swap, collar, cap or similar agreements entered into
by the Company or its Subsidiaries pursuant to which the
Company or its Subsidiaries has hedged its actual or
anticipated interest rate, foreign currency or commodity
exposure. Such permitted hedging agreements entered into by
the Company or its Subsidiaries and any Lender or any
Affiliate of any Lender are sometimes referred to herein as
"HEDGING AGREEMENTS."
(Q) Capital Expenditures. The Company shall not, and shall not
permit any of its Subsidiaries to, make Capital Expenditures
in any fiscal year to the extent that during any fiscal year
the aggregate amount of Capital Expenditures for the Company
and its Subsidiaries would exceed (i) for fiscal years ending
prior to the third anniversary of the Closing Date,
$150,000,000, and (ii) thereafter, $175,000,000, in each case
excluding any amount attributable to a Permitted Acquisition.
-94-
101
(R) Restrictive Agreements. The Company shall not, nor shall it
permit any of its Subsidiaries to, enter into any indenture,
agreement, instrument or other arrangement which directly or
indirectly prohibits or restrains, or has the effect of
prohibiting or restraining, or imposes materially adverse
conditions upon, the ability of the Company or any Subsidiary
to create Liens upon their assets securing the Obligations or
of any Subsidiary to (a) pay dividends or make other
distributions (i) on its Capital Stock or (ii) with respect to
any other interest or participation in, or measured by, its
profits, (b) make loans or advances to the Company or any
Subsidiary, (c) repay loans or advances from the Company or
any Subsidiary or (d) transfer any of its properties to the
Company or any Subsidiary.
7.4 Financial Covenants.
(A) Minimum Coverage Ratio. The Company shall maintain as of the
end of each fiscal quarter set forth below a ratio of (i)
EBITDAR for the four fiscal quarter period then ending to (ii)
Interest Expense plus Rentals for such period of not less than
the ratio set forth below opposite such period:
FISCAL QUARTER ENDING RATIO
--------------------- -----
December 31, 1999 through June 30, 2000 2.75
July 1, 2000 through June 29, 2001 2.75
June 30, 2001 through June 28, 2002 3.00
June 29, 2002 through June 27, 2003 3.25
June 28, 2003 through July 2, 2004 3.50
July 3, 2004 and thereafter 3.75
(B) Maximum Leverage Ratio. The Company shall maintain as of the
end of each fiscal quarter set forth below a Leverage Ratio
for the four fiscal quarter period then ending of not greater
than the ratio set forth below opposite such period:
FISCAL QUARTER ENDING RATIO
--------------------- -----
December 31, 1999 through June 30, 2000 3.25
July 1, 2000 through June 29, 2001 3.00
June 30, 2001 through June 28, 2002 2.75
June 29, 2002 through June 27, 2003 2.50
June 28, 2003 through July 2, 2004 2.25
July 3, 2004 and thereafter 2.00
(C) Minimum Consolidated Net Worth. The Company shall not permit
its Consolidated Net Worth at any time to be less than the sum
of (a) 85% of Consolidated Net Worth on the date immediately
following the Closing Date plus (b) fifty percent (50%) of Net
Income (if positive) calculated separately for (i) the
remainder of the quarterly accounting period in which the
Closing Date occurs
-95-
102
and (ii) each subsequent quarterly accounting period, in each case,
excluding changes in cumulative foreign exchange translation
adjustment.
ARTICLE VIII: DEFAULTS
8.1 Defaults. Each of the following occurrences shall constitute a
Default under this Agreement:
(A) Failure to Make Payments When Due. The Company or any
Subsidiary Borrower shall (i) fail to pay when due any of the
Obligations consisting of principal with respect to any Loan
or (ii) shall fail to pay within five (5) Business Days of the
date when due any of the other Obligations under this
Agreement or the other Loan Documents.
(B) Breach of Certain Covenants. The Company or any Subsidiary
Borrower shall fail duly and punctually to perform or observe
any agreement, covenant or obligation binding on it under:
(i) Sections 7.1(B), 7.2(J), 7.2(K), 7.3 or 7.4 or
(ii) any section of this Agreement or any other Loan
Document not covered by Section 8.1(A) or 8.1(B)(i) and such failure
shall continue unremedied for thirty (30) days after the occurrence
thereof.
(C) Breach of Representation or Warranty. Any representation or
warranty made or deemed made by the Company or any Subsidiary
Borrower to the Administrative Agent or any Lender herein or
by the Company or any Subsidiary Borrower or any of their
Subsidiaries in any of the other Loan Documents or in any
statement or certificate or information at any time given by
any such Person pursuant to any of the Loan Documents shall be
false as to a material fact or matter on the date as of which
made or deemed made.
(D) Default as to Other Indebtedness.
(i) The Company or any of its Subsidiaries shall fail to
pay when due any Indebtedness in excess of $10,000,000 or any
Indebtedness arising under the 364-Day Credit Agreement (any such
Indebtedness being "MATERIAL INDEBTEDNESS"); or the Company or any of
its Subsidiaries shall fail to perform (beyond the applicable grace
period with respect thereto, if any) any term, provision or condition
contained in any agreement under which any such Material Indebtedness
was created or is governed, or any other event shall occur or condition
exist, the effect of which default or event is to cause, or to permit
the holder or holders of such Material Indebtedness to cause, such
Material Indebtedness to become due prior to its stated maturity; or
any Material Indebtedness of the Borrower or any of its Subsidiaries
shall be declared to be due and payable or required to be prepaid or
repurchased (other than by a regularly scheduled payment) prior to the
stated maturity thereof.
(E) Involuntary Bankruptcy; Appointment of Receiver, Etc.
-96-
103
(i) An involuntary case shall be commenced against the
Company or any of the Company's Subsidiaries and the petition shall not
be dismissed, stayed, bonded or discharged within forty-five (45) days
after commencement of the case; or a court having jurisdiction in the
premises shall enter a decree or order for relief in respect of the
Company or any of the Company's Subsidiaries in an involuntary case,
under any applicable bankruptcy, insolvency or other similar law now or
hereinafter in effect; or any other similar relief shall be granted
under any applicable federal, state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in
the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers
over the Company or any of the Company's Subsidiaries or over all or a
substantial part of the property of the Company or any of the Company's
Subsidiaries shall be entered; or an interim receiver, trustee or other
custodian of the Company or any of the Company's Subsidiaries or of all
or a substantial part of the property of the Company or any of the
Company's Subsidiaries shall be appointed or a warrant of attachment,
execution or similar process against any substantial part of the
property of the Company or any of the Company's Subsidiaries shall be
issued and any such event shall not be stayed, dismissed, bonded or
discharged within forty-five (45) days after entry, appointment or
issuance.
(F) Voluntary Bankruptcy; Appointment of Receiver, Etc. The
Company or any of the Company's Subsidiaries shall (i)
commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect,
(ii) consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case
to a voluntary case, under any such law, (iii) consent to the
appointment of or taking possession by a receiver, trustee or
other custodian for all or a substantial part of its property,
(iv) make any assignment for the benefit of creditors or (v)
take any corporate action to authorize any of the foregoing.
(G) Judgments and Attachments. Any money judgment(s) (other than a
money judgment covered by insurance as to which the applicable
insurance company has not disclaimed or reserved the right to
disclaim coverage), writ or warrant of attachment, or similar
process against the Company or any Material Subsidiary or any
of their respective assets involving in any single case or in
the aggregate an amount in excess of $10,000,000 is or are
entered and shall remain undischarged, unvacated, unbonded or
unstayed for a period of thirty (30) days or in any event
later than fifteen (15) days prior to the date of any proposed
sale thereunder.
(H) Dissolution. Any order, judgment or decree shall be entered
against the Company or any Material Subsidiary decreeing its
involuntary dissolution or split up and such order shall
remain undischarged and unstayed for a period in excess of
forty-five (45) days; or the Company or any Material
Subsidiary shall otherwise dissolve or cease to exist except
as specifically permitted by this Agreement.
(I) Termination Event. Any Termination Event occurs which the
Required Lenders believe is reasonably likely to subject the
Company to liability in excess of
-97-
104
$25,000,000. The Unfunded Liabilities of all Single Employer
Plans shall exceed in the aggregate $50,000,000.
(J) Waiver of Minimum Funding Standard. If the plan administrator
of any Plan applies under Section 412(d) of the Code for a
waiver of the minimum funding standards of Section 412(a) of
the Code and any Lender believes the substantial business
hardship upon which the application for the waiver is based
could reasonably be expected to subject either the Company or
any Controlled Group member to liability in excess of
$25,000,000.
(K) Change of Control. A Change of Control shall occur.
(L) Guarantor Revocation. Any Guaranty shall fail to remain in
full force or effect or any action shall be taken to
discontinue or to assert the invalidity or unenforceability of
any Guaranty, or any Guarantor shall fail to comply with any
of the terms or provisions of any Guaranty to which it is a
party, or any Guarantor shall deny that it has any further
liability under any Guaranty to which it is a party, or shall
give notice to such effect; in each case other than a
Guarantor's ceasing to be a Subsidiary Borrower pursuant to
Section 2.24 hereof or the disposition of such Guarantor in
any transaction permitted by Section 7.3(B) hereof.
(M) Spin-off. The Spin-off shall not be consummated within three
(3) Business Days after the making of the initial Loans.
(N) Pledge Agreement. Any Pledge Agreement shall fail to remain in
full force or effect or any action shall be taken to discontinue or to assert
the invalidity or unenforceability of any Pledge Agreement, or any pledgor under
any Pledge Agreement shall fail to comply with any of the terms or provisions of
such Pledge Agreement or shall deny, or give notice to such effect, that it has
any further liability under such Pledge Agreement.
A Default shall be deemed "continuing" until cured or until waived in
writing in accordance with Section 9.2.
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES
9.1 Termination of Revolving Loan Commitments; Acceleration. If
any Default described in Section 8.1(E) or 8.1(F) occurs with respect to the
Company or any Subsidiary Borrower, the obligations of the Lenders to make Loans
(including, without limitation, Alternate Currency Loans) hereunder and the
obligation of any Issuing Banks to issue Letters of Credit hereunder shall
automatically terminate and the Obligations shall immediately become due and
payable without any election or action on the part of the Administrative Agent
or any Lender. If any other Default occurs, the Required Lenders may terminate
or suspend the obligations of the Lenders to make Loans (including, without
limitation, Alternate Currency Loans) hereunder and the obligation of the
Issuing Banks to issue Letters of Credit hereunder, or declare the Obligations
to be due and payable, or both, whereupon the Obligations shall become
-98-
105
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which the Borrowers expressly waive.
9.2 Amendments. Subject to the provisions of this Article IX, the
Required Lenders (or the Administrative Agent with the consent in writing of the
Required Lenders) and the Borrowers may enter into agreements supplemental
hereto for the purpose of adding or modifying any provisions to the Loan
Documents or changing in any manner the rights of the Lenders or the Borrowers
hereunder or waiving any Default hereunder; provided, however, that no such
supplemental agreement shall, without the consent of each Lender affected
thereby:
(i) Postpone or extend the Revolving Loan Termination
Date, the Term Loan Termination Date or any other date fixed for any
payment of principal of, or interest on, the Loans, the Reimbursement
Obligations or any fees or other amounts payable to such Lender (except
with respect to a waiver of the application of the default rate of
interest pursuant to Section 2.11 hereof).
(ii) Reduce the principal amount of any Loans or L/C
Obligations, or reduce the rate or extend the time of payment of
interest or fees thereon.
(iii) Reduce the percentage specified in the definition of
Required Lenders or any other percentage of Lenders hereunder specified
to be the applicable percentage in this Agreement to act on specified
matters or amend the definitions of "Required Lenders", "Pro Rata
Revolving Share", "Pro Rata Share", "Pro Rata Term Share", "Pro Rata
Tranche A Revolving Share" or "Pro Rata Tranche B Revolving Share".
(iv) Increase the amount of the Revolving Loan Commitment
or Term Loan Commitment of any Lender hereunder or increase any
Lender's Pro Rata Share, Pro Rata Revolving Share, Pro Rata Term Share,
Pro Rata Tranche A Revolving Share or Pro Rata Tranche B Revolving
Share.
(v) Permit the Company or any Subsidiary Borrower to
assign its rights under this Agreement or any Guaranty.
(vi) Release the Company or any Guarantor from any of its
obligations under the Guaranty set forth in Article X hereof or any
other Guaranty.
(vii) Amend this Section 9.2.
(viii) Release all or any substantial portion of the
collateral pledged pursuant to the Pledge Agreements.
(ix) Release any Subsidiary from any of its obligations
under Section 3 of the Subordination Agreement.
No amendment of any provision of this Agreement relating to (a) the
Administrative Agent shall be effective without the written consent of the
Administrative Agent, (b) any Issuing Bank shall be effective without the
written consent of such Issuing Bank and (c) any Swing Line
-99-
106
Loan or Swing Line Bank shall be effective without the written consent of the
applicable Swing Line Bank. The Administrative Agent may waive payment of the
fee required under Section 14.3(B) without obtaining the consent of any of the
Lenders.
9.3 Preservation of Rights. No delay or omission of the Lenders or
the Administrative Agent to exercise any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of a Loan or the issuance of a Letter of
Credit notwithstanding the existence of a Default or the inability of the
Company or any other Borrower to satisfy the conditions precedent to such Loan
or issuance of such Letter of Credit shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the requisite number of Lenders required pursuant to Section 9.2, and
then only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all
shall be available to the Administrative Agent and the Lenders until the
Obligations have been paid in full.
ARTICLE X: GUARANTY
10.1 Guaranty. For valuable consideration, the receipt of which is
hereby acknowledged, and to induce the Lenders to make advances to each
Subsidiary Borrower and to make, issue and participate in Letters of Credit,
Swing Line Loans and Alternate Currency Loans, the Company hereby absolutely and
unconditionally guarantees prompt payment when due, whether at stated maturity,
upon acceleration or otherwise, and at all times thereafter, of any and all
existing and future obligations including without limitation the Obligations, of
each Subsidiary Borrower to the Agents, the Lenders, the Swing Line Banks, the
Issuing Lenders, the Alternate Currency Banks, or any of them, under or with
respect to the Loan Documents or under or with respect to any Hedging Agreement
entered into in connection with this Agreement, whether for principal, interest,
fees, expenses or otherwise (collectively, the "GUARANTEED OBLIGATIONS", and
each such Subsidiary Borrower being an "OBLIGOR" and collectively, the
"OBLIGORS").
10.2 Waivers. The Company waives notice of the acceptance of this
guaranty and of the extension or continuation of the Guaranteed Obligations or
any part thereof. The Company further waives presentment, protest, notice of
notices delivered or demand made on any Obligor or action or delinquency in
respect of the Guaranteed Obligations or any part thereof, including any right
to require the Administrative Agent and the Lenders to ▇▇▇ any Obligor, any
other guarantor or any other Person obligated with respect to the Guaranteed
Obligations or any part thereof, or otherwise to enforce payment thereof against
any collateral securing the Guaranteed Obligations or any part thereof, and
provided further that if at any time any payment of any portion of the
Guaranteed Obligations is rescinded or must otherwise be restored or returned
upon the insolvency, bankruptcy or reorganization of any of the Obligors or
otherwise, the Company's obligations hereunder with respect to such payment
shall be reinstated at such time as though such payment had not been made and
whether or not the Administrative Agent or the Lenders are in possession of this
guaranty. The Administrative Agent and the Lenders shall have
-100-
107
no obligation to disclose or discuss with the Company their assessments of the
financial condition of the Obligors.
10.3 Guaranty Absolute. This guaranty is a guaranty of payment and
not of collection, is a primary obligation of the Company and not one of surety,
and the validity and enforceability of this guaranty shall be absolute and
unconditional irrespective of, and shall not be impaired or affected by any of
the following: (a) any extension, modification or renewal of, or indulgence with
respect to, or substitutions for, the Guaranteed Obligations or any part thereof
or any agreement relating thereto at any time; (b) any failure or omission to
enforce any right, power or remedy with respect to the Guaranteed Obligations or
any part thereof or any agreement relating thereto, or any collateral; (c) any
waiver of any right, power or remedy with respect to the Guaranteed Obligations
or any part thereof or any agreement relating thereto or with respect to any
collateral; (d) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any collateral,
any other guaranties with respect to the Guaranteed Obligations or any part
thereof, or any other obligation of any Person with respect to the Guaranteed
Obligations or any part thereof; (e) the enforceability or validity of the
Guaranteed Obligations or any part thereof or the genuineness, enforceability or
validity of any agreement relating thereto or with respect to any collateral;
(f) the application of payments received from any source to the payment of
obligations other than the Guaranteed Obligations, any part thereof or amounts
which are not covered by this guaranty even though the Administrative Agent and
the Lenders might lawfully have elected to apply such payments to any part or
all of the Guaranteed Obligations or to amounts which are not covered by this
guaranty; (g) any change in the ownership of any Obligor or the insolvency,
bankruptcy or any other change in the legal status of any Obligor; (h) the
change in or the imposition of any law, decree, regulation or other governmental
act which does or might impair, delay or in any way affect the validity,
enforceability or the payment when due of the Guaranteed Obligations; (i) the
failure of the Company or any Obligor to maintain in full force, validity or
effect or to obtain or renew when required all governmental and other approvals,
licenses or consents required in connection with the Guaranteed Obligations or
this guaranty, or to take any other action required in connection with the
performance of all obligations pursuant to the Guaranteed Obligations or this
guaranty; (j) the existence of any claim, setoff or other rights which the
Company may have at any time against any Obligor, or any other Person in
connection herewith or an unrelated transaction; (k) the Administrative Agent's
or any Lender's election, in any case or proceeding instituted under chapter 11
of the Bankruptcy Code, of the application of section 1111(b)(2) of the
Bankruptcy Code; (l) any borrowing, use of cash collateral, or grant of a
security interest by the Company, as debtor in possession, under section 363 or
364 of the United States Bankruptcy Code; (m) the disallowance of all or any
portion any Lender's claims for repayment of the Guaranteed Debt under section
502 or 506 of the United States Bankruptcy Code; or (n) any other circumstances,
whether or not similar to any of the foregoing, which could constitute a defense
to a guarantor other than the defense of payment; all whether or not the Company
shall have had notice or knowledge of any act or omission referred to in the
foregoing clauses (a) through (n) of this paragraph. It is agreed that the
Company's liability hereunder is several and independent of any other guaranties
or other obligations at any time in effect with respect to the Guaranteed
Obligations or any part thereof and that the Company's liability hereunder may
be enforced regardless of the existence, validity, enforcement or
non-enforcement of any such other guaranties or other obligations or any
provision of any applicable law or regulation purporting to
-101-
108
prohibit payment by any Obligor of the Guaranteed Obligations in the manner
agreed upon between the Obligor and the Administrative Agent and the Lenders.
10.4 Acceleration. The Company agrees that, as between the Company
on the one hand, and the Lenders and the Administrative Agent, on the other
hand, the obligations of each Obligor guaranteed under this Article X may be
declared to be forthwith due and payable, or may be deemed automatically to have
been accelerated, as provided in Section 9.1 hereof for purposes of this Article
X, notwithstanding any stay, injunction or other prohibition (whether in a
bankruptcy proceeding affecting such Obligor or otherwise) preventing such
declaration as against such Obligor and that, in the event of such declaration
or automatic acceleration, such obligations (whether or not due and payable by
such Obligor) shall forthwith become due and payable by the Company for purposes
of this Article X.
10.5 Marshaling; Reinstatement. None of the Lenders nor the
Administrative Agent nor any Person acting for or on behalf of the Lenders or
the Administrative Agent shall have any obligation to ▇▇▇▇▇▇▇▇ any assets in
favor of the Company or against or in payment of any or all of the Guaranteed
Obligations. If the Company, any Borrower or any other guarantor of all or any
part of the Guaranteed Obligations makes a payment or payments to any Lender or
the Administrative Agent, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to such Borrower, the Company, such other guarantor
or any other Person, or their respective estates, trustees, receivers or any
other party, including, without limitation, the Company, under any bankruptcy
law, state or federal law, common law or equitable cause, then, to the extent of
such payment or repayment, the part of the Guaranteed Obligations which has been
paid, reduced or satisfied by such amount shall be reinstated and continued in
full force and effect as of the time immediately preceding such initial payment,
reduction or satisfaction.
10.6 Subrogation. Until the irrevocable payment in full of the
Obligations and termination of all commitments which could give rise to any
Guaranteed Obligation, the Company hereby (i) waives and postpones any right of
subrogation with respect to the Guaranteed Obligations, (ii) waives and
postpones any right to enforce any remedy which the Administrative Agent and/or
the Lenders now has or may hereafter have against the Company, any endorser or
any other guarantor of all or any part of the Guaranteed Obligations, and (iii)
waives and postpones any benefit of, and any right to participate in, any
security or collateral given to the Administrative Agent and/or the Lenders to
secure payment of the Guaranteed Obligations or any part thereof or any other
liability of any Obligor to the Administrative Agent and/or the Lenders.
10.7 Termination Date. This guaranty shall continue in effect until
the later of (a) the Facility Termination Date, and (b) the date on which this
Agreement has otherwise expired or been terminated in accordance with its terms
and all of the Guaranteed Obligations have been paid in full in cash.
-102-
109
ARTICLE XI: GENERAL PROVISIONS
11.1 Survival of Representations. All representations and
warranties of the Company contained in this Agreement shall survive delivery of
this Agreement and the making of the Loans herein contemplated so long as any
principal, accrued interest, fees, or any other amount due and payable under any
Loan Document is outstanding and unpaid (other than contingent reimbursement and
indemnification obligations) and so long as the Revolving Loan Commitments have
not been terminated.
11.2 Governmental Regulation. Anything contained in this Agreement
to the contrary notwithstanding, no Lender shall be obligated to extend credit
to the Company or any other Borrower in violation of any limitation or
prohibition provided by any applicable statute or regulation.
11.3 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
11.4 Entire Agreement. The Loan Documents embody the entire
agreement and understanding among the Borrowers, the Agents and the Lenders and
supersede all prior agreements and understandings among the Borrowers, the
Agents and the Lenders relating to the subject matter thereof other than the Fee
Letters.
11.5 Several Obligations; Benefits of this Agreement. The
respective obligations of the Lenders hereunder are several and not joint and no
Lender shall be the partner or agent of any other Lender (except to the extent
to which the Administrative Agent is authorized to act as such). The failure of
any Lender to perform any of its obligations hereunder shall not relieve any
other Lender from any of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns.
11.6 Expenses; Indemnification.
(A) Expenses. The Borrowers shall reimburse the Administrative
Agent for any reasonable costs and out-of-pocket expenses
(including reasonable attorneys' and paralegals' fees and time
charges of attorneys and paralegals for the Administrative
Agent, Issuing Banks, Swing Line Banks and Alternative
Currency Banks paid or incurred by the Administrative Agent in
connection with the preparation, negotiation, execution,
delivery, syndication, review, proposed or completed
amendment, waiver or modification, and administration of the
Loan Documents. The Borrowers also agree to reimburse the
Agents, each Alternate Currency Bank, and each Lead Arranger
and each of the Lenders for any reasonable costs and
out-of-pocket expenses (including reasonable attorneys' and
paralegals' fees and time charges of attorneys and paralegals
for the Agents, each Alternate Currency Bank, each Lead
Arranger and each Lender, which attorneys and paralegals may
be employees of such Agent, such Alternate Currency Bank,
-103-
110
such Lead Arranger, or the Lenders) paid or incurred by the
Agents, the Alternate Currency Banks or the Lead Arrangers or
any Lender in connection with the collection of the
Obligations and enforcement of the Loan Documents. The
Administrative Agent shall provide the Borrowers with a
detailed statement of all reimbursements requested under this
Section 11.6(A).
(B) Indemnity. The Borrowers hereby further agree to indemnify the
Agents, the Lead Arrangers, the Alternate Currency Banks, the
Issuing Banks and each and all of the Lenders and each of
their respective Affiliates, and each of such Agent's, Lead
Arranger's, Alternate Currency Bank's, Issuing Bank's,
Lender's and Affiliate's directors, officers, employees,
attorneys and agents (all such persons, "INDEMNITEES") against
all losses, claims, damages, penalties, judgments, liabilities
and expenses (including, without limitation, all expenses of
litigation or preparation therefor whether or not such
Indemnitee is a party thereto) which any of them may pay or
incur arising out of or relating to this Agreement, the other
Loan Documents, the transactions contemplated hereby or the
direct or indirect application or proposed application of the
proceeds of any Loan hereunder except to the extent that they
are determined in a final non-appealable judgment by a court
of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the party seeking
indemnification.
(C) Waiver of Certain Claims. The Borrowers further agree to
assert no claim against any of the Indemnitees on any theory
of liability seeking consequential, special, indirect,
exemplary or punitive damages.
(D) Survival of Agreements. The obligations and agreements of the
Borrowers under this Section 11.6 shall survive the
termination of this Agreement.
11.7 Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Administrative Agent
with sufficient counterparts so that the Administrative Agent may furnish one to
each of the Lenders.
11.8 Accounting. Except with respect to the pricing grid
calculations in Section 2.15 and the financial covenant calculations in Section
7.4 both of which shall be made in accordance with Agreement Accounting
Principles as in effect on the date hereof, all accounting terms used herein
shall be interpreted and all accounting determinations hereunder shall be made
in accordance with generally accepted accounting principles as in effect from
time to time, consistently applied.
11.9 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
11.10 Nonliability of Lenders. The relationship between the
Borrowers and the Lenders and the Administrative Agent shall be solely that of
borrower and lender. Neither the Administrative Agent nor any Lender shall have
any fiduciary responsibilities to the Borrowers or the Guarantors. Neither the
Administrative Agent nor any Lender undertakes any
-104-
111
responsibility to any Borrower or Guarantor to review or inform any Borrower or
Guarantor of any matter in connection with any phase of the Borrowers' business
or operations.
11.11 GOVERNING LAW. ANY DISPUTE BETWEEN ANY BORROWER AND THE
ADMINISTRATIVE AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (BUT WITHOUT REGARD TO THE
CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF NEW YORK.
11.12 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B),
EACH OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH,
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS WHETHER
ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN NEW
YORK, BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM
THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE
OF NEW YORK. EACH OF THE PARTIES HERETO WAIVES IN ALL DISPUTES
BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY OBJECTION THAT IT
MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. EACH BORROWER AGREES THAT THE
ADMINISTRATIVE AGENT, ANY LENDER OR ANY OTHER HOLDER OF
OBLIGATIONS SHALL HAVE THE RIGHT TO PROCEED AGAINST EACH
BORROWER OR ITS RESPECTIVE PROPERTY IN A COURT IN ANY LOCATION
TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER
ANY BORROWER OR (2) IN ORDER TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. EACH BORROWER
AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE UNRELATED
COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO
REALIZE ON ANY SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH PERSON. EACH
BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION
OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING
DESCRIBED IN THIS SUBSECTION (B).
(C) VENUE. EACH BORROWER IRREVOCABLY WAIVES ANY OBJECTION
(INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE
-105-
112
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING
OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH IN ANY
JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE,
ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH
THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE
PARTIES HERETO AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO
TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(E) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH
OTHER PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND,
SPECIFICALLY, THE PROVISIONS OF SECTION 11.6 AND THIS SECTION
11.12, WITH ITS COUNSEL.
11.13 Other Transactions. Each of the Agents, the Lead Arrangers,
the Lenders, the Issuing Banks, the Swing Line Banks and the Borrowers
acknowledge that the Agents and the Lenders (or Affiliates of the Agents and the
Lenders) may, from time to time, effect transactions for their own accounts or
the accounts of customers, and hold positions in loans or options on loans of
the Company, the Company's Subsidiaries and other companies that may be the
subject of this credit arrangement and nothing in this Agreement shall impair
the right of any such Person to enter into any such transaction (to the extent
it is not expressly prohibited by the terms of this Agreement) or give any other
Person any claim or right of action hereunder as a result of the existence of
the credit arrangements hereunder, all of which are hereby waived. In addition,
certain Affiliates of one or more of the Lenders are or may be securities firms
and as such may effect, from time to time, transactions for their own accounts
or for the accounts of customers and hold positions in securities or options on
securities of the Company, the Company's Subsidiaries and other companies that
may be the subject of this credit arrangement and nothing in this Agreement
shall impair the right of any such Person to enter into any such transaction (to
the extent it is not expressly prohibited by the terms of this Agreement) or
give any other Person any claim or right of action hereunder as a result of the
existence of the credit arrangements hereunder, all of which are hereby waived.
Other business units affiliated with each of the Agents may from time to time
provide other financial services and products to the Company and its
Subsidiaries.
-106-
113
ARTICLE XII: THE ADMINISTRATIVE AGENT
12.1 Appointment; Nature of Relationship. ABN is appointed by the
Lenders as the Administrative Agent hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the Administrative
Agent to act as the contractual representative of such Lender with the rights
and duties expressly set forth herein and in the other Loan Documents. The
Administrative Agent agrees to act as such contractual representative upon the
express conditions contained in this Article XII. Notwithstanding the use of the
defined term "Administrative Agent," it is expressly understood and agreed that
the Administrative Agent shall not have any fiduciary responsibilities to any
Holder of Obligations by reason of this Agreement and that the Administrative
Agent is merely acting as the representative of the Lenders with only those
duties as are expressly set forth in this Agreement and the other Loan
Documents. In its capacity as the Lenders' contractual representative, the
Administrative Agent (i) does not assume any fiduciary duties to any of the
Holders of Obligations, (ii) is a "representative" of the Holders of Obligations
within the meaning of Section 9-105 of the Uniform Commercial Code and (iii) is
acting as an independent contractor, the rights and duties of which are limited
to those expressly set forth in this Agreement and the other Loan Documents.
Each of the Lenders, for itself and on behalf of its Affiliates as Holders of
Obligations, agrees to assert no claim against the Administrative Agent on any
agency theory or any other theory of liability for breach of fiduciary duty, all
of which claims each Holder of Obligations waives.
12.2 Powers. The Administrative Agent shall have and may exercise
such powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties or fiduciary duties to the Lenders, or any obligation to the
Lenders to take any action hereunder or under any of the other Loan Documents
except any action specifically provided by the Loan Documents required to be
taken by the Administrative Agent.
12.3 General Immunity. Neither the Administrative Agent nor any of
its directors, officers, agents or employees shall be liable to the Company, the
Lenders or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is found in a final
judgment by a court of competent jurisdiction to have arisen primarily from the
gross negligence or willful misconduct of such Person.
12.4 No Responsibility for Loans, Creditworthiness, Recitals, Etc.
Neither the Administrative Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into,
or verify (i) any statement, warranty or representation made in connection with
any Loan Document or any borrowing hereunder; (ii) the performance or observance
of any of the covenants or agreements of any obligor under any Loan Document;
(iii) the satisfaction of any condition specified in Article V, except receipt
of items required to be delivered solely to the Administrative Agent; (iv) the
existence or possible existence of any Default or (v) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith. The Administrative Agent
-107-
114
shall not be responsible to any Lender for any recitals, statements,
representations or warranties herein or in any of the other Loan Documents, or
for the execution, effectiveness, genuineness, validity, legality,
enforceability, collectibility, or sufficiency of this Agreement or any of the
other Loan Documents or the transactions contemplated thereby, or for the
financial condition of any guarantor of any or all of the Obligations, the
Company or any of its Subsidiaries.
12.5 Action on Instructions of Lenders. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders (or all of the Lenders in the event
that and to the extent that this Agreement expressly requires such), and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders and on all owners of Loans and on all Holders of
Obligations. The Administrative Agent shall be fully justified in failing or
refusing to take any action hereunder and under any other Loan Document unless
it shall first be indemnified to its satisfaction by the Lenders pro rata
against any and all liability, cost and expense that it may incur by reason of
taking or continuing to take any such action.
12.6 Employment of Agents and Counsel. The Administrative Agent may
execute any of its duties as the Administrative Agent hereunder and under any
other Loan Document by or through employees, agents, and attorneys-in-fact and
shall not be answerable to the Lenders, except as to money or securities
received by it or its authorized agents, for the default or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall be entitled to advice of counsel concerning the
contractual arrangement between the Administrative Agent and the Lenders and all
matters pertaining to the Administrative Agent's duties hereunder and under any
other Loan Document.
12.7 Reliance on Documents; Counsel. The Administrative Agent shall
be entitled to rely upon any notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
12.8 The Administrative Agent's, Issuing Banks' and Alternate
Currency Banks' Reimbursement and Indemnification. (a) The Lenders agree to
reimburse and indemnify the Administrative Agent ratably in proportion to their
respective Pro Rata Shares (i) for any expenses incurred by the Administrative
Agent on behalf of the Lenders, in connection with the preparation, execution,
delivery, administration and enforcement of the Loan Documents and (ii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of the Loan Documents or any other document delivered
in connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents, provided
that no Lender shall be liable for any of the foregoing to the extent any of the
foregoing is found in a final non-appealable judgment by a court of competent
jurisdiction to have arisen primarily from the gross negligence or willful
misconduct of the Administrative Agent.
-108-
115
(b) The Lenders with a Revolving Loan Commitment agree to
reimburse and indemnify the Administrative Agent, the Issuing Banks, the Swing
Line Banks and the Alternate Currency Banks ratably in proportion to their
respective Pro Rata Revolving Shares (i) any amounts not reimbursed by any
Borrower for which the Administrative Agent, the Issuing Banks, the Swing Line
Banks and the Alternate Currency Banks are entitled to reimbursement by any
Borrower under the Loan Documents, (ii) for any other expenses incurred by the
Administrative Agent, any Issuing Bank, any Swing Line Bank or any Alternate
Currency Bank on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan Documents and
(iii) for any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent, any Issuing Bank, any Swing Line Bank or any Alternate
Currency Bank in any way relating to or arising out of the Loan Documents or any
other document delivered in connection therewith or the transactions
contemplated thereby, or the enforcement of any of the terms thereof or of any
such other documents, provided that no Lender shall be liable for any of the
foregoing to the extent any of the foregoing is found in a final non-appealable
judgment by a court of competent jurisdiction to have arisen primarily from the
gross negligence or willful misconduct of the Administrative Agent, the
applicable Issuing Bank, the applicable Swing Line Bank or the applicable
Alternate Currency Bank.
12.9 Rights as a Lender. With respect to its Revolving Loan
Commitment, Loans made by it, Swing Line Loans made by it, and Letters of Credit
issued by it, the Administrative Agent shall have the same rights and powers
hereunder and under any other Loan Document as any Lender or Issuing Bank and
may exercise the same as though it were not the Administrative Agent, and the
term "Lender" or "Lenders", "Swing Line Bank", "Swing Line Banks", "Issuing
Bank" or "Issuing Banks" shall, unless the context otherwise indicates, include
the Administrative Agent in its individual capacity. The Administrative Agent
may accept deposits from, lend money to, and generally engage in any kind of
trust, debt, equity or other transaction, in addition to those contemplated by
this Agreement or any other Loan Document, with the Company or any of its
Subsidiaries in which such Person is not prohibited hereby from engaging with
any other Person.
12.10 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, the Lead
Arrangers or any other Lender and based on the financial statements prepared by
the Company and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and the other Loan Documents. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent, the Lead
Arrangers or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan Documents.
12.11 Successor Administrative Agent. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Company. Upon any such resignation, the Required Lenders shall have the right,
with the consent of the Company prior to the occurrence of a Default (which
consent shall not be unreasonably withheld), to appoint, on behalf of the
Borrowers and the Lenders, a successor Administrative Agent. If no successor
-109-
116
Administrative Agent shall have been so appointed by the Required Lenders and
shall have accepted such appointment within thirty days after the retiring
Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may appoint, on behalf of the Borrowers and the Lenders, a
successor Administrative Agent. Such successor Administrative Agent shall be a
commercial bank having capital and retained earnings of at least $500,000,000.
Upon the acceptance of any appointment as the Administrative Agent hereunder by
a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder and under
the other Loan Documents. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article XII shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Administrative Agent hereunder and
under the other Loan Documents.
12.12 No Duties Imposed Upon Syndication Agent, Documentation Agent
or Lead Arrangers. None of the Persons identified on the cover page to this
Agreement, the signature pages to this Agreement or otherwise in this Agreement
as a "Syndication Agent" or "Documentation Agent" or "Lead Arranger" shall have
any right, power, obligation, liability, responsibility or duty under this
Agreement other than, if such Person is a Lender, those applicable to all
Lenders as such. Without limiting the foregoing, none of the Persons identified
on the cover page to this Agreement, the signature pages to this Agreement or
otherwise in this Agreements as a "Syndication Agent" or "Documentation Agent"
or "Lead Arranger" shall have or be deemed to have any fiduciary duty to or
fiduciary relationship with any Lender. In addition to the agreements set forth
in Section 12.10, each of the Lenders acknowledges that it has not relied, and
will not rely, on any of the Persons so identified in deciding to enter into
this Agreement or in taking or not taking action hereunder.
12.13 Collateral Agent. ABN is appointed by the Lenders as the
Collateral Agent hereunder and under each of the Pledge Agreements. Each
reference to the Administrative Agent in this Article XII shall be deemed to
refer also to the Collateral Agent.
ARTICLE XIII: SETOFF; RATABLE PAYMENTS
13.1 Setoff. In addition to, and without limitation of, any rights
of the Lenders under applicable law, if any Default occurs and is continuing,
any Indebtedness from any Lender to the Company or any other Borrower (including
all account balances, whether provisional or final and whether or not collected
or available) may be offset and applied toward the payment of the Obligations
owing to such Lender, whether or not the Obligations, or any part hereof, shall
then be due.
13.2 Ratable Payments. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Loans (other than payments received pursuant to
Sections 4.1, 4.2 or 4.4 and payments expressly hereunder provided to be
distributed on other than a pro rata basis or payments made and distributed in
accordance with Section 2.12) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which
-110-
117
might be subject to setoff or otherwise, receives collateral or other protection
for its Obligation or such amounts which may be subject to setoff, such Lender
agrees, promptly upon demand, to take such action necessary such that all
Lenders share in the benefits of such collateral ratably in proportion to the
obligations owing to them. In case any such payment is disturbed by legal
process, or otherwise, appropriate further adjustments shall be made.
13.3 Application of Payments. The Administrative Agent shall apply
all payments and prepayments in respect of any Obligations in the following
order:
(A) first, to pay interest on and then principal of any portion of
the Loans which the Administrative Agent may have advanced on
behalf of any Lender for which the Administrative Agent has
not then been reimbursed by such Lender or the applicable
Borrower and to pay any Swing Line Loan, Alternate Currency
Loan or Reimbursement Obligation that has not been paid;
(B) second, to the ratable payment of the Obligations then due and
payable; and
(C) third, to the ratable payment of all other Obligations.
13.4 Relations Among Lenders. The Lenders are not partners or
co-venturers, and no Lender shall be liable for the acts or omissions of, or
(except as otherwise set forth herein in case of the Administrative Agent)
authorized to act for, any other Lender.
ARTICLE XIV: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
14.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowers and
the Lenders and their respective successors and assigns, except that (A) no
Borrower shall have any right to assign its rights or obligations under the Loan
Documents without the consent of all of the Lenders, and any such assignment in
violation of this Section 14.1(A) shall be null and void, and (B) any assignment
by any Lender must be made in compliance with Section 14.3 hereof.
Notwithstanding clause (B) of this Section 14.1 or Section 14.3, (i) any Lender
may at any time, without the consent of any Borrower or the Administrative
Agent, assign all or any portion of its rights under this Agreement to a Federal
Reserve Bank and (ii) any Lender which is a fund or commingled investment
vehicle that invests in commercial loans in the ordinary course of its business
may at any time, without the consent of any Borrower or the Administrative
Agent, pledge or assign all or any part of its rights under this Agreement to a
trustee or other representative of holders of obligations owed or securities
issued by such Lender as collateral to secure such obligations or securities;
provided, however, that no such assignment or pledge shall release the
transferor Lender from its obligations hereunder. The Administrative Agent may
treat each Lender as the owner of the Loans made by such Lender hereunder for
all purposes hereof unless and until such Lender complies with Section 14.3
hereof in the case of an assignment thereof or, in the case of any other
transfer, a written notice of the transfer is filed with the Administrative
Agent. Any assignee or transferee of a Loan, Revolving Loan Commitment, L/C
Interest or any other interest of a lender under the Loan Documents agrees by
acceptance thereof to be bound by all the terms and provisions of the Loan
Documents. Any request, authority or consent of any Person, who at the time of
making such request or giving such authority or consent is the owner of any
Loan, shall be conclusive and binding on any subsequent owner, transferee or
assignee of such Loan.
-111-
118
14.2 Participations.
(A) Permitted Participants; Effect. Subject to the terms set forth
in this Section 14.2, any Lender may, in the ordinary course
of its business and in accordance with applicable law, at any
time sell to one or more banks or other entities
("PARTICIPANTS") participating interests in any Loan owing to
such Lender, any Revolving Loan Commitment of such Lender, any
L/C Interest of such Lender or any other interest of such
Lender under the Loan Documents on a pro rata or non-pro rata
basis. Notice of such participation to the Company and the
Administrative Agent shall be required prior to any
participation becoming effective with respect to a Participant
which is not a Lender or an Affiliate thereof. Upon receiving
said notice, the Administrative Agent shall record the
participation in the Register it maintains. Moreover,
notwithstanding such recordation, such participation shall not
be considered an assignment under Section 14.3 of this
Agreement and such Participant shall not be considered a
Lender. In the event of any such sale by a Lender of
participating interests to a Participant, such Lender's
obligations under the Loan Documents shall remain unchanged,
such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such
Lender shall remain the owner of all Loans made by it for all
purposes under the Loan Documents, all amounts payable by the
applicable Borrower under this Agreement shall be determined
as if such Lender had not sold such participating interests,
and the applicable Borrower and the Administrative Agent shall
continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under the
Loan Documents except that, for purposes of Article IV hereof,
the Participants shall be entitled to the same rights as if
they were Lenders.
(B) Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any
amendment, modification or waiver of any provision of the Loan
Documents other than any amendment, modification or waiver
with respect to any Loan, Letter of Credit or Revolving Loan
Commitment in which such Participant has an interest which
forgives principal, interest or fees or reduces the interest
rate or fees payable pursuant to the terms of this Agreement
with respect to any such Loan or Revolving Loan Commitment,
postpones any date fixed for any regularly-scheduled payment
of principal of, or interest or fees on, any such Loan or
Revolving Loan Commitment.
14.3 Assignments.
(A) Permitted Assignments. (i) Any Lender (each such assigning
Lender under this Section 14.3 being a "SELLER") may, in the
ordinary course of its business and in accordance with
applicable law, at any time assign to one or more banks or
other entities (other than the Company or any of its
Affiliates) ("PURCHASERS") all or a portion of its rights and
obligations under this Agreement (including, without
limitation, its Tranche A Revolving Loan Commitment, its
Tranche B Revolving Loan Commitment, any Loans owing to it,
all of its participation interests in existing Letters of
Credit, Swing Line Loans and
-112-
119
Alternate Currency Loans, and its obligation to participate in
additional Letters of Credit, Swing Line Loans and Alternate
Currency Loans hereunder) in accordance with the provisions of
this Section 14.3. Such assignment shall be substantially in
the form of Exhibit D hereto and shall not be permitted
hereunder unless such assignment is either for all of such
Seller's rights and obligations under the Loan Documents or,
without the prior written consent of the Administrative Agent
and the Company, involves loans and commitments as a
consequence of which neither the Seller nor the Purchaser will
have a Commitment of less than $5,000,000 (for Sellers which
are Managing Agents or Agents) or $10,000,000 (for all other
Sellers); provided that the foregoing restrictions with
respect to Commitments having a minimum aggregate amount (i)
shall not apply to any assignment between Lenders, or to an
Affiliate or Approved Fund of any Lender, and (ii) in any
event may be waived by the Administrative Agent and the
Company). The written consent of the Administrative Agent,
and, prior to the occurrence of a Default, the Company (which
consent, in each such case, shall not be unreasonably
withheld), shall be required prior to an assignment becoming
effective with respect to a Purchaser which is not a Lender or
an Affiliate or Approved Fund of such Lender.
(ii) Notwithstanding anything to the contrary contained herein, any
Lender (each such Lender, a "GRANTING BANK") may grant to a special purpose
funding vehicle (each such special purpose funding vehicle, a "SPC"), identified
as such in writing from time to time by the applicable Granting Bank to the
Administrative Agent and the Company, the option to provide to the Company and
the other Borrowers all or any part of any Advance that such Granting Bank would
otherwise be obligated to make to the applicable Borrower pursuant to this
Agreement; provided, that (i) nothing herein shall constitute a commitment by
any SPC to make any Advance, (ii) if an SPC elects not to exercise such option
or otherwise fails to provide all or any part of such Advance, the applicable
Granting Bank shall be obligated to make such Advance pursuant to the terms
hereof. The making of an Advance by any SPC hereunder shall utilize the
Revolving Loan Commitment of the applicable Granting Bank to the same extent,
and as if, such Advance were made by such Granting Bank. Each party hereto
hereby agrees that no SPC shall be liable for any indemnity or other similar
payment obligation under this Agreement (all liability for which shall remain
with the applicable Granting Bank). All notices hereunder to any Granting Bank
or the related SPC, and all payments in respect of the Obligations due to such
Granting Bank or the related SPC, shall be made to such Granting Bank. In
addition, each Granting Bank shall vote as a Lender hereunder without giving
effect to any assignment under this Section 14.3(A)(ii), and not SPC shall have
any vote as a Lender under this Agreement for any purpose. In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any State thereto. In addition, notwithstanding anything to the
contrary contained in this Section 14.3, any SPC may (i) with notice to, but
without the prior written consent of, the Company and the Administrative Agent
and without paying any processing or administrative fee therefor, assign all or
a portion of its interest in any Advances to the Granting Bank or to any
financial institutions (consented to by the Company and the Administrative Agent
in accordance with the terms of Section 14.3(A)(i)) providing liquidity and/or
credit support to or for the account of such SPC to support the funding or
maintenance of Advances and (ii) disclose
-113-
120
on a confidential basis any non-public information relating to its Advances to
any rating agency, commercial paper dealer or provider of any surety, guarantee
or credit or liquidity enhancement to such SPC. This Section 14.3(A)(ii) may not
be amended without the written consent of each SPC affected thereby.
(B) Effect; Effective Date. Upon (i) delivery to the
Administrative Agent and the Alternate Currency Banks of a
notice of assignment, substantially in the form attached as
Appendix I to Exhibit D hereto (a "NOTICE OF ASSIGNMENT"),
together with any consent required by Section 14.3(A) hereof,
(ii) payment of a $3,500 fee by the assignee or the assignor
(as agreed) to the Administrative Agent for processing such
assignment (other than an assignment by a Lender to an
Affiliate of such Lender or an Approved Fund of such Lender),
and (iii) the completion of the recording requirements in
Section 14.3(C), such assignment shall become effective on the
later of such date when the requirements in clauses (i), (ii),
and (iii) are met or the effective date specified in such
Notice of Assignment. The Notice of Assignment shall contain a
representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Revolving Loan
Commitment, Loans and L/C Obligations under the applicable
assignment agreement are "plan assets" as defined under ERISA
and that the rights and interests of the Purchaser in and
under the Loan Documents will not be "plan assets" under
ERISA. On and after the effective date of such assignment,
such Purchaser, if not already a Lender, shall for all
purposes be a Lender party to this Agreement and any other
Loan Documents executed by the Lenders and shall have all the
rights and obligations of a Lender under the Loan Documents,
to the same extent as if it were an original party hereto, and
no further consent or action by any Borrower, the Lenders, the
Alternate Currency Banks or the Administrative Agent shall be
required to release the Seller with respect to the percentage
of the Aggregate Revolving Loan Commitment, Loans and Letter
of Credit, Swing Line Loans and Alternate Currency Loan
participations assigned to such Purchaser. Upon the
consummation of any assignment to a Purchaser pursuant to this
Section 14.3(B), the Seller, the Administrative Agent, the
Alternate Currency Banks and the Borrowers shall make
appropriate arrangements so that, to the extent notes have
been issued to evidence any of the transferred Loans,
replacement notes are issued to such Seller and new notes or,
as appropriate, replacement notes, are issued to such
Purchaser, in each case in principal amounts reflecting their
Revolving Loan Commitment, as adjusted pursuant to such
assignment. Notwithstanding anything to the contrary herein,
no Borrower shall, at any time, be obligated to pay under
Section 2.15(E) to any Lender that is a Purchaser, assignee or
transferee any sum in excess of the sum which such Borrower
would have been obligated to pay to the Lender that was the
Seller, assignor or transferor had such assignment or transfer
not been effected.
(C) The Register. Notwithstanding anything to the contrary in this
Agreement, each Borrower hereby designates the Administrative
Agent, and the Administrative Agent hereby accepts such
designation, to serve as such Borrower's contractual
representative solely for purposes of this Section 14.3(C). In
this connection, the Administrative Agent shall maintain at
its address referred to in Section 15.1 a
-114-
121
copy of each assignment delivered to and accepted by it
pursuant to this Section 14.3 and a register (the "REGISTER")
for the recordation of the names and addresses of the Lenders
and the Revolving Loan Commitment of, principal amount of and
interest on the Loans owing to, each Lender from time to time
and whether such Lender is an original Lender or the assignee
of another Lender pursuant to an assignment under this Section
14.3. The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the
Company and each of its Subsidiaries, the Administrative Agent
and the Lenders may treat each Person whose name is recorded
in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by
any Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
14.4 Confidentiality. Subject to Section 14.5, the Administrative
Agent and the Lenders and their respective representatives shall hold all
nonpublic information obtained pursuant to the requirements of this Agreement
and identified as such by the Company or any other Borrower in accordance with
such Person's customary procedures for handling confidential information of this
nature and in accordance with safe and sound commercial lending or investment
practices and in any event may make disclosure reasonably required by a
prospective Transferee in connection with the contemplated participation or
assignment or as required or requested by any Governmental Authority or any
securities exchange or similar self-regulatory organization or representative
thereof or pursuant to a regulatory examination or legal process, or to any
direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor. In no event shall the
Administrative Agent or any Lender be obligated or required to return any
materials furnished by the Company; provided, however, each prospective
Transferee shall be required to agree that if it does not become a participant
or assignee it shall return all materials furnished to it by or on behalf of the
Company in connection with this Agreement.
14.5 Dissemination of Information. Each Borrower authorizes each
Lender to disclose to any Participant or Purchaser or any other Person acquiring
an interest in the Loan Documents by operation of law (each a "TRANSFEREE") and
any prospective Transferee any and all information in such Lender's possession
concerning the Company and its Subsidiaries; provided that prior to any such
disclosure, such prospective Transferee shall agree to preserve in accordance
with Section 14.4 the confidentiality of any confidential information described
therein.
ARTICLE XV: NOTICES
15.1 Giving Notice. Except as otherwise permitted by Section 2.14
with respect to Borrowing/Conversion/Continuation Notices, all notices and other
communications provided to any party hereto under this Agreement or any other
Loan Documents shall be in writing or by telex or by facsimile and addressed or
delivered to such party at its address set forth below its signature hereto or
at such other address as may be designated by such party in a notice to the
other parties. Any notice, if mailed and properly addressed with postage
prepaid, shall be
-115-
122
deemed given when received; any notice, if transmitted by telex or facsimile,
shall be deemed given when transmitted (answerback confirmed in the case of
telexes).
15.2 Change of Address. The Borrowers, the Administrative Agent and
any Lender may each change the address for service of notice upon it by a notice
in writing to the other parties hereto.
15.3 Authority of Company. Each of the Subsidiary Borrowers, by its
execution hereof or of an Assumption Letter (i) irrevocably authorizes the
Company, on behalf of such Subsidiary Borrower, to give and receive all notices
under the Loan Documents and to make all elections under the Loan Documents and
to give all Borrowing/Conversion/Continuation Notices on its behalf, (ii) agrees
to be bound by any such notices or elections and (iii) agrees that the
Administrative Agent and Lenders may rely upon any such policies or elections as
if they had been given or made by such Subsidiary Borrower.
ARTICLE XVI: COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Company, the
Administrative Agent and the Lenders and each party has notified the
Administrative Agent by telex or telephone, that it has taken such action.
Remainder of This Page Intentionally Blank
-116-
123
IN WITNESS WHEREOF, the Company, the Subsidiary Borrowers, the Lenders
and the Administrative Agent have executed this Agreement as of the date first
above written.
▇▇▇▇▇▇ WORLDWIDE, INC., as the Company
By:
------------------------------------------
Name:
Title:
▇▇▇▇▇▇ EUROPE AG, as a Subsidiary Borrower
By:
------------------------------------------
Name:
Title:
▇▇▇▇▇▇ EUROPE B.V., as a Subsidiary
Borrower
By:
------------------------------------------
Name:
Title:
▇▇▇▇▇▇ HOLDINGS, INC., as a Subsidiary
Borrower
By:
------------------------------------------
Name:
Title:
▇▇▇▇▇▇ PUERTO RICO, INC., as a Subsidiary
Borrower
By:
------------------------------------------
Name:
Title:
ABN AMRO BANK N.V., as Administrative
Agent, Issuing Bank, Dollar Swing Line Bank,
Alternate Currency Bank, and Lender
By:
------------------------------------------
Name:
Title:
[Signature page to Amended and Restated 5-Year Credit Agreement]
124
ABN AMRO BANK N.V., BELGIUM
BRANCH, as Multicurrency Swing Line Bank and
Lender
By:
------------------------------------------
Name:
Title:
SUNTRUST BANK, ATLANTA, as Syndication
Agent and Lender
By:
------------------------------------------
Name:
Title:
WACHOVIA BANK N.A., as Documentation
Agent and Lender
By:
------------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK., as Lender
By:
------------------------------------------
Name:
Title:
BANK ONE, NA (MAIN CHICAGO OFFICE),
as Lender
By:
------------------------------------------
Name:
Title:
BANCO POPULAR DE PUERTO RICO, as
Lender
By:
------------------------------------------
Name:
Title:
BANK OF MONTREAL, as Lender
By:
------------------------------------------
Name:
Title:
[Signature page to Amended and Restated 5-Year Credit Agreement]
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, as Lender
By:
------------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, as Lender
By:
------------------------------------------
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI LTD.,
as Lender
By:
------------------------------------------
Name:
Title:
BANQUE NATIONALE DE PARIS, as Lender
By:
------------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as Lender
By:
------------------------------------------
Name:
Title:
DRESDNER BANK LATEINAMERIKA
AKTIENGESELLSCHAFT, MIAMI AGENCY, as Lender
By:
------------------------------------------
Name:
Title:
FIRSTAR BANK N.A., as Lender
By:
------------------------------------------
Name:
Title:
[Signature page to Amended and Restated 5-Year Credit Agreement]
126
THE MITSUBISHI TRUST AND BANKING
CORPORATION, as Lender
By:
------------------------------------------
Name:
Title:
REGIONS BANK, as Lender
By:
------------------------------------------
Name:
Title:
BANCA DI ROMA, NEW YORK BRANCH, as
Lender
By:
------------------------------------------
Name:
Title:
ERSTE BANK, NEW YORK BRANCH, as
Lender
By:
------------------------------------------
Name:
Title:
HIBERNIA NATIONAL BANK, as Lender
By:
------------------------------------------
Name:
Title:
COMERICA BANK, as Lender
By:
------------------------------------------
Name:
Title:
[Signature page to Amended and Restated 5-Year Credit Agreement]