Exhibit 10.3
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CREDIT AGREEMENT
AMONG
NORTH AMERICAN VAN LINES, INC.,
THE FOREIGN SUBSIDIARY BORROWERS
FROM TIME TO TIME PARTIES HERETO,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
THE BANK OF NEW YORK,
AS DOCUMENTATION AGENT
BANC OF AMERICA SECURITIES LLC,
AS SYNDICATION AGENT
AND
THE CHASE MANHATTAN BANK,
AS COLLATERAL AGENT
AND ADMINISTRATIVE AGENT
DATED AS OF NOVEMBER 19, 1999
AND AMENDED AS OF NOVEMBER 23, 1999
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CHASE SECURITIES INC. AND BANC OF AMERICA SECURITIES LLC,
AS ARRANGERS
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS......................................................2
1.1 Defined Terms....................................................2
1.2 Other Definitional Provisions...................................30
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.................................31
2.1 Revolving Credit Commitments....................................31
2.2 Revolving Credit Notes..........................................31
2.3 Procedure for Revolving Credit Borrowing........................32
2.4 Termination or Reduction of Revolving Credit Commitments........33
2.5 Swing Line Commitments..........................................33
2.6 Term Loans......................................................35
2.7 Tranche A Term Notes............................................35
2.8 Tranche B Term Notes............................................36
2.9 Procedure for Term Loan Borrowing...............................38
2.10 Repayment of Loans.............................................38
SECTION 3. LETTERS OF CREDIT...............................................39
3.1 L/C Commitment..................................................39
3.2 Procedure for Issuance of Letters of Credit.....................40
3.3 Fees, Commissions and Other Charges.............................40
3.4 L/C Participations..............................................41
3.5 Reimbursement Obligation of the Borrowers.......................42
3.6 Obligations Absolute............................................43
3.7 Letter of Credit Payments.......................................43
3.8 Application.....................................................44
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT...44
4.1 Interest Rates and Payment Dates................................44
4.2 Conversion and Continuation Options.............................44
4.3 Minimum Amounts of Tranches.....................................45
4.4 Optional and Mandatory Prepayments and Commitment Reductions....45
4.5 Commitment Fees; Administrative Agent's Fee; Other Fees.........49
4.6 Computation of Interest and Fees................................50
4.7 Inability to Determine Interest Rate............................50
4.8 Pro Rata Treatment and Payments.................................51
4.9 Illegality......................................................53
4.10 Requirements of Law............................................53
4.11 Taxes..........................................................55
4.12 Indemnity......................................................57
4.13 Certain Rules Relating to the Payment of Additional Amounts....58
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4.14 Controls on Prepayment if Aggregate Outstanding Revolving
Credit Exceeds Aggregate Revolving Credit Commitments........59
SECTION 5. REPRESENTATIONS AND WARRANTIES..................................60
5.1 Financial Condition.............................................60
5.2 No Change; Solvent..............................................62
5.3 Corporate Existence; Compliance with Law........................62
5.4 Corporate Power; Authorization; Enforceable Obligations.........62
5.5 No Legal Bar....................................................63
5.6 No Material Litigation..........................................63
5.7 No Default......................................................63
5.8 Ownership of Property; Liens....................................63
5.9 Intellectual Property...........................................64
5.10 No Burdensome Restrictions.....................................64
5.11 Taxes..........................................................64
5.12 Federal Regulations............................................64
5.13 ERISA..........................................................64
5.14 Collateral.....................................................65
5.15 Investment Company Act; Other Regulations......................66
5.16 Subsidiaries...................................................66
5.17 Purpose of Loans...............................................66
5.18 Environmental Matters..........................................66
5.19 No Material Misstatements......................................67
5.20 Delivery of the Transaction Documents..........................68
5.21 Representations and Warranties Contained in the Transaction
Documents ...................................................68
5.22 Labor Matters..................................................68
5.23 Senior Indebtedness............................................68
5.24 Year 2000......................................................68
SECTION 6. CONDITIONS PRECEDENT............................................69
6.1 Conditions to Initial Extension of Credit.......................69
6.2 Conditions to Each Other Extension of Credit....................75
6.3 Additional Conditions Applicable to Foreign Subsidiary
Borrowers.....................................................75
SECTION 7. AFFIRMATIVE COVENANTS...........................................77
7.1 Financial Statements............................................77
7.2 Certificates; Other Information.................................79
7.3 Payment of Obligations..........................................80
7.4 Conduct of Business and Maintenance of Existence................80
7.5 Maintenance of Property; Insurance..............................80
7.6 Inspection of Property; Books and Records; Discussions..........80
7.7 Notices.........................................................80
7.8 Environmental Laws..............................................82
7.9 After-Acquired Real Property and Fixtures.......................83
7.10 Acquired Subsidiaries; Further Security and Guarantees.........84
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7.11 Interest Rate Protection Agreement.............................85
7.12 Capital Contributions from Holding.............................85
7.13 Maintenance of New York Process Agent..........................85
7.14 Updated Survey for California Mortgaged Property...............86
SECTION 8. NEGATIVE COVENANTS..............................................86
8.1 Financial Condition Covenants...................................86
8.2 Limitation on Indebtedness......................................87
8.3 Limitation on Liens.............................................89
8.4 Limitation on Guarantee Obligations.............................91
8.5 Limitation on Fundamental Changes...............................93
8.6 Limitation on Sale of Assets....................................94
8.7 Limitation on Loans and Dividends to Holding....................96
8.8 Limitation on Capital Expenditures..............................97
8.9 Limitation on Investments, Loans and Advances...................97
8.10 Limitations on Certain Acquisitions...........................100
8.11 Limitation on Transactions with Affiliates....................100
8.12 Limitation on Sales and Leasebacks............................102
8.13 Limitations on Dispositions of Collateral.....................102
8.14 Limitation on Changes in Fiscal Year..........................102
8.15 Limitation on Negative Pledge Clauses.........................102
8.16 Limitation on Lines of Business; Creation of Subsidiaries.....103
8.17 Limitation on Optional Payments and Modifications of Debt
Instruments and other Material Agreements...................103
SECTION 9. EVENTS OF DEFAULT..............................................104
SECTION 10. THE ADMINISTRATIVE AGENT AND THE OTHER REPRESENTATIVES........108
10.1 Appointment...................................................108
10.2 Delegation of Duties..........................................108
10.3 Exculpatory Provisions........................................108
10.4 Reliance by Administrative Agent..............................109
10.5 Notice of Default.............................................109
10.6 Acknowledgments and Representations by Lenders................109
10.7 Indemnification...............................................110
10.8 Administrative Agent and Other Representatives in Their
Respective Individual Capacities............................111
10.9 Successor Administrative Agent................................111
10.10 Swing Line Lender............................................111
10.11 Release of Liens in Connection with Permitted Receivables
Securitization .............................................111
SECTION 11. MISCELLANEOUS.................................................112
11.1 Amendments and Waivers........................................112
11.2 Notices.......................................................115
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11.3 No Waiver; Cumulative Remedies................................116
11.4 Survival of Representations and Warranties....................116
11.5 Payment of Expenses and Taxes.................................116
11.6 Successors and Assigns; Participations and Assignments........117
11.7 Adjustments; Set-off..........................................121
11.8 Counterparts..................................................121
11.9 Severability..................................................122
11.10 Integration..................................................122
11.11 GOVERNING LAW................................................122
11.12 Submission To Jurisdiction; Waivers..........................122
11.13 Judgment.....................................................123
11.14 Acknowledgments..............................................124
11.15 WAIVER OF JURY TRIAL.........................................124
11.16 Confidentiality..............................................124
11.17 Amendment and Restatement....................................125
SCHEDULES
I Commitments; Lending Offices and Addresses
II Applicable Margin and Commitment Fee Step-Downs
III Designated Foreign Currencies
IV Foreign Subsidiary Borrowers
V Subsidiary Guarantors
VI Indicative Terms of Permitted Receivables Securitizations
VII Existing Letters of Credit
4.4(d) Fiscal Year End
5.4 Consents, Authorizations, Notices and Filings Required
5.14 Filing Jurisdictions and Lien Searches
5.16 Subsidiaries
8.2(e) Permitted Indebtedness
8.3(j) Permitted Liens
8.4(a) Guarantee Obligations
8.9(c) Permitted Investments
8.11(v) Permitted Transactions with Affiliates
EXHIBITS
A-1 Form of Revolving Credit Note
A-2 Form of Tranche A Term Note
A-3 Form of Tranche B Term Note
A-4 Form of Swing Line Note
B Form of Guarantee and Collateral Agreement
C Form of U.S. Tax Compliance Certificate
D Form of Prepayment Option Notice
E Form of Mortgage
F Form of Landlord Consent
G-1 Form of Opinion of Special Counsel to the Borrowers
G-2 Form of Opinion of Local Counsel to the Borrowers
G-3 Form of Opinion of Counsel to the Foreign Subsidiary Borrowers
H Form of Assignment and Acceptance
I Form of Swing Line Loan Participation Certificate
J Form of Borrowing Certificate
K Form of Joinder Agreement
CREDIT AGREEMENT, dated as of November 19, 1999 and amended as of
November 23, 1999, among NORTH AMERICAN VAN LINES, INC., a Delaware corporation
(the "Parent Borrower"), THE FOREIGN SUBSIDIARY BORROWERS (as hereinafter
defined) (the Foreign Subsidiary Borrowers, together with the Parent Borrower,
being collectively referred to as the "Borrowers" and each of them individually
being referred to as a "Borrower"), the several banks and other financial
institutions from time to time parties to this Agreement (the "Lenders"), THE
BANK OF NEW YORK, as documentation agent (in such capacity, the "Documentation
Agent"), BANC OF AMERICA SECURITIES LLC, as syndication agent (in such capacity,
the "Syndication Agent"), and THE CHASE MANHATTAN BANK, a New York banking
corporation, as collateral agent and administrative agent for the Lenders
hereunder (in such capacities, the "Administrative Agent").
The parties hereto hereby agree as follows:
WHEREAS, the Parent Borrower and certain of the Parent Borrower's
wholly owned subsidiaries propose to acquire (the "Acquisition") substantially
all of the capital stock (or substantially all of the assets) of certain
subsidiaries of NFC plc, a company organized under the laws of England and Wales
(the "Seller"), that are engaged in the Seller's moving services business (the
"Acquired Business"), including without limitation Allied Van Lines Inc., for
approximately (a) $400,000,000 in cash, (b) 24,500 shares of preferred stock of
NA Holding Corporation, a Delaware corporation and the holding company parent of
the Parent Borrower ("Holding"), having an initial liquidation preference of
$24,500,000, (c) 174,961 shares of common stock of Holding, representing
approximately 20% of Holding's issued and outstanding common stock (giving
effect to vested options as of September 14, 1999), and (d) a warrant to
purchase 87,480 shares of common stock of Holding at an exercise price of $400
per share, pursuant to the terms of the Acquisition Agreement, dated as of
September 14, 1999 (as amended, supplemented or otherwise modified from time to
time, the "Acquisition Agreement"), between Holding and the Seller;
WHEREAS, in order to (a) finance a portion of the purchase price of
the Acquisition, (b) refinance certain existing indebtedness of the Parent
Borrower, (c) pay certain transaction fees and expenses related to the
Acquisition, not to exceed $30,000,000 and (d) finance the working capital and
other business requirements of the Parent Borrower and its subsidiaries
following the consummation of the Acquisition, (w) the Parent Borrower intends
to issue approximately $150,000,000 of senior subordinated unsecured notes in a
Rule 144A private placement, (x) Holding intends to issue senior discount notes
for gross cash proceeds of approximately $35,000,000, (y) Holding intends to
borrow $40,000,000, which loan is contemplated to be repaid by December 31, 1999
with the proceeds of equity committed to be provided, and (z) the Parent
Borrower has requested that the Lenders make the Loans and issue and participate
in the Letters of Credit (as such terms are hereinafter defined) provided for
herein; and
WHEREAS, all the obligations of the Borrowers hereunder will be
secured by, among other things, (a) a perfected lien on and security interest in
certain collateral described in the Security Documents (such term and each other
capitalized term used in this paragraph and not otherwise previously defined, as
hereinafter defined), (b) a pledge of all the issued and outstanding Capital
Stock (other than any such Capital Stock owned by unrelated third parties) of
the Parent Borrower and each Domestic Subsidiary of the Parent Borrower that is
a Material Subsidiary, whether now existing or subsequently organized or
acquired, (c) a pledge of the issued and outstanding Capital Stock of each
Foreign Subsidiary Holdco and each Foreign Subsidiary of the Parent Borrower
that is not a Subsidiary
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of a Foreign Subsidiary Holdco, in each case, whether now existing or
subsequently organized or acquired (which security interest shall not apply to
more than 65% of the Capital Stock of any such Foreign Subsidiary Holdco or
Foreign Subsidiary), and (d) agreements evidencing unconditional guarantees of
payment and performance by each of the Guarantors;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in
effect on such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day plus 2 of 1%.
For purposes hereof: "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by Chase as its prime rate in
effect at its principal office in New York City (the Prime Rate not being
intended to be the lowest rate of interest charged by Chase in connection
with extensions of credit to debtors); "Base CD Rate" shall mean the sum
of (a) the product of (i) the Three-Month Secondary CD Rate and (ii) a
fraction, the numerator of which is one and the denominator of which is
one minus the C/D Reserve Percentage and (b) the C/D Assessment Rate;
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being in
effect on such day (or, if such day shall not be a Business Day, the next
preceding Business Day) by the Board of Governors of the Federal Reserve
System (the "Board") through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day), or, if such rate
shall not be so reported on such day or such next preceding Business Day,
the average of the secondary market quotations for three-month
certificates of deposit of major money center banks in New York City
received at approximately 10:00 A.M., New York City time, on such day (or,
if such day shall not be a Business Day, on the next preceding Business
Day) by the Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it; and
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight federal funds transactions with members
of the Federal Reserve System arranged by federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it. Any change in the ABR due
to a change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate shall be effective as of the opening of
business on the effective day of such change in the Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate,
respectively.
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"ABR Loans": Loans the rate of interest applicable to which is based
upon the ABR.
"Acceleration": as defined in Section 9(e).
"Accepting Lenders": as defined in subsection 4.4(g).
"Accounts": as defined in the Uniform Commercial Code as in effect
in the State of New York; and, with respect to the Parent Borrower and its
Domestic Subsidiaries, all such Accounts of such Persons, whether now
existing or existing in the future, including, without limitation, (i) all
accounts receivable of such Person (whether or not specifically listed on
schedules furnished to the Administrative Agent) including, without
limitation, all accounts created by or arising from all of such Person's
sales of goods or rendition of services made under any of its trade names,
or through any of its divisions, (ii) all unpaid rights of such Person
(including rescission, replevin, reclamation and stopping in transit)
relating to the foregoing or arising therefrom, (iii) all rights to any
goods represented by any of the foregoing, including returned or
repossessed goods, (iv) all reserves and credit balances held by such
Person with respect to any such accounts receivable or any Obligors, (v)
all letters of credit, guarantees or collateral for any of the foregoing
and (vi) all insurance policies or rights relating to any of the
foregoing.
"Acquired Business": as defined in the Recitals hereto.
"Acquisition": as defined in the Recitals hereto.
"Acquisition Agreement": as defined in the Recitals hereto.
"Adjustment Date": each date occurring after the completion of the
first fiscal quarter of the Parent Borrower after the Effective Date that
is the second Business Day following receipt by the Lenders of both (i)
the financial statements required to be delivered pursuant to subsection
7.1(c) or 7.1(d), as applicable, for the most recently completed fiscal
period and (ii) the related compliance certificate required to be
delivered pursuant to subsection 7.2(b) with respect to such fiscal
period.
"Administrative Agent": as defined in the Preamble hereto.
"Affected Eurocurrency Loans": as defined in subsection 4.9.
"Affected Eurocurrency Rate": as defined in subsection 4.7.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or indirectly,
either to (a) vote 20% or more of the securities having ordinary voting
power for the election of directors of such Person or (b) direct or cause
the direction of the management and policies of such Person, whether by
contract or otherwise.
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"Agents": those independently owned local moving and storage
companies that have entered into certain contractual arrangements with the
Parent Borrower or any of its Subsidiaries to provide customers with the
local sales, packing and warehousing services and a portion of the hauling
services required to support the interstate moving operators of the Parent
Borrower and its Subsidiaries, or any combination of such services.
"Aggregate Outstanding Revolving Credit": as to any Revolving Credit
Lender at any time, an amount equal to the sum of (a) the aggregate
principal amount of all Revolving Credit Loans made by such Revolving
Credit Lender then outstanding (including, without limitation, in the case
of Revolving Credit Loans then outstanding in any Designated Foreign
Currency, the Dollar Equivalent of the aggregate principal amount
thereof), (b) such Revolving Credit Lender's Revolving Credit Commitment
Percentage of the L/C Obligations then outstanding and (c) such Revolving
Credit Lender's Revolving Credit Commitment Percentage of the Swing Line
Loans then outstanding.
"Agreement": this Credit Agreement, as amended, supplemented, waived
or otherwise modified from time to time.
"Applicable Margin": (i) as applied to a given Type of Tranche B
Term Loans, the rate per annum set forth under the relevant column heading
below:
ABR Loans Eurocurrency Loans
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3.00% 4.00%
provided that the foregoing margins shall be reduced to 2.75%, in the case
of ABR Loans, and 3.75%, in the case of Eurocurrency Loans, on the first
Adjustment Date for which the Leverage Ratio, determined from the
financial statements and compliance certificate relating to the end of the
fiscal quarter immediately preceding such Adjustment Date, is less than
3.75 to 1.00;
(ii) as applied to a given Type of Revolving Credit Loans or Tranche
A Term Loans, the rate per annum determined as follows: During the period
from the Effective Date until the first Adjustment Date, the Applicable
Margin in respect of Revolving Credit Loans and Tranche A Term Loans shall
equal (A) with respect to ABR Loans, 2.00% per annum and (B) with respect
to Eurocurrency Loans, 3.00% per annum. Such Applicable Margin will be
adjusted on each Adjustment Date to the applicable rate per annum set
forth under the heading "ABR Loans Applicable Margin" or "Eurocurrency
Loans Applicable Margin" on Schedule II which corresponds to the
achievement of certain performance criteria determined from the financial
statements and compliance certificate relating to the end of the fiscal
quarter immediately preceding such Adjustment Date; provided that in the
event that the financial statements required to be delivered pursuant to
subsection 7.1(c) or 7.1(d), as applicable, and the related compliance
certificate required to be delivered pursuant to subsection 7.2(b), are
not delivered when due, then
(a) if such financial statements and certificate are delivered
after the date such financial statements and certificate were
required to be delivered (without giving effect
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to any applicable cure period) and the Applicable Margin increases
from that previously in effect as a result of the delivery of such
financial statements, then the Applicable Margin in respect of
Revolving Credit Loans and Tranche A Term Loans during the period
from the date upon which such financial statements were required to
be delivered (without giving effect to any applicable cure period)
until the date upon which they actually are delivered shall, except
as otherwise provided in clause (c) below, be the Applicable Margin
as so increased;
(b) if such financial statements and certificate are delivered
after the date such financial statements and certificate were
required to be delivered and the Applicable Margin decreases from
that previously in effect as a result of the delivery of such
financial statements, then such decrease in the Applicable Margin
shall not become applicable until the date upon which the financial
statements and certificate actually are delivered; and
(c) if such financial statements and certificate are not
delivered prior to the expiration of the applicable cure period,
then, effective upon such expiration, for the period from the date
upon which such financial statements and certificate were required
to be delivered (after the expiration of the applicable cure period)
until two Business Days following the date upon which they actually
are delivered, the Applicable Margin in respect of Revolving Credit
Loans and Tranche A Term Loans shall be 3.00% per annum, in the case
of Eurocurrency Loans, and 2.00% per annum, in the case of ABR Loans
(it being understood that the foregoing shall not limit the rights
of the Administrative Agent and the Lenders set forth in Section 9).
"Application": an application, in such form as the Issuing Lender
may specify from time to time, requesting the Issuing Lender to open a
Letter of Credit.
"Approved Fund": with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans which is
managed or advised by the same investment advisor as such Lender or by an
affiliate of such investment advisor.
"Arrangers": CSI and BAS in their respective capacities as arrangers
and as joint financial advisors.
"Asset Sale": any sale, issuance, conveyance, transfer, lease or
other disposition (a "Disposition") by Holding or any of its Subsidiaries,
in one or a series of related transactions, of any real or personal,
tangible or intangible, property (including, without limitation, Capital
Stock) of Holding or such Subsidiary to any Person (other than to Holding
or any of its Wholly Owned Subsidiaries) which yields gross proceeds to
Holding or any of its Subsidiaries (valued at the initial principal amount
thereof in the case of non-cash proceeds consisting of notes or other debt
securities and valued at fair market value in the case of other non-cash
proceeds) in excess of $500,000, provided that the term Asset Sale shall
not include any Disposition by any Insurance Subsidiary of its property in
the ordinary course of conducting its insurance business.
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"Assignee": as defined in subsection 11.6(c).
"Assignment and Acceptance": as defined in subsection 11.6(c).
"Available Adjustment": as of any date of determination, $10,000,000
less the sum of (a) all amounts used prior to such date in respect of any
period to increase EBITDA in accordance with clause (k) of the definition
thereof and (b) all amounts used prior to such date for Capital
Expenditures made solely in reliance on clause (b) of subsection 8.8.
"Available Revolving Credit Commitment": as to any Revolving Credit
Lender at any time, an amount equal to the excess, if any, of (a) the
amount of such Revolving Credit Lender's Revolving Credit Commitment at
such time over (b) the sum of (i) the aggregate unpaid principal amount at
such time of all Revolving Credit Loans made by such Revolving Credit
Lender (including, without limitation, in the case of Revolving Credit
Loans made by such Revolving Credit Lender in any Designated Foreign
Currency, the Dollar Equivalent of the aggregate unpaid principal amount
thereof), (ii) an amount equal to such Revolving Credit Lender's Revolving
Credit Commitment Percentage of the aggregate unpaid principal amount at
such time of all Swing Line Loans, provided that for purposes of
calculating Available Revolving Credit Commitments pursuant to subsection
4.5(a) such amount shall be zero, and (iii) an amount equal to such
Revolving Credit Lender's Revolving Credit Commitment Percentage of the
outstanding L/C Obligations at such time; collectively, as to all the
Lenders, the "Available Revolving Credit Commitments".
"BAS": Banc of America Securities LLC.
"Base CD Rate": as defined in the definition of the term "ABR" in
this subsection 1.1.
"Baxendale": Baxendale Insurance Company Ltd., a corporation
organized under the laws of Ireland and a Wholly Owned Subsidiary of the
Parent Borrower.
"Benefitted Lender": as defined in subsection 11.7.
"Board": as defined in the definition of the term "ABR" in this
subsection 1.1.
"Borrowers": as defined in the Preamble hereto.
"Borrowing Date": any Business Day specified in a notice pursuant to
subsection 2.3, 2.5, 2.9 or 3.2 as a date on which the Parent Borrower
requests the Lenders to make Loans hereunder or the Issuing Lender to
issue Letters of Credit hereunder.
"Business": as defined in subsection 5.18(a).
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York, New York are authorized or required by
law to close, except that, when used in connection with a Eurocurrency
Loan, "Business Day" shall mean, in the case of any
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Eurocurrency Loan in Dollars, any Business Day on which dealings in
Dollars between banks may be carried on in London, England and New York,
New York and, in the case of any Eurocurrency Loan in any Designated
Foreign Currency, a day on which dealings in such Designated Foreign
Currency between banks may be carried on in London, England and the
principal financial center of such Designated Foreign Currency as set
forth on Schedule III; provided, however, that, with respect to notices
and determinations in connection with, and payments of principal and
interest on, Loans denominated in Euros, such day is also a day on which
the Trans-European Automated Real-Time Gross Settlement Express Transfer
System (TARGET) (or, if such clearing system ceases to be operative, such
other clearing system (if any) determined by the Administrative Agent to
be a suitable replacement) is open for settlement of payment in Euros.
"Capital Expenditures": with respect to any Person for any period,
the sum of the aggregate of all expenditures (excluding capital
expenditures made for acquisitions permitted by subsection 8.10) by such
Person and its consolidated Subsidiaries during such period which, in
accordance with GAAP, are or should be included in "capital expenditures"
or similar items reflected in the consolidated statement of cash flows of
such Person for such period.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"Cash Equivalents": (a) securities issued or fully guaranteed or
insured by the United States Government or any agency or instrumentality
thereof, (b) time deposits, certificates of deposit or bankers'
acceptances of (i) any Lender or (ii) any commercial bank having capital
and surplus in excess of $500,000,000 and the commercial paper of the
holding company of which is rated at least A-2 or the equivalent thereof
by Standard & Poor's Ratings Group (a division of The McGraw-Hill
Companies, Inc.) or any successor rating agency ("S&P") or at least P-2 or
the equivalent thereof by Moody's Investors Service, Inc. or any successor
rating agency ("Moody's") (or if at such time neither is issuing ratings,
then a comparable rating of such other nationally recognized rating agency
as shall be approved by the Administrative Agent in its reasonable
judgment), (c) commercial paper rated at least A-2 or the equivalent
thereof by S&P or at least P-2 or the equivalent thereof by Moody's (or if
at such time neither is issuing ratings, then a comparable rating of such
other nationally recognized rating agency as shall be approved by the
Administrative Agent in its reasonable judgment), (d) investments in money
market funds complying with the risk limiting conditions of Rule 2a-7 or
any successor rule of the Securities and Exchange Commission under the
Investment Company Act, and (e) investments similar to any of the
foregoing denominated in foreign currencies approved by the board of
directors of the Parent Borrower, in each case provided in clauses (a),
(b), (c), (d) and (e) above, maturing within twelve months after the date
of acquisition.
"CD&R": Clayton, Dubilier & Rice, Inc.
8
"CD&R Fund V": Clayton, Dubilier & Rice Fund V Limited Partnership,
a Cayman Islands exempted limited partnership managed by CD&R.
"CD&R Group": CD&R Fund V, CD&R and their Affiliates (other than any
Persons who are Affiliates solely by virtue of their direct or indirect
ownership interests in Holding) and any other investment fund or vehicle
managed, sponsored or advised by CD&R, or any Affiliate (other than any
Person who is an Affiliate solely by virtue of its direct or indirect
ownership interest in Holding) of or successor to CD&R, CD&R Fund V or any
such other investment fund or vehicle.
"C/D Assessment Rate": for any day as applied to any ABR Loan, the
annual assessment rate in effect on such day which is payable by a member
of the Bank Insurance Fund classified as well-capitalized and within
supervisory subgroup "B" (or a comparable successor assessment risk
classification) within the meaning of 12 C.F.R. ss.327.4 (or any successor
provision) to the Federal Deposit Insurance Corporation (or any successor)
for such Corporation's (or such successor's) insuring time deposits at
offices of such institution in the United States.
"C/D Reserve Percentage": for any day as applied to any ABR Loan,
that percentage (expressed as a decimal) which is in effect on such day,
as prescribed by the Board, for determining the maximum reserve
requirement for a Depositary Institution (as defined in Regulation D of
the Board) in respect of new non-personal time deposits in Dollars of
$100,000 or more having a maturity of 30 days or more.
"Change in Consolidated Working Capital": for any period, the amount
of Consolidated Working Capital at the beginning of such period minus the
amount of Consolidated Working Capital at the end of such period.
"Change of Control": the occurrence of any of the following events:
(i) prior to the initial registered public offering of Holding's Voting
Stock, the Equity Investors and their Affiliates shall in the aggregate
beneficially own shares of Voting Stock having less than 51% of the total
voting power of all outstanding shares of Voting Stock of Holding, (ii) on
and after the date of the initial registered public offering of Holding's
Voting Stock, (a) any Person or "group" (within the meaning of Section
13(d) or 14(d) of the Exchange Act), other than one or more of the Equity
Investors and their Affiliates, shall have acquired beneficial ownership
of more than 35% of the outstanding shares of Voting Stock of Holding or
(b) the board of directors of Holding shall cease to consist of a majority
of Continuing Directors, (iii) Holding shall cease to own 100% of the
Capital Stock of the Parent Borrower or (iv) a change of control shall
have occurred under the Preferred Stock Certificate of Designation, any
other certificate of designation setting forth the terms of any other
issued and outstanding preferred stock of Holding, any Indenture or any
other indenture pursuant to which Holding or any of its Subsidiaries has
issued and outstanding Indebtedness; as used in this paragraph "Voting
Stock" shall mean shares of Capital Stock entitled to vote generally in
the election of directors.
"Chase": The Chase Manhattan Bank, a New York banking corporation.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
9
"Collateral": all assets of the Loan Parties, now owned or hereafter
acquired, upon which a Lien is purported to be created by any Security
Document.
"Commitment Fee Rate": 2 of 1% per annum; provided, that on and
after the first Adjustment Date, the Commitment Fee Rate will be the
applicable rate per annum set forth on Schedule II under the heading
"Commitment Fee" (determined on each Adjustment Date in the same manner as
described in the definition of "Applicable Margin").
"Commercial Letter of Credit": as defined in subsection 3.1(a).
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Parent Borrower
within the meaning of Section 4001 of ERISA or is part of a group which
includes the Parent Borrower and which is treated as a single employer
under Section 414 of the Code.
"Consolidated Interest Coverage Ratio": at the last day of each
fiscal quarter of the Parent Borrower, and with respect to the period of
four fiscal quarters ending on such date, the ratio of (a) an amount equal
to EBITDA for such period to (b) Consolidated Interest Expense for such
period.
"Consolidated Interest Expense": for any period, (a) interest
expense (accrued and paid or payable in cash for such period, and in any
event excluding any amortization or write-off of financing costs) on
Indebtedness of the Parent Borrower and its consolidated Subsidiaries for
such period, plus (b) cash dividend payments, or loans and advances, to
Holding made during such period in respect of the Holding Preferred Stock,
any Holding Subordinated Exchange Debentures, the Holding Loan and the
Holding Senior Discount Notes, minus (c) interest income (accrued and
received or receivable in cash for such period) of the Parent Borrower and
its consolidated Subsidiaries (other than Insurance Subsidiaries) for such
period, in each case determined on a consolidated basis in accordance with
GAAP; provided that in the event of the consummation of a Permitted
Receivables Securitization, "Consolidated Interest Expense" shall be
adjusted to include (without duplication) an amount equal to the interest
(or other fees in the nature of interest or discount accrued and paid or
payable in cash for such period) on such Permitted Receivables
Securitization.
"Consolidated Net Income": for any period, net income of the Parent
Borrower and its consolidated Subsidiaries for such period, determined on
a consolidated basis in accordance with GAAP.
"Consolidated Senior Debt": all Consolidated Total Funded
Indebtedness/ Securitizations other than Subordinated Debt.
"Consolidated Total Funded Indebtedness/Securitizations": at the
date of determination thereof, (i) all Indebtedness of the Parent Borrower
and its consolidated Subsidiaries which by its terms matures more than one
year after the date of its creation, and any such Indebtedness
10
maturing within one year from such date which is renewable or extendable
at the option of the obligor to a date more than one year from such date
including, in any event, all current maturities and current sinking fund
payments in respect of such Indebtedness whether or not required to be
paid within one year from the date of its creation and, in the case of the
Borrowers, Indebtedness in respect of the Loans and the Senior
Subordinated Notes, in each case determined on a consolidated basis in
accordance with GAAP plus (ii) without duplication of amounts included in
clause (i) above, an amount equal to the aggregate cash proceeds received
by the Parent Borrower or any Subsidiary from an unrelated third party
(net of amounts repaid) from the financing of Accounts pursuant to any
Permitted Receivables Securitization which are outstanding at the date of
determination minus (iii) if there are no Revolving Credit Loans or Swing
Line Loans then outstanding, the aggregate amount of all cash and Cash
Equivalents of the Parent Borrower and its consolidated Subsidiaries, to
the extent such cash and Cash Equivalents are on deposit in one or more
accounts maintained with the Administrative Agent and are not subject to
any Lien in favor of a third party (other than the Lien in favor of the
Administrative Agent for the benefit of the Lenders). In determining under
clause (i) of this definition the Indebtedness of the Parent Borrower and
its consolidated Subsidiaries under or in respect of any Permitted
Receivables Securitization or under clause (ii) of this definition the
amount equal to the aggregate cash proceeds received by the Parent
Borrower or any such Subsidiary from the financing of any Accounts
pursuant to any Permitted Receivables Securitization, such Indebtedness or
amount shall be reduced by any escrowed or pledged cash proceeds which
effectively secure such Indebtedness or the obligations of the Parent
Borrower or any such Subsidiary under such Permitted Receivables
Securitization, to the extent the amount of such cash proceeds has not
already been applied to reduce Indebtedness of the Parent Borrower and its
consolidated Subsidiaries pursuant to clause (iii) of this definition.
"Consolidated Working Capital": at the date of determination
thereof, the aggregate amount of all current assets (excluding cash, Cash
Equivalents and deferred taxes recorded as assets) minus the aggregate
amount of all current liabilities (excluding the Revolving Credit Loans,
current maturities of long-term debt, working capital debt of Foreign
Subsidiaries and deferred taxes recorded as liabilities), in each case
determined on a consolidated basis for the Parent Borrower and its
consolidated Subsidiaries.
"Continuing Directors": the directors of Holding on the Effective
Date, after giving effect to the Acquisition and the other transactions
contemplated hereby, and each other director, if, in each case, such other
director's nomination for election to the board of directors of Holding is
recommended by at least 66-2/3% of the then Continuing Directors or such
other director receives the affirmative vote of a majority of the votes
cast by the Equity Investors in respect of Voting Shares of Holding
beneficially owned by them in the election of such other director by the
shareholders of Holding.
"Contractual Obligation": as to any Person, any provision of any
material security issued by such Person or of any material agreement,
instrument or other undertaking to which such Person is a party or by
which it or any of its property is bound.
"CSI": Chase Securities Inc., a New York corporation.
11
"Default": any of the acts, conditions or events specified in
Section 9, whether or not any requirement for the giving of notice (other
than, in the case of Section 9(e), a Default Notice), the lapse of time,
or both, or any other condition, has been satisfied.
"Default Notice": as defined in Section 9(e).
"Designated Foreign Currencies": the currencies set forth on
Schedule III and any other available and freely convertible foreign
currency selected by the Parent Borrower and approved by the
Administrative Agent and all of the Revolving Credit Lenders in accordance
with subsection 11.1(b).
"Disinterested Director": as defined in subsection 8.11.
"Disposition": as defined in the definition of the term "Asset Sale"
in this subsection 1.1.
"Documentation Agent": as defined in the Preamble hereto.
"Dollar Equivalent": with respect to the principal amount of any
Eurocurrency Loan made or outstanding in any Designated Foreign Currency
or any amount in respect of any Letter of Credit denominated in any
Designated Foreign Currency, at any date of determination thereof, an
amount in Dollars equivalent to such principal amount or such other amount
calculated on the basis of the Spot Rate of Exchange.
"Dollars" and "$": dollars in lawful currency of the United States
of America.
"Domestic Subsidiary": any Subsidiary of the Parent Borrower which
is not a Foreign Subsidiary.
"EBITDA": for any period, Consolidated Net Income for such period
adjusted to exclude the following items (without duplication) of income or
expense to the extent that such items are included in the calculation of
Consolidated Net Income: (a) Consolidated Interest Expense, (b) any
non-cash expenses and charges (excluding any such charge that constitutes
an accrual of or a reserve for cash charges for any future period), (c)
total income tax expense, (d) depreciation expense, (e) the expense
associated with amortization of intangible and other assets (including
amortization or other expense recognition of any costs associated with
asset write-ups in accordance with APB Nos. 16 and 17), (f) non-cash
provisions for reserves for discontinued operations, (g) any
extraordinary, unusual or non-recurring gains or losses or charges or
credits, (h) any gain or loss associated with the sale or write-down of
assets not in the ordinary course of business, (i) any income or loss
accounted for by the equity method of accounting (except in the case of
income to the extent of the amount of cash dividends or cash distributions
paid to the Parent Borrower or any Subsidiary by the entity accounted for
by the equity method of accounting), (j) (i) for any period ending on or
prior to December 25, 1999, $1,825,000 of insurance expense for each
fiscal quarter ending during such period (representing an annual saving of
$7,300,000 insurance expense after giving pro forma effect to the
12
combination of the Acquired Business and the Parent Borrower) and (ii) for
any period ending thereafter, for each fiscal quarter ending on or prior
to December 25, 1999 included in such period, the annualized insurance
expense savings pro forma for such quarter, with such pro forma savings to
be calculated by the Parent Borrower and reviewed by
PricewaterhouseCoopers LLP based on annualization of actual savings on
insurance expense realized after December 25, 1999 and (k) up to the
Available Adjustment in respect of any cash expenses for (i) the
development and implementation of an e-commerce strategy and (ii) the
development and implementation of new information technology; provided
that for purposes of calculating EBITDA of the Parent Borrower and its
consolidated Subsidiaries for any period ending on or prior to December
29, 2000, the combined EBITDA of the Acquired Business during such period
shall be included on a pro forma basis for such period (assuming the
consummation of the Acquisition and the incurrence or assumption of any
Indebtedness in connection therewith occurred on the first day of such
period).
"ECF Percentage": 50%; provided, that with respect to any fiscal
year of the Parent Borrower ending on or after December 29, 2000, the ECF
Percentage shall be reduced to 0% if the Leverage Ratio as of the last day
of such fiscal year is less than 3.5 to 1.0.
"Effective Date": the time and date, on or before 3:00 p.m., New
York City time, on November 24, 1999, on which all the conditions
precedent set forth in subsection 6.1 shall be satisfied or waived.
"EMU": Economic and Monetary Union as contemplated in the Treaty.
"Environmental Costs": any and all costs or expenses (including,
without limitation, attorney's and consultant's fees, investigation and
laboratory fees, response costs, court costs and litigation expenses,
fines, penalties, damages, settlement payments, judgments and awards), of
whatever kind or nature, known or unknown, contingent or otherwise,
arising out of, or in any way relating to any violation of, noncompliance
with or liability under any Environmental Laws or any orders,
requirements, demands, or investigations of any person related to any
Environmental Laws. Environmental Costs include any and all of the
foregoing, without regard to whether they arise out of or are related to
any past, pending or threatened proceeding of any kind.
"Environmental Laws": any and all applicable foreign, federal,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority
having the force and effect of law or other Requirements of Law
(including, without limitation, common law) regulating, relating to or
imposing liability or standards of conduct concerning protection of the
environment or human health as related to the environment, as now or at
any relevant time hereafter in effect.
"Equity Investors": CD&R Fund V, the CD&R Group, the Seller and its
Subsidiaries, the Management Investors and the other equity investors
arranged by CD&R and satisfactory to the Administrative Agent and the
Other Representatives.
13
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Euro": the single currency of Participating Member States
introduced in accordance with the provisions of Article 109(1)4 of the
Treaty and, in respect of all payments to be made under this Agreement in
Euros, means immediately available, freely transferable funds.
"Eurocurrency Base Rate": with respect to each day during each
Interest Period pertaining to a Eurocurrency Loan, the rate per annum
determined by the Administrative Agent to be the arithmetic mean (rounded
to the nearest 1/100th of 1%) of the offered rates for deposits in Dollars
or in the applicable Designated Foreign Currency with a term comparable to
such Interest Period that appears on the Telerate British Bankers Assoc.
Interest Settlement Rates Page (as defined below) at approximately 11:00
A.M., London time, on the second full Business Day preceding the first day
of such Interest Period; provided, however, that if there shall at any
time no longer exist a Telerate British Bankers Assoc. Interest Settlement
Rates Page, "Eurocurrency Base Rate" shall mean, with respect to each day
during each Interest Period pertaining to a Eurocurrency Loan, the rate
per annum equal to the rate at which Chase is offered deposits in Dollars
or in the applicable Designated Foreign Currency at or about 10:00 A.M.,
New York City time, two Business Days prior to the beginning of such
Interest Period in the interbank eurocurrency market where the
eurocurrency and foreign currency and exchange operations in respect of
Dollars or such Designated Foreign Currency, as the case may be, are then
being conducted for delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount comparable to the
amount of its Eurocurrency Loan to be outstanding during such Interest
Period. "Telerate British Bankers Assoc. Interest Settlement Rates Page"
shall mean the display designated as Page 3750 (or such other page on
which any Designated Foreign Currency then appears) on the Dow Jones
Market Service (or such other page as may replace such page for the
purpose of displaying the rates at which Dollar deposits or deposits in
any Designated Foreign Currency are offered by leading banks in the London
interbank deposit market).
"Eurocurrency Loans": Loans the rate of interest applicable to which
is based upon the Eurocurrency Rate.
"Eurocurrency Rate": with respect to each day during each Interest
Period pertaining to a Eurocurrency Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upwards to the
nearest 1/100th of 1%):
Eurocurrency Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurocurrency Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto) dealing
with reserve requirements prescribed for
14
eurocurrency funding (currently referred to as "Eurocurrency Liabilities"
in Regulation D of the Board) maintained by a member bank of the Federal
Reserve System.
"Event of Default": any of the acts, conditions or events specified
in Section 9, provided that any requirement for the giving of notice, the
lapse of time, or both, or any other condition, has been satisfied.
"Excess Cash Flow": for any period, EBITDA minus (i) any Capital
Expenditures made in cash during such period, minus (ii) any principal
payments (other than principal payments during such period pursuant to
subsection 4.4(c) or (d) unless and to the extent that the event giving
rise to such mandatory prepayment causes an increase in EBITDA) on the
Term Loans made during such period, minus (iii) any principal payments
resulting in a permanent reduction of any other Indebtedness of the Parent
Borrower or any of its consolidated Subsidiaries made during such period,
minus (iv) any portion of Consolidated Interest Expense for such period,
minus (v) any taxes paid or payable in cash during such period, minus (vi)
the Net Cash Proceeds from any Asset Sale to the extent that such Net Cash
Proceeds (A) (without duplication of clause (i) or (vii) of this
definition) consist of any Reinvested Amount or are otherwise applied in
accordance with subsection 4.4(c) and (B) are included in the calculation
of EBITDA, minus (vii) (without duplication of clause (i) of this
definition) any Investment made in accordance with subsection 8.9(e), (g),
(i), (l), (o), (p) or (q), minus (viii) the proceeds of any Sale and
Leaseback Transactions entered into by the Parent Borrower or any of its
Subsidiaries in accordance with subsection 8.12 during such period in the
ordinary course of its business to the extent included in EBITDA, minus
(ix) any earnings included in EBITDA for such period (except to the extent
that any such earnings are used for any purposes described in clauses (i)
through (viii) above) of a Receivables Subsidiary to the extent the terms
of any Permitted Receivables Securitization prohibit the distribution
thereof to the Parent Borrower or any of its other Subsidiaries, minus (x)
to the extent not otherwise subtracted from EBITDA in this definition of
"Excess Cash Flow", any cash dividends, and other loans and advances, made
during such period by the Parent Borrower or any of its Subsidiaries to
Holding, so long as such dividends, loans and advances are expressly
permitted by subsection 8.7, plus (xi) the Change in Consolidated Working
Capital for such period.
"Exchange Act": the Securities Exchange Act of 1934, as amended.
"Existing Credit Agreement": the Credit Agreement, dated as of March
30, 1998, among the Parent Borrower, the several banks and other financial
institutions from time to time parties thereto, The Bank of New York, as
syndication agent, and Chase, as collateral, documentation and
administrative agent.
"Existing Letters of Credit": at any time, the letters of credit
issued by Chase and listed or described on Schedule VII that are
outstanding on such date.
"Extension of Credit": as to any Lender, the making of a Loan by
such Lender or the issuance of, or participation in, a Letter of Credit by
such Lender.
15
"Federal Funds Effective Rate": as defined in the definition of the
term "ABR" in this subsection 1.1.
"Final Maturity Date": November 18, 2007.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"FIRREA": the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as amended.
"Foreign Backstop Letters of Credit": any Standby Letter of Credit
issued to any Person for the account of the Parent Borrower or any Foreign
Subsidiary Borrower to provide credit support for Indebtedness of any
Foreign Subsidiary to such Person which is permitted under subsection 8.2.
"Foreign Subsidiary": any Subsidiary of Holding which is organized
and existing under the laws of any jurisdiction outside of the United
States of America or that is a Foreign Subsidiary Holdco.
"Foreign Subsidiary Borrower": any Foreign Subsidiary which is
listed as a Foreign Subsidiary Borrower on Schedule IV, as such schedule
may be amended from time to time pursuant to subsection 11.1(b)
(including, without limitation, the delivery of the documents required by
subsection 11.1(b)).
"Foreign Subsidiary Holdco": North American International Holding
Corporation, a Delaware corporation, and any other Subsidiary of the
Parent Borrower that has no material assets other than securities of one
or more Foreign Subsidiaries, and other assets relating to an ownership
interest in any such securities or Subsidiaries.
"Former Plan": any employee benefit plan in respect of which the
Parent Borrower or a Commonly Controlled Entity has engaged in a
transaction described in Section 4069 or Section 4212(c) of ERISA.
"GAAP": with respect to the covenants contained in subsections 8.1
and 8.8 and all defined terms relating thereto, generally accepted
accounting principles in the United States of America in effect on the
Effective Date and, for all other purposes under this Agreement, generally
accepted accounting principles in the United States of America in effect
from time to time.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, including, without limitation, the European
Union.
16
"Guarantee and Collateral Agreement": the Guarantee and Collateral
Agreement to be executed and delivered by Holding, the Parent Borrower,
each Foreign Subsidiary Borrower listed on Schedule IV attached hereto,
each Domestic Subsidiary of the Parent Borrower listed on Schedule V
attached hereto and in existence on the Effective Date and the
Administrative Agent, substantially in the form of Exhibit B, as the same
may be amended, supplemented, waived or otherwise modified from time to
time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has issued
a reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "primary obligations") of any other third Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any such obligation of the guaranteeing
person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (1) for the purchase or payment
of any such primary obligation or (2) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of
any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation shall not
include (x) endorsements of instruments for deposit or collection in the
ordinary course of business or (y) the obligations of any Insurance
Subsidiary pursuant to insurance policies issued by such Insurance
Subsidiary in the ordinary course of its insurance business. The amount of
any Guarantee Obligation of any guaranteeing person shall be deemed to be
the lower of (a) an amount equal to the stated or determinable amount of
the primary obligation in respect of which such Guarantee Obligation is
made and (b) the maximum amount for which such guaranteeing person may be
liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for
which such guaranteeing person may be liable are not stated or
determinable, in which case the amount of such Guarantee Obligation shall
be such guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the Parent Borrower in good faith.
"Guarantees": the collective reference to the Guarantee and
Collateral Agreement and any other guarantee hereafter delivered to the
Administrative Agent (a copy of which will be provided to each Lender)
guaranteeing the obligations and liabilities of the Borrowers hereunder,
under any Interest Rate Protection Agreements entered into with any Lender
or any affiliate thereof, under any Notes and/or under any of the other
Loan Documents.
"Guarantor": any Person delivering a Guarantee pursuant to this
Agreement.
"Holding": as defined in the Recitals hereto.
17
"Holding Loan": the loans, in an aggregate principal amount equal to
$40,000,000 and due on December 31, 1999, made on the date hereof to
Holding by the lenders party to the Holding Loan Agreement.
"Holding Loan Agreement": the Loan Agreement, dated as of the date
hereof, among Holding and the lenders party thereto.
"Holding Preferred Stock": Holding's Junior Exchangeable Preferred
Stock due 2010, as the terms of such Preferred Stock may be amended,
supplemented or otherwise modified from time to time in accordance with
Section 5.4.2 of the Guarantee and Collateral Agreement.
"Holding Senior Discount Note Indenture": the collective reference
to (a) the Loan Agreement, dated as of the date hereof, among Holding,
Blue Ridge Investments, LLC and an affiliate of Chase, providing for loans
in an aggregate principal amount equal to $35,000,000, (b) the indenture,
to be entered into by Holding and a trustee, in connection with the
issuance of Holding Senior Discount Notes in exchange for all or any
portion of the loans made pursuant to the Loan Agreement referred to in
clause (a), and (c) all instruments and other agreements entered into by
Holding in connection with the foregoing Loan Agreement and indenture, in
each case, as such Loan Agreement, indenture or other instrument or
agreement may be amended, supplemented or otherwise modified from time to
time in accordance with Section 5.4.2 of the Guarantee and Collateral
Agreement.
"Holding Senior Discount Notes": the collective reference to (a) the
loans made on the Effective Date pursuant to the Loan Agreement referred
to in clause (a) of the definition of "Holding Senior Discount Note
Indenture" and (b) the 16% Holding Senior Discount Notes due 2009 of
Holding issued on or after the Effective Date pursuant to the indenture
referred to in clause (b) of the definition of "Holding Senior Discount
Note Indenture".
"Holding Subordinated Exchange Debentures": the subordinated
exchange debentures of Holding to be issued upon the exchange in
accordance with Section 5.4.2 of the Guarantee and Collateral Agreement,
at Holding's option, of shares of Holding Preferred Stock, together with
all instruments and other agreements to be entered into by Holding in
connection therewith, in the form delivered to the Administrative Agent
pursuant to subsection 6.1(c), as the same may be amended, supplemented or
otherwise modified from time to time in accordance with Section 5.4.2 of
the Guarantee and Collateral Agreement.
"Indebtedness": of any Person at any date, (a) all indebtedness of
such Person for borrowed money or for the deferred purchase price of
property or services (other than trade liabilities incurred in the
ordinary course of business and payable in accordance with customary
practices), (b) any other indebtedness of such Person which is evidenced
by a note, bond, debenture or similar instrument, (c) all obligations of
such Person under Financing Leases, (d) all obligations of such Person in
respect of bankers' acceptances issued or created for the account of such
Person, (e) for purposes of subsection 8.2 and Section 9(e) only, all
obligations of such Person in respect of interest rate protection
agreements, interest rate futures, interest rate options, interest rate
caps and any other interest rate hedge arrangements, (f) for purposes of
18
subsection 8.2 hereof and Section 5.4.2 of the Guarantee and Collateral
Agreement only, the Holding Preferred Stock, (g) for purposes of
subsection 8.2 only, all other preferred stock issued by such Person
which, pursuant to its terms, is subject to mandatory redemption,
retirement or acquisition by such Person on or prior to the Final Maturity
Date and which redemption, retirement or acquisition is not contingent on
any condition (other than the passage of time) yet to be satisfied and (h)
all indebtedness or obligations of the types referred to in the preceding
clauses (a) through (g) secured by any Lien on any property owned by such
Person even though such Person has not assumed or otherwise become liable
for the payment thereof.
"Indemnified Liabilities": as defined in subsection 11.5.
"Indentures": the collective reference to the Senior Subordinated
Note Indenture, the Holding Senior Discount Note Indenture and the Holding
Subordinated Exchange Debentures.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Insurance Subsidiaries": the collective reference to Baxendale,
TransGuard and NATIC.
"Intellectual Property": as defined in subsection 5.9.
"Interest Payment Date": (a) as to any ABR Loan, the last day of
each March, June, September and December to occur while such Loan is
outstanding, and the final maturity date of such Loan, (b) as to any
Eurocurrency Loan having an Interest Period of three months or less, the
last day of such Interest Period, and (c) as to any Eurocurrency Loan
having an Interest Period longer than three months, (x) each day which is
three months, or a whole multiple thereof, after the first day of such
Interest Period and (y) the last day of such Interest Period.
"Interest Period": with respect to any Eurocurrency Loan:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such
Eurocurrency Loan and ending one, two, three or six months
thereafter, as selected by the Parent Borrower in its notice of
borrowing or notice of conversion, as the case may be, given with
respect thereto; and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurocurrency Loan
and ending one, two, three or six months thereafter, as selected by
the Parent Borrower by irrevocable notice to the Administrative
Agent not less than three Business Days prior to the last day of the
then current Interest Period with respect thereto;
19
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension
would be to carry such Interest Period into another calendar month
in which event such Interest Period shall end on the immediately
preceding Business Day;
(2) any Interest Period that would otherwise extend beyond the
Termination Date (in the case of the Tranche A Term Loans and the
Revolving Credit Loans) or beyond the Final Maturity Date (in the
case of the Tranche B Term Loans) shall (for all purposes other than
subsection 4.12) end on the Termination Date or the Final Maturity
Date, as the case may be;
(3) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(4) the Parent Borrower shall select Interest Periods so as
not to require a scheduled payment of any Eurocurrency Loan during
an Interest Period for such Loan.
"Interest Rate Protection Agreement": any interest rate protection
agreement, interest rate future, interest rate option, interest rate cap
or collar or other interest rate hedge arrangement with a financial
institution reasonably acceptable to the Administrative Agent and the
Syndication Agent, to or under which the Parent Borrower or any of the
Foreign Subsidiary Borrowers is a party or a beneficiary on the Effective
Date or becomes a party or a beneficiary after the Effective Date.
"Inventory": as defined in the Uniform Commercial Code as in effect
in the State of New York.
"Investment Company Act": the Investment Company Act of 1940, as
amended.
"Investments": as defined in subsection 8.9.
"Issuing Lender": Chase or any of its affiliates (including, without
limitation, Chase Manhattan Bank Delaware), in its capacity as issuer of
any Letter of Credit.
"Joinder Agreement": as defined in subsection 11.1(b)(i).
"L/C Fee Payment Date": with respect to any Letter of Credit, (a)
the last day of each March, June, September and December occurring after
the date of issuance thereof and prior to the expiration thereof and (b)
if such Letter of Credit is outstanding on such day, the last day of the
Revolving Credit Commitment Period.
20
"L/C Obligations": at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit (including, without limitation, in the case of
outstanding Letters of Credit in any Designated Foreign Currency, the
Dollar Equivalent of the aggregate then undrawn and unexpired amount
thereof) and (b) the aggregate amount of drawings under Letters of Credit
which have not then been reimbursed pursuant to subsection 3.5(a)
(including, without limitation, in the case of Letters of Credit in any
Designated Foreign Currency, the Dollar Equivalent of the unreimbursed
aggregate amount of drawings thereunder, to the extent that such amount
has not been converted into Dollars in accordance with subsection 3.5(a)).
"L/C Participants": the collective reference to all the Revolving
Credit Lenders other than the Issuing Lender.
"Lenders": as defined in the Preamble hereto.
"Letters of Credit": as defined in subsection 3.1(a).
"Leverage Ratio": at the last day of each fiscal quarter of the
Parent Borrower, the ratio of (a) Consolidated Total Funded
Indebtedness/Securitizations at such date to (b) EBITDA for the period of
four full fiscal quarters ending on such date.
"Lien": any mortgage, pledge, hypothecation, assignment, security
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any Financing Lease having substantially the same
economic effect as any of the foregoing).
"Loan": a Revolving Credit Loan, a Tranche A Term Loan, a Tranche B
Term Loan or a Swing Line Loan, as the context shall require;
collectively, the "Loans".
"Loan Documents": this Agreement, any Notes, the Applications, the
Guarantees, the Security Documents, the Syndication Letter Agreement and
any Joinder Agreement.
"Loan Parties": Holding, the Parent Borrower, each Foreign
Subsidiary Borrower and each other Subsidiary of the Parent Borrower which
is a party to a Loan Document; individually, a "Loan Party".
"Management Investors": the collective reference to the Agents and
the officers, directors, employees and managers of, or consultants to, the
Parent Borrower, Holding or any of their Subsidiaries, or family members
or relatives thereof or trusts for the benefit of any of the foregoing, or
any of their heirs, executors, successors or legal representatives, who at
any particular date shall beneficially own or have the right to acquire,
directly or indirectly, common stock of Holding.
21
"Management Subscription Agreements": one or more stock
subscription, stock option, grant or other agreements which have been or
may be entered into between Holding and certain Management Investors, with
respect to the issuance to such parties of common stock of Holding or
options, warrants or other rights in respect of common stock of Holding,
any agreements entered into from time to time by transferees of any such
stock, options, warrants or other rights in connection with the sale,
transfer or reissuance thereof, and any assumptions of any of the
foregoing by third parties, as amended, supplemented, waived or otherwise
modified from time to time.
"Material Adverse Change": as defined in subsection 5.2(a).
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or
prospects of Holding and the Subsidiaries taken as a whole or (b) the
validity or enforceability of this Agreement, any of the Notes or any of
the other Loan Documents taken as a whole or the rights and remedies of
the Administrative Agent and the Lenders under the Loan Documents taken as
a whole.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials, wastes, pollutants or
contaminants, defined or regulated as such in or under or which may give
rise to liability under any applicable Environmental Law, including,
without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Material Subsidiary": the collective reference to (a) any
Subsidiary of the Parent Borrower that had (i) total revenues of more than
$2,000,000 during the most recently completed period of four consecutive
fiscal quarters of Holding or (ii) total assets of more than $1,000,000 as
of the last day of such period, (b) FrontRunner Worldwide, Inc. and (c)
Relocation Management Systems, Inc.
"Moody's": as defined in the definition of the term "Cash
Equivalents" in this subsection 1.1.
"Mortgages": each of the mortgages to be executed and delivered by
the Parent Borrower and its Subsidiaries substantially in the form of
Exhibit E, as the same may be amended, supplemented, waived or otherwise
modified from time to time.
"MSS": Manufacturing Support Services, L.L.C., a Delaware limited
liability company and a Subsidiary of the Parent Borrower.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NATIC": North American Transport Insurance Company, an Indiana
corporation and a Wholly Owned Subsidiary of the Parent Borrower.
22
"Net Cash Proceeds": with respect to any Asset Sale (including any
Sale and Leaseback Transaction permitted under subsection 8.12), any
issuance of any debt securities or any borrowings by Holding or any of its
Subsidiaries (other than issuances and borrowings permitted pursuant to
subsection 8.2 hereof and Section 5.4.2 of the Guarantee and Collateral
Agreement), any Permitted Receivables Securitization, an amount equal to
the gross proceeds in cash and Cash Equivalents of such Asset Sale, sale,
issuance, borrowing or Permitted Receivables Securitization, net of (i)
reasonable attorneys' fees, accountants' fees, brokerage, consultant and
other customary fees, underwriting commissions and other reasonable fees
and expenses actually incurred in connection with such Asset Sale, sale,
issuance, borrowing or Permitted Receivables Securitization, (ii) taxes
paid or reasonably estimated to be payable as a result thereof, (iii)
appropriate amounts provided or to be provided by Holding or any of its
Subsidiaries as a reserve, in accordance with GAAP, against any
liabilities associated with such Asset Sale and retained by Holding or any
such Subsidiary after such Asset Sale and other appropriate amounts to be
used by Holding or any of its Subsidiaries to discharge or pay on a
current basis any other liabilities associated with such Asset Sale, (iv)
in the case of a sale or Sale and Leaseback Transaction of or involving an
asset subject to a Lien securing any Indebtedness, payments made and
installment payments required to be made to repay such Indebtedness,
including payments in respect of principal, interest and prepayment
premiums and penalties and (v) in the case of any Permitted Receivables
Securitization, any escrowed or pledged cash proceeds which effectively
secure, or are required to be maintained as reserves by the applicable
Receivables Subsidiary for, the Indebtedness of the Parent Borrower and
its Subsidiaries in respect of, or the obligations of the Parent Borrower
and its Subsidiaries under, such Permitted Receivables Securitization.
"New York Process Agent": as defined in subsection 11.12(b).
"Non-Excluded Taxes": as defined in subsection 4.11.
"Notes": the collective reference to the Revolving Credit Notes, the
Swing Line Note, the Tranche A Term Notes and the Tranche B Term Notes.
"Obligor": any purchaser of goods or services or other Person
obligated to make payment to the Parent Borrower or a Subsidiary in
respect of a purchase of such goods or services.
"Other Representatives": the Arrangers, the Syndication Agent, the
Documentation Agent and the Issuing Lender, in their respective capacities
as such.
"Owner/Operators": individuals who are retained by the Parent
Borrower or any of its Subsidiaries as independent contractors and who own
and drive their own tractors on behalf of the Parent Borrower or any of
its Subsidiaries.
"Parent Borrower": as defined in the Preamble hereto.
"Participants": as defined in subsection 11.6(b).
23
"Participating Member State": each state so described in any EMU
legislation.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor thereto).
"Permitted Hedging Arrangement": any agreement or arrangement
relating to currency, commodity or other hedging, to the extent and only
to the extent that such agreement or arrangement is entered into,
purchased or otherwise acquired in the ordinary course of business of the
Parent Borrower or any of its Subsidiaries, and not for purposes of
speculation, with (i) any Lender or any affiliate of any Lender or (ii)
any other reputable financial institution that is rated at least A by S&P
or A2 by Moody's.
"Permitted Receivables Securitization": any transaction or series of
related transactions providing for the securitization of any Receivables;
provided that any such transaction shall be consummated (i) on terms that
include terms substantially as described on Schedule VI or as the Required
Lenders may otherwise consent, such consent not to be unreasonably
withheld, and (ii) pursuant to documentation in form and substance
reasonably satisfactory to the Administrative Agent, as evidenced by its
written approval thereof.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"Plan": any employee benefit plan which is covered by ERISA and in
respect of which the Parent Borrower or a Commonly Controlled Entity is an
"employer" as defined in Section 3(5) of ERISA.
"Preferred Stock Certificates of Designation": the Certificate of
Designation relating to the Holding Preferred Stock, as the terms of such
Certificate of Designation may be amended, supplemented or otherwise
modified from time to time in accordance with Section 5.4.2 of the
Guarantee and Collateral Agreement.
"Prepayment Date": as defined in subsection 4.4(g).
"Prepayment Option Notice": as defined in subsection 4.4(g).
"Prime Rate": as defined in the definition of the term "ABR" in this
subsection 1.1.
"Pro Forma Date": as defined in subsection 5.1(c).
"Pro Forma Financial Statements": as defined in subsection 5.1(c).
"Properties": as defined in subsection 5.18(a).
24
"Receivables": all Accounts and accounts receivable of the Parent
Borrower or any of its Subsidiaries (including any thereof constituting or
evidenced by chattel paper, instruments or general intangibles), and all
proceeds thereof and rights (contractual and other) and collateral related
thereto.
"Receivables Subsidiary": any special purpose, bankruptcy-remote
Subsidiary that purchases, on a revolving basis, Receivables generated by
the Parent Borrower or any of its Subsidiaries.
"Refunded Swing Line Loans": as defined in subsection 2.5(c).
"Register": as defined in subsection 11.6(d).
"Regulation D": Regulation D of the Board as in effect from time to
time.
"Regulation T": Regulation T of the Board as in effect from time to
time.
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Regulation X": Regulation X of the Board as in effect from time to
time.
"Reimbursement Obligations": the obligation of the Borrowers to
reimburse the Issuing Lender pursuant to subsection 3.5(a) for amounts
drawn under Letters of Credit.
"Reinvested Amount": with respect to any Asset Sale, that portion of
the Net Cash Proceeds thereof as shall, according to a certificate of a
Responsible Officer delivered to the Administrative Agent on the date of
such Asset Sale, be reinvested in the business of the Parent Borrower and
its Subsidiaries within 180 days of the receipt of such Net Cash Proceeds;
provided that any Net Cash Proceeds not so reinvested by such 180th day
shall be utilized on such day to prepay the Loans pursuant to subsection
4.4(c).
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the thirty day notice period
is waived under subsection .22, .23, .25, .27 or .28 of PBGC Reg. ss.4043
or any successor regulation thereto.
"Required Lenders": at any time, Lenders the Total Credit
Percentages of which aggregate at least 51%.
"Required Release Lenders": at any time, (i) Revolving Credit
Lenders and Tranche A Term Loan Lenders the Total Credit Percentages
(calculated for this purpose without reference to outstanding Tranche B
Term Loans) of which aggregate at least 51%, (ii) Tranche B Term Loan
Lenders the Tranche B Term Loan Percentages of which aggregate at least
51% and (iii) Lenders the Total Credit Percentages of which aggregate at
least 80%.
25
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents
of such Person, and any law, statute, ordinance, code, decree, treaty,
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 material property or to which such Person or any of
its material property is subject; provided that the foregoing shall not
apply to any non-binding recommendation of any Governmental Authority.
"Responsible Officer": as to any Person, any of the following
officers of such Person: (i) the chief executive officer or the president
of such Person and, with respect to financial matters, the chief financial
officer, the treasurer or the controller of such Person, (ii) any vice
president of such Person or, with respect to financial matters, any
assistant treasurer or assistant controller of such Person, who has been
designated in writing to the Administrative Agent as a Responsible Officer
by such chief executive officer or president of such Person or, with
respect to financial matters, such chief financial officer of such Person,
(iii) with respect to subsection 7.7 and without limiting the foregoing,
the general counsel of such Person and (iv) with respect to ERISA related
matters, the vice president of human resources of such Person.
"Revolving Credit Commitment": as to any Revolving Credit Lender,
its obligation to make Revolving Credit Loans to, and/or make or
participate in Swing Line Loans made to, and/or issue or participate in
Letters of Credit issued on behalf of, the Borrowers in an aggregate
amount not to exceed at any one time outstanding the amount set forth
opposite such Revolving Credit Lender's name in Schedule I under the
heading "Revolving Credit Commitment" or, in the case of any Lender that
is an Assignee, the amount of the assigning Lender's Revolving Credit
Commitment assigned to such Assignee pursuant to subsection 11.6(c) (in
each case as such amount may be adjusted from time to time as provided
herein); collectively, as to all the Revolving Credit Lenders, the
"Revolving Credit Commitments".
"Revolving Credit Commitment Percentage": as to any Revolving Credit
Lender, the percentage of the aggregate Revolving Credit Commitments
constituted by its Revolving Credit Commitment (or, if the Revolving
Credit Commitments have terminated or expired, the percentage which (i)
the sum of (a) such Lender's then outstanding Revolving Credit Loans plus
(b) such Lender's interests in the aggregate L/C Obligations and Swing
Line Loans then outstanding then constitutes of (ii) the sum of (a) the
aggregate Revolving Credit Loans of all the Revolving Credit Lenders then
outstanding plus (b) the aggregate L/C Obligations and Swing Line Loans
then outstanding).
"Revolving Credit Commitment Period": the period from and including
the Effective Date to but not including the Termination Date, or such
earlier date as the Revolving Credit Commitments shall terminate as
provided herein.
"Revolving Credit Lender": any Lender having a Revolving Credit
Commitment hereunder or having a Revolving Credit Loan outstanding
hereunder.
26
"Revolving Credit Loans": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 2.2.
"Sale and Leaseback Transaction": as defined in subsection 8.12.
"Securities Act": the Securities Act of 1933, as amended.
"Security Documents": the collective reference to the Mortgages, the
Guarantee and Collateral Agreement and all other similar security
documents hereafter delivered to the Administrative Agent on behalf of the
Lenders (and the Administrative Agent will provide each Lender with a copy
thereof) granting a Lien on any asset or assets of any Person to secure
the obligations and liabilities of the Borrowers hereunder, under any
Notes and/or under any of the other Loan Documents or to secure any
guarantee of any such obligations and liabilities.
"Seller": as defined in the Recitals hereto.
"Senior Debt Ratio": at the last day of each fiscal quarter of the
Parent Borrower, the ratio of (a) Consolidated Senior Debt at such date to
(b) EBITDA for the period of four full fiscal quarters ending on such
date.
"Senior Subordinated Note Indenture": the Indenture, dated as of
November 19, 1999, entered into by the Parent Borrower and State Street
Bank and Trust Company, as trustee, in connection with the issuance of the
Senior Subordinated Notes, together with all instruments and other
agreements entered into by the Parent Borrower in connection therewith, as
the same may be amended, supplemented or otherwise modified from time to
time in accordance with subsection 8.17.
"Senior Subordinated Notes": up to $150,000,000 aggregate principal
amount of 13-3/8% Senior Subordinated Notes due 2009 of the Parent
Borrower issued on the Effective Date pursuant to the Senior Subordinated
Note Indenture.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Solvent" and "Solvency": with respect to any Person on a particular
date, the condition that, on such date, (a) the fair value of the property
of such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the
present fair salable value of the assets of such Person is not less than
the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and
liabilities mature, and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for
which such Person's property would constitute an unreasonably small amount
of capital.
27
"S&P": as defined in the definition of the term "Cash Equivalents"
in this subsection 1.1.
"Spot Rate of Exchange": with respect to any Designated Foreign
Currency, at any date of determination thereof, the spot rate of exchange
in London that appears on the display page applicable to such Designated
Foreign Currency on the Dow Jones Market Service (or such other page as
may replace such page for the purpose of displaying the spot rate of
exchange in London); provided that if there shall at any time no longer
exist such a page, the spot rate of exchange shall be determined by
reference to another similar rate publishing service selected by the
Administrative Agent and, if no such similar rate publishing service is
available, by reference to the published rate of the Administrative Agent
in effect at such date for similar commercial transactions.
"Standby Letter of Credit": as defined in subsection 3.1(a).
"Subordinated Debt": any unsecured Indebtedness of Holding or any of
its Subsidiaries (a) having no scheduled principal payments (whether by
way of mandatory sinking fund, mandatory redemption, mandatory prepayment
or otherwise) prior to the Final Maturity Date and (b) the payment of the
principal of and interest on which and other obligations of Holding and
its Subsidiaries in respect thereof are subordinated, on terms and
conditions reasonably satisfactory to the Administrative Agent (as
evidenced by its prior written approval) in light of the terms and
conditions customarily contained in indentures for publicly issued high
yield subordinated debt securities, to the prior payment in full of the
principal of and interest (including post-petition interest) on the Loans
and all other payment obligations of the Loan Parties to the
Administrative Agent, the Other Representatives and the Lenders hereunder
and under the other Loan Documents.
"Subordinated Subsidiary Guarantees": the subordinated guarantees
delivered by the Subsidiaries of the Parent Borrower guaranteeing the
obligations and liabilities of the Parent Borrower in respect of the
Senior Subordinated Notes.
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors
or other managers of such corporation, partnership, limited liability
company or other entity are at the time owned, or the management of which
is otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall
refer to a Subsidiary or Subsidiaries of Holding.
"Swing Line Commitment": the Swing Line Lender's obligation to make
Swing Line Loans pursuant to subsection 2.5.
"Swing Line Lender": Chase, in its capacity as provider of the Swing
Line Loans.
28
"Swing Line Loan Participation Certificate": a certificate in
substantially the form of Exhibit I.
"Swing Line Loans": as defined in subsection 2.5(a).
"Swing Line Note": as defined in subsection 2.5(b).
"Syndication Agent": as defined in the Preamble hereto.
"Syndication Letter Agreement": the letter agreement, dated as of
November 19, 1999, between the Parent Borrower, the Administrative Agent,
the Syndication Agent and the Arrangers relating to the syndication of the
credit facilities provided for in this Agreement.
"Telerate British Bankers Assoc. Interest Settlement Rates Page": as
defined in the definition of the term "Eurocurrency Base Rate" in this
subsection 1.1.
"Termination Date": November 18, 2006.
"Term Loan": a Tranche A Term Loan or a Tranche B Term Loan, as the
context shall require; collectively, the "Term Loans".
"Term Loan Lender": any Lender having a Term Loan outstanding
hereunder.
"Term Note": a Tranche A Term Note or a Tranche B Term Note, as the
context shall require; collectively, the "Term Notes".
"Three-Month Secondary CD Rate": as defined in the definition of the
term "ABR" in this subsection 1.1.
"Title Insurance Company": the title insurance company issuing the
policies referred to in subsection 6.1(p).
"Total Credit Percentage": as to any Lender at any time, the
percentage of the aggregate Revolving Credit Commitments, outstanding
Tranche A Term Loans and outstanding Tranche B Term Loans then constituted
by its Revolving Credit Commitment, outstanding Tranche A Term Loan and
outstanding Tranche B Term Loan (or, if the Revolving Credit Commitments
have terminated or expired, the percentage of the aggregate outstanding
Revolving Credit Loans, outstanding Term Loans and interests in the
outstanding L/C Obligations and Swing Line Loans then constituted by its
outstanding Revolving Credit Loans, outstanding Term Loans and interests
in outstanding L/C Obligations and Swing Line Loans).
"Tranche": the collective reference to Eurocurrency Loans, the then
current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans shall
originally have been made on the same day).
29
"Tranche A Term Loan": as defined in subsection 2.6.
"Tranche A Term Loan Lender": any Term Loan Lender having a Tranche
A Term Loan outstanding hereunder.
"Tranche A Term Loan Percentage": as to any Term Loan Lender at any
time, the percentage which (i) such Term Loan Lender's Tranche A Term Loan
then outstanding constitutes of (ii) the aggregate Tranche A Term Loans of
all the Term Loan Lenders then outstanding.
"Tranche A Term Note": as defined in subsection 2.7(a).
"Tranche B Prepayment Amount": as defined in subsection 4.4(g).
"Tranche B Term Loan": as defined in subsection 2.6.
"Tranche B Term Loan Lender": any Term Loan Lender having a Tranche
B Term Loan outstanding hereunder.
"Tranche B Term Loan Percentage": as to any Term Loan Lender at any
time, the percentage which (i) such Term Loan Lender's Tranche B Term Loan
then outstanding constitutes of (ii) the aggregate Tranche B Term Loans of
all the Term Loan Lenders then outstanding.
"Tranche B Term Note": as defined in subsection 2.8(a).
"Transaction Documents": the collective reference to the Acquisition
Agreement, the Preferred Stock Certificate of Designation and the
Indentures.
"Transferee": as defined in subsection 11.6(f).
"TransGuard": TransGuard Insurance Company of America, an Illinois
corporation and a Wholly Owned Subsidiary of the Parent Borrower.
"Treaty": the Treaty establishing the European Economic Community,
being the Treaty of Rome of March 25, 1957 as amended by the Single
European Act 1986 and the Maastricht Treaty (which was signed on February
7, 1992 and came into force on November 1, 1993) and as may, from time to
time, be further amended, supplemented or otherwise modified.
"Type": as to any Loan, its nature as an ABR Loan or a Eurocurrency
Loan.
"Underfunding": an excess of all accrued benefits under a Plan
(based on those assumptions used to fund such Plan), determined as of the
most recent annual valuation date, over the value of the assets of such
Plan allocable to such accrued benefits.
30
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No.
500, as the same may be amended from time to time.
"U.S. Tax Compliance Certificate": as defined in subsection 4.11(b).
"Voting Stock": as defined in the definition of the term "Change of
Control" in this subsection 1.1.
"Wholly Owned Subsidiary": as to any Person, any Subsidiary of such
Person of which such Person owns, directly or indirectly through one or
more Wholly Owned Subsidiaries, all of the Capital Stock of such
Subsidiary other than directors qualifying shares or shares held by
nominees.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Notes, any other Loan Document or any certificate or other
document made or delivered pursuant hereto.
(b) As used herein and in any Notes and any other Loan Document, and
any certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to Holding and its Subsidiaries not defined in
subsection 1.1 and accounting terms partly defined in subsection 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified. The phrase "the date hereof" and phrases of similar import
when used in this Agreement shall refer to November 19, 1999.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) In the event that the Parent Borrower changes its fiscal year
end to the last day of December, each of the fiscal quarter ending dates set
forth herein (including, without limitation, those set forth in Sections 2.7 and
2.8) occurring after such change shall be deemed to be the last day of March,
June, September or December, as applicable.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Revolving Credit Lender severally agrees to make
revolving credit loans ("Revolving Credit Loans") to each of the Borrowers from
time to time during the Revolving Credit Commitment Period in an aggregate
principal amount at any one time outstanding which, when added to such Revolving
Credit
31
Lender's Revolving Credit Commitment Percentage of the sum of the then
outstanding L/C Obligations and the then outstanding Swing Line Loans, does not
exceed the amount of such Revolving Credit Lender's Revolving Credit Commitment
then in effect; provided that no Revolving Credit Lender shall make any
Revolving Credit Loan in any Designated Foreign Currency if, after giving effect
to the making of such Revolving Credit Loan, the sum of the Dollar Equivalent of
the then outstanding Revolving Credit Loans in any Designated Foreign Currency
and the then outstanding L/C Obligations in respect of any Foreign Backstop
Letters of Credit would exceed an amount to be agreed upon by the Parent
Borrower, the Administrative Agent and the Other Representatives (it being
understood and agreed that the Administrative Agent shall calculate the Dollar
Equivalent of the then outstanding Revolving Credit Loans in any Designated
Foreign Currency and, to the extent applicable, of the then outstanding L/C
Obligations in respect of any Foreign Backstop Letters of Credit on the date on
which the Parent Borrower has given the Administrative Agent a notice of
borrowing with respect to any Revolving Credit Loan for purposes of determining
compliance with this subsection). During the Revolving Credit Commitment Period
each of the Borrowers may use the Revolving Credit Commitments by borrowing,
prepaying the Revolving Credit Loans in whole or in part, and reborrowing, all
in accordance with the terms and conditions hereof. In no event shall the
Revolving Credit Commitments of all Revolving Credit Lenders exceed
$150,000,000.
(b) The Revolving Credit Loans may be made in Dollars or any
Designated Foreign Currency and may from time to time be (i) Eurocurrency Loans,
(ii) ABR Loans or (iii) a combination thereof, as determined by the Parent
Borrower and notified to the Administrative Agent in accordance with subsections
2.3 and 4.2, provided that no Revolving Credit Loan shall be made as a
Eurocurrency Loan after the day that is one month prior to the Termination Date.
2.2 Revolving Credit Notes. Each of the Borrowers agrees that, upon
the request to the Administrative Agent by any Revolving Credit Lender made on
or prior to the Effective Date or in connection with any assignment of its Loan
or Revolving Credit Commitment, in order to evidence such Revolving Credit
Lender's Revolving Credit Loans such Borrower will execute and deliver to such
Revolving Credit Lender a promissory note substantially in the form of Exhibit
A-1, with appropriate insertions as to payee, date and principal amount (each,
as amended, supplemented, replaced or otherwise modified from time to time, a
"Revolving Credit Note"), payable to the order of such Revolving Credit Lender
and in a principal amount equal to the lesser of (a) the amount set forth
opposite such Revolving Credit Lender's name in Schedule I under the heading
"Revolving Credit Commitment" and (b) the aggregate unpaid principal amount of
all Revolving Credit Loans made by such Revolving Credit Lender to such
Borrower. Each Revolving Credit Note shall (x) be dated the Effective Date, (y)
be stated to mature on the Termination Date and (z) provide for the payment of
interest in accordance with subsection 4.1.
2.3 Procedure for Revolving Credit Borrowing. Each of the Borrowers
may borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day, provided that the Parent Borrower (on
behalf of itself or such other Borrower, as the case may be) shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to (a) 12:30 P.M., New York City time, at least three
Business Days prior to the requested Borrowing Date, if all or any part of the
requested Revolving Credit Loans are to be initially Eurocurrency Loans made in
Dollars, (b) 11:00 A.M., London time, at least three Business
32
Days prior to the requested Borrowing Date, if all or any part of the requested
Revolving Credit Loans are to be initially Eurocurrency Loans made in any
Designated Foreign Currency, or (c) 12:30 P.M., New York City time, at least one
Business Day prior to the requested Borrowing Date, otherwise), specifying (i)
the identity of the Borrower, (ii) the amount to be borrowed, (iii) the
requested Borrowing Date, (iv) whether the borrowing is to be of Eurocurrency
Loans, ABR Loans or a combination thereof and (v) if the borrowing is to be
entirely or partly of Eurocurrency Loans, the respective amounts of each such
Type of Loan, the respective lengths of the initial Interest Periods therefor
and, if the Eurocurrency Loans in respect of such borrowing are to be made
entirely or partly in any Designated Foreign Currency, the Designated Foreign
Currency thereof. Each borrowing under the Revolving Credit Commitments shall be
in an amount equal to (x) in the case of ABR Loans, except any ABR Loan to be
used solely to pay a like amount of outstanding Reimbursement Obligations or
Swing Line Loans, $5,000,000 or a whole multiple of $1,000,000 in excess thereof
(or, if the then Available Revolving Credit Commitments are (A) less than
$5,000,000, $1,000,000 or a whole multiple thereof or (B) less than $1,000,000,
such lesser amount) and (y) in the case of Eurocurrency Loans (or, in the case
of Eurocurrency Loans to be made in any Designated Foreign Currency, the Dollar
Equivalent of the principal amount thereof shall be in an amount equal to),
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of
any such notice from the Parent Borrower, the Administrative Agent shall
promptly notify each Revolving Credit Lender thereof. Notwithstanding the
foregoing, the initial borrowing of Revolving Credit Loans on the Effective Date
shall be in a maximum aggregate principal amount of $65,000,000. Subject to the
satisfaction of the conditions precedent specified in subsection 6.2 (and
subsection 6.3 in the case of a Foreign Subsidiary Borrower), each Revolving
Credit Lender will make the amount of its pro rata share of each borrowing of
Revolving Credit Loans available to the Administrative Agent for the account of
the Borrower identified in such notice at the office of the Administrative Agent
specified in subsection 11.2 prior to 12:00 Noon (10:00 A.M. in the case of the
initial borrowing hereunder), New York City time, or at such other office of the
Administrative Agent or at such other time as to which the Administrative Agent
shall notify such Revolving Credit Lender and the Parent Borrower reasonably in
advance of the Borrowing Date with respect thereto, on the Borrowing Date
requested by the Parent Borrower in Dollars or the applicable Designated Foreign
Currency and in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower identified in such notice
by the Administrative Agent crediting the account of the such Borrower on the
books of such office with the aggregate of the amounts made available to the
Administrative Agent by the Revolving Credit Lenders and in like funds as
received by the Administrative Agent.
2.4 Termination or Reduction of Revolving Credit Commitments. The
Parent Borrower shall have the right, upon not less than three Business Days'
notice to the Administrative Agent (which will promptly notify the Lenders
thereof), to terminate the Revolving Credit Commitments or, from time to time,
to reduce the amount of the Revolving Credit Commitments; provided that no such
termination or reduction shall be permitted if, after giving effect thereto and
to any prepayments of the Revolving Credit Loans and Swing Line Loans made on
the effective date thereof, the aggregate principal amount of the Revolving
Credit Loans then outstanding (including, without limitation, in the case of
Revolving Credit Loans then outstanding in any Designated Foreign Currency, the
Dollar Equivalent of the aggregate principal amount thereof), when added to the
sum of the then outstanding L/C Obligations and the then outstanding Swing Line
Loans, would exceed the Revolving Credit Commitments then in
33
effect. Any such reduction shall be in an amount equal to $1,000,000 or a whole
multiple of $1,000,000 in excess thereof and shall reduce permanently the
Revolving Credit Commitments then in effect.
2.5 Swing Line Commitments. (a) Subject to the terms and conditions
hereof, the Swing Line Lender agrees to make swing line loans (individually, a
"Swing Line Loan"; collectively, the "Swing Line Loans") to each of the
Borrowers from time to time during the Revolving Credit Commitment Period in an
aggregate principal amount as to all of the Borrowers at any one time
outstanding not to exceed $10,000,000, provided that at no time may the sum of
the then outstanding Swing Line Loans, Revolving Credit Loans (including,
without limitation, in the case of Revolving Credit Loans then outstanding in
any Designated Foreign Currency, the Dollar Equivalent of the aggregate
principal amount thereof) and L/C Obligations exceed the Revolving Credit
Commitments then in effect. Amounts borrowed by any of the Borrowers under this
subsection 2.5 may be repaid and, through but excluding the Termination Date,
reborrowed. All Swing Line Loans shall be made as ABR Loans and shall not be
entitled to be converted into Eurocurrency Loans. The Parent Borrower (on behalf
of itself or such other Borrower, as the case may be) shall give the Swing Line
Lender irrevocable notice (which notice must be received by the Swing Line
Lender prior to 12:00 Noon, New York City time) on the requested Borrowing Date
specifying (i) the identity of the Borrower and (ii) the amount of the requested
Swing Line Loan which shall be in a minimum amount of $500,000 or whole
multiples of $100,000 in excess thereof. The proceeds of the Swing Line Loan
will be made available by the Swing Line Lender to the Borrower identified in
such notice at the office of the Swing Line Lender by crediting the account of
such Borrower at such office with such proceeds in Dollars.
(b) Each of the Borrowers agrees that, upon the request to the
Administrative Agent by the Swing Line Lender, in order to evidence the Swing
Line Loans such Borrower will execute and deliver to the Swing Line Lender a
promissory note substantially in the form of Exhibit A-4, with appropriate
insertions (as the same may be amended, supplemented, replaced or otherwise
modified from time to time, the "Swing Line Note"), payable to the order of the
Swing Line Lender and representing the obligation of such Borrower to pay the
amount of the Swing Line Commitment or, if less, the unpaid principal amount of
the Swing Line Loans made to such Borrower, with interest thereon as prescribed
in subsection 4.1. The Swing Line Note shall (a) be dated the Effective Date,
(b) be stated to mature on the Termination Date and (c) provide for the payment
of interest in accordance with subsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute
discretion may, and, at any time as there shall be a Swing Line Loan outstanding
for more than seven Business Days, the Swing Line Lender shall, on behalf of the
Borrower to which such Swing Line Loan shall have been made (which hereby
irrevocably directs and authorizes the Swing Line Lender to act on its behalf),
request each Revolving Credit Lender, including the Swing Line Lender, to make a
Revolving Credit Loan as an ABR Loan in an amount equal to such Revolving Credit
Lender's Revolving Credit Commitment Percentage of the principal amount of the
Swing Line Loans (the "Refunded Swing Line Loans") outstanding on the date such
notice is given; provided that the provisions of this subsection shall not
affect the obligations of any of the Borrowers to prepay Swing Line Loans in
accordance with the provisions of subsection 4.4(e). Unless the Revolving Credit
Commitments shall have expired or terminated (in which event the procedures of
paragraph (d) of this subsection 2.5 shall apply), each Revolving Credit Lender
will make the proceeds of its Revolving Credit Loan available to the
34
Administrative Agent for the account of the Swing Line Lender at the office of
the Administrative Agent prior to 12:00 Noon, New York City time, in funds
immediately available on the Business Day next succeeding the date such notice
is given. The proceeds of such Revolving Credit Loans shall be immediately
applied to repay the Refunded Swing Line Loans.
(d) If the Revolving Credit Commitments shall expire or terminate at
any time while Swing Line Loans are outstanding, each Revolving Credit Lender
shall, at the option of the Swing Line Lender exercised reasonably, either (i)
notwithstanding the expiration or termination of the Revolving Credit
Commitments, make a Revolving Credit Loan as an ABR Loan or (ii) purchase an
undivided participating interest in such Swing Line Loans, in either case in an
amount equal to such Revolving Credit Lender's Revolving Credit Commitment
Percentage determined on the date of, and immediately prior to, expiration or
termination of the Revolving Credit Commitments of the aggregate principal
amount of such Swing Line Loans. Each Revolving Credit Lender will make the
proceeds of any Revolving Credit Loan made pursuant to the immediately preceding
sentence available to the Administrative Agent for the account of the Swing Line
Lender at the office of the Administrative Agent prior to 12:00 Noon, New York
City time, in funds immediately available on the Business Day next succeeding
the date on which the Revolving Credit Commitments expire or terminate. The
proceeds of such Revolving Credit Loans shall be immediately applied to repay
the Swing Line Loans outstanding on the date of termination or expiration of the
Revolving Credit Commitments. In the event that the Revolving Credit Lenders
purchase undivided participating interests pursuant to the first sentence of
this paragraph (d), each Revolving Credit Lender shall immediately transfer to
the Swing Line Lender, in immediately available funds, the amount of its
participation and upon receipt thereof the Swing Line Lender will deliver to
such Revolving Credit Lender a Swing Line Loan Participation Certificate dated
the date of receipt of such funds and in such amount.
(e) Whenever, at any time after the Swing Line Lender has received
from any Revolving Credit Lender such Revolving Credit Lender's participating
interest in a Swing Line Loan, the Swing Line Lender receives any payment on
account thereof, the Swing Line Lender will distribute to such Revolving Credit
Lender its participating interest in such amount (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such
Revolving Credit Lender's participating interest was outstanding and funded);
provided, however, that in the event that such payment received by the Swing
Line Lender is required to be returned, such Revolving Credit Lender will return
to the Swing Line Lender any portion thereof previously distributed by the Swing
Line Lender to it.
2.6 Term Loans. Subject to the terms and conditions hereof, each
Term Loan Lender severally agrees (a) to make a term loan (a "Tranche A Term
Loan") to the Parent Borrower on the Effective Date in an aggregate principal
amount set forth opposite such Term Loan Lender's name in Schedule I under the
heading "Tranche A Term Loan Commitment" and (b) to make a term loan (a "Tranche
B Term Loan") to the Parent Borrower on the Effective Date in an aggregate
principal amount set forth opposite such Term Loan Lender's name in Schedule I
under the heading "Tranche B Term Loan Commitment". The Term Loans may be made
in Dollars and may from time to time be (a) Eurocurrency Loans, (b) ABR Loans or
(c) a combination thereof, as determined by the Parent Borrower and notified to
the Administrative Agent in accordance with subsections 2.9 and 4.2. The
Borrower may, with the prior written consent of the relevant Tranche A Term Loan
Lender, convert all
35
or any portion of the Tranche A Term Loans of such Lender into Tranche A Term
Loans denominated in a Designated Foreign Currency, with such conversion to be
made at the Spot Rate of Exchange on the date that is two Business Days prior to
the date of such conversion.
2.7 Tranche A Term Notes. (a) The Parent Borrower agrees that, upon
the request to the Administrative Agent by any Tranche A Term Loan Lender made
on or prior to the Effective Date or in connection with any assignment of its
Loan, in order to evidence such Term Loan Lender's Tranche A Term Loan the
Parent Borrower will execute and deliver to such Term Loan Lender a promissory
note substantially in the form of Exhibit A-2 (each, as amended, supplemented,
replaced or otherwise modified from time to time, a "Tranche A Term Note"), with
appropriate insertions therein as to payee, date and principal amount, payable
to the order of such Term Loan Lender and in a principal amount equal to the
lesser of (a) the amount set forth opposite such Term Loan Lender's name on
Schedule I under the heading "Tranche A Term Loan Commitment" and (b) the unpaid
principal amount of the Tranche A Term Loan made by such Term Loan Lender. Each
Tranche A Term Note shall (i) be dated the Effective Date, (ii) be payable as
provided in subsection 2.7(b) and (iii) provide for the payment of interest in
accordance with subsection 4.1.
(b) The aggregate principal amount of all of the Tranche A Term
Loans to be made on the Effective Date by the Term Loan Lenders is $150,000,000.
The aggregate Tranche A Term Loans of all the Term Loan Lenders (together with
all accrued interest thereon) shall be payable in 28 consecutive installments on
the dates and in a principal amount equal to (i) the percentage set forth below
opposite such date multiplied by (ii) the aggregate principal amount of all of
the Tranche A Term Loans made on the Effective Date by the Term Loan Lenders
(using, for any Tranche A Term Loans converted to a Designated Foreign Currency,
the Spot Rate of Exchange used in such conversion):
Dates Percentage
----- ----------
March 24, 2000 0.825%
June 23, 2000 0.825%
September 22, 2000 0.825%
December 29, 2000 0.825%
March 30, 2001 1.675%
June 29, 2001 1.675%
September 28, 2001 1.675%
December 28, 2001 1.675%
March 29, 2002 2.500%
June 28, 2002 2.500%
September 27, 2002 2.500%
December 27, 2002 2.500%
March 28, 2003 3.325%
June 27, 2003 3.325%
September 26, 2003 3.325%
December 26, 2003 3.325%
March 26, 2004 3.325%
June 25, 2004 3.325%
36
September 24, 2004 3.325%
December 24, 2004 3.325%
March 25, 2005 5.825%
June 24, 2005 5.825%
September 23, 2005 5.825%
December 30, 2005 5.825%
March 31, 2006 7.525%
June 30, 2006 7.525%
September 29, 2006 7.525%
Termination Date 7.525%
provided that in the event that the Parent Borrower changes its fiscal year end
to the last day of December, each of the foregoing amortization dates (other
than the Termination Date) occurring after such change shall be deemed to be the
last day of March, June, September or December, as applicable (e.g., the
amortization payment scheduled for March 30, 2001 shall be due on March 31,
2001, and the amortization payment scheduled for June 29, 2001 shall be due on
June 30, 2001).
2.8 Tranche B Term Notes. (a) The Parent Borrower agrees that, upon
the request to the Administrative Agent by any Tranche B Term Loan Lender made
on or prior to the Effective Date or in connection with any assignment of its
Loan, in order to evidence such Term Loan Lender's Tranche B Term Loan the
Parent Borrower will execute and deliver to such Term Loan Lender a promissory
note substantially in the form of Exhibit A-3 (each, as amended, supplemented,
replaced or otherwise modified from time to time, a "Tranche B Term Note"), with
appropriate insertions therein as to payee, date and principal amount, payable
to the order of such Term Loan Lender and in a principal amount equal to the
lesser of (a) the amount set forth opposite such Term Loan Lender's name on
Schedule I under the heading "Tranche B Term Loan Commitment" and (b) the unpaid
principal amount of the Tranche B Term Loan made by such Term Loan Lender. Each
Tranche B Term Note shall (i) be dated the Effective Date, (ii) be payable as
provided in subsection 2.8(b) and (iii) provide for the payment of interest in
accordance with subsection 4.1.
(b) The aggregate Tranche B Term Loans of all the Term Loan Lenders
shall be payable in 32 consecutive installments on the dates and in a principal
amount equal to the amount set forth below (together with all accrued interest
thereon) opposite the applicable installment date (or, if less, the aggregate
amount of the Tranche B Term Loans then outstanding):
Dates Amount
----- ------
March 24, 2000 $ 437,500
June 23, 2000 $ 437,500
September 22, 2000 $ 437,500
December 29, 2000 $ 437,500
March 30, 2001 $ 437,500
June 29, 2001 $ 437,500
September 28, 2001 $ 437,500
December 28, 2001 $ 437,500
37
March 29, 2002 $ 437,500
June 28, 2002 $ 437,500
September 27, 2002 $ 437,500
December 27, 2002 $ 437,500
March 28, 2003 $ 437,500
June 27, 2003 $ 437,500
September 26, 2003 $ 437,500
December 26, 2003 $ 437,500
March 26, 2004 $ 437,500
June 25, 2004 $ 437,500
September 24, 2004 $ 437,500
December 24, 2004 $ 437,500
March 25, 2005 $ 437,500
June 24, 2005 $ 437,500
September 23, 2005 $ 437,500
December 30, 2005 $ 437,500
March 31, 2006 $16,125,000
June 30, 2006 $16,125,000
September 29, 2006 $16,125,000
December 29, 2006 $16,125,000
March 30, 2007 $25,000,000
June 29, 2007 $25,000,000
September 28, 2007 $25,000,000
Final Maturity Date $25,000,000
provided that in the event that the Parent Borrower changes its fiscal year end
to the last day of December, each of the foregoing amortization dates (other
than the Final Maturity Date) occurring after such change shall be deemed to be
the last day of March, June, September or December, as applicable (e.g., the
amortization payment scheduled for March 30, 2001 shall be due on March 31,
2001, and the amortization payment scheduled for June 29, 2001 shall be due on
June 30, 2001).
2.9 Procedure for Term Loan Borrowing. The Parent Borrower shall
give the Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to (a) 12:30 P.M., New York City time, at
least three Business Days prior to the Effective Date, if all or any part of the
Term Loans are to be initially Eurocurrency Loans made in Dollars, (b) 11:00
A.M., London time, at least three Business Days prior to the Effective Date, if
any part of the Tranche A Term Loans are to be initially Eurocurrency Loans made
in any Designated Foreign Currency or (c) 12:30 P.M., New York City time, at
least one Business Day prior to the Effective Date, otherwise) requesting that
the Term Loan Lenders make the Term Loans on the Effective Date and specifying
(i) the amount to be borrowed, (ii) whether the Term Loans are to be initially
Eurocurrency Loans, ABR Loans or a combination thereof, and (iii) if the Term
Loans are to be entirely or partly Eurocurrency Loans, the respective amounts of
each such Type of Loan and the respective lengths of the initial Interest
Periods therefor and, if the Eurocurrency Loans in respect of any part of the
borrowing of Tranche A Term Loans are to be made entirely or partly in any
Designated Foreign Currency, the Designated Foreign Currency thereof. Upon
receipt of such notice the Administrative Agent shall
38
promptly notify each Term Loan Lender thereof. Each Term Loan Lender will make
the amount of its pro rata share of the Term Loans available to the
Administrative Agent for the account of the Parent Borrower at the office of the
Administrative Agent specified in subsection 11.2 prior to 10:00 A.M., New York
City time, or at such other office of the Administrative Agent or at such other
time as to which the Administrative Agent shall notify such Term Loan Lender and
the Parent Borrower reasonably in advance of the Effective Date with respect
thereto, on the Effective Date in Dollars or the applicable Designated Foreign
Currency and in funds immediately available to the Administrative Agent. The
Administrative Agent shall on such date credit the account of the Parent
Borrower on the books of such office of the Administrative Agent with the
aggregate of the amounts made available to the Administrative Agent by the Term
Loan Lenders and in like funds as received by the Administrative Agent.
2.10 Repayment of Loans. (a) Each of the Borrowers hereby
unconditionally promises to pay to the Administrative Agent for the account of
(i) each Revolving Credit Lender, the then unpaid principal amount of each
Revolving Credit Loan of such Revolving Credit Lender made to such Borrower, on
the Termination Date (or such earlier date on which the Revolving Credit Loans
become due and payable pursuant to Section 9); (ii) the Swing Line Lender, the
then unpaid principal amount of the Swing Line Loans made to such Borrower, on
the Termination Date (or such earlier date on which the Swing Line Loans become
due and payable pursuant to Section 9); (iii) in the case of the Parent Borrower
only, each Tranche A Term Loan Lender, the amounts specified in subsection
2.7(b) (or, if less, the aggregate amount of the Tranche A Term Loans then
outstanding), on the dates specified in subsection 2.7(b) (or such earlier date
on which the Tranche A Term Loans become due and payable pursuant to Section 9);
and (iv) in the case of the Parent Borrower only, each Tranche B Term Loan
Lender, the amounts specified in subsection 2.8(b) (or, if less, the aggregate
amount of the Tranche B Term Loans then outstanding), on the dates specified in
subsection 2.8(b) (or such earlier date on which the Tranche B Term Loans become
due and payable pursuant to Section 9). Each of the Borrowers hereby further
agrees to pay interest on the unpaid principal amount of the Loans made to such
Borrower from time to time outstanding from the date hereof until payment in
full thereof at the rates per annum, and on the dates, set forth in subsection
4.1.
(b) Each Lender (including the Swing Line Lender) shall maintain in
accordance with its usual practice an account or accounts evidencing
indebtedness of each of the Borrowers to such Lender resulting from each Loan of
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 11.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder, the Type thereof and each
Interest Period, if any, applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from each of the Borrowers
to each Lender hereunder and (iii) both the amount of any sum received by the
Administrative Agent hereunder from each of the Borrowers and each Lender's
share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 2.10(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of each of the Borrowers therein recorded; provided,
39
however, that the failure of any Lender or the Administrative Agent to maintain
the Register or any such account, or any error therein, shall not in any manner
affect the obligation of any Borrower to repay (with applicable interest) the
Loans made to such Borrower by such Lender in accordance with the terms of this
Agreement.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions hereof,
the Issuing Lender, in reliance on the agreements of the other Revolving Credit
Lenders set forth in subsection 3.4(a), agrees to continue outstanding under
this Agreement the Existing Letters of Credit and issue letters of credit (the
letters of credit issued on and after the Effective Date pursuant to this
Section 3, together with the Existing Letters of Credit, collectively, the
"Letters of Credit") for the account of each of the Borrowers on any Business
Day during the Revolving Credit Commitment Period in such form as may be
approved from time to time by the Issuing Lender, provided that the Issuing
Lender shall not issue any Letter of Credit if, after giving effect to such
issuance, (i) the sum of the Dollar Equivalent of the then outstanding Revolving
Credit Loans in any Designated Foreign Currency and the then outstanding L/C
Obligations in respect of any Foreign Backstop Letters of Credit would exceed
$50,000,000 (it being understood and agreed that the Administrative Agent shall
calculate the Dollar Equivalent of the then outstanding Revolving Credit Loans
in any Designated Foreign Currency and, to the extent applicable, of the then
outstanding L/C Obligations in respect of any Foreign Backstop Letters of Credit
on the date on which the Parent Borrower has requested that the Issuing Lender
issue a Letter of Credit for purposes of determining compliance with this clause
(i)), (ii) the L/C Obligations in respect of Letters of Credit other than
Foreign Backstop Letters of Credit would exceed $50,000,000 or (iii) the
Aggregate Outstanding Revolving Credit of all the Revolving Credit Lenders would
exceed the Revolving Credit Commitments of all the Revolving Credit Lenders then
in effect. Each Letter of Credit shall (A) be denominated in Dollars or, in the
case of Foreign Backstop Letters of Credit, in Dollars or any Designated Foreign
Currency and shall be either (x) a standby letter of credit issued to support
obligations of the Parent Borrower or any of its Subsidiaries, contingent or
otherwise, which finance the working capital and business needs of the Parent
Borrower and its Subsidiaries incurred in the ordinary course of business (a
"Standby Letter of Credit"), or (y) a commercial letter of credit in respect of
the purchase of goods or services by the Parent Borrower or any of its
Subsidiaries in the ordinary course of business (a "Commercial Letter of
Credit"), (B) expire no later than the Termination Date, and (C) expire no later
than 365 days after its date of issuance in the case of Standby Letters of
Credit, and 180 days after its date of issuance in the case of Commercial
Letters of Credit.
(b) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the State of New
York.
(c) The Issuing Lender shall not at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
the Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
3.2 Procedure for Issuance of Letters of Credit. The Parent Borrower
may from time to time request that the Issuing Lender issue a Letter of Credit
by delivering to the Issuing Lender, at its
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address for notices specified herein, an Application therefor, completed to the
reasonable satisfaction of the Issuing Lender, and such other certificates,
documents and other papers and information as the Issuing Lender may reasonably
request. Upon receipt of any Application, the Issuing Lender will process such
Application and the certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its customary
procedures and shall promptly issue the Letter of Credit requested thereby (but
in no event shall the Issuing Lender be required to issue any Letter of Credit
earlier than three Business Days after its receipt of the Application therefor
and all such other certificates, documents and other papers and information
relating thereto) by issuing the original of such Letter of Credit to the
beneficiary thereof or as otherwise may be agreed by the Issuing Lender and the
Parent Borrower. The Issuing Lender shall furnish a copy of such Letter of
Credit to the Parent Borrower promptly following the issuance thereof.
3.3 Fees, Commissions and Other Charges. (a) Each Borrower shall pay
to the Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, a letter of credit commission with respect to each Letter of
Credit issued for the account of such Borrower, computed for the period from and
including the date of issuance of such Letter of Credit to the expiration date
of such Letter of Credit, computed at the rate per annum equal to the Applicable
Margin in effect for Revolving Credit Loans that are Eurocurrency Loans,
calculated on the basis of a 365- (or 366-, as the case may be) day year, of the
aggregate amount available to be drawn under such Letter of Credit, payable
(without duplication) quarterly in arrears on each L/C Fee Payment Date to occur
while such Letter of Credit remains outstanding and on the expiration date of
such Letter of Credit and the Termination Date. Such commission shall be payable
to the Administrative Agent for the account of the Revolving Credit Lenders to
be shared ratably among them in accordance with their respective Revolving
Credit Commitment Percentages. Each Borrower shall also pay to the
Administrative Agent, for the account of the Issuing Lender, a fee equal to 1/4
of 1% per annum of the aggregate amount available to be drawn under each Letter
of Credit issued for the account of such Borrower, payable quarterly in arrears
on each L/C Fee Payment Date to occur while such Letter of Credit remains
outstanding and on the expiration date of such Letter of Credit. Such
commissions shall be nonrefundable. Such fees and commissions shall be payable
in Dollars, notwithstanding that a Letter of Credit may be denominated in any
Designated Foreign Currency. In respect of a Letter of Credit denominated in any
Designated Foreign Currency, such fees and commissions shall be converted into
Dollars at the Spot Rate of Exchange on the date on which they are paid (or, if
such date is not a Business Day, at the Spot Rate of Exchange on the Business
Day next preceding such date).
(b) In addition to the foregoing fees and commissions, each Borrower
shall pay or reimburse the Issuing Lender for such normal and customary costs
and expenses as are incurred or charged by the Issuing Lender in issuing,
effecting payment under, amending or otherwise administering any Letter of
Credit issued for the account of such Borrower.
(c) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the Issuing Lender and the L/C Participants all fees and
commissions received by the Administrative Agent for their respective accounts
pursuant to this subsection. The Administrative Agent shall notify the Lenders
at least monthly of the aggregate outstanding Letters of Credit.
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3.4 L/C Participations. (a) The Issuing Lender irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce the Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Credit Commitment Percentage (determined on the date of
issuance of the relevant Letter of Credit) in the Issuing Lender's obligations
and rights under each Letter of Credit issued or continued hereunder and the
amount of each draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower in respect of such Letter of Credit in
accordance with subsection 3.5(a), such L/C Participant shall pay to the Issuing
Lender upon demand (which demand, in the case of any demand made in respect of
any draft under a Letter of Credit denominated in any Designated Foreign
Currency, shall not be made prior to the date that the amount of such draft
shall be converted into Dollars in accordance with subsection 3.5(a)) at the
Issuing Lender's address for notices specified herein an amount equal to such
L/C Participant's Revolving Credit Commitment Percentage of the amount of such
draft, or any part thereof, which is not so reimbursed; provided that nothing in
this paragraph shall relieve the Issuing Lender of any liability resulting from
the gross negligence or willful misconduct of the Issuing Lender, or otherwise
affect any defense or other right that any L/C Participant may have as a result
of such gross negligence or willful misconduct.
(b) If any amount required to be paid by any L/C Participant to the
Issuing Lender pursuant to subsection 3.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Lender under any Letter of Credit is
paid to the Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to the Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii) the daily average
Federal Funds Effective Rate during the period from and including the date such
payment is required to the date on which such payment is immediately available
to the Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant to
subsection 3.4(a) is not in fact made available to the Issuing Lender by such
L/C Participant within three Business Days after the date such payment is due,
the Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the
rate per annum applicable to ABR Loans that are Revolving Credit Loans. A
certificate of the Issuing Lender submitted to any L/C Participant with respect
to any amounts owing under this subsection shall be conclusive in the absence of
manifest error.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with subsection 3.4(a), the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower in respect of such Letter of Credit or otherwise, including
proceeds of Collateral applied thereto by the Issuing Lender), or any payment of
interest on account thereof, the Issuing Lender will, if such payment is
received prior to 1:00 P.M., New York City time, on a Business Day, distribute
to such L/C Participant its pro rata share thereof prior to the end of such
Business Day and otherwise the Issuing Lender will distribute such payment on
the next succeeding Business Day; provided, however, that in the event that any
such payment received by the Issuing
42
Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrowers. (a) Each of the
Borrowers agrees to reimburse the Issuing Lender, upon receipt by the Parent
Borrower of notice from the Issuing Lender of the date and amount of a draft
presented under any Letter of Credit issued for the account of such Borrower and
paid by the Issuing Lender, for the amount of (i) such draft so paid and (ii)
any taxes, fees, charges or other costs or expenses reasonably incurred by the
Issuing Lender in connection with such payment. Each such payment shall be made
to the Issuing Lender, at its address for notices specified herein in the
currency in which such Letter of Credit is denominated (except that, in the case
of any Letter of Credit denominated in any Designated Foreign Currency, in the
event that such payment is not made to the Issuing Lender within three Business
Days of the date of receipt by the Parent Borrower of such notice, upon notice
by the Issuing Lender to the Parent Borrower, such payment shall be made in
Dollars, in an amount equal to the Dollar Equivalent of the amount of such
payment converted on the date of such notice into Dollars at the Spot Rate of
Exchange on such date) and in immediately available funds, on the date on which
the Parent Borrower (on behalf of itself or such Borrower, as the case may be)
receives such notice, if received prior to 11:00 A.M., New York City time, on a
Business Day and otherwise on the next succeeding Business Day. Any conversion
by the Issuing Lender of any payment to be made by any Borrower in respect of
any Letter of Credit denominated in any Designated Foreign Currency into Dollars
in accordance with this subsection 3.5(a) shall be conclusive and binding upon
such Borrower and the Revolving Credit Lenders in the absence of manifest error;
provided that upon the request of any Borrower or any Revolving Credit Lender,
the Issuing Lender shall provide to such Borrower or Revolving Credit Lender a
certificate including reasonably detailed information as to the calculation of
such conversion.
(b) Interest shall be payable on any and all amounts remaining
unpaid by any of the Borrowers under this subsection (i) from the date the draft
presented under the affected Letter of Credit is paid to the date on which such
Borrower is required to pay such amounts pursuant to paragraph (a) above at the
rate which would then be payable on any outstanding ABR Loans that are Revolving
Credit Loans and (ii) thereafter until payment in full at the rate which would
be payable on any outstanding ABR Loans that are Tranche B Term Loans which were
then overdue.
3.6 Obligations Absolute. (a) Each of the Borrowers' obligations
under this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which such Borrower may have or have had against the Issuing Lender, any
L/C Participant or any beneficiary of a Letter of Credit, provided that this
paragraph shall not relieve the Issuing Lender or any L/C Participant of any
liability resulting from the gross negligence or willful misconduct of the
Issuing Lender or such L/C Participant, or otherwise affect any defense or other
right that such Borrower may have as a result of any such gross negligence or
willful misconduct.
(b) Each Borrower also agrees with the Issuing Lender that the
Issuing Lender and the L/C Participants shall not be responsible for, and such
Borrower's Reimbursement Obligations under subsection 3.5(a) shall not be
affected by, among other things, (i) the validity or genuineness of documents or
of any endorsements thereon, even though such documents shall in fact prove to
be invalid, fraudulent or forged, or (ii) any dispute between or among such
Borrower and any beneficiary
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of any Letter of Credit or any other party to which such Letter of Credit may be
transferred or (iii) any claims whatsoever of such Borrower against any
beneficiary of such Letter of Credit or any such transferee, provided that this
paragraph shall not relieve the Issuing Lender or any L/C Participant of any
liability resulting from the gross negligence or willful misconduct of the
Issuing Lender or such L/C Participant, or otherwise affect any defense or other
right that such Borrower may have as a result of any such gross negligence or
willful misconduct.
(c) Neither the Issuing Lender nor any L/C Participant shall be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with
any Letter of Credit, except for errors or omissions caused by such Person's
gross negligence or willful misconduct.
(d) Each Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the Uniform
Commercial Code of the State of New York, shall be binding on such Borrower and
shall not result in any liability of the Issuing Lender or any L/C Participant
to such Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Lender shall promptly notify the
Parent Borrower of the date and amount thereof. The responsibility of the
Issuing Lender to the Borrower in respect of any Letter of Credit in connection
with any draft presented for payment under any Letter of Credit shall, in
addition to any payment obligation expressly provided for in such Letter of
Credit, be limited to determining that the documents (including each draft)
delivered under such Letter of Credit in connection with such presentment are in
conformity with such Letter of Credit, provided that this paragraph shall not
relieve the Issuing Lender of any liability resulting from the gross negligence
or willful misconduct of the Issuing Lender, or otherwise affect any defense or
other right that such Borrower may have as a result of any such gross negligence
or willful misconduct.
3.8 Application. To the extent that any provision of any Application
related to any Letter of Credit is inconsistent with the provisions of this
Section 3, the provisions of this Section 3 shall apply.
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT
4.1 Interest Rates and Payment Dates. (a) Each Eurocurrency Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurocurrency Rate determined for such
day plus the Applicable Margin in effect for such day.
(b) Each ABR Loan shall bear interest for each day that it is
outstanding at a rate per annum equal to the ABR for such day plus the
Applicable Margin in effect for such day.
(c) If all or a portion of (i) the principal amount of any Loan,
(ii) any interest payable thereon or (iii) any commitment fee or other amount
payable hereunder shall not be paid when due
44
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum which is (x) in the case of
overdue principal, the rate that would otherwise be applicable thereto pursuant
to the relevant foregoing provisions of this subsection plus 2.00% or (y) in the
case of overdue interest, fees or other amounts, the rate described in paragraph
(b) of this subsection for ABR Loans that are Tranche B Term Loans plus 2.00%,
in each case from the date of such non-payment until such amount is paid in full
(as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
(e) It is the intention of the parties hereto to comply strictly
with applicable usury laws; accordingly, it is stipulated and agreed that the
aggregate of all amounts which constitute interest under applicable usury laws,
whether contracted for, charged, taken, reserved, or received, in connection
with the indebtedness evidenced by this Agreement or any Notes, or any other
document relating or referring hereto or thereto, now or hereafter existing,
shall never exceed under any circumstance whatsoever the maximum amount of
interest allowed by applicable usury laws.
4.2 Conversion and Continuation Options. (a) The Parent Borrower may
elect from time to time to convert outstanding Term Loans and Revolving Credit
Loans from Eurocurrency Loans made or outstanding in Dollars to ABR Loans by
giving the Administrative Agent at least two Business Days' prior irrevocable
notice of such election, provided that any such conversion of Eurocurrency Loans
made or outstanding in Dollars may only be made on the last day of an Interest
Period with respect thereto. The Parent Borrower may elect from time to time to
convert outstanding Term Loans and Revolving Credit Loans from ABR Loans to
Eurocurrency Loans outstanding in Dollars by giving the Administrative Agent at
least three Business Days' prior irrevocable notice of such election. Any such
notice of conversion to Eurocurrency Loans outstanding in Dollars shall specify
the length of the initial Interest Period or Interest Periods therefor. Upon
receipt of any such notice the Administrative Agent shall promptly notify each
affected Lender thereof. All or any part of outstanding Eurocurrency Loans made
or outstanding in Dollars and ABR Loans may be converted as provided herein,
provided that (i) (unless the Required Lenders otherwise consent) no Loan may be
converted into a Eurocurrency Loan when any Default or Event of Default has
occurred and is continuing and, in the case of any Default, the Administrative
Agent has given notice to the Parent Borrower that no such conversions may be
made and (ii) no Loan may be converted into a Eurocurrency Loan after the date
that is one month prior to either the Termination Date (in the case of
conversions of Revolving Credit Loans or Tranche A Term Loans) or the Final
Maturity Date (in the case of conversions of Tranche B Term Loans).
(b) Any Eurocurrency Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Parent Borrower giving notice to the Administrative Agent, of the length of the
next Interest Period to be applicable to such Loans, determined in accordance
with the applicable provisions of the term "Interest Period" set forth in
subsection 1.1, provided that no Eurocurrency Loan may be continued as such (i)
(unless the Required Lenders otherwise consent) when any Default or Event of
Default has occurred and is continuing and, in the case of any Default, the
Administrative Agent has given notice to the Parent Borrower that no such
45
continuations may be made or (ii) after the date that is one month prior to
either the Termination Date (in the case of continuations of Revolving Credit
Loans or Tranche A Term Loans) or the Final Maturity Date (in the case of
continuations of Tranche B Term Loans), and provided, further, that (A) in the
case of Eurocurrency Loans made or outstanding in Dollars, if the Parent
Borrower shall fail to give any required notice as described above in this
paragraph or if such continuation is not permitted pursuant to the preceding
proviso such Loans shall be automatically converted to ABR Loans on the last day
of such then expiring Interest Period and (B) in case of Eurocurrency Loans made
or outstanding in any Designated Foreign Currency, if the Parent Borrower shall
fail to give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to clause (i) of the preceding proviso,
such Eurocurrency Loans will be continued for the shortest available Interest
Periods as determined by the Administrative Agent. Upon receipt of any such
notice of continuation pursuant to this subsection 4.2(b), the Administrative
Agent shall promptly notify each affected Lender thereof.
4.3 Minimum Amounts of Tranches. All borrowings, conversions and
continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of the
Eurocurrency Loans outstanding in Dollars comprising each Tranche shall be equal
to $5,000,000 or a whole multiple of $1,000,000 in excess thereof, the Dollar
Equivalent of the aggregate principal amount of the Eurocurrency Loans
outstanding in any Designated Foreign Currency comprising each Set shall be
equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and so
that there shall not be more than 15 Tranches at any one time outstanding.
4.4 Optional and Mandatory Prepayments and Commitment Reductions.
(a) Each of the Borrowers may at any time and from time to time prepay the Loans
(including the Reimbursement Obligations in respect of Letters of Credit issued
for its account) and permanently reduce the Revolving Credit Commitments, in
whole or in part, subject to subsections 4.4(k) and 4.12, without premium or
penalty, upon at least three Business Days' irrevocable notice by the Parent
Borrower on behalf of the applicable Borrower to the Administrative Agent (in
the case of Eurocurrency Loans and Reimbursement Obligations outstanding in any
Designated Foreign Currency), at least, three Business Days' irrevocable notice
by the Parent Borrower to the Administrative Agent (in the case of Eurocurrency
Loans and Reimbursement Obligations outstanding in Dollars), at least one
Business Day's irrevocable notice by the Parent Borrower to the Administrative
Agent (in the case of ABR Loans other than Swing Line Loans) or same-day
irrevocable notice by the Parent Borrower to the Administrative Agent (in the
case of Swing Line Loans), specifying, in the case of any prepayment of Loans,
the date and amount of prepayment or reduction, as the case may be, the identity
of the prepaying Borrower, and whether the prepayment is (i) of Term Loans,
Revolving Credit Loans or Swing Line Loans, or a combination thereof, or (ii) of
Eurocurrency Loans, ABR Loans or a combination thereof, and, in each case if a
combination thereof, the principal amount allocable to each and, in the case of
any prepayment of Reimbursement Obligations, the date and amount of prepayment,
the identity of the applicable Letter of Credit or Letters of Credit and the
amount allocable to each of such Reimbursement Obligations. Upon the receipt of
any such notice the Administrative Agent shall promptly notify each affected
Lender thereof. If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein, together with (if a
Eurocurrency Loan is prepaid other than at the end of the Interest Period
applicable thereto) any amounts payable pursuant to
46
subsection 4.12 and, in the case of prepayments of the Term Loans only, accrued
interest to such date on the amount prepaid. Partial prepayments of (i) the Term
Loans shall be applied (x) pro rata (based on outstanding principal amount) to
the Tranche A Term Loans and the Tranche B Term Loans and (y) pro rata to the
respective installments of principal thereof, provided that any such payment
made within 12 months prior to the date on which an installment of principal
thereof is scheduled to be made may, at the option of the Parent Borrower, be
applied first to such installment, and (ii) the Revolving Credit Loans and the
Letters of Credit shall be applied, first, to payment of the Swing Line Loans
then outstanding, second, to payment of the Revolving Credit Loans then
outstanding, third, to payment of any Reimbursement Obligations then outstanding
and, last, to cash collateralize any outstanding L/C Obligation on terms
reasonably satisfactory to the Administrative Agent. Partial prepayments
pursuant to this subsection 4.4(a) shall be in an aggregate principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof (or, in the case
of Eurocurrency Loans outstanding in any Designated Foreign Currency, the Dollar
Equivalent of an aggregate principal amount of at least approximately
$5,000,000), provided that, notwithstanding the foregoing, any Loan may be
prepaid in its entirety.
(b) Except as otherwise provided in subsection 4.14, if, at any time
during the Revolving Credit Commitment Period, the Aggregate Outstanding
Revolving Credit with respect to all of the Revolving Credit Lenders (including
the Swing Line Lender) exceeds the aggregate Revolving Credit Commitments then
in effect, the Borrowers shall, without notice or demand, immediately repay the
Revolving Credit Loans and the Swing Line Loans in an aggregate principal amount
equal to such excess together with interest accrued to the date of such payment
or prepayment and any amounts payable under subsection 4.12. To the extent that
after giving effect to any prepayment of the Loans required by the preceding
sentence, such Aggregate Outstanding Revolving Credit exceeds the aggregate
Revolving Credit Commitments then in effect, the Borrowers shall, without notice
or demand, immediately cash collateralize the then outstanding L/C Obligations
in an amount equal to such excess upon terms reasonably satisfactory to the
Administrative Agent.
(c) If (i) Holding or any of its Subsidiaries shall incur
Indebtedness for borrowed money (other than Indebtedness permitted pursuant to
subsection 8.2 hereof and Section 5.4.2 of the Guarantee and Collateral
Agreement) pursuant to a public offering or private placement or otherwise, (ii)
Holding or any of its Subsidiaries shall make an Asset Sale (other than pursuant
to clauses (i), (ii), (iii), (iv), (v), (vi) and (viii) of subsection 8.6(a)),
(iii) Holding or any of its Subsidiaries shall enter into a Permitted
Receivables Securitization or (iv) Holding or any of Subsidiaries shall receive
in excess of $20,000,000 of Net Cash Proceeds from Sale and Leaseback
Transactions during the term of this Agreement, then, in each case, the
Borrowers shall prepay the Loans and cash collateralize the L/C Obligations in
an amount equal to (w) in the case of the incurrence of any such Indebtedness,
100% of the Net Cash Proceeds thereof, (x) in the case of any such Asset Sale,
100% of the Net Cash Proceeds thereof minus any Reinvested Amounts, (y) in the
case of any such Permitted Receivables Securitization, 100% of the Net Cash
Proceeds thereof and (z) in the case of any such Sale and Leaseback Transaction,
100% of the Net Cash Proceeds to the extent such Net Cash Proceeds, together
with the Net Cash Proceeds of any other Sale and Leaseback Transaction entered
into by Holding or any of its Subsidiaries, exceeds $20,000,000, in each such
case, with such prepayment to be made on the date of receipt of any such Net
Cash Proceeds. Nothing in this paragraph (c) shall limit the rights of the
Administrative Agent and the Lenders set forth in Section 9.
47
(d) Commencing March 31, 2001, and on each March 31 thereafter, the
Borrowers shall apply toward the prepayment of the Term Loans and the reduction
of the Revolving Credit Commitments as set forth in subsection 4.4(f) the ECF
Percentage of the Parent Borrower's Excess Cash Flow for the fiscal year ending
on the immediately preceding last Saturday in December (or, (i) in the case of
any year where December 31 is a Saturday, the fiscal year ending on the date in
December set forth opposite such fiscal year on Schedule 4.4(d) and (ii) in the
case of the first such payment, the fiscal period beginning on the Effective
Date and ending on December 24, 1999).
(e) The Borrowers shall prepay all Swing Line Loans then outstanding
simultaneously with each borrowing of Revolving Credit Loans.
(f) Prepayments pursuant to subsections 4.4(c) and 4.4(d) shall be
applied, first, to prepay Term Loans then outstanding, second, to prepay Swing
Line Loans then outstanding, third, to prepay Revolving Credit Loans then
outstanding, fourth, to pay any Reimbursement Obligations then outstanding and,
last, to cash collateralize any outstanding L/C Obligations on terms reasonably
satisfactory to the Administrative Agent. Prepayments of Term Loans pursuant to
subsections 4.4(c) and 4.4(d) shall be applied (x) pro rata (based on
outstanding principal amount) to the Tranche A Term Loans and the Tranche B Term
Loans and (y) pro rata to the respective installments of principal thereof,
provided that any such payment made within 12 months prior to the date on which
an installment of principal thereof is scheduled to be made may, at the option
of the Parent Borrower, be applied first to such installment.
(g) Notwithstanding anything to the contrary in this subsection 4.4,
so long as any Tranche A Term Loans are outstanding, each Tranche B Term Loan
Lender may, at its option, decline the portion of any optional prepayment or
mandatory payment applicable to the Tranche B Term Loans of such Lender;
accordingly, with respect to the amount of any optional or mandatory prepayment
described in this subsection 4.4 that is allocated to Tranche B Term Loans (such
amount, the "Tranche B Prepayment Amount"), the Parent Borrower will, in lieu of
applying such amount to the prepayment of Tranche B Term Loans as provided in
subsections 4.4(a), 4.4(c) and 4.4(d), on the date specified in this subsection
4.4 for such prepayment, give the Administrative Agent telephonic notice
(promptly confirmed in writing) requesting that the Administrative Agent prepare
and provide to each Tranche B Term Loan Lender a notice (each, a "Prepayment
Option Notice") as described below. As promptly as practicable after receiving
such notice from the Parent Borrower, the Administrative Agent will send to each
Tranche B Term Loan Lender a Prepayment Option Notice, which shall be in the
form of Exhibit D, and shall include an offer by the Parent Borrower to prepay
on the date (each, a "Prepayment Date") that is ten Business Days after the date
of the Prepayment Option Notice, the Tranche B Term Loans of such Lender by an
amount equal to the Tranche B Prepayment Amount indicated in such Lender's
Prepayment Option Notice. On the Prepayment Date, (i) the Parent Borrower shall
pay to the Administrative Agent the aggregate amount necessary to prepay that
portion of the outstanding Tranche B Term Loans in respect of which Tranche B
Term Loan Lenders have accepted prepayment as described above (such Lenders, the
"Accepting Lenders"), and such amount shall be applied to reduce the Tranche B
Prepayment Amounts with respect to each Accepting Lender and (ii) the Parent
Borrower shall pay to the Administrative Agent an amount equal to the portion of
the Tranche B Prepayment Amount not accepted by the Accepting Lenders, and such
amount shall be applied to the prepayment of the Tranche A Term Loans.
48
(h) Amounts prepaid on account of Term Loans pursuant to subsection
4.4(a), 4.4(c) or 4.4(d) may not be reborrowed.
(i) The Revolving Credit Commitments shall be permanently reduced by
the amount of all prepayments of Revolving Credit Loans, payments of
Reimbursement Obligations and cash collateralizations of L/C Obligations made
under subsection 4.4(c) or 4.4(d). Notwithstanding anything to the contrary in
this subsection 4.4, in the event Holding or any of its Subsidiaries shall enter
into a Permitted Receivables Securitization, the aggregate Revolving Credit
Commitments of all the Revolving Credit Lenders shall not be reduced below
$25,000,000 pursuant to the terms of subsection 4.4(c)(iii).
(j) Notwithstanding the foregoing provisions of this subsection 4.4,
if at any time any prepayment of the Loans pursuant to subsection 4.4(b),
4.4(c), 4.4(d) or 4.14 would result, after giving effect to the procedures set
forth in this Agreement, in the Parent Borrower incurring breakage costs under
subsection 4.12 as a result of Eurocurrency Loans being prepaid other than on
the last day of an Interest Period with respect thereto, then the relevant
Borrower may, so long as no Default or Event of Default shall have occurred and
be continuing, in its sole discretion, initially (i) deposit a portion (up to
100%) of the amounts that otherwise would have been paid in respect of such
Eurocurrency Loans with the Administrative Agent (which deposit must be equal in
amount to the amount of such Eurocurrency Loans not immediately prepaid) to be
held as security for the obligations of the Borrowers to make such prepayment
pursuant to a cash collateral agreement to be entered into on terms reasonably
satisfactory to the Administrative Agent, with such cash collateral to be
directly applied upon the first occurrence thereafter of the last day of an
Interest Period with respect to which Eurocurrency Loans (or such earlier date
or dates as shall be requested by the Parent Borrower) or (ii) make a prepayment
of the Revolving Credit Loans in accordance with subsection 4.4(a) with an
amount equal to a portion (up to 100%) of the amounts that otherwise would have
been paid in respect of such Eurocurrency Loans (which prepayment, together with
any deposits pursuant to clause (i) above, must be equal in amount to the amount
of such Eurocurrency Loans not immediately prepaid); provided that,
notwithstanding anything in this Agreement to the contrary, none of the
Borrowers may request any Extension of Credit under the Revolving Credit
Commitments that would reduce the aggregate amount of the Available Revolving
Credit Commitments to an amount that is less than the amount of such prepayment
until the related portion of such Eurocurrency Loans have been prepaid;
provided, further, that, in the case of either clause (i) or (ii), such unpaid
Eurocurrency Loans shall continue to bear interest in accordance with subsection
4.1 until such unpaid Eurocurrency Loans or the related portion of such
Eurocurrency Loans, as the case may be, have or has been prepaid.
(k) Optional prepayments of Tranche B Term Loans, and any
prepayments of Tranche B Term Loans (whether optional or mandatory) made as a
result of or in connection with a Change of Control, any sale of all or
substantially all of the assets of the Parent Borrower and its Subsidiaries or
any refinancing of any of the Indebtedness hereunder, shall be at par plus
accrued interest on the amount prepaid plus a premium. The premium shall
initially be 2% of the aggregate principal amount prepaid, shall decline to 1%
on the first anniversary of the Effective Date and, from and after the second
anniversary of the Effective Date, shall be 0%.
49
4.5 Commitment Fees; Administrative Agent's Fee; Other Fees. (a) The
Parent Borrower agrees to pay to the Administrative Agent for the account of
each Revolving Credit Lender, a commitment fee for the period from and including
the first day of the Revolving Credit Commitment Period to the Termination Date,
computed at the Commitment Fee Rate on the average daily amount of the Available
Revolving Credit Commitment of such Revolving Credit Lender during the period
for which payment is made, payable quarterly in arrears on the last day of each
March, June, September and December and on the Termination Date or such earlier
date as the Revolving Credit Commitments shall terminate as provided herein,
commencing on the Effective Date.
(b) The Parent Borrower shall pay to the Administrative Agent an
annual administration fee of $250,000 in respect of the period from the
Effective Date to the first anniversary thereof and of $150,000 in respect of
each annual period subsequent thereto, which fee shall be payable in equal
quarterly installments in advance on the Effective Date in respect of the
quarter in which the Effective Date occurs (prorated for the period from the
Effective Date to the end of such quarter) and on the last day of each March,
June, September and December thereafter (pro rated for the quarterly installment
paid immediately prior to the first anniversary of the Effective Date based on
the $250,000 amount for the period from the scheduled date of payment of such
quarterly installment to such first anniversary and based on the $150,000 amount
for the remainder of the quarterly period for which such payment is made).
(c) The Parent Borrower shall pay (without duplication, including of
any fee payable under subsections 4.5(a) and 4.5(b)) to Chase and Bank of
America, for their respective accounts and, as specified therein, for the
account of the Lenders, the other fees required to be paid pursuant to (i) the
Commitment Letter, dated November 11, 1999, among Chase, CSI, Bank of America,
BAS and the Parent Borrower and (ii) the Fee Letter, dated November 11, 1999,
among Chase, CSI, Bank of America, BAS and the Parent Borrower, in each case in
the amounts and on the dates set forth therein.
4.6 Computation of Interest and Fees. (a) Interest (other than
interest based on the Prime Rate) shall be calculated on the basis of a 360-day
year for the actual days elapsed; and commitment fees and interest based on the
Prime Rate shall be calculated on the basis of a 365- (or 366-, as the case may
be) day year for the actual days elapsed. The Administrative Agent shall as soon
as practicable notify the Parent Borrower and the affected Lenders of each
determination of a Eurocurrency Rate. Any change in the interest rate on a Loan
resulting from a change in the ABR, the Eurocurrency Reserve Requirements, the
C/D Assessment Rate or the C/D Reserve Percentage shall become effective as of
the opening of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Parent Borrower and
the affected Lenders of the effective date and the amount of each such change in
interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on each of the Borrowers and the Lenders in the absence of manifest
error. The Administrative Agent shall, at the request of the Parent Borrower,
deliver to the Parent Borrower a statement showing in reasonable detail the
calculations used by the Administrative Agent in determining any interest rate
pursuant to subsection 4.1, excluding any Eurocurrency Base Rate which is based
upon the Telerate British Bankers Assoc. Interest Settlement Rates Page and any
ABR which is based upon the Prime Rate.
50
4.7 Inability to Determine Interest Rate. If prior to the first day
of any Interest Period, the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon each of the Borrowers) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurocurrency Rate with
respect to any Eurocurrency Loan (the "Affected Eurocurrency Rate") for such
Interest Period, the Administrative Agent shall give telecopy or telephonic
notice thereof to the Parent Borrower and the Lenders as soon as practicable
thereafter. If such notice is given, (a) any Eurocurrency Loans the rate of
interest applicable to which is based upon the Affected Eurocurrency Rate
requested to be made on the first day of such Interest Period shall be made as
ABR Loans (to the extent otherwise permitted by subsection 4.2), (b) any Loans
that were to have been converted on the first day of such Interest Period to or
continued as Eurocurrency Loans the rate of interest applicable to which is
based upon the Affected Eurocurrency Rate shall be converted to or continued as
ABR Loans (to the extent otherwise permitted by subsection 4.2), (c) any
outstanding Eurocurrency Loans that are Revolving Credit Loans that were to have
been converted on the first day of such Interest Period to or continued as
Eurocurrency Loans the rate of interest applicable to which is based upon the
Affected Eurocurrency Rate and that are not otherwise permitted to be converted
to or continued as ABR Loans by subsection 4.2 shall, upon demand by the
Revolving Credit Lenders the Revolving Credit Commitment Percentage of which
aggregate at least 51%, be immediately repaid by the applicable Borrower on the
last day of the then current Interest Period with respect thereto together with
accrued interest thereon or otherwise, at the option of the Parent Borrower,
shall remain outstanding and bear interest at a rate which reflects, as to each
of the Revolving Credit Lenders, such Revolving Credit Lender's cost of funding
such Eurocurrency Loans, as reasonably determined by such Revolving Credit
Lender, plus the Applicable Margin hereunder and (d) any outstanding
Eurocurrency Loans that are Tranche A Term Loans that were to have been
converted on the first day of such Interest Period to or continued as
Eurocurrency Loans the rate of interest applicable to which is based upon the
Affected Eurocurrency Rate and that are not otherwise permitted to be converted
to or continued as ABR Loans by subsection 4.2 shall, upon demand by the Tranche
A Term Loan Lenders the Tranche A Term Loan Percentage of which aggregate at
least 51%, be immediately repaid by the Parent Borrower on the last day of the
then current Interest Period with respect thereto together with accrued interest
thereon or otherwise, at the option of the Parent Borrower, shall remain
outstanding and bear interest at a rate which reflects, as to each of the
Tranche A Term Loan Lenders, such Tranche A Term Loan Lender's cost of funding
such Eurocurrency Loans, as reasonably determined by such Tranche A Term Loan
Lender, plus the Applicable Margin hereunder. If any such repayment occurs on a
day which is not the last day of the then current Interest Period with respect
to such affected Eurocurrency Loan, the applicable Borrower shall pay to each of
the applicable Lenders such amounts, if any, as may be required pursuant to
subsection 4.12. Until such notice has been withdrawn by the Administrative
Agent, no further Eurocurrency Loans the rate of interest applicable to which is
based upon the Affected Eurocurrency Rate shall be made or continued as such,
nor shall any of the Borrowers have the right to convert ABR Loans to
Eurocurrency Loans the rate of interest applicable to which is based upon the
Affected Eurocurrency Rate.
4.8 Pro Rata Treatment and Payments. (a) Subject to subsection
4.8(c), each borrowing of Revolving Credit Loans (other than Swing Line Loans)
by any of the Borrowers from the Revolving Credit Lenders hereunder shall be
made, each payment by any of the Borrowers on account
51
of any commitment fee in respect of the Revolving Credit Commitments hereunder
shall be allocated by the Administrative Agent and any reduction of the
Revolving Credit Commitments of the Revolving Credit Lenders shall be allocated
by the Administrative Agent, pro rata according to the relevant Revolving Credit
Commitment Percentages of the Revolving Credit Lenders. Subject to subsection
4.8(c), each payment (including each prepayment) by any of the Borrowers on
account of principal of and interest on any Revolving Credit Loans shall be
allocated by the Administrative Agent pro rata according to the respective
outstanding principal amounts of such Revolving Credit Loans then held by the
Revolving Credit Lenders. Each payment (including each prepayment) by any of the
Borrowers on account of principal of and interest on any Term Loans shall,
subject to subsection 4.4(g), be allocated by the Administrative Agent pro rata
according to the respective outstanding principal amounts of such Term Loans
then held by the Term Loan Lenders. All payments (including prepayments) to be
made by any of the Borrowers hereunder and under any Notes, whether on account
of principal, interest, fees, Reimbursement Obligations or otherwise, shall be
made without set-off, counterclaim or, except as permitted under subsection
4.11, other deduction and shall be made prior to 1:00 P.M., New York City time,
on the due date thereof to the Administrative Agent, for the account of the
Lenders holding the relevant Loans or the L/C Participants, as the case may be,
at the Administrative Agent's office specified in subsection 11.2, in Dollars
or, in the case of Eurocurrency Loans outstanding in any Designated Foreign
Currency and L/C Obligations in any Designated Foreign Currency, such Designated
Foreign Currency and, whether in Dollars or any Designated Foreign Currency, in
immediately available funds. Payments received by the Administrative Agent after
such time shall be deemed to have been received on the next Business Day. The
Administrative Agent shall distribute such payments to such Lenders, if any such
payment is received prior to 1:00 P.M., New York City time, on a Business Day,
in like funds as received prior to the end of such Business Day and otherwise
the Administrative Agent shall distribute such payment to such Lenders on the
next succeeding Business Day. If any payment hereunder (other than payments on
the Eurocurrency Loans) becomes due and payable on a day other than a Business
Day, the maturity of such payment shall be extended to the next succeeding
Business Day, and, with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension. If any payment on
a Eurocurrency Loan becomes due and payable on a day other than a Business Day,
the maturity of such payment shall be extended to the next succeeding Business
Day (and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension) unless the result of
such extension would be to extend such payment into another calendar month, in
which event such payment shall be made on the immediately preceding Business
Day.
(b) Unless the Administrative Agent shall have been notified in
writing by any Revolving Credit Lender prior to a borrowing that such Revolving
Credit Lender will not make the amount that would constitute its Revolving
Credit Commitment Percentage of such borrowing available to the Administrative
Agent, the Administrative Agent may assume that such Revolving Credit Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to any of the
Borrowers in respect of such borrowing a corresponding amount. If such amount is
not made available to the Administrative Agent by the required time on the
Borrowing Date therefor, such Revolving Credit Lender shall pay to the
Administrative Agent, on demand, such amount with interest thereon at a rate
equal to (i) in the case of any Loans to be made in Dollars, the daily average
Federal Funds Effective Rate or (ii) in the case of any Revolving Credit Loans
to be made in any Designated Foreign Currency, the rate customary in such
52
Designated Foreign Currency for settlement of similar inter-bank obligations, as
quoted by the Administrative Agent, in each case for the period until such
Revolving Credit Lender makes such amount immediately available to the
Administrative Agent. A certificate of the Administrative Agent submitted to any
Revolving Credit Lender with respect to any amounts owing under this subsection
shall be conclusive in the absence of manifest error. If such Revolving Credit
Lender's Revolving Credit Commitment Percentage of such borrowing is not made
available to the Administrative Agent by such Revolving Credit Lender within
three Business Days of such Borrowing Date, (x) the Administrative Agent shall
notify the Parent Borrower of the failure of such Revolving Credit Lender to
make such amount available to the Administrative Agent and the Administrative
Agent shall also be entitled to recover such amount with interest thereon at the
rate per annum applicable to in the case of any Loans to be made in Dollars, ABR
Loans hereunder or, in the case of Loans to be made in any Designated Foreign
Currency, the rate per annum referred to in clause (ii) of the second preceding
sentence in respect of such Designated Foreign Currency plus the Applicable
Margin hereunder, on demand, from such Borrower and (y) then such Borrower may,
without waiving any rights it may have against such Revolving Credit Lender,
borrow a like amount on an unsecured basis from any commercial bank for a period
ending on the date upon which such Revolving Credit Lender does in fact make
such borrowing available, provided that at the time such borrowing is made and
at all times while such amount is outstanding such Borrower would be permitted
to borrow such amount pursuant to subsection 2.1.
(c) Notwithstanding any other provision contained herein, in the
event that any Revolving Credit Lender gives notice to the Administrative Agent
that it is unable to fund Revolving Credit Loans in any Designated Foreign
Currency (other than Euros and Sterling) at a reasonable cost to it, the
Administrative Agent shall, until such notice is withdrawn and to the extent
necessary in order to excuse such Revolving Credit Lender from making any
Revolving Credit Loans in such Designated Foreign Currency and to continue to
make available to the Borrowers the full aggregate amount of the Revolving
Credit Commitments, reallocate from time to time among the Revolving Credit
Lenders the outstanding Revolving Credit Loans denominated in Dollars and the
Revolving Credit Loans in such Designated Foreign Currency; provided that, in
the event that the Revolving Credit Lenders the Revolving Credit Commitment
Percentage of which aggregate at least 51% give such notice to the
Administrative Agent, the Revolving Credit Lenders shall not be required to make
any Revolving Credit Loans in such Designated Foreign Currency until any such
notices have been withdrawn so that the Revolving Credit Lenders the Revolving
Credit Commitment Percentage of which aggregate at least 51% have either not
given any such notice or have withdrawn any such notice.
4.9 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof occurring after the Effective Date shall make it unlawful
for any Lender to make or maintain any Eurocurrency Loans as contemplated by
this Agreement ("Affected Eurocurrency Loans"), (a) such Lender shall promptly
give written notice of such circumstances to the Parent Borrower and the
Administrative Agent (which notice shall be withdrawn whenever such
circumstances no longer exist), (b) the commitment of such Lender hereunder to
make Affected Eurocurrency Loans, continue Affected Eurocurrency Loans as such
and convert ABR Loans to Affected Eurocurrency Loans shall forthwith be
cancelled and, until such time as it shall no longer be unlawful for such Lender
to make or maintain Affected Eurocurrency Loans, such Lender shall then have a
commitment only to make an ABR Loan when an Affected Eurocurrency Loan is
requested (to the extent otherwise permitted by subsection 4.2), (c) such
53
Lender's Loans then outstanding as Affected Eurocurrency Loans, if any, shall be
converted automatically to ABR Loans on the respective last days of the then
current Interest Periods with respect to such Loans or within such earlier
period as required by law (to the extent otherwise permitted by subsection 4.2)
and (d) such Lender's Loans then outstanding as Affected Eurocurrency Loans, if
any, not otherwise permitted to be converted to ABR Loans by subsection 4.2
shall, upon notice to the Parent Borrower, be prepaid with accrued interest
thereon on the last day of the then current Interest Period with respect thereto
(or such earlier date as may be required by any such Requirement of Law). If any
such conversion of an Affected Eurocurrency Loan occurs on a day which is not
the last day of the then current Interest Period with respect thereto, the
applicable Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to subsection 4.12.
4.10 Requirements of Law. (a) If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof
applicable to any Lender, or compliance by any Lender with any request or
directive (whether or not having the force of law) from any central bank or
other Governmental Authority, in each case made subsequent to the Effective Date
(or, if later, the date on which such Lender becomes a Lender):
(i) shall subject such Lender to any tax of any kind whatsoever with
respect to any Letter of Credit, any Application or any Eurocurrency Loans
made by it or its obligation to make Eurocurrency Loans, or change the
basis of taxation of payments to such Lender in respect thereof (except
for Non-Excluded Taxes covered by subsection 4.11 (including Non-Excluded
Taxes imposed solely by reason of any failure of such Lender to comply
with its obligations (if any) under subsection 4.11(b) or (c)) and changes
in taxes measured by or imposed upon the overall net income, or franchise
taxes, or taxes measured by or imposed upon overall capital or net worth,
or branch taxes (in the case of such capital, net worth or branch taxes,
imposed in lieu of such net income tax), of such Lender or its applicable
lending office, branch, or any affiliate thereof);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurocurrency Rate hereunder; or
(iii) shall impose on such Lender any other condition (excluding any
tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurocurrency Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, upon notice to the Parent Borrower from such
Lender, through the Administrative Agent, in accordance herewith, the applicable
Borrower shall promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender for such increased cost or reduced amount
receivable, provided that, in any such case, such Borrower may elect to convert
the Eurocurrency Loans made by such Lender hereunder to ABR Loans (to the extent
otherwise permitted
54
by subsection 4.2) by giving the Administrative Agent at least one Business
Day's notice of such election, in which case such Borrower shall promptly pay to
such Lender, upon demand, without duplication, such amounts, if any, as may be
required pursuant to this subsection and such amounts, if any, as may be
required pursuant to subsection 4.12. If any Lender becomes entitled to claim
any additional amounts pursuant to this subsection, it shall provide prompt
notice thereof to the Parent Borrower, through the Administrative Agent,
certifying (x) that one of the events described in this paragraph (a) has
occurred and describing in reasonable detail the nature of such event, (y) as to
the increased cost or reduced amount resulting from such event and (z) as to the
additional amount demanded by such Lender and a reasonably detailed explanation
of the calculation thereof. Such a certificate as to any additional amounts
payable pursuant to this subsection submitted by such Lender, through the
Administrative Agent, to the Parent Borrower shall be conclusive in the absence
of manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority, in each case, made subsequent to the Effective Date (or, if later,
the date on which such Lender becomes a Lender), does or shall have the effect
of reducing the rate of return on such Lender's or such corporation's capital as
a consequence of its obligations hereunder or under or in respect of any Letter
of Credit to a level below that which such Lender or such corporation could have
achieved but for such change or compliance (taking into consideration such
Lender's or such corporation's policies with respect to capital adequacy) by an
amount deemed by such Lender to be material, then from time to time, within ten
Business Days after submission by such Lender to the Parent Borrower (with a
copy to the Administrative Agent) of a written request therefor certifying (x)
that one of the events described in this paragraph (b) has occurred and
describing in reasonable detail the nature of such event, (y) as to the
reduction of the rate of return on capital resulting from such event and (z) as
to the additional amount or amounts demanded by such Lender and a reasonably
detailed explanation of the calculation thereof, the applicable Borrower shall
pay to such Lender such additional amount or amounts as will compensate such
Lender for such reduction. Such a certificate as to any additional amounts
payable pursuant to this subsection submitted by such Lender, through the
Administrative Agent, to the Parent Borrower shall be conclusive in the absence
of manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
4.11 Taxes. (a) Except as provided below in this subsection, all
payments made by any of the Borrowers under this Agreement and any Notes shall
be made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, excluding
taxes measured by or imposed upon the overall net income (including net income
taxes imposed by means of a backup withholding tax) of any Lender or its
applicable lending office, or any branch or affiliate thereof, and all franchise
taxes, branch taxes, taxes on doing business or taxes measured by or imposed
upon the overall capital or net worth of any Lender or its applicable lending
office, or any branch or affiliate thereof, in each case imposed: (i) by the
jurisdiction under the laws of which such Lender, applicable lending
55
office, branch or affiliate is organized or is located, or in which its
principal executive office is located, or any nation within which such
jurisdiction is located or any political subdivision thereof; or (ii) by reason
of any connection between the jurisdiction imposing such tax and such Lender,
applicable lending office, branch or affiliate other than a connection arising
solely from such Lender having executed, delivered or performed its obligations
under, or received payment under or enforced, this Agreement or any Notes. If
any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions
or withholdings ("Non-Excluded Taxes") are required to be withheld from any
amounts payable to the Administrative Agent or any Lender hereunder or under any
Notes, the amounts so payable to the Administrative Agent or such Lender shall
be increased to the extent necessary to yield to the Administrative Agent or
such Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement and any Notes, provided, however, that any of the Borrowers shall be
entitled to deduct and withhold any Non-Excluded Taxes and shall not be required
to increase any such amounts payable to any Lender with respect to Non-Excluded
Taxes (i) that are attributable to such Lender's failure to comply with the
requirements of paragraph (b) or (c) of this subsection or (ii) that are U.S.
withholding taxes imposed on amounts payable to such Lender at the time such
Lender becomes a party to this Agreement. Whenever any Non-Excluded Taxes are
payable by any of the Borrowers, as promptly as possible thereafter the
applicable Borrower shall send to the Administrative Agent for its own account
or for the account of such Lender, as the case may be, a certified copy of an
original official receipt received by such Borrower showing payment thereof. If
any of the Borrowers fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, such Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this subsection shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
(b) Each Lender that is not a United States person (as defined in
Section 7701(a)(30) of the Code) shall:
(X) (i) on or before the date of any payment by any of the Borrowers
under this Agreement or any Notes to such Lender, deliver to the Parent
Borrower and the Administrative Agent two duly completed copies of United
States Internal Revenue Service Form W-8BEN or W-8ECI, or successor
applicable form, as the case may be and such other forms and
certifications as may be required under applicable law, in order to
establish that it is entitled to receive payments under this Agreement and
any Notes without deduction or withholding of any United States federal
income taxes;
(ii) deliver to the Parent Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and after
the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Parent Borrower; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the Parent
Borrower or the Administrative Agent; or
56
(Y) in the case of any such Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code and that is not entitled to
comply with subparagraph (X) hereof, (i) represent to the Parent Borrower
(for the benefit of each of the Borrowers and the Administrative Agent)
that it is not a bank within the meaning of Section 881(c)(3)(A) of the
Code, (ii) agree to furnish to the Parent Borrower on or before the date
of any payment by any of the Borrowers, with a copy to the Administrative
Agent, (A) a certificate substantially in the form of Exhibit C (any such
certificate a "U.S. Tax Compliance Certificate") and (B) two accurate and
complete original signed copies of Internal Revenue Service Form W-8BEN,
or successor applicable form certifying to such Lender's legal entitlement
at the date of such certificate to an exemption from U.S. withholding tax
under the provisions of Section 871(h) or 881(c) of the Code with respect
to payments to be made under this Agreement and any Notes (and to deliver
to the Parent Borrower and the Administrative Agent two further copies of
such form on or before the date it expires or becomes obsolete and after
the occurrence of any event requiring a change in the most recently
provided form and, if necessary, obtain any extensions of time reasonably
requested by the Parent Borrower or the Administrative Agent for filing
and completing such forms), and (iii) agree, to the extent legally
entitled to do so, upon reasonable request by the Parent Borrower, to
provide to the Parent Borrower (for the benefit of each of the Borrowers
and the Administrative Agent) such other forms as may be reasonably
required in order to establish the legal entitlement of such Lender to an
exemption from withholding with respect to payments under this Agreement
and any Notes (for the avoidance of doubt, in determining the
reasonableness of a request under this clause (iii), such Lender shall be
entitled to consider the cost (to the extent unreimbursed by the Parent
Borrower) which would be imposed on such Lender of complying with such
request);
unless in any such case any change in treaty, law or regulation has occurred
after the date such Person becomes a Lender hereunder which renders all such
forms inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Parent Borrower and the Administrative Agent.
(c) Each Revolving Credit Lender that is not incorporated or
organized under the laws of the jurisdiction under which a Foreign Subsidiary
Borrower is incorporated or organized shall, upon request by such Foreign
Subsidiary Borrower, deliver to such Foreign Subsidiary Borrower or the
applicable governmental or taxing authority, as the case may be, any form or
certificate required in order that any payment by such Foreign Subsidiary
Borrower under this Agreement or any Notes to such Revolving Credit Lender may
be made free and clear of, and without deduction or withholding for or on
account of any Non-Excluded Taxes (or to allow any such deduction or withholding
to be at a reduced rate) imposed on such payment under the laws of the
jurisdiction under which such Foreign Subsidiary Borrower is incorporated or
organized, provided that such Lender is legally entitled to complete, execute
and deliver such form or certificate and such completion, execution or
submission would not materially prejudice the legal position of such Revolving
Credit Lender.
(d) Each Person that shall become a Lender or a Participant pursuant
to subsection 11.6 shall, upon the effectiveness of the related transfer, be
required to provide all of the forms, certifications and statements required
pursuant to this subsection, provided that, in the case of a Participant, the
57
obligations of such Participant pursuant to paragraph (b) or (c) of this
subsection shall be determined as if such Participant were a Lender except that
such Participant shall furnish all such required forms, certifications and
statements to the Lender from which the related participation shall have been
purchased.
4.12 Indemnity. Each of the Borrowers agrees to indemnify each
Lender and to hold each Lender harmless from any loss or expense which such
Lender may sustain or incur (other than through such Lender's gross negligence
or willful misconduct) as a consequence of (a) default by such Borrower in
making a borrowing of, conversion into or continuation of Eurocurrency Loans
after the Parent Borrower has given a notice requesting the same in accordance
with the provisions of this Agreement, (b) default by such Borrower in making
any prepayment of Eurocurrency Loans after the Parent Borrower has given a
notice thereof in accordance with the provisions of this Agreement or (c) the
making of a prepayment or conversion of Eurocurrency Loans on a day which is not
the last day of an Interest Period with respect thereto. Such indemnification
may include an amount equal to the excess, if any, of (i) the amount of interest
which would have accrued on the amount so prepaid, or converted, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or conversion or of such failure to borrow, convert or continue to
the last day of the applicable Interest Period (or, in the case of a failure to
borrow, convert or continue, the Interest Period that would have commenced on
the date of such failure) in each case at the applicable rate of interest for
such Eurocurrency Loans provided for herein (excluding, however, the Applicable
Margin included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) which would have accrued to such Lender on such
amount by placing such amount on deposit for a comparable period with leading
banks in the interbank eurocurrency market. A certificate as to any amounts
payable pursuant to this subsection submitted to the Parent Borrower by any
Lender shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
4.13 Certain Rules Relating to the Payment of Additional Amounts.
(a) Upon the request, and at the expense, of the applicable Borrower, each
Lender to which any of the Borrowers is required to pay any additional amount
pursuant to subsection 4.10 or 4.11, and any Participant in respect of whose
participation such payment is required, shall reasonably afford such Borrower
the opportunity to contest, and reasonably cooperate with such Borrower in
contesting, the imposition of any Non-Excluded Tax giving rise to such payment;
provided that (i) such Lender shall not be required to afford such Borrower the
opportunity to so contest unless such Borrower shall have confirmed in writing
to such Lender its obligation to pay such amounts pursuant to this Agreement and
(ii) such Borrower shall reimburse such Lender for its reasonable attorneys' and
accountants' fees and disbursements incurred in so cooperating with such
Borrower in contesting the imposition of such Non-Excluded Tax; provided,
however that notwithstanding the foregoing no Lender shall be required to afford
any Borrower the opportunity to contest, or cooperate with such Borrower in
contesting, the imposition of any Non-Excluded Taxes, if such Lender in its sole
discretion in good faith determines that to do so would have an adverse effect
on it.
(b) If a Lender changes its applicable lending office (other than
pursuant to paragraph (c) below) and the effect of the change, as of the date of
the change, would be to cause any of the
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Borrowers to become obligated to pay any additional amount under subsection 4.10
or 4.11, such Borrower shall not be obligated to pay such additional amount.
(c) If a condition or an event occurs which would, or would upon the
passage of time or giving of notice, result in the payment of any additional
amount to any Lender by any of the Borrowers pursuant to subsection 4.10 or
4.11, such Lender shall promptly notify the applicable Borrower and the
Administrative Agent and shall take such steps as may reasonably be available to
it and acceptable to such Borrower to mitigate the effects of such condition or
event (which shall include efforts to rebook the Loans held by such Lender at
another lending office, or through another branch or an affiliate, of such
Lender); provided that such Lender shall not be required to take any step that,
in its reasonable judgment, would be materially disadvantageous to its business
or operations or would require it to incur additional costs (unless the Parent
Borrower agrees to reimburse such Lender for the reasonable incremental
out-of-pocket costs thereof).
(d) If any of the Borrowers shall become obligated to pay additional
amounts pursuant to subsection 4.10 or 4.11 and any affected Lender shall not
have promptly taken steps necessary to avoid the need for payments under
subsection 4.10 or 4.11, the applicable Borrower shall have the right, for so
long as such obligation remains, (x) with the assistance of the Administrative
Agent, to seek one or more substitute Lenders reasonably satisfactory to the
Administrative Agent and such Borrower to purchase the affected Loan, in whole
or in part, at an aggregate price no less than such Loan's principal amount plus
accrued interest, and assume the affected obligations under this Agreement, or
(y) upon at least four Business Days' irrevocable notice to the Administrative
Agent, to prepay the affected Loan, in whole or in part, subject to subsections
4.4(k) and 4.12, without premium or penalty. In the case of the substitution of
a Lender, the applicable Borrower, the Administrative Agent, the affected
Lender, and any substitute Lender shall execute and deliver an appropriately
completed Assignment and Acceptance pursuant to subsection 11.6(c) to effect the
assignment of rights to, and the assumption of obligations by, the substitute
Lender; provided that any fees required to be paid pursuant to subsection
11.6(e) in connection with such assignment shall be paid by such Borrower. In
the case of a prepayment of an affected Loan, the amount specified in the notice
shall be due and payable on the date specified therein, together with any
accrued interest to such date on the amount prepaid. In the case of each of the
substitution of a Lender and of the prepayment of an affected Loan, the
applicable Borrower shall first pay the affected Lender any additional amounts
owing under subsections 4.10 and 4.11 (as well as any commitment fees and other
amounts then due and owing to such Lender) prior to such substitution or
prepayment.
(e) If the Administrative Agent or any Lender receives a refund in
respect of taxes for which any of the Borrowers has made additional payments
pursuant to subsection 4.10(a) or 4.11(a), the Administrative Agent or such
Lender, as the case may be, shall promptly pay such refund (together with any
interest with respect thereto received from the relevant taxing authority) to
such Borrower, provided, however, that such Borrower agrees promptly to return
such refund (together with any interest with respect thereto due to the relevant
taxing authority) (free of all Non-Excluded Taxes) to the Administrative Agent
or the applicable Lender, as the case may be, upon receipt of a notice that such
refund is required to be repaid to the relevant taxing authority.
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(f) The obligations of a Lender or Participant under this subsection
4.13 shall survive the termination of this Agreement and the payment of the
Loans and all amounts payable hereunder.
4.14 Controls on Prepayment if Aggregate Outstanding Revolving
Credit Exceeds Aggregate Revolving Credit Commitments. (a) The Parent Borrower
will implement and maintain internal controls to monitor the borrowings and
repayments of Loans by the Borrowers and the issuance of and drawings under
Letters of Credit, with the object of preventing any request for an Extension of
Credit that would result in the Aggregate Outstanding Revolving Credit with
respect to all of the Revolving Credit Lenders (including the Swing Line Lender)
being in excess of the aggregate Revolving Credit Commitments then in effect and
of promptly identifying any circumstance where, by reason of changes in exchange
rates, the Aggregate Outstanding Revolving Credit with respect to all of the
Revolving Credit Lenders (including the Swing Line Lender) exceeds the aggregate
Revolving Credit Commitments then in effect. In the event that at any time the
Parent Borrower determines that the Aggregate Outstanding Revolving Credit with
respect to all of the Revolving Credit Lenders (including the Swing Line Lender)
exceeds the aggregate Revolving Credit Commitments then in effect by more than
5%, the Parent Borrower will, as soon as practicable but in any event within
five Business Days of making such determination, first, make such repayments or
prepayments of Loans (together with interest accrued to the date of such
repayment or prepayment), second, pay any Reimbursement Obligations then
outstanding and, third, cash collateralize any outstanding L/C Obligations on
terms reasonably satisfactory to the Administrative Agent, as shall be necessary
to cause the Aggregate Outstanding Revolving Credit with respect to all of the
Revolving Credit Lenders (including the Swing Line Lender) to no longer exceed
the aggregate Revolving Credit Commitments then in effect. If any such repayment
or prepayment of a Eurocurrency Loan pursuant to this subsection occurs on a day
which is not the last day of the then current Interest Period with respect
thereto, the Parent Borrower shall pay to the Revolving Credit Lenders such
amounts, if any, as may be required pursuant to subsection 4.12.
(b) The Administrative Agent will calculate the Aggregate
Outstanding Revolving Credit with respect to all of the Revolving Credit Lenders
(including the Swing Line Lender) from time to time, and in any event not less
frequently than once during each calendar week. In making such calculations, the
Administrative Agent will rely on the information most recently received by it
from the Swing Line Lender in respect of outstanding Swing Line Loans and from
the Issuing Lender in respect of outstanding L/C Obligations.
(c) In the event that on any date the Administrative Agent
calculates that the Aggregate Outstanding Revolving Credit with respect to all
of the Revolving Credit Lenders (including the Swing Line Lender) exceeds the
aggregate Revolving Credit Commitments then in effect by more than 5%, the
Administrative Agent will give notice to such effect to the Parent Borrower and
the Lenders. Following receipt of any such notice, the Parent Borrower will, as
soon as practicable but in any event within five Business Days of receipt of
such notice, first, make such repayments or prepayments of Loans (together with
interest accrued to the date of such repayment or prepayment), second, pay any
Reimbursement Obligations then outstanding and, third, cash collateralize any
outstanding L/C Obligations on terms reasonably satisfactory to the
Administrative Agent as shall be necessary to cause the Aggregate Outstanding
Revolving Credit with respect to all of the Revolving Credit Lenders (including
the Swing Line Lender) to no longer exceed the aggregate Revolving Credit
Commitments then in effect. If any
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such repayment or prepayment of a Eurocurrency Loan pursuant to this subsection
occurs on a day which is not the last day of the then current Interest Period
with respect thereto, the Parent Borrower shall pay to the Revolving Credit
Lenders such amounts, if any, as may be required pursuant to subsection 4.12.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and each Lender to make the
Extensions of Credit requested to be made by it on the Effective Date and on
each Borrowing Date thereafter, the Parent Borrower hereby represents and
warrants, on the Effective Date (both before and after giving effect to the
Acquisition), and on every Borrowing Date thereafter, to the Administrative
Agent and each Lender that:
5.1 Financial Condition. (a) The audited consolidated balance sheets
of the Parent Borrower and its consolidated Subsidiaries as of December 28,
1996, December 27, 1997 and December 26, 1998 and the audited consolidated
statements of income and of cash flows for the fiscal years ended on such dates
have heretofore been furnished to each Lender. Such financial statements
(including the notes thereto) (i) have been audited by KPMG Peat Marwick LLP in
the case of the financial statements as of December 28, 1996 and December 27,
1997 and by PricewaterhouseCoopers LLP in the case of the financial statements
as of December 26, 1998, (ii) have been prepared in accordance with GAAP
consistently applied throughout the periods covered thereby and (iii) (on the
basis disclosed in the footnotes to such financial statements) present fairly,
in all material respects, the consolidated financial condition, results of
operations and cash flows of the Parent Borrower and its consolidated
Subsidiaries as of such dates and for such periods. The unaudited interim
consolidated balance sheets of the Parent Borrower and its consolidated
Subsidiaries as at the end of, and the related unaudited interim consolidated
statements of income and of cash flows for, each fiscal month ended after
December 26, 1998 and prior to the Effective Date have heretofore been furnished
to each Lender. During the period from December 26, 1998 to and including the
Effective Date, there has been no sale, transfer or other disposition by the
Parent Borrower or its Subsidiaries of any material part of the business or
property of the Parent Borrower and its consolidated Subsidiaries, taken as a
whole, and, except as provided in the Acquisition Agreement, no purchase or
other acquisition by any of them of any business or property (including any
Capital Stock of any other Person) material in relation to the consolidated
financial condition of the Parent Borrower and its consolidated Subsidiaries,
taken as a whole, in each case, which is not reflected in the foregoing
financial statements or in the notes thereto and has not otherwise been
disclosed in writing to the Lenders on or prior to the Effective Date.
(b) The audited combined balance sheets of the Acquired Business as
of September 30, 1996, September 30, 1997 and September 30, 1998 and the audited
combined statements of income and of cash flows for the fiscal years ended on
such dates have heretofore been furnished to each Lender. Such financial
statements (including the notes thereto) (i) have been audited by Ernst & Young,
(ii) have been prepared in accordance with U.K. GAAP consistently applied
throughout the periods covered thereby, (iii) set forth at Note 22 an
explanation of the significant differences between U.K. GAAP and U.S. GAAP and
(iv) (on the basis disclosed in the footnotes to such financial statements)
present fairly, in all material respects, the combined financial condition,
results of operations and cash flows of the
61
Acquired Business as of such dates and for such periods. The unaudited interim
combined balance sheets of the Acquired Business as at the end of, and the
related unaudited interim combined statements of income and of cash flows for,
the six-month period ended March 31, 1999 and for the nine-month period ended
June 30, 1999 have heretofore been furnished to each Lender. During the period
from September 30, 1998 to and including the Effective Date, except as provided
in the Acquisition Agreement, there has been no sale, transfer or other
disposition by the Acquired Business of any material part of the business or
property of the Acquired Business and no purchase or other acquisition by the
Acquired Business of any business or property (including any Capital Stock of
any other Person) material in relation to the combined financial condition of
the Acquired Business, in each case, which is not reflected in the foregoing
financial statements or in the notes thereto and has not otherwise been
disclosed in writing to the Lenders on or prior to the Effective Date.
(c) The pro forma balance sheet and statements of income and of cash
flows of the Parent Borrower and its consolidated Subsidiaries (the "Pro Forma
Financial Statements"), copies of which have heretofore been furnished to each
Lender, are the balance sheet and statements of income and of cash flows of the
Parent Borrower and its consolidated Subsidiaries for the twelve-month period
ended June 30, 1999 (the "Pro Forma Date"), adjusted to give effect (as if such
events had occurred on such date) to (i) the consummation on the Effective Date
of the Acquisition (and in any event excluding any pre-closing or post-closing
adjustments in respect thereof, including any purchase price adjustments, and
the final allocation of the purchase price therefor), (ii) the making of the
Loans to be made on the Effective Date in an aggregate principal amount of not
more than $390,000,000, (iii) the refinancing of certain existing Indebtedness
of the Parent Borrower, including, without limitation, Indebtedness outstanding
under the Existing Credit Agreement, and (iv) the payment of estimated fees,
expenses, financing costs and settlement of intercompany accounts related to the
transactions contemplated hereby and thereby. The Pro Forma Financial Statements
were prepared in good faith on the basis of reasonable estimates (it being
understood that there has been no allocation of the purchase price for the
Acquisition).
5.2 No Change; Solvent. Since March 31, 1999, (a) there has been no
event, occurrence, fact or change (including any event, occurrence, fact,
condition or change resulting from economic recession, war or other major global
turmoil) that, individually or in the aggregate, is or would reasonably be
expected to be materially adverse to the business, operations, assets,
liabilities or results of operations of the Parent Borrower and its Subsidiaries
(after giving effect to the Acquisition) taken as a whole (a "Material Adverse
Change"), provided, however, that any adverse change in the U.S. or global
financial or capital markets shall not alone constitute a Material Adverse
Change and (b) except as permitted under this Agreement or (at any time prior to
the consummation of the Acquisition on the Effective Date) the Transaction
Documents, and except for dividends or other distributions by the Acquired
Business prior to the execution and delivery of the Acquisition Agreement, no
dividends or other distributions have been declared, paid or made upon the
Capital Stock of Holding, the Parent Borrower or the Acquired Business nor has
any of the Capital Stock of Holding, the Parent Borrower or the Acquired
Business been redeemed, retired, purchased or otherwise acquired for value by
Holding, the Parent Borrower or the Acquired Business or any of their respective
Subsidiaries. As of the Effective Date, after giving effect to (i) the
consummation of the Acquisition, (ii) the making of Loans to be made on the
Effective Date in an aggregate principal amount of not more than $390,000,000
and (iii) the payment of estimated fees, expenses and financing costs related to
the
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transactions contemplated hereby and thereby, each of Holding, the Parent
Borrower and the Acquired Business is Solvent.
5.3 Corporate Existence; Compliance with Law. Each of the Loan
Parties (a) is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or formation, (b) has the
corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, except to the extent that the failure
to have such legal right would not be reasonably expected to have a Material
Adverse Effect, (c) is duly qualified as a foreign corporation or limited
liability company and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its business
requires such qualification, other than in such jurisdictions where the failure
to be so qualified and in good standing would not be reasonably expected to have
a Material Adverse Effect, and (d) is in compliance with all Requirements of
Law, except to the extent that the failure to comply therewith would not, in the
aggregate, be reasonably expected to have a Material Adverse Effect.
5.4 Corporate Power; Authorization; Enforceable Obligations. Each
Loan Party has the corporate power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party and, in the case
of each of the Borrowers, to obtain Extensions of Credit hereunder, and each
such Loan Party has taken all necessary corporate action to authorize the
execution, delivery and performance of the Loan Documents to which it is a party
and, in the case of each of the Borrowers, to authorize the Extensions of Credit
on the terms and conditions of this Agreement, any Notes and the Applications.
No consent or authorization of, filing with, notice to or other similar act by
or in respect of, any Governmental Authority or any other Person is required to
be obtained or made by or on behalf of any Loan Party in connection with the
execution, delivery, performance, validity or enforceability of the Loan
Documents to which it is a party or, in the case of each of the Borrowers, with
the Extensions of Credit hereunder, except for (i) consents, authorizations,
notices and filings described in Schedule 5.4, all of which have been obtained
or made, (ii) filings to perfect the Liens created by the Security Documents,
(iii) filings pursuant to the Assignment of Claims Act of 1940, as amended (31
U.S.C. ss.3727 et seq.) in respect of Accounts and contracts of the Parent
Borrower and its Subsidiaries, the Obligor on which is the United States of
America or any department, agency or instrumentality thereof and (iv) consents,
authorizations, notices and filings which the failure to obtain or make would
not reasonably be expected to have a Material Adverse Effect. This Agreement has
been duly executed and delivered by each of the Borrowers, and each other Loan
Document to which any Loan Party is a party, has been, or will be duly executed
and delivered on behalf of such Loan Party. This Agreement constitutes a legal,
valid and binding obligation of each of the Borrowers, and each other Loan
Document to which any Loan Party is a party as executed and delivered does
constitute, or when executed and delivered, will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against such Loan Party in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
5.5 No Legal Bar. Except as previously disclosed in writing to the
Lenders on or prior to the Effective Date, the execution, delivery and
performance of the Loan Documents by the Loan
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Parties, the Extensions of Credit hereunder and the use of the proceeds thereof
(a) will not violate any Requirement of Law or Contractual Obligation of any
Loan Party in any respect that would reasonably be expected to have a Material
Adverse Effect and (b) will not result in, or require, the creation or
imposition of any Lien (other than the Liens created by the Security Documents)
on any of its or their respective properties or revenues pursuant to any such
Requirement of Law or Contractual Obligation.
5.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Parent Borrower, threatened by or against Holding or any
of its Subsidiaries or against any of its or their respective properties or
revenues, which is not subject to indemnification by the Seller pursuant to the
Acquisition Agreement, and (a) is so pending or threatened on or prior to the
Effective Date and relates to any of the Loan Documents or any of the
transactions contemplated hereby or thereby or (b) which would be reasonably
expected to have a Material Adverse Effect.
5.7 No Default. Neither Holding, the Parent Borrower nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which would be reasonably expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
5.8 Ownership of Property; Liens. Each of Holding, the Parent
Borrower and its Subsidiaries has good record and marketable title in fee simple
to, or a valid leasehold interest in, all its material real property, and good
title to, or a valid leasehold interest in, all its other material property, and
none of such property is subject to any Lien, except for Liens permitted by
subsection 8.3.
5.9 Intellectual Property. Each of the Parent Borrower and each of
its Subsidiaries owns, or has the legal right to use, all United States patents,
patent applications, trademarks, trademark applications, tradenames, service
marks, copyrights, technology, know-how and processes necessary for each of them
to conduct its business as currently conducted or as proposed to be conducted
immediately following the Effective Date (the "Intellectual Property") except
for those the failure to own or have such legal right to use would not be
reasonably expected to have a Material Adverse Effect. No claim has been
asserted and is pending by any Person challenging or questioning the use of any
such Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does the Parent Borrower know of any such claim, and,
to the knowledge of the Parent Borrower, the use of such Intellectual Property
by the Parent Borrower and its Subsidiaries does not infringe on the rights of
any Person, except for such claims and infringements that, in the aggregate,
would not be reasonably expected to have a Material Adverse Effect.
5.10 No Burdensome Restrictions. Except as previously disclosed in
writing to the Lenders on or prior to the Effective Date, no Requirement of Law
or Contractual Obligation of Holding, the Parent Borrower or any of its
Subsidiaries would be reasonably expected to have a Material Adverse Effect.
5.11 Taxes. To the knowledge of the Parent Borrower: each of
Holding, the Parent Borrower and its Subsidiaries has filed or caused to be
filed all United States federal income tax returns and all other material tax
returns which are required to be filed and has paid (a) all taxes shown to be
due and payable on said returns and (b) all taxes shown to be due and payable on
any assessments of
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which it has received notice made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any (i) taxes, fees or other charges with
respect to which the failure to pay, in the aggregate, would not have a Material
Adverse Effect or (ii) taxes, fees or other charges the amount or validity of
which are currently being contested in good faith by appropriate proceedings
diligently conducted and with respect to which reserves in conformity with GAAP
have been provided on the books of Holding, the Parent Borrower or its
Subsidiaries, as the case may be); and no tax Lien has been filed, and no claim
is being asserted, with respect to any such tax, fee or other charge. The
preceding sentence shall not apply to any taxes, fees or other charges which are
subject to indemnification by the Seller under the Acquisition Agreement and
with respect to which the Parent Borrower has disclosed to the Administrative
Agent the failure to file or pay, the filing of a tax Lien, or the assertion of
a claim.
5.12 Federal Regulations. No part of the proceeds of any Loans or
any Letter of Credit will be used for "purchasing" or "carrying" any "margin
stock" within the respective meanings of each of the quoted terms under
Regulation U or for any purpose which violates the provisions of the Regulations
of the Board, including, without limitation, Regulation T, Regulation U or
Regulation X of the Board. If requested by any Lender or the Administrative
Agent, the Parent Borrower will furnish to the Administrative Agent and each
Lender a statement to the foregoing effect in conformity with the requirements
of FR Form G-3 or FR Form U-1 or such other similar form referred to in
Regulation T, Regulation U or Regulation X of the Board, as the case may be.
5.13 ERISA. During the five year period prior to each date as of
which this representation is made, or deemed made, with respect to any Plan (or,
with respect to (vi) or (viii) below, as of the date such representation is made
or deemed made), none of the following events or conditions, either individually
or in the aggregate, has resulted or is reasonably likely to result in a
liability to Holding, the Parent Borrower or any of its Subsidiaries which would
be reasonably expected to have a Material Adverse Effect: (i) a Reportable
Event; (ii) an "accumulated funding deficiency" (within the meaning of Section
412 of the Code or Section 302 of ERISA); (iii) any material noncompliance with
the applicable provisions of ERISA or the Code; (iv) a termination of a Single
Employer Plan (other than a standard termination pursuant to Section 4041(b) of
ERISA); (v) a Lien in favor of the PBGC or a Plan; (vi) Underfunding with
respect to any Single Employer Plan; (vii) a complete or partial withdrawal from
any Multiemployer Plan by Holding, the Parent Borrower or any Commonly
Controlled Entity; (viii) any liability of Holding, the Parent Borrower or any
Commonly Controlled Entity under ERISA if Holding, the Parent Borrower or any
such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the annual valuation date most closely preceding the
date on which this representation is made or deemed made; (ix) the
Reorganization or Insolvency of any Multiemployer Plan; and (x) an event or
condition with respect to which Holding, the Parent Borrower or any Commonly
Controlled Entity has incurred or could incur any liability in respect of a
Former Plan.
5.14 Collateral. Except with regard to (i) Liens on equipment
constituting fixtures, (ii) any reserved rights of the United States government
as required under law, (iii) Liens upon Patents, Patent Licenses, Trademarks and
Trademark Licenses to the extent that (a) such Liens cannot be perfected by the
filing of financing statements under the Uniform Commercial Code or by the
filing and acceptance thereof in the United States Patent and Trademark Office
or (b) such Patents, Patent
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Licenses, Trademarks and Trademark Licenses are not, individually or in the
aggregate, material to the business of the Parent Borrower and its Subsidiaries
taken as a whole, (iv) Liens on uncertificated securities, (v) Liens on
Collateral the perfection of which requires filings in or other actions under
the laws of jurisdictions outside of the United States of America, any State,
territory or dependency thereof or the District of Columbia (except to the
extent that such filings or other actions have been made or taken), (vi) Liens
on contracts or Accounts on which the United States of America or any
department, agency, or instrumentality thereof is the Obligor, (vii) Liens on
proceeds of Accounts, until transferred to or deposited in the Collateral
Proceeds Account, and (viii) the claims of creditors of Persons receiving goods
included as Collateral for "sale or return" within the meaning of Section 2-326
of the Uniform Commercial Code of the applicable jurisdiction, upon filing of
the financing statements delivered to the Administrative Agent by Holding, the
Parent Borrower and its Subsidiaries on the Effective Date in the jurisdictions
listed on Schedule 5.14 (which financing statements are in proper form for
filing in such jurisdictions) and the recording of the Mortgages (and the
recording of the Guarantee and Collateral Agreement, and the making of filings
in any other jurisdiction as may be necessary under any Requirement of Law after
the Effective Date) and the delivery to, and continuing possession by, the
Administrative Agent of all Instruments, Chattel Paper and Documents a security
interest in which is perfected by possession, the Liens created pursuant to each
Security Document, when executed and delivered, will constitute valid Liens on
and, to the extent provided therein, perfected security interests in the
collateral referred to in such Security Document (but as to the Copyrights and
the Copyright Licenses and accounts arising therefrom, only to the extent the
Uniform Commercial Code of the relevant jurisdiction, from time to time in
effect, is applicable) in favor of the Administrative Agent for the ratable
benefit of the Lenders, which Liens will be prior to all other Liens of all
other Persons, except for Liens permitted pursuant to the Loan Documents
(including, without limitation, those permitted to exist pursuant to subsection
8.3), and which Liens are enforceable as such as against all other Persons
(except, with respect to goods only, buyers in the ordinary course of business
to the extent provided in Section 9-307(1) of the Uniform Commercial Code as
from time to time in effect in the applicable jurisdiction), except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law) and an implied
covenant of good faith and fair dealing. Notwithstanding any other provision of
this Agreement, capitalized terms which are used in this subsection 5.14 and not
defined in this Agreement are so used as defined in the applicable Security
Document.
5.15 Investment Company Act; Other Regulations. None of the
Borrowers is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act. None of
the Borrowers is subject to regulation under any federal or state statute or
regulation which limits its ability to incur Indebtedness as contemplated
hereby.
5.16 Subsidiaries. Schedule 5.16 sets forth all the Subsidiaries of
Holding at the Effective Date, the jurisdiction of their incorporation and the
direct or indirect ownership interest of Holding therein.
5.17 Purpose of Loans. The proceeds of the Term Loans, and not more
than $65,000,000 of the Revolving Credit Loans, shall be used by the Parent
Borrower (i) to finance a
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portion of the purchase price of the Acquisition, (ii) to refinance certain
existing Indebtedness of the Parent Borrower, including, without limitation,
Indebtedness outstanding under the Existing Credit Agreement, and (iii) to pay
certain transaction fees and expenses related to the Acquisition (such
transaction fees and expenses not to exceed $30,000,000). The proceeds of the
Revolving Credit Loans, the Swing Line Loans and the Letters of Credit shall be
used by the Borrowers to finance the working capital and business requirements
of the Parent Borrower and its Subsidiaries.
5.18 Environmental Matters. Other than exceptions to any of the
following that would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect:
(a) To the knowledge of the Parent Borrower, the facilities and
properties owned, leased or operated by Holding, the Parent Borrower or any of
its Subsidiaries (the "Properties") and all operations at the Properties are in
compliance with all applicable Environmental Laws, and there is no violation of
any Environmental Law with respect to the Properties or the business operated by
Holding, the Parent Borrower or any of its Subsidiaries (the "Business"), and
there are no conditions relating to the Business or Properties that would be
reasonably likely to give rise to liability under any applicable Environmental
Law.
(b) To the knowledge of the Parent Borrower, the Properties do not
contain, and have not previously contained, any Materials of Environmental
Concern at, on or under the Properties in amounts or concentrations that
constitute or constituted a violation of, or would reasonably give rise to
liability under, Environmental Laws.
(c) Neither Holding, the Parent Borrower nor any of its Subsidiaries
has received any written or verbal notice of, or inquiry from any Governmental
Authority regarding, any violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business, nor
does the Parent Borrower have knowledge or reason to believe that any such
notice will be received or is being threatened.
(d) To the knowledge of the Parent Borrower, Materials of
Environmental Concern have not been transported or disposed of from the
Properties, or generated, treated, stored or disposed of at, on or under any of
the Properties or any other location, in violation of, or in a manner that would
be reasonably likely to give rise to liability of Holding, the Parent Borrower
or any of its Subsidiaries under, any applicable Environmental Law, or
materially interfere with the continued operations of Holding, the Parent
Borrower or any of its Subsidiaries or materially impair the fair saleable value
of any of the Properties.
(e) No judicial proceeding or governmental or administrative action
is pending or, to the knowledge of the Parent Borrower, threatened, under any
Environmental Law to which Holding, the Parent Borrower or any of its
Subsidiaries is or will be named as a party, nor are there any consent decrees
or other decrees, consent orders, administrative orders or other orders, or
other administrative or judicial requirements outstanding under any
Environmental Law with respect to Holding, the Parent Borrower or any of its
Subsidiaries, the Properties or the Business.
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(f) There has been no release or, to the knowledge of the Parent
Borrower, threat of release of Materials of Environmental Concern at or from the
Properties, or arising from or related to the operations (including, without
limitation, disposal) of Holding, the Parent Borrower or any of its Subsidiaries
in connection with the Properties or otherwise in connection with the Business,
in violation of or in amounts or in a manner that would be reasonably likely to
give rise to liability under Environmental Laws.
(g) Neither Holding, the Parent Borrower nor any of its Subsidiaries
has assumed or retained, by contract or, to its knowledge, operation of law, any
known or suspected liabilities of any kind, fixed or contingent, as a result of
any violation or breach of applicable Environmental Law or with respect to any
contamination by any Materials of Environmental Concern.
5.19 No Material Misstatements. The written information, reports,
financial statements, exhibits and schedules furnished by or on behalf of
Holding, the Parent Borrower or the Acquired Business to the Administrative
Agent, the Other Representatives and the Lenders in connection with the
negotiation of any Loan Document or included therein or delivered pursuant
thereto, taken as a whole, did not contain as of the Effective Date any material
misstatement of fact and did not omit to state as of the Effective Date any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not materially misleading in their
presentation of the Acquisition, or of Holding, the Parent Borrower and its
Subsidiaries taken as a whole. It is understood that no representation or
warranty is made concerning the forecasts, estimates, pro forma information,
projections and statements as to anticipated future performance or conditions,
and the assumptions on which they were based, contained in any such information,
reports, financial statements, exhibits or schedules, except that as of the date
such forecasts, estimates, pro forma information, projections and statements
were generated, (i) such forecasts, estimates, pro forma information,
projections and statements were based on the good faith assumptions of the
management of the Parent Borrower and (ii) such assumptions were believed by
such management to be reasonable. Such forecasts, estimates, pro forma
information and statements, and the assumptions on which they were based, may or
may not prove to be correct.
5.20 Delivery of the Transaction Documents. The Administrative Agent
has received for itself and for each Lender a complete photocopy of each of the
Transaction Documents (including all exhibits, schedules and disclosure letters
referred to therein or delivered pursuant thereto, if any) and all amendments
thereto, waivers relating thereto and other side letters or agreements affecting
the terms thereof in any material respect.
5.21 Representations and Warranties Contained in the Transaction
Documents. Each of the Transaction Documents will have been duly executed and
delivered, by each of the Loan Parties which is a party thereto prior to the
Effective Date and, to the knowledge of the Parent Borrower, all other parties
thereto, and is in full force and effect on the Effective Date. As of the
Effective Date, the representations and warranties of the Seller, Holding and
the Parent Borrower and, to the knowledge of the Parent Borrower, any of the
other parties thereto contained in any of the Transaction Documents (after
giving effect to any amendments, supplements, waivers or other modifications of
any of the Transaction Documents prior to the Effective Date in accordance with
this Agreement) are true and
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correct in all material respects except as otherwise disclosed to the
Administrative Agent in writing prior to the Effective Date.
5.22 Labor Matters. There are no strikes pending or, to the
knowledge of the Parent Borrower, reasonably expected to be commenced against
the Parent Borrower or any of its Subsidiaries which, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect. The
hours worked and payments made to employees of the Parent Borrower and each of
its Subsidiaries have not been in violation of any applicable laws, rules or
regulations, except where such violations would not reasonably be expected to
have a Material Adverse Effect. The consummation of the Acquisition will not
give rise to a right of termination or right of renegotiation on the part of any
union under any collective bargaining agreement to which the Parent Borrower or
any of its Subsidiaries (or any predecessor) is a party or by which the Parent
Borrower or any of its Subsidiaries (or any predecessor) is bound.
5.23 Senior Indebtedness. The Loans, L/C Obligations and all other
obligations hereunder and under the other Loan Documents constitute "Designated
Senior Indebtedness" under and as defined in each of the Indentures. The
obligations of each Subsidiary that is a Guarantor under the Guarantee and
Collateral Agreement constitute "Guarantor Senior Indebtedness" of such
Subsidiary Guarantor under and as defined in the Senior Subordinated Note
Indenture.
5.24 Year 2000. Any reprogramming required to permit the proper
functioning (but only to the extent that such proper functioning would otherwise
be impaired by the occurrence of the year 2000), in and following the year 2000,
of the Parent Borrower's and its Subsidiaries' internally developed business
software which is critical to the Parent Borrower and its Subsidiaries taken as
a whole has been completed. Based on the Parent Borrower's estimates as of the
Effective Date, the cost to the Parent Borrower and its Subsidiaries of such
reprogramming, to the extent not reflected or reserved for on the consolidated
balance sheet of the Parent Borrower and its Subsidiaries, would not reasonably
be expected to have a Material Adverse Effect.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Initial Extension of Credit. This Agreement,
including, without limitation, the agreement of each Lender to make the initial
Extension of Credit requested to be made by it, shall become effective on the
date on which the following conditions precedent shall have been satisfied or
waived:
(a) Loan Documents. The Administrative Agent shall have received the
following Loan Documents (each of which shall be satisfactory in form and
substance to the Administrative Agent), executed and delivered as required
below, with a copy for each applicable Lender: (i) this Agreement,
executed and delivered by a duly authorized officer of the Parent Borrower
and the Foreign Subsidiary Borrowers listed on Schedule IV, (ii) the
Guarantee and Collateral Agreement, executed and delivered by a duly
authorized officer of each of Holding, the Parent Borrower, the Foreign
Subsidiary Borrowers listed on Schedule IV and the Domestic Subsidiaries
of the Parent Borrower listed on Schedule V, (iii) each of the Mortgages,
executed
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and delivered by a duly authorized officer of the Loan Party thereto and
(iv) any Notes requested by the Lenders in accordance with subsections
2.2, 2.7 and 2.8, executed by a duly authorized officer of the applicable
Borrower.
(b) Acquisition Agreement; Consummation of the Acquisition. The
Acquisition Agreement shall not have been amended, supplemented, waived or
otherwise modified in any material respect since the date thereof, except
as may have been consented to in writing by the Administrative Agent and
the Syndication Agent, and the Administrative Agent shall have received a
certificate of a duly authorized officer of Holding dated the Effective
Date, which certificate shall be in form and substance reasonably
satisfactory to the Administrative Agent, to such effect. The Acquisition
shall have been consummated substantially in accordance with the terms and
conditions of the Acquisition Agreement for an aggregate purchase price
not exceeding (i) $400,000,000 in cash, before giving effect to all
adjustments thereof in accordance with the terms and conditions of the
Acquisition Agreement, (ii) 24,500 shares of Holding Preferred Stock
having an initial liquidation preference of $24,500,000, (iii) 174,961
shares of common stock of Holding, representing approximately 20% of
Holding's issued and outstanding common stock (giving effect to vested
options as of September 14, 1999), and (iv) a warrant to purchase 87,480
shares of common stock of Holding at an exercise price of $400 per share,
and the Administrative Agent shall have received from the Parent Borrower
a list, prepared in good faith in a commercially reasonable manner, of the
estimated transaction expenses incurred in connection with the Acquisition
and the financing thereof, which estimate shall not exceed $30,000,000 in
the aggregate. None of the conditions to the respective obligations of
Holding and the Parent Borrower to consummate the Acquisition and the
other transactions contemplated by the Acquisition Agreement shall have
been waived by Holding or the Parent Borrower in any material respect
without the prior consent of the Administrative Agent.
(c) Capitalization and Structure of Holding and its Subsidiaries.
Since the date of the Acquisition Agreement, there shall have been no
material change in the corporate and capital structure of Holding, the
Acquired Business and the Parent Borrower and each of its Subsidiaries
from that contemplated following the Acquisition. All documents,
instruments and other matters relating to the Holding Preferred Stock, the
Holding Loan, the Holding Senior Discount Notes, any Holding Subordinated
Exchange Debentures, the Senior Subordinated Notes and all other material
Indebtedness of Holding and its Subsidiaries remaining outstanding after
the Effective Date shall be reasonably satisfactory to the Lenders. The
Administrative Agent shall have received true and correct copies of the
Senior Subordinated Note Indenture, certified as to authenticity by the
Parent Borrower, and true and correct copies of the Holding Loan
Agreement, the Holding Senior Discount Note Indenture and the form of
Holding Subordinated Exchange Debenture, certified as to authenticity by
Holding. The Administrative Agent shall have received evidence, in form
and substance reasonably satisfactory to it, that CD&R Fund V and other
investors arranged by CD&R and reasonably satisfactory to the
Administrative Agent and the Syndication Agent have committed to purchase
by December 31, 1999 additional shares of common stock of Holding for a
purchase price of $40,000,000.
(d) Senior Subordinated Notes, Holding Senior Discount Notes and
Holding Loan. The Administrative Agent shall have received evidence, in
form and substance reasonably satisfactory
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to it, that (i) the Parent Borrower or its account shall have received
gross cash proceeds of $150,000,000 from the issuance of Senior
Subordinated Notes, (ii) Holding or its account shall have received gross
cash proceeds of $35,000,000 from the issuance of Holding Senior Discount
Notes, (iii) Holding or its account shall have received gross cash
proceeds of $40,000,000 from borrowings under the Holding Loan Agreement
and (iv) Holding shall have used the proceeds from the Holding Loan and
the issuance of Holding Senior Discount Notes to make a $75,000,000
investment in the common equity of the Parent Borrower. All documents
(including, without limitation, the Senior Subordinated Note Indenture,
the Holding Loan Agreement, the Holding Senior Discount Note Indenture and
the Preferred Stock Certificate of Designation), instruments and other
matters relating to the Holding Loan, the issuance of the Senior
Subordinated Notes and the Holding Senior Discount Notes shall be
reasonably satisfactory to the Administrative Agent and the Syndication
Agent.
(e) Termination of Existing Credit Agreement. The Administrative
Agent shall have received evidence satisfactory to it that (i) the
Existing Credit Agreement shall be simultaneously terminated, (ii) all
amounts thereunder shall be simultaneously paid in full, (iii) all letters
of credit (other than any Existing Letter of Credit) and other contingent
obligations in connection with the Existing Credit Agreement shall have
been terminated and (iv) arrangements satisfactory to the Administrative
Agent shall have been made for the termination of Liens and security
interests granted in connection therewith.
(f) Financial Information. The Lenders shall have received copies of
and shall be reasonably satisfied, in form and substance, with (i) the
audited consolidated balance sheets and statements of income and of cash
flows of the Parent Borrower and its consolidated Subsidiaries for the
fiscal years ended and as at December 28, 1996, December 27, 1997 and
December 26, 1998, in each case accompanied by a report of KPMG Peat
Marwick LLP or PricewaterhouseCoopers LLP, as applicable, (ii) the audited
combined balance sheets and statements of income and of cash flows of the
Acquired Business for the fiscal years ended and as at September 30, 1996,
September 30, 1997 and September 30, 1998, in each case accompanied by a
report of Ernst & Young and setting forth at Note 22 an explanation of the
significant differences between U.K. GAAP and U.S. GAAP, (iii) the
unaudited consolidated balance sheets and statements of income and of cash
flows of the Parent Borrower and its consolidated Subsidiaries as at the
end of and for each fiscal month and quarterly period ended after December
26, 1998 and prior to the Effective Date for which such unaudited
financial statements are available, (iv) the unaudited combined balance
sheets and statements of income and of cash flows of the Acquired Business
for the six-month period ended March 31, 1999 and for the nine-month
period ended June 30, 1999 and (v) the Pro Forma Financial Statements,
together with a reconciliation thereof to the balance sheet and statements
of income and of cash flows of the Parent Borrower and its consolidated
Subsidiaries as at the Pro Forma Date.
(g) Business Plan. The Lenders shall have received a reasonably
detailed business plan of the Parent Borrower and its Subsidiaries for
fiscal year 2000 in a form and level of detail reasonably satisfactory to
the Lenders.
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(h) Consents, Licenses and Approvals. The Administrative Agent shall
have received, with a copy for each Lender, a certificate of a Responsible
Officer of the Parent Borrower stating that all consents, authorizations,
notices and filings referred to in Schedule 5.4 are in full force and
effect or have the status described therein, and the Administrative Agent
shall have received evidence thereof reasonably satisfactory to it.
(i) Lien Searches. The Administrative Agent shall have received the
results of a recent search by a Person reasonably satisfactory to the
Administrative Agent and its counsel, of the Uniform Commercial Code,
judgment and tax lien filings which may have been filed with respect to
personal property of Holding, the Parent Borrower, the Acquired Business
and their respective Subsidiaries in any of the jurisdictions set forth in
Schedule 5.14, and the results of such search shall not reveal any Liens
other than Liens permitted by subsection 8.3 or that are otherwise
reasonably satisfactory to the Administrative Agent and its counsel.
(j) Legal Opinions. The Administrative Agent shall have received,
with a copy for each Lender, the following executed legal opinions:
(i) the executed legal opinion of Debevoise & Plimpton,
special counsel to the Parent Borrower and the other Loan Parties,
substantially in the form of Exhibit G-1;
(ii) the executed legal opinions of special local counsel to
the Parent Borrower and the other Loan Parties in the states of
California, Indiana, Michigan and Montana, with respect to
collateral security matters, each substantially in the form of
Exhibit G-2;
(iii) the executed legal opinion of Ralph A. Ford, Esq.,
Senior Vice President and General Counsel of the Parent Borrower,
covering such other matters incident to the transactions
contemplated by this Agreement as the Administrative Agent may
reasonably require; and
(iv) the executed legal opinion of Robert J. Henry, Esq.,
General Counsel of Allied Van Lines Inc., covering such other
matters incident to the transactions contemplated by this Agreement
as the Administrative Agent may reasonably require.
In addition, the Administrative Agent shall have received, with a copy for
each Lender, the legal opinions referred to in Sections 8.7 and 9.3 of the
Acquisition Agreement and each such legal opinion shall state that the
Administrative Agent and the Lenders are entitled to rely thereon as if
such legal opinion were addressed to the Administrative Agent and the
Lenders.
(k) Environmental Assessment. The Administrative Agent shall have
received a copy of the Phase I environmental assessment prepared pursuant
to the Acquisition Agreement, all of the contents of which shall be
reasonably satisfactory to the Lenders, together with a letter from the
firm or firms preparing said assessments or audits permitting the
Administrative Agent and each
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Lender to rely on the environmental assessments, audits or investigations
as if addressed to and prepared for each of them.
(l) Other Material Documentation. The Lenders shall be reasonably
satisfied in all material respects with each of the other documents
relating to the Acquisition and the transactions contemplated hereby and
thereby, including, without limitation, each material Contractual
Obligation and other material financing arrangement to which Holding, the
Parent Borrower or any Subsidiary will be bound after the Effective Date.
(m) Actions to Perfect Liens. The Administrative Agent shall have
received evidence in form and substance reasonably satisfactory to it that
all filings, recordings, registrations and other actions, including,
without limitation, the filing of duly executed financing statements on
form UCC-1 in each jurisdiction set forth on Schedule 5.14, necessary or,
in the reasonable opinion of the Administrative Agent, desirable to
perfect the Liens created by the Security Documents shall have been
completed or shall be ready to be completed promptly following the
Effective Date, and all agreements, statements and other documents
relating thereto shall be in form and substance reasonably satisfactory to
the Administrative Agent.
(n) Pledged Securities; Stock Powers and Endorsements. The
Administrative Agent shall have received the certificates and the
promissory notes, if any, representing the Pledged Stock and Intercompany
Notes under (and as defined in) the Guarantee and Collateral Agreement,
together with an undated stock power for each stock certificate executed
in blank by a duly authorized officer of the pledgor thereof and/or duly
endorsed as required by the Guarantee and Collateral Agreement.
(o) Surveys. The Administrative Agent shall have received, and the
Title Insurance Company shall have received, maps or plats of an as-built
survey of the sites of the owned real property covered by the Mortgages
certified to the Administrative Agent and the Title Insurance Company in a
manner reasonably satisfactory to them, dated a date reasonably
satisfactory to the Administrative Agent and the Title Insurance Company
by an independent professional licensed land surveyor reasonably
satisfactory to the Administrative Agent and the Title Insurance Company,
which maps or plats and the surveys on which they are based shall be made
in accordance with the Minimum Standard Detail Requirements for Land Title
Surveys jointly established and adopted by the American Land Title
Association and the American Congress on Surveying and Mapping in 1992,
and, without limiting the generality of the foregoing, there shall be
surveyed and shown on such maps, plats or surveys the following: (i) the
locations on such sites of all the buildings, structures and other
improvements and the established building setback lines; (ii) the lines of
streets abutting the sites and width thereof; (iii) all access and other
easements appurtenant to the sites necessary to use the sites; (iv) all
roadways, paths, driveways, easements, encroachments and overhanging
projections and similar encumbrances affecting the sites, whether
recorded, apparent from a physical inspection of the sites or otherwise
known to the surveyor; (v) any encroachments on any adjoining property by
the building structures and improvements on the sites; and (vi) if the
site is described as being on a filed map, a legend relating the survey to
said map.
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(p) Title Insurance Policy. The Administrative Agent shall have
received in respect of each parcel of owned real property covered by a
Mortgage a mortgagee's title policy (or policies) or marked up
unconditional binder for such insurance dated the date of the recording of
such Mortgage. Each such policy shall (i) be in an amount reasonably
satisfactory to the Administrative Agent; (ii) insure that the Mortgage
insured thereby creates a valid first Lien on such parcel free and clear
of all defects and encumbrances, except those permitted by subsection 8.3
and such as may be approved by the Administrative Agent; (iii) name the
Administrative Agent for the benefit of the Lenders as the insured
thereunder; (iv) be in the form of an ALTA Loan Policy; (v) contain such
endorsements and affirmative coverage as the Administrative Agent may
reasonably request and (vi) be issued by title companies reasonably
satisfactory to the Administrative Agent (including any such title
companies acting as co-insurers or reinsurers, at the option of the
Administrative Agent). The Administrative Agent shall have received
evidence reasonably satisfactory to it that all premiums in respect of
each such policy, and all charges for mortgage recording tax, if any, have
been paid. The Administrative Agent shall have also received a copy of all
recorded documents referred to, or listed as exceptions to title in, the
title policy or policies referred to in this subsection and a copy
certified by such parties as the Administrative Agent may deem reasonably
appropriate, of all other documents affecting the property covered by each
Mortgage as shall have been reasonably requested by the Administrative
Agent.
(q) Fees. The Parent Borrower shall have paid to the Administrative
Agent the fees to be received on the Effective Date referred to in
subsection 4.5.
(r) Borrowing Certificate. The Administrative Agent shall have
received, with a copy for each Lender, a certificate of the Parent
Borrower, dated the Effective Date, substantially in the form of Exhibit
J, with appropriate insertions and attachments, reasonably satisfactory in
form and substance to the Administrative Agent, executed by a Responsible
Officer and the Secretary or any Assistant Secretary of the Parent
Borrower.
(s) Corporate Proceedings of the Loan Parties. The Administrative
Agent shall have received, with a copy for each Lender, a copy of the
resolutions, in form and substance reasonably satisfactory to the
Administrative Agent, of the Board of Directors of each Loan Party
authorizing, as applicable, (i) the execution, delivery and performance of
this Agreement, any Notes and the other Loan Documents to which it is or
will be a party, (ii) the Extensions of Credit contemplated hereunder and
(iii) the granting by it of the Liens to be created pursuant to the
Security Documents to which it will be a party, certified by the Secretary
or an Assistant Secretary of such Person as of the Effective Date, which
certificate shall be in form and substance reasonably satisfactory to the
Administrative Agent and shall state that the resolutions thereby
certified have not been amended, modified (except as any later such
resolution may modify any earlier such resolution), revoked or rescinded
and are in full force and effect.
(t) Incumbency Certificates of the Loan Parties. The Administrative
Agent shall have received, with a copy for each Lender, a certificate of
each Loan Party, dated the Effective Date, as to the incumbency and
signature of the officers of such Person executing any Loan
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Document, reasonably satisfactory in form and substance to the
Administrative Agent, executed by a Responsible Officer and the Secretary
or any Assistant Secretary of such Person.
(u) Corporate Documents. The Administrative Agent shall have
received, with a copy for each Lender, copies of the certificate of
incorporation and by-laws of each Loan Party, certified as of the
Effective Date as complete and correct copies thereof by the Secretary or
an Assistant Secretary of such Loan Party.
(v) Insurance. The Administrative Agent shall have received evidence
in form and substance reasonably satisfactory to it (i) that the
requirements of Section 5.2.2 of the Guarantee and Collateral Agreement
and Section 5 of each Mortgage shall have been satisfied, together with
certificates of insurance and other evidence of such insurance, if any,
naming the Administrative Agent as an additional insured and/or loss payee
and (ii) relating to the insurance program operated by the Parent
Borrower.
(w) No Material Change. Since March 31, 1999, there shall not have
occurred a Material Adverse Change.
(x) No Material Litigation. No litigation, investigation, injunction
or restraining order shall be pending, entered or threatened that would
reasonably be expected to have a Material Adverse Effect or a material
adverse effect on the Acquired Business or the transactions contemplated
hereby.
(y) Acknowledgment and Consent. The Administrative Agent shall have
received, with a copy for each Lender, an acknowledgment and consent,
substantially in the form attached to the Guarantee and Collateral
Agreement, executed and delivered by a duly authorized officer of each of
NATIC and TransGuard.
The making of the initial Extensions of Credit by the Lenders hereunder shall
conclusively be deemed to constitute an acknowledgment by the Administrative
Agent and each Lender that each of the conditions precedent set forth in this
subsection 6.1 shall have been satisfied in accordance with its respective terms
or shall have been irrevocably waived by such Person.
6.2 Conditions to Each Other Extension of Credit. The agreement of
each Lender to make any Extension of Credit requested to be made by it on any
date (including, without limitation, the initial Extension of Credit and each
Swing Line Loan) is subject to the satisfaction or waiver of the following
conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by any Loan Party pursuant to this Agreement or any other
Loan Document (or in any amendment, modification or supplement hereto or
thereto) to which it is a party, and each of the representations and
warranties contained in any certificate furnished at any time by or on
behalf of any Loan Party pursuant to this Agreement or any other Loan
Document, shall, except to the extent that they relate to a particular
date, be true and correct in all material respects on and as of such date
as if made on and as of such date.
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(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the Extensions of
Credit requested to be made on such date.
(c) Letter of Credit Application. With respect to the issuance of
any Letter of Credit, the Issuing Lender shall have received an
Application completed to its satisfaction, and such other certificates,
documents and other papers and information as the Issuing Lender may
reasonably request.
Each borrowing by and Letter of Credit issued on behalf of any Borrower
hereunder shall constitute a representation and warranty by the Parent Borrower
as of the date of such borrowing or such issuance that the conditions contained
in this subsection 6.2 have been satisfied.
6.3 Additional Conditions Applicable to Foreign Subsidiary
Borrowers. The agreement of each Lender to make any Extension of Credit
requested to be made by it to any Foreign Subsidiary Borrower on any date
(including, without limitation, the initial Extension of Credit and each Swing
Line Loan, if requested to be made to any Foreign Subsidiary Borrower) is
subject to satisfaction or waiver of, in addition to the conditions precedent
set forth in subsections 6.1 (in the case of the initial Extension of Credit)
and 6.2, the following conditions precedent: (a) in the case of the making of
any Extension of Credit to any Foreign Subsidiary Borrower for the first time,
the delivery to the Administrative Agent, with a copy for each Lender, of the
executed legal opinion of counsel to such Foreign Subsidiary Borrower, as to the
matters set forth in Exhibit G-3 and otherwise in form and substance reasonably
satisfactory to the Administrative Agent, (b) the delivery to the Administrative
Agent of a certificate of the Parent Borrower, executed and delivered by a
Responsible Officer of the Parent Borrower, stating (i) that such Foreign
Subsidiary Borrower is a "Restricted Subsidiary" for all purposes of each of the
Indentures and (ii) that all of the Indebtedness in respect of such Extension of
Credit to be made to such Foreign Subsidiary Borrower will constitute each of
"Bank Indebtedness" and "Senior Indebtedness" for all purposes of each of the
Indentures and that none of such Indebtedness is incurred in violation of any of
the Indentures (which certificate shall include any calculations required to
support such statements) and (c) the truthfulness and correctness in all
material respects on and as of such date of the following additional
representations and warranties:
(i) Pari Passu. The obligations of such Foreign Subsidiary
Borrower under this Agreement and any Note, when executed and delivered by
such Foreign Subsidiary Borrower, will rank at least pari passu with all
other secured Indebtedness of such Foreign Subsidiary Borrower.
(ii) No Immunities, etc. Such Foreign Subsidiary Borrower is
subject to civil and commercial law with respect to its obligations under
this Agreement and any Note, and the execution, delivery and performance
by such Foreign Subsidiary Borrower of this Agreement constitute and will
constitute private and commercial acts and not public or governmental
acts. Neither such Foreign Subsidiary Borrower nor any of its property,
whether or not held for its own account, has any immunity (sovereign or
other similar immunity) from any suit or proceeding, from jurisdiction of
any court or from set-off or any legal process (whether service
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or notice, attachment prior to judgment, attachment in aid of execution of
judgment, execution of judgment or other similar immunity) under the laws
of the jurisdiction in which such Foreign Subsidiary Borrower is organized
and existing in respect of its obligations under this Agreement or any
Note. Such Foreign Subsidiary Borrower has, pursuant to subsection 11.12,
waived every immunity (sovereign or otherwise) to which it or any of its
properties would otherwise be entitled from any legal action, suit or
proceeding, from jurisdiction of any court or from set-off or any legal
process (whether service or notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or
otherwise) under the laws of the jurisdiction in which such Foreign
Subsidiary Borrower is organized and existing in respect of its
obligations under this Agreement and any Note. The waiver by such Foreign
Subsidiary Borrower described in the immediately preceding sentence is the
legal, valid and binding obligation of such Foreign Subsidiary Borrower.
(iii) No Recordation Necessary. This Agreement and each Note,
if any, is in proper legal form under the laws of the jurisdiction in
which such Foreign Subsidiary Borrower is organized and existing for the
enforcement hereof or thereof against such Foreign Subsidiary Borrower
under the laws of such jurisdiction, and to ensure the legality, validity,
enforceability, priority or admissibility in evidence of this Agreement
and any such Note. It is not necessary to ensure the legality, validity,
enforceability, priority or admissibility in evidence of this Agreement
and any such Note that this Agreement, any Note or any other document be
filed, registered or recorded with, or executed or notarized before, any
court or other authority in the jurisdiction in which such Foreign
Subsidiary Borrower is organized and existing or that any registration
charge or stamp or similar tax be paid on or in respect of this Agreement,
any Note or any other document, except for any such filing, registration
or recording, or execution or notarization, as has been made or is not
required to be made until this Agreement, any Note or any other document
is sought to be enforced and for any charge or tax as has been timely
paid.
(iv) Exchange Controls. The execution, delivery and
performance by such Foreign Subsidiary Borrower of this Agreement, any
Note or the other Loan Documents is, under applicable foreign exchange
control regulations of the jurisdiction in which such Foreign Subsidiary
Borrower is organized and existing, not subject to any notification or
authorization except such as have been made or obtained or cannot be made
or obtained until a later date.
Each borrowing by and Letter of Credit issued for the account of any
Foreign Subsidiary Borrower hereunder shall constitute a representation and
warranty by each of the Parent Borrower and such Foreign Subsidiary Borrower as
of the date of such borrowings or such issuance that the conditions contained in
this subsection 6.3 have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Parent Borrower hereby agrees that, from and after the Effective
Date and so long as the Revolving Credit Commitments remain in effect, and
thereafter until payment in full of the Loans, all Reimbursement Obligations and
any other amount then due and owing to any Lender or the Administrative Agent
hereunder and under any Note and termination or expiration of all Letters of
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Credit, the Parent Borrower shall and (except in the case of delivery of
financial information, reports and notices) shall cause each of its Subsidiaries
to:
7.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event not later than 90 days
after the end of each fiscal year of Holding, a copy of the audited
consolidated balance sheet of Holding and its consolidated Subsidiaries as
at the end of such year and the related audited consolidated statements of
income and of cash flows for such year, setting forth in each case in
comparative form the figures for and as of the end of the previous year,
reported on without a "going concern" or like qualification or exception,
or qualification arising out of the scope of the audit, by
PricewaterhouseCoopers LLP or other independent certified public
accountants of nationally recognized standing reasonably satisfactory to
the Administrative Agent;
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of Holding, the unaudited consolidated balance sheet of Holding and
its consolidated Subsidiaries as at the end of such quarter and the
related unaudited consolidated statements of income and of cash flows of
Holding and its consolidated Subsidiaries for such quarter and the portion
of the fiscal year through the end of such quarter, setting forth in each
case in comparative form the budgeted figures (as adjusted consistent with
past practice) for the relevant period and the figures for the
corresponding period of the previous fiscal year, certified by a
Responsible Officer of Holding as being fairly stated in all material
respects (subject to normal year-end audit and other adjustments);
(c) as soon as available, but in any event not later than 90 days
after the end of each fiscal year of the Parent Borrower, a copy of the
audited consolidated balance sheet of the Parent Borrower and its
consolidated Subsidiaries as at the end of such year and the related
audited consolidated statements of income and of cash flows for such year,
setting forth in each case in comparative form the figures for and as of
the end of the previous year, reported on without a "going concern" or
like qualification or exception, or qualification arising out of the scope
of the audit, by PricewaterhouseCoopers LLP or other independent certified
public accountants of nationally recognized standing reasonably
satisfactory to the Administrative Agent;
(d) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Parent Borrower, the unaudited consolidated balance sheet of
the Parent Borrower and its consolidated Subsidiaries as at the end of
such quarter and the related unaudited consolidated statements of income
and of cash flows of the Parent Borrower and its consolidated Subsidiaries
for such quarter and the portion of the fiscal year through the end of
such quarter, setting forth in each case in comparative form the budgeted
figures (as adjusted consistent with past practice) for the relevant
period and the figures for the corresponding period of the previous fiscal
year, certified by a Responsible Officer of the Parent Borrower as being
fairly stated in all material respects (subject to normal year-end audit
and other adjustments); and
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(e) as soon as available, but in any event not later than 30 days
after the end of each fiscal month of each fiscal year of the Parent
Borrower (or 45 days in the case of any such month ending on the last day
of a fiscal quarter), a copy of the unaudited consolidated balance sheet
of the Parent Borrower and its consolidated Subsidiaries as of the end of
such month and the related unaudited consolidated statements of income and
of cash flows for such month and the portion of the fiscal year through
the end of such month, setting forth in each case, in comparative form the
figures for the corresponding fiscal month of the previous year, certified
by a Responsible Officer of the Parent Borrower as being fairly stated in
all material respects (subject to normal quarter-end or year-end audit and
other adjustments);
all such financial statements delivered pursuant to subsection 7.1(a), (b), (c)
or (d) to be (and, in the case of financial statements delivered pursuant to
subsection 7.1(b) or (d) shall be certified by a Responsible Officer of Holding
or the Parent Borrower, as applicable, as being) complete and correct in all
material respects in conformity with GAAP and to be (and, in the case of
financial statements delivered pursuant to subsection 7.1(b) or (d) shall be
certified by a Responsible Officer of Holding or the Parent Borrower, as
applicable, as being) prepared in reasonable detail in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods that began on or after the Effective Date (except as approved by such
accountants or officer, as the case may be, and disclosed therein, and except,
in the case of the financial statements delivered pursuant to subsection 7.1(b)
or (d), for the absence of certain notes).
7.2 Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a) and (c), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the audit necessary therefor no knowledge was
obtained of any Default or Event of Default insofar as the same relates to
any financial accounting matters covered by their audit, except as
specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a), (b), (c) and (d), a certificate signed
by a Responsible Officer of Holding and by a Responsible Officer of the
Parent Borrower, (i) stating that, to the best of each such Responsible
Officer's knowledge, each of Holding or the Parent Borrower, as the case
may be, and its Subsidiaries during such period has observed or performed
all of its covenants and other agreements, and satisfied every condition,
contained in this Agreement, any Notes and the other Loan Documents to
which it is a party to be observed, performed or satisfied by it, and that
such Responsible Officer has obtained no knowledge of any Default or Event
of Default, except, in each case, as specified in such certificate, and
(ii) setting forth the calculations required to determine (A) compliance
with all covenants set forth in subsection 8.1 (in the case of a
certificate furnished with the financial statements referred to in
subsections 7.1(c) and (d)) and (B) compliance with the covenant set forth
in subsection 8.8 (in the case of a certificate furnished with the
financial statements referred to in subsection 7.1(c));
(c) as soon as available, but in any event not later than 90 days
after the beginning of each fiscal year of Holding, a copy of the
projections by Holding of the operating budget and
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cash flow budget of Holding and its Subsidiaries for such fiscal year,
such projections to be accompanied by a certificate of a Responsible
Officer of Holding to the effect that such Responsible Officer believes
such projections to have been prepared on the basis of reasonable
assumptions;
(d) within five days after the same are sent, copies of all
financial statements and reports which Holding or the Parent Borrower
sends to its public securityholders, if any, and within five days after
the same are filed, copies of all financial statements and periodic
reports which Holding or the Parent Borrower may file with the Securities
and Exchange Commission or any successor or analogous Governmental
Authority;
(e) within two days after the same are filed, copies of all
registration statements and any amendments and exhibits thereto, which
Holding or the Parent Borrower may file with the Securities and Exchange
Commission or any successor or analogous Governmental Authority, and such
other documents or instruments as may be reasonably requested by the
Administrative Agent in connection therewith; and
(f) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
7.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
diligently conducted and reserves in conformity with GAAP with respect thereto
have been provided on the books of Holding or its Subsidiaries, as the case may
be.
7.4 Conduct of Business and Maintenance of Existence. Continue to
engage in business of the same general type as conducted by Holding and its
Subsidiaries on the Effective Date, taken as a whole, and preserve, renew and
keep in full force and effect its corporate existence and take all reasonable
action to maintain all rights, privileges and franchises necessary or desirable
in the normal conduct of the business of Holding, the Parent Borrower and its
Subsidiaries, taken as a whole, except as otherwise expressly permitted pursuant
to subsection 8.5, provided that Holding, the Parent Borrower and its
Subsidiaries shall not be required to maintain any such rights, privileges or
franchises, if the failure to do so would not reasonably be expected to have a
Material Adverse Effect; and comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply therewith, in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect.
7.5 Maintenance of Property; Insurance. Keep all property useful and
necessary in the business of Holding, the Parent Borrower and its Subsidiaries,
taken as a whole, in good working order and condition; maintain with financially
sound and reputable insurance companies insurance on all property material to
the business of Holding, the Parent Borrower and its Subsidiaries, taken as a
whole, in at least such amounts and against at least such risks (but including
in any event public liability, product liability and business interruption) as
are usually insured against in the same general area by companies engaged in the
same or a similar business; and furnish to the Administrative Agent, upon
written request, information in reasonable detail as to the insurance carried,
together with certificates of
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insurance and other evidence of such insurance, if any, naming the
Administrative Agent as an additional insured and/or loss payee.
7.6 Inspection of Property; Books and Records; Discussions. (a) Keep
proper books of records and account in which full, complete and correct entries
in conformity with GAAP and all material Requirements of Law shall be made of
all dealings and transactions in relation to its business and activities; and
permit representatives of any Lender to visit and inspect any of its properties
and examine and, to the extent reasonable, make abstracts from any of its books
and records and to discuss the business, operations, properties and financial
and other condition of Holding, the Parent Borrower and its Subsidiaries with
officers and employees of Holding, the Parent Borrower and its Subsidiaries and
with its independent certified public accountants, in each case at any
reasonable time, upon reasonable notice, and as often as may reasonably be
desired.
(b) If a Default or Event of Default shall have occurred and be
continuing, the Parent Borrower shall reimburse the Administrative Agent for any
reasonable fees and expenses of third parties incurred in connection with any
appraisal of Holding's, the Parent Borrower's or any of its Subsidiaries' real
property reasonably requested in writing by the Required Lenders.
7.7 Notices. Promptly give notice to the Administrative Agent and
each Lender of:
(a) as soon as possible after a Responsible Officer of the Parent
Borrower knows or reasonably should know thereof, the occurrence of any
Default or Event of Default;
(b) as soon as possible after a Responsible Officer of the Parent
Borrower knows or reasonably should know thereof, any (i) default or event
of default under any Contractual Obligation of Holding, the Parent
Borrower or any of its Subsidiaries, other than as previously disclosed in
writing to the Lenders, or (ii) litigation, investigation or proceeding
which may exist at any time between Holding, the Parent Borrower or any of
its Subsidiaries and any Governmental Authority, which in either case, if
not cured or if adversely determined, as the case may be, would reasonably
be expected to have a Material Adverse Effect;
(c) as soon as possible after a Responsible Officer of Holding or
the Parent Borrower knows or reasonably should know thereof, the
occurrence of (i) any default or event of default under the Senior
Subordinated Notes, the Holding Senior Discount Notes, any Holding
Subordinated Exchange Debentures or any Indenture or (ii) any breach of
any provision of the Preferred Stock Certificate of Designation;
(d) as soon as possible after a Responsible Officer of the Parent
Borrower knows or reasonably should know thereof, any litigation or
proceeding affecting Holding, the Parent Borrower or any of its
Subsidiaries in which the amount involved (not covered by insurance or
indemnified by the Seller pursuant to the Acquisition Agreement) is
$2,500,000 or more or in which injunctive or similar relief is sought that
would reasonably be expected to have a Material Adverse Effect;
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(e) the following events, as soon as possible and in any event
within 30 days after a Responsible Officer of the Parent Borrower knows or
reasonably should know thereof: (i) the occurrence or expected occurrence
of any Reportable Event with respect to any Single Employer Plan (other
than a Reportable Event described in Section 4043(c)(9) of ERISA), a
failure to make any required contribution to a Single Employer Plan or
Multiemployer Plan, the creation of any Lien on the property of Holding,
the Parent Borrower or any of its Subsidiaries in favor of the PBGC or a
Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan if, as a result thereof, Holding,
the Parent Borrower, or any of its Subsidiaries would reasonably be
expected to incur any material liability; (ii) the existence of an
Underfunding under a Single Employer Plan that exceeds the lesser of (x)
10% of the value of the assets of such Single Employer Plan or (y)
$2,500,000, in each case, determined as of the most recent annual
valuation date of such Single Employer Plan on the basis of the actuarial
assumptions used to determine the funding requirements of such Single
Employer Plan as of such date; (iii) the institution of proceedings or the
taking of any other formal action by the PBGC or Holding, the Parent
Borrower or any Commonly Controlled Entity or any Multiemployer Plan with
respect to the withdrawal from, or the termination, Reorganization or
Insolvency of, any Single Employer Plan or Multiemployer Plan if, as a
result thereof, Holding, the Parent Borrower or any of its Subsidiaries
would reasonably be expected to incur any material liability; or (iv) the
occurrence or expected occurrence of any event or condition under which
Holding, the Parent Borrower or any Commonly Controlled Entity has
incurred or could incur any liability in respect of a Former Plan;
(f) as soon as possible after a Responsible Officer of the Parent
Borrower knows or reasonably should know thereof, any material adverse
change in the business, operations, property, condition (financial or
otherwise) or prospects of Holding and its Subsidiaries taken as a whole;
(g) as soon as possible after a Responsible Officer of the Parent
Borrower knows or reasonably should know thereof, and except in each case
as would not reasonably be expected to result in a Material Adverse
Effect, (i) any release or discharge by the Parent Borrower or any of its
Subsidiaries of any Materials of Environmental Concern required to be
reported under applicable Environmental Laws to any Governmental
Authority; (ii) any condition, circumstance, occurrence or event that
would result in liability pursuant to applicable Environmental Laws or
would result in the imposition of any lien or other restriction on the
title, ownership or transferability of any Property; (iii) any proposed
action to be taken by the Parent Borrower or any of its Subsidiaries that
would reasonably be expected to subject the Parent Borrower or any of its
Subsidiaries to any material additional or different requirements or
liabilities, to the knowledge of the Parent Borrower or any of its
Subsidiaries, under any applicable Environmental Law; (iv) any
Governmental Authority has notified the Parent Borrower or any of its
Subsidiaries that any such Person is a potentially responsible party under
the Comprehensive Environmental Response, Compensation and Liability Act
or any comparable law for the cleanup of Materials of Environmental
Concern at any location, whether or not owned, leased or operated by the
Parent Borrower or any of its Subsidiaries; (v) any Governmental Authority
has notified the Parent Borrower or any of its Subsidiaries that it will
revoke any permit pursuant to any Environmental Law held by the Parent
Borrower or any of its Subsidiaries, or deny or refuse to renew any such
permit sought by the Parent Borrower or any
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of its Subsidiaries; or (vi) any Governmental Authority has notified the
Parent Borrower or any of its Subsidiaries that any property owned,
leased, or operated by the Parent Borrower or any of its Subsidiaries is
being listed on, or proposed for listing on, the National Priorities List
(NPL) or the Comprehensive Environmental Response, Compensation and
Liability Information System (CERCLIS) maintained by the U.S.
Environmental Protection Agency, or on any similar list maintained by any
Governmental Authority; and
(h) within three Business Days of the issuance thereof, notice of
any issuance of a letter of credit permitted by subsection 8.2(k).
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer of the Parent Borrower (and, if applicable, the relevant
Commonly Controlled Entity or Subsidiary) setting forth details of the
occurrence referred to therein and stating what action the Parent Borrower (or,
if applicable, the relevant Commonly Controlled Entity or Subsidiary) proposes
to take with respect thereto.
7.8 Environmental Laws. (a) Comply substantially with all
Environmental Laws applicable to it, and obtain, comply substantially with and
maintain any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws; and (ii) take all reasonable
efforts to ensure that all tenants, subtenants, contractors, subcontractors and
invitees comply substantially with all Environmental Laws, and obtain, comply
substantially with and maintain any and all licenses, approvals, notifications,
registrations or permits required by Environmental Laws applicable to any of
them insofar as any failure to so comply, obtain or maintain reasonably would be
expected to adversely affect the Parent Borrower or any of its Subsidiaries. For
purposes of this subsection 7.8(a), noncompliance shall be deemed not to
constitute a breach of this covenant provided that, upon learning of any actual
or suspected noncompliance, the Parent Borrower shall in a timely fashion
undertake or cause to be undertaken reasonable efforts to achieve substantial
compliance, and provided, further that, in any case, such noncompliance, and any
other such noncompliance with any Environmental Law, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse
Effect.
(b) Promptly upon the Administrative Agent's request if the Parent
Borrower shall have failed to pay any principal of any Loan or any Reimbursement
Obligation when due in accordance with the terms hereof or shall have failed to
pay any interest on any Loan within five days after any such interest becomes
due in accordance with the terms hereof, permit an environmental consultant,
whom the Administrative Agent designates and which consultant is reasonably
acceptable to the Parent Borrower, to perform an environmental assessment
(including, without limitation: reviewing documents; interviewing knowledgeable
persons; and sampling and analyzing soil, air, surface rate, ground water,
and/or other media) in or about any Property subject to a Mortgage. Such
environmental assessment shall be in form, scope and substance reasonably
satisfactory to the Administrative Agent. The Parent Borrower or its
Subsidiaries shall cooperate fully in the conduct of such environmental
assessment, and shall pay the costs of such environmental assessment promptly
upon written demand by the Administrative Agent. Pursuant to this subsection
7.8(b) the Administrative Agent shall have the right, but shall not have any
duty, to request and/or obtain such environmental assessment.
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(c) Maintain, update as appropriate, and implement in all material
respects an ongoing program to ensure that all the properties and operations of
the Parent Borrower and its Subsidiaries are regularly and reasonably reviewed
by competent professionals (which may be employees of the Parent Borrower and
its Subsidiaries) to identify and promote compliance with and to reasonably and
prudently manage any liabilities or potential liabilities under any
Environmental Law that could reasonably be expected to have a Material Adverse
Effect, including, without limitation, compliance and liabilities relating to:
discharges to air and water; acquisition, transportation, storage and use of
hazardous materials; waste disposal; repair, maintenance and improvement of
properties; employee health and safety; species protection; and recordkeeping.
7.9 After-Acquired Real Property and Fixtures. (a) With respect to
any owned real property or fixtures having a value in excess of $500,000 in
which the Parent Borrower or any of its Domestic Subsidiaries or any Foreign
Subsidiary Borrower acquires ownership rights at any time after the Effective
Date, promptly grant to the Administrative Agent, for the ratable benefit of the
Lenders, a Lien of record on all such owned real property and fixtures, upon
terms reasonably satisfactory in form and substance to the Administrative Agent
and in accordance with any applicable requirements of any Governmental Authority
(including, without limitation, any required appraisals of such property under
FIRREA); provided that nothing in this subsection 7.9 shall defer or impair the
attachment or perfection of any security interest in any Collateral covered by
any of the Security Documents which would attach or be perfected pursuant to the
terms thereof without action by the Parent Borrower, any Subsidiary or any other
Person; provided that any such mortgage by a Foreign Subsidiary Borrower shall
not secure any other Borrower's obligations. In connection with any such grant
to the Administrative Agent, for the benefit of the Lenders, of a first priority
Lien of record on any such real property in accordance with this subsection, the
Parent Borrower or such Subsidiary shall deliver or cause to be delivered to the
Administrative Agent any surveys, title insurance policies, environmental
reports and other documents in connection with such grant of such Lien obtained
by it in connection with the acquisition of such ownership rights in such real
property or as the Administrative Agent shall reasonably request (in light of
the value of such real property and the cost and availability of such surveys,
title insurance policies, environmental reports and other documents and whether
the delivery of such surveys, title insurance policies, environmental reports
and other documents would be customary in connection with such grant of such
Lien in similar circumstances).
(b) At its own expense, execute, acknowledge and deliver, or cause
the execution, acknowledgment and delivery of, and thereafter register, file or
record in an appropriate governmental office, any document or instrument
reasonably deemed by the Administrative Agent to be necessary or desirable for
the creation and perfection of the foregoing Liens or any other Liens created
pursuant to the Security Documents.
(c) At its own expense, request, and use reasonable efforts to
obtain, (i) a consent, substantially in the form of Exhibit F or such other form
as may be reasonably satisfactory to the Administrative Agent, from the landlord
of each of the existing facilities in which Inventory of any Loan Party is
located and for which annual lease payments exceed $100,000, as of the Effective
Date, in which such landlord acknowledges the Administrative Agent's security
interest in the Inventory pledged by each Loan Party to the Administrative Agent
for the benefit of the Lenders, copies of which consent, if obtained, shall be
delivered to the Administrative Agent (A) within 30 days after the Effective
Date, if
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such consent is from a landlord entitled to receive at least $100,000 in annual
lease payments with respect to a facility and (B) to the extent not previously
delivered, as promptly as reasonably practicable following the Effective Date,
and (ii) prior to entering into a lease of a facility in which Inventory will be
located on or after the Effective Date, a consent, substantially in the form of
Exhibit F or such other form as may be reasonably satisfactory to the
Administrative Agent, from each landlord of any such facility, in which such
landlord acknowledges the Administrative Agent's first priority security
interest in the Inventory pledged by each Loan Party to the Administrative Agent
for the benefit of the Lenders.
(d) Notwithstanding anything to contrary in this Agreement, nothing
in this subsection 7.9 shall require that any Foreign Subsidiary Borrower grant
a Lien with respect to any owned real property or fixtures in which such
Subsidiary acquires ownership rights to the extent that the Administrative
Agent, in its reasonable judgment, determines that the granting of such a Lien
is impracticable.
7.10 Acquired Subsidiaries; Further Security and Guarantees. (a) In
the event that the Parent Borrower or any of its Subsidiaries acquires any
Material Subsidiary from any third party as permitted by the other provisions of
this Agreement, (i) such new Subsidiary (in the case of a new Domestic
Subsidiary or a Foreign Subsidiary Borrower) shall, to the extent permitted by
law, execute and deliver to the Administrative Agent the Guarantee and
Collateral Agreement and appropriate Mortgages and other security documents and
take any necessary steps to perfect the security interest to be created thereby
and (ii) the relevant parent corporation (if such parent corporation is the
Parent Borrower or a Domestic Subsidiary) shall execute and deliver to the
Administrative Agent a stock pledge agreement (or, if the parent corporation is
a party to the Guarantee and Collateral Agreement, pledge the Capital Stock of
such Material Subsidiary owned by such parent corporation pursuant to such
agreement) and shall take any necessary steps to perfect the security interest
to be created thereby (which security interest shall not apply to more than 65%
of such parent corporation's ownership interest in any Foreign Subsidiary).
Notwithstanding anything to contrary in this Agreement, nothing in this
subsection 7.10(a) shall require that any Foreign Subsidiary Borrower pledge the
stock of any Foreign Subsidiary acquired by it to the extent that the
Administrative Agent, in its reasonable judgment, determines that the granting
of such a Lien is impracticable.
(b) Within 30 days after the due date for delivery of financial
statements pursuant to subsection 7.1(a), (b), (c) or (d), (i) the Parent
Borrower shall, to the extent permitted by law, cause any Domestic Subsidiary
(other than MSS (unless it is a Wholly Owned Subsidiary)) that qualifies as a
Material Subsidiary (based on its total assets as of the end of, or its total
revenues for, the most recently completed period of four consecutive fiscal
quarters of Holding), but which is not a party to the Guarantee and Collateral
Agreement, to execute and deliver to the Administrative Agent the Guarantee and
Collateral Agreement and appropriate Mortgages and other security documents and
take any necessary steps to perfect the security interest to be created thereby
and (ii) the relevant parent corporation (if such parent corporation is the
Parent Borrower or a Domestic Subsidiary) shall execute and deliver to the
Administrative Agent a stock pledge agreement (or, if the parent corporation is
a party to the Guarantee and Collateral Agreement, pledge the Capital Stock of
such Material Subsidiary owned by such parent corporation pursuant to such
agreement) and shall take any necessary steps to perfect the security interest
to be created thereby (which security interest shall not apply to more than 65%
of such parent corporation's ownership interest in any Foreign Subsidiary).
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7.11 Interest Rate Protection Agreement. In the case of the Parent
Borrower, no later than 90 days after the Effective Date, enter into an Interest
Rate Protection Agreement to provide that an amount at least equal to 50% of the
aggregate principal amount of the Loans and Senior Subordinated Notes is subject
to interest rate protection, which Interest Rate Protection Agreement shall be
in form and substance, and for a term, reasonably satisfactory to the
Administrative Agent and the Syndication Agent.
7.12 Capital Contributions from Holding. In the case of the Parent
Borrower, immediately upon receipt of any capital contribution from Holding made
with the cash proceeds of any Asset Sale or any incurrence of Indebtedness for
borrowed money (other than Indebtedness permitted pursuant to Section 5.4.2(ii)
of the Guarantee and Collateral Agreement), prepay the Loans in accordance with
subsection 4.4(c).
7.13 Maintenance of New York Process Agent. In the case of any
Foreign Subsidiary Borrower, maintain in New York, New York or at such other
location in the United States of America as may be reasonably satisfactory to
the Administrative Agent a Person acting as agent to receive on its behalf and
on behalf of its property service of process and capable of discharging the
functions of the New York Process Agent set forth in subsection 11.12(b).
7.14 Updated Survey for California Mortgaged Property. In the case
of the Parent Borrower, furnish to the Administrative Agent, within 60 days
after the Effective Date, an update of the survey of the owned real property
covered by a Mortgage and located in California that was previously delivered to
the Administrative Agent pursuant to subsection 6.1(o).
SECTION 8. NEGATIVE COVENANTS
The Parent Borrower hereby agrees that, from and after the Effective
Date and so long as the Revolving Credit Commitments remain in effect, and
thereafter until payment in full of the Loans, all Reimbursement Obligations and
any other amount then due and owing to any Lender or the Administrative Agent
hereunder and under any Note and termination or expiration of all Letters of
Credit, the Parent Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly:
8.1 Financial Condition Covenants.
(a) Maintenance of Consolidated Interest Coverage Ratio. Permit, at
the last day of any fiscal quarter ending during any test period set forth
below, the Consolidated Interest Coverage Ratio to be less than the ratio
set forth opposite such test period below:
Test Period Ratio
----------- -----
Effective Date - December 25, 1999 1.65 to 1.00
December 26, 1999 - December 30, 2000 1.80 to 1.00
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December 31, 2000 - December 29, 2001 2.00 to 1.00
December 30, 2001 - December 28, 2002 2.35 to 1.00
December 29, 2002 - December 27, 2003 2.65 to 1.00
Thereafter 3.00 to 1.00
provided that in the event that the Parent Borrower changes its fiscal
year end to the last day of December, the foregoing test periods for each
fiscal year of the Parent Borrower occurring after such change shall be
deemed to commence on January 1 of the applicable fiscal year and end on
December 31 of such fiscal year (e.g., the test period from December 31,
2000 through December 29, 2001 would become the period from January 1,
2001 through December 31, 2001).
(b) Maintenance of Leverage Ratio. Permit, at the last day of any
fiscal quarter ending during any test period set forth below, the Leverage
Ratio to be greater than the ratio set forth opposite such test period
below:
Test Period Ratio
----------- -----
Effective Date - December 25, 1999 5.50 to 1.00
December 26, 1999 - December 30 2000 5.15 to 1.00
December 31, 2000 - December 29, 2001 4.60 to 1.00
December 30, 2001 - December 28, 2002 4.00 to 1.00
December 29, 2002 - December 27, 2003 3.50 to 1.00
Thereafter 3.00 to 1.00
provided that in the event that the Parent Borrower changes its fiscal
year end to the last day of December, the foregoing test periods for each
fiscal year of the Parent Borrower occurring after such change shall be
deemed to commence on January 1 of the applicable fiscal year and end on
December 31 of such fiscal year (e.g., the test period from December 31,
2000 through December 29, 2001 would become the period from January 1,
2001 through December 31, 2001).
8.2 Limitation on Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness (including any Indebtedness of any of its Subsidiaries),
except:
(a) Indebtedness of each of the Borrowers under this Agreement and
under any Notes;
(b) Indebtedness of the Parent Borrower to any of its Wholly Owned
Subsidiaries and of any Subsidiary of the Parent Borrower to the Parent
Borrower or any other Wholly Owned Subsidiary of the Parent Borrower;
(c) Indebtedness of the Parent Borrower and any of its Subsidiaries
incurred to finance or refinance the acquisition of fixed or capital
assets (whether pursuant to a loan, a Financing Lease or otherwise)
otherwise permitted pursuant to this Agreement, and any other Financing
Leases, in an aggregate principal amount not exceeding in the aggregate as
to the Parent
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Borrower and its Subsidiaries $40,000,000 at any time outstanding,
provided that such Indebtedness is incurred substantially simultaneously
with such acquisition or within six months after such acquisition or in
connection with a refinancing thereof;
(d) Indebtedness of any of the Borrowers under Interest Rate
Protection Agreements relating to Indebtedness of such Borrower under this
Agreement, and Indebtedness of the Parent Borrower and its Subsidiaries
under Permitted Hedging Arrangements;
(e) other Indebtedness outstanding on the Effective Date and listed
on Schedule 8.2(e) and any refinancings, refundings, renewals or
extensions thereof, provided that the amount of such Indebtedness is not
increased at the time of such refinancing, refunding, renewal or extension
except by an amount equal to the premium or other amounts paid, and fees
and expenses incurred, in connection with such refinancing and by an
amount equal to the unutilized commitments thereunder;
(f) to the extent that any Guarantee Obligation permitted under
subsection 8.4 constitutes Indebtedness, such Indebtedness;
(g) Indebtedness of the Parent Borrower or any of its Subsidiaries
pursuant to any Permitted Receivables Securitization, provided that upon
the effectiveness of any such Permitted Receivables Securitization, the
Term Loans shall be prepaid and the Revolving Credit Commitments shall be
automatically and permanently reduced in accordance with subsections
4.4(c) and 4.4(i);
(h) Indebtedness to finance the general working capital needs of the
Parent Borrower and its Subsidiaries incurred after the Termination Date
in an aggregate principal amount, when added to the aggregate Consolidated
Total Funded Indebtedness/Securitizations in respect of any Permitted
Receivables Securitizations at such time outstanding, not to exceed the
amount of the Revolving Credit Commitments as of the Effective Date,
provided that (i) the Revolving Credit Commitments shall have been or
shall concurrently be terminated and the Revolving Credit Loans shall have
been or shall concurrently be repaid in full and (ii) the terms and
conditions of such replacement working capital facility shall be
substantially similar to, or otherwise not less favorable to the Tranche B
Term Loan Lenders in any material respect than, the analogous provisions
applicable to the Revolving Credit Commitments;
(i) Indebtedness of Foreign Subsidiaries of the Parent Borrower (in
addition to Indebtedness of Foreign Subsidiaries of the Parent Borrower
permitted by subsection 8.2(e) and 8.2(o)) not exceeding, as to all such
Foreign Subsidiaries, $20,000,000 in aggregate principal amount at any one
time outstanding;
(j) Indebtedness of the Parent Borrower and any of its Subsidiaries
incurred to finance or refinance the purchase price of, or Indebtedness of
the Parent Borrower and any of its Subsidiaries assumed in connection
with, any acquisition permitted by subsection 8.10, provided that (i) such
Indebtedness is incurred prior to, substantially simultaneously with or
within six months after such acquisition or in connection with a
refinancing thereof, (ii) either (A) (x) such
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Indebtedness shall have terms and conditions reasonably satisfactory to
the Administrative Agent and (y) such Indebtedness (other than
Subordinated Debt) shall not exceed 60% of the purchase price of such
acquisition (including any Indebtedness (other than Subordinated Debt)
assumed in connection with such acquisition and any Guarantee Obligations
(other than any Guarantee Obligation in respect of any Subordinated Debt,
which Guarantee Obligation is subordinated on the same terms as such
Subordinated Debt) incurred in connection with such acquisition) (or such
greater percentage as shall be reasonably satisfactory to the
Administrative Agent or, if any such purchase price shall be greater than
$35,000,000, such greater percentage as shall be satisfactory to the
Required Lenders) or (B) the incurrence of such Indebtedness in connection
with such acquisition would be permitted by subsection 8.10(c), and (iii)
immediately after giving effect to such acquisition no Default or Event of
Default shall have occurred and be continuing;
(k) Indebtedness in respect of letters of credit (excluding Letters
of Credit) issued by a Lender or an affiliate of a Lender for the account
of the Parent Borrower and its Subsidiaries, provided that (i) the
aggregate amount of any such Indebtedness shall not exceed the Letter of
Credit commitment of the Issuing Lender pursuant to subsection 3.1(a)(ii)
and (ii) upon the effectiveness of any such letter of credit and for so
long as it remains outstanding, the Letter of Credit commitment of the
Issuing Lender pursuant to subsection 3.1(a)(ii) shall be reduced by an
amount equal to the aggregate amount of such Indebtedness;
(l) Indebtedness of the Parent Borrower or any of its Subsidiaries
in respect of Sale and Leaseback Transactions permitted under subsection
8.12;
(m) Indebtedness of the Parent Borrower or any of its Subsidiaries
incurred to finance insurance premiums in the ordinary course of business;
(n) Indebtedness arising from the honoring of a check, draft or
similar instrument against insufficient funds, provided that such
Indebtedness is extinguished within two Business Days of its incurrence;
(o) Indebtedness of any Foreign Subsidiary of the Parent Borrower
fully supported on the date of the incurrence thereof by a Foreign
Backstop Letter of Credit;
(p) Indebtedness of the Parent Borrower on account of the Senior
Subordinated Notes having a principal amount not exceeding $150,000,000 in
the aggregate at any one time outstanding; and
(q) additional Indebtedness of the Parent Borrower or any Subsidiary
of the Parent Borrower not exceeding $20,000,000 as to the Parent Borrower
and its Subsidiaries in aggregate principal amount at any one time
outstanding.
For purposes of determining compliance with clauses (c), (e), (h),
(i), (j), (k), (l), (o) and (q) of this subsection 8.2, the amount of any
Indebtedness denominated in any currency other than Dollars shall be calculated
based on customary currency exchange rates in effect, in the case of such
Indebtedness incurred (in respect of term debt) or committed (in respect of
revolving debt) on or prior
89
to the Effective Date, on the Effective Date and, in the case of such
Indebtedness incurred (in respect of term debt) or committed (in respect of
revolving debt) after the Effective Date, on the date that such Indebtedness was
incurred (in respect of term debt) or committed (in respect of revolving debt).
8.3 Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes not yet delinquent or the nonpayment of which in
the aggregate would not reasonably be expected to have a Material Adverse
Effect, or which are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves with respect
thereto are maintained on the books of Holding or its Subsidiaries, as the
case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than 60 days or which are being
contested in good faith by appropriate proceedings diligently conducted;
(c) Liens of landlords or of mortgagees of landlords arising by
operation of law or pursuant to the terms of real property leases,
provided that the rental payments secured thereby are not yet due and
payable;
(d) pledges, deposits or other Liens in connection with workers'
compensation, unemployment insurance, other social security benefits or
other insurance related obligations (including, without limitation,
pledges or deposits securing liability to insurance carriers under
insurance or self-insurance arrangements);
(e) Liens arising by reason of any judgment, decree or order of any
court or other Governmental Authority, if appropriate legal proceedings
which may have been duly initiated for the review of such judgment, decree
or order, are being diligently prosecuted and shall not have been finally
terminated or the period within which such proceedings may be initiated
shall not have expired;
(f) Liens to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds, judgment and like bonds, replevin and similar
bonds and other obligations of a like nature incurred in the ordinary
course of business;
(g) zoning restrictions, easements, rights-of-way, restrictions on
the use of property, other similar encumbrances incurred in the ordinary
course of business and minor irregularities of title, which do not
materially interfere with the ordinary conduct of the business of the
Parent Borrower and its Subsidiaries taken as a whole;
(h) Liens securing or consisting of Indebtedness of the Parent
Borrower and its Subsidiaries permitted by subsection 8.2(c) incurred to
finance the acquisition of fixed or capital assets or Indebtedness of the
Parent Borrower and its Subsidiaries permitted by subsection 8.2(j)
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incurred to finance the purchase price of, or assumed in connection with,
any acquisition permitted by subsection 8.10, provided that (i) such Liens
shall be created substantially simultaneously with such acquisition and
(ii) such Liens securing such Indebtedness do not at any time encumber any
property other than the property financed by such Indebtedness;
(i) Liens existing on assets or properties at the time of the
acquisition thereof by the Parent Borrower or a Subsidiary which do not
materially interfere with the use of the property subject thereto or
extend to or cover any assets of the Parent Borrower or such Subsidiary
other than the assets or property being acquired;
(j) Liens (i) in existence on the Effective Date and listed in
Schedule 8.3(j) and other Liens securing Indebtedness of the Parent
Borrower and its Subsidiaries permitted by subsection 8.2(e), provided
that no such Lien is spread to cover any additional property after the
Effective Date and that the amount of Indebtedness secured thereby is not
increased except as permitted by subsection 8.2(e), or (ii) not otherwise
permitted hereunder, all of which Liens permitted pursuant to this
subsection 8.3(j) securing obligations not exceeding (as to the Parent
Borrower and all its Subsidiaries) $5,000,000 in aggregate amount at any
time outstanding;
(k) Liens securing Guarantee Obligations permitted under subsection
8.4(f) not exceeding (as to the Parent Borrower and all its Subsidiaries)
$2,000,000 in aggregate amount at any time outstanding;
(l) Liens created pursuant to the Security Documents or otherwise
securing Indebtedness permitted by subsection 8.2(a);
(m) Liens created pursuant to and in accordance with any Permitted
Receivables Securitization;
(n) Liens on Intellectual Property and foreign patents, patent
applications, trademarks, trademark applications, trade names, service
marks, copyrights, technology, know-how and processes to the extent such
Liens arise from the granting of licenses to use such Intellectual
Property and foreign patents, patent applications, trademarks, trademark
applications, trade names, service marks, copyrights, technology, know-how
and processes to any Person in the ordinary course of business of the
Parent Borrower and its Subsidiaries;
(o) Liens on equipment in favor of lessees or conditional purchasers
of such equipment leased on a Financing Lease basis or sold on a
conditional basis by the Parent Borrower or any of its Subsidiaries to
Agents or Owner/Operators in the ordinary course of business of the Parent
Borrower and its Subsidiaries;
(p) any encumbrance or restriction (including, without limitation,
put and call agreements) with respect to the Capital Stock of any joint
venture or similar arrangement pursuant to the joint venture or similar
agreement with respect to such joint venture or similar arrangement,
provided that no such encumbrance or restriction affects in any way the
ability of the Parent Borrower or any of its Subsidiaries to comply with
subsection 8.16(b);
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(q) Liens on property subject to Sale and Leaseback Transactions
permitted under subsection 8.12 and general intangibles related thereto;
(r) Liens on property of any Foreign Subsidiary of the Parent
Borrower securing Indebtedness of such Foreign Subsidiary of the Parent
Borrower permitted by subsection 8.2(i); and
(s) Liens on assets or properties of any Insurance Subsidiary
arising by operation of applicable insurance law or required to be imposed
thereunder in the ordinary course of such Subsidiary's insurance business.
8.4 Limitation on Guarantee Obligations. Create, incur, assume or
suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the Effective Date and
listed in Schedule 8.4(a), and any refinancings, refundings, extensions or
renewals thereof, provided that the amount of such Guarantee Obligation
shall not be increased at the time of such refinancing, refunding,
extension or renewal except to the extent that the amount of Indebtedness
in respect of such Guarantee Obligations is permitted to be increased by
subsection 8.2(e);
(b) Guarantee Obligations in connection with up to an aggregate
principal amount of $10,000,000 of Indebtedness outstanding at any time
incurred by Management Investors in connection with any Management
Subscription Agreement, and any refinancings, refundings, extensions or
renewals thereof, provided that such amount shall be reduced by the
aggregate then outstanding principal amount of loans and advances
permitted by subsection 8.9(n);
(c) Guarantee Obligations for performance, appeal, judgment,
replevin and similar bonds, or suretyship arrangements, all in the
ordinary course of business;
(d) Guarantee Obligations in respect of indemnification and
contribution agreements expressly permitted by subsection 8.11(iv) or
similar agreements by Holding or the Parent Borrower;
(e) Reimbursement Obligations in respect of the Letters of Credit
and reimbursement obligations owing to the issuer of any letter of credit
permitted by subsection 8.2(k);
(f) Guarantee Obligations in respect of third-party loans and
advances to officers or employees of the Parent Borrower or any Subsidiary
(i) for travel and entertainment expenses incurred in the ordinary course
of business, (ii) for relocation expenses incurred in the ordinary course
of business or (iii) for any other purpose and, in the case of this clause
(iii), in an aggregate principal amount (as to the Parent Borrower and all
its Subsidiaries), together with the aggregate amount of all Investments
permitted under subsection 8.9(e)(iii), of up to $2,000,000 outstanding at
any time;
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(g) obligations to insurers required in connection with worker's
compensation and other insurance coverage incurred in the ordinary course
of business;
(h) obligations of any of the Borrowers under any Interest Rate
Protection Agreements relating to Indebtedness of such Borrower under this
Agreement, and obligations of the Parent Borrower and its Subsidiaries
under Permitted Hedging Arrangements;
(i) guarantees made in the ordinary course of its business by the
Parent Borrower or any of its Subsidiaries of obligations of the Parent
Borrower or any of its Subsidiaries, which obligations are otherwise
permitted under this Agreement;
(j) Guarantee Obligations in connection with sales or other
dispositions permitted under subsection 8.6, including indemnification
obligations with respect to leases, and guarantees of collectability in
respect of accounts receivables or notes receivable for up to face value;
(k) accommodation guarantees for the benefit of trade creditors of
the Parent Borrower or any of its Subsidiaries in the ordinary course of
business of obligations of the Parent Borrower or any of its Subsidiaries,
which obligations are otherwise permitted by this Agreement;
(l) Guarantee Obligations with respect to an aggregate principal
amount of up to $20,000,000 of third-party loans and advances to Agents
and Owner/Operators, provided that such amount shall be reduced by the
aggregate then outstanding principal amount of loans permitted by
subsection 8.9(o);
(m) Guarantee Obligations of the Parent Borrower and its
Subsidiaries in respect of recourse events in connection with any
Permitted Receivables Securitization;
(n) Guarantee Obligations in respect of Indebtedness of a Person in
connection with a joint venture or similar arrangement in respect of which
no other co-investor or other Person has a greater legal or beneficial
ownership interest than the Parent Borrower or any of its Subsidiaries and
as to all of such Persons does not at any time exceed $10,000,000 in
aggregate principal amount, provided that such amount shall be reduced by
the aggregate amount of then existing Investments permitted by subsection
8.9(l);
(o) Guarantee Obligations incurred in connection with acquisitions
permitted under subsection 8.10, provided that either (i) any such
Guarantee Obligation (other than any Guarantee Obligation in respect of
any Subordinated Debt, which Guarantee Obligation is subordinated on the
same terms as such Subordinated Debt) shall not exceed, with respect to
any such acquisition, 60% of the purchase price of such acquisition
(including any Indebtedness (other than Subordinated Debt) incurred and/or
assumed in connection with any such acquisition) (or such greater
percentage as shall be reasonably satisfactory to the Administrative Agent
or, if any such purchase price shall be greater than $35,000,000, such
greater percentage as shall be satisfactory to the Required Lenders), or
(ii) if such Guarantee Obligation were
93
treated as Indebtedness, the incurrence of such Indebtedness in connection
with such acquisitions would be permitted by subsection 8.10(c);
(p) Guarantee Obligations incurred pursuant to the Guarantees or
otherwise in respect of Indebtedness permitted by subsection 8.2(a); and
(q) Guarantee Obligations under the Subordinated Subsidiary
Guarantees in respect of the Senior Subordinated Notes, provided that such
Guarantee Obligations are subordinated on the same terms as the
obligations of the Parent Borrower in respect of the Senior Subordinated
Notes are subordinated.
8.5 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, except:
(a) any Subsidiary of the Parent Borrower may be merged or
consolidated with or into the Parent Borrower (provided that the Parent
Borrower shall be the continuing or surviving corporation) or with or into
any one or more Wholly Owned Subsidiaries of the Parent Borrower (provided
that the Wholly Owned Subsidiary or Subsidiaries of the Parent Borrower
shall be the continuing or surviving corporation and provided further that
no Domestic Subsidiary may be merged or consolidated with or into a
Foreign Subsidiary unless the continuing or surviving entity is a Domestic
Subsidiary);
(b) any Subsidiary of the Parent Borrower may sell, lease, transfer
or otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Parent Borrower or to any Wholly Owned
Subsidiary of the Parent Borrower that is a Guarantor;
(c) any Foreign Subsidiary of the Parent Borrower may sell, lease,
transfer or otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to any other Foreign Subsidiary that is a Wholly
Owned Subsidiary of the Parent Borrower, provided that if the Foreign
Subsidiary that so disposes of its assets is a Foreign Subsidiary
Borrower, either (i) such Foreign Subsidiary Borrower shall,
simultaneously with such disposition, repay in full all outstanding Loans
made to it, cash collateralize (on terms reasonably satisfactory to the
Administrative Agent) any outstanding L/C Obligations in respect of
Letters of Credit issued for its account, and terminate its right to
borrow hereunder or (ii) the transferee of such assets shall be a Foreign
Subsidiary Borrower; and
(d) as expressly permitted by subsection 8.6.
8.6 Limitation on Sale of Assets. (a) Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock, to any Person other than the
Parent Borrower or any Wholly Owned Subsidiary of the Parent Borrower, except:
94
(i) the sale or other Disposition of obsolete or worn out property,
whether now owned or hereafter acquired, in the ordinary course of
business;
(ii) the sale or other Disposition of any property (including
Inventory) in the ordinary course of business;
(iii) the sale or discount without recourse of accounts receivable
or notes receivable arising in the ordinary course of business, or the
conversion or exchange of accounts receivable into or for notes
receivable, in connection with the compromise or collection thereof,
provided that, in the case of any Foreign Subsidiary of the Parent
Borrower, any such sale or discount may be with recourse if such sale or
discount is consistent with customary practice in such Foreign
Subsidiary's country of business and the aggregate amount of any such
recourse shall (to the extent such recourse is required by GAAP to be
included as Indebtedness on the consolidated balance sheet of Holding and
its consolidated subsidiaries) be included in the determination of such
Foreign Subsidiary's Indebtedness for purposes of subsection 8.2(i);
(iv) as permitted by subsection 8.5(b) or 8.5(c) or pursuant to Sale
and Leaseback Transactions permitted by subsection 8.12;
(v) the sale, transfer or discount of Receivables pursuant to any
Permitted Receivables Securitization, provided that upon the effectiveness
of any such Permitted Receivables Securitization, the Term Loans shall be
prepaid and the Revolving Credit Commitments shall be automatically and
permanently reduced to the extent required by subsections 4.4(c) and
4.4(i);
(vi) Dispositions of any assets or property by the Parent Borrower
or any Subsidiary of the Parent Borrower to any Wholly Owned Subsidiary of
the Parent Borrower, provided that the Wholly Owned Subsidiary has
executed each of the guarantees and security documents required pursuant
to subsection 8.16(b);
(vii) any other Asset Sales by the Parent Borrower or any of its
Subsidiaries the Net Cash Proceeds of which do not exceed $10,000,000 per
annum and $30,000,000 in the aggregate after the Effective Date and the
non-cash portion of the consideration for any such Asset Sale does not
exceed 25% thereof, provided that an amount equal to 100% of such Net Cash
Proceeds of any such Asset Sale less the Reinvested Amount is applied in
accordance with subsection 4.4(c);
(viii) the abandonment or other Disposition of patents, trademarks
or other intellectual property that are, in the reasonable judgment of the
Parent Borrower, no longer economically practicable to maintain or useful
in the conduct of the business of the Parent Borrower and its Subsidiaries
taken as a whole;
(ix) Dispositions permitted by subsection 8.9(m), provided that an
amount equal to 100% of the Net Cash Proceeds of any such Asset Sale less
the Reinvested Amount is applied in accordance with subsection 4.4(c);
95
(x) Dispositions of equipment to Agents and Owner/Operators,
including sales pursuant to lease or conditional sales agreements,
provided that an amount equal to 100% of the Net Cash Proceeds of any such
Asset Sale less the Reinvested Amount is applied in accordance with
subsection 4.4(c); and
(xi) the Disposition of any Subsidiary that is not a Material
Subsidiary.
(b) Convey, sell or otherwise transfer shares of Capital Stock of a
Foreign Subsidiary to Holding or any Domestic Subsidiary of Holding unless at
the time of such conveyance, sale or transfer (or promptly thereafter) Holding
or such Domestic Subsidiary shall execute and deliver to the Administrative
Agent a stock pledge agreement and take any necessary steps to perfect the
security interest to be created thereby (which security interest shall not apply
to (i) more than 65% of Holding's or such Domestic Subsidiary's ownership
interest in any Foreign Subsidiary or (ii) any ownership interest in a
non-Wholly Owned Foreign Subsidiary to the extent that the grant of such
security interest would violate the terms of any agreements under which the
Investment by Holding or any or its Subsidiaries was made therein).
8.7 Limitation on Loans and Dividends to Holding. Make any advance,
loan or extension or credit to Holding or declare or pay any dividend (other
than dividends payable solely in common stock of the Parent Borrower or options,
warrants or other rights to purchase common stock of the Parent Borrower) on, or
make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of Capital Stock of the Parent Borrower
or any warrants or options to purchase any such Capital Stock, whether now or
hereafter outstanding, or make any other distribution (other than distributions
payable solely in common stock of the Parent Borrower or options, warrants or
other rights to purchase common stock of the Parent Borrower) in respect
thereof, either directly or indirectly, whether in cash or property or in
obligations of the Parent Borrower or any Subsidiary, except that:
(a) the Parent Borrower and any of its Subsidiaries may make loans
and advances, and the Parent Borrower may pay cash dividends, to Holding
in an aggregate amount sufficient to allow Holding to pay expenses
incurred in the ordinary course of business in an aggregate amount not to
exceed $2,000,000 in any fiscal year;
(b) the Parent Borrower and any of its Subsidiaries may make loans
and advances, and the Parent Borrower may pay cash dividends, to Holding
in an aggregate amount sufficient to cover reasonable and necessary
expenses (including professional fees and expenses) incurred by Holding in
connection with (i) registration, public offerings and exchange listing of
equity or debt securities and maintenance of the same, (ii) compliance
with reporting obligations under federal or state laws or under this
Agreement or any of the other Loan Documents and (iii) indemnification and
reimbursement of directors, officers and employees in respect of
liabilities relating to their serving in any such capacity;
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(c) the Parent Borrower and any of its Subsidiaries may make loans
and advances, and the Parent Borrower may pay cash dividends, to Holding
in an aggregate amount sufficient to pay tax liabilities of Holding which
are paid in cash by Holding to any taxing authority;
(d) the Parent Borrower and any of its Subsidiaries may make loans
and advances, and the Parent Borrower may pay cash dividends, to Holding
in an aggregate amount sufficient to allow Holding to repurchase shares of
its common stock or options in respect thereof issued pursuant to any
Management Subscription Agreement, as any such agreement may be amended
from time to time, which may be entered into between Holding and certain
Management Investors, for an aggregate purchase price not to exceed
$10,000,000, provided that such amount shall be increased by (i) an amount
equal to $2,000,000 on each anniversary of the Effective Date, commencing
on the first anniversary of the Effective Date, and (ii) an amount equal
to the proceeds contributed in cash by Holding to the Parent Borrower of
any resales or new issuances of shares and options to any such Management
Investors, at any time after the initial issuances to any Management
Investors, together with the aggregate amount of deferred compensation
owed by the Parent Borrower or any of its Subsidiaries to any such
Management Investor that shall thereafter have been canceled, waived or
exchanged at any time after the initial issuances to any thereof in
connection with the grant to such Management Investor of the right to
receive or acquire shares of Holding common stock;
(e) the Parent Borrower and any of its Subsidiaries may make loans
and advances, and the Parent Borrower may pay cash dividends, to Holding
in an aggregate amount of up to $500,000 to allow Holding to pay interest
on the Holding Loan;
(f) after November 19, 2004, the Parent Borrower and any of its
Subsidiaries may make loans and advances, and the Parent Borrower may pay
cash dividends, to Holding in an aggregate amount sufficient to allow
Holding to pay scheduled cash dividends on the shares of Holding Preferred
Stock (if applicable) and to pay scheduled interest on the Holding Senior
Discount Notes and the Holding Subordinated Exchange Debentures (if
applicable), provided that, in each case, no Default or Event of Default
shall have occurred and be continuing or would result from the payment of
such cash dividend; and
(g) the Parent Borrower and any of its Subsidiaries may make loans
and advances, and the Parent Borrower may pay cash dividends, to Holding
in an aggregate amount sufficient to allow Holding to pay all fees and
expenses incurred in connection with the Acquisition, this Agreement and
the transactions expressly contemplated hereby and thereby.
8.8 Limitation on Capital Expenditures. Make or commit to make any
Capital Expenditures (excluding any expenses incurred in connection with normal
replacement and maintenance programs properly charged to current operations and
excluding any Reinvested Amounts); provided that the Parent Borrower and its
consolidated Subsidiaries may make Capital Expenditures in an amount not to
exceed, for any fiscal year of the Parent Borrower set forth below, the sum of
(a) the amount set forth opposite such fiscal year below:
Fiscal Year Amount
----------- ------
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1999 $45,000,000
2000 $55,000,000
2001 and thereafter $60,000,000
plus (b) an amount up to the Available Adjustment to the extent such amount is
used for Capital Expenditures for the development and implementation of an
e-commerce strategy or the development and implementation of new information
technology; provided that the unused amount of any Capital Expenditures
permitted to be made pursuant to the foregoing clause (a) during any fiscal year
and not made during such fiscal year may be carried over and expended during the
next succeeding fiscal year (any amount so carried over to be deemed the first
amount applied and expended for Capital Expenditures during such next succeeding
fiscal year).
8.9 Limitation on Investments, Loans and Advances. Make any advance,
loan, extension of credit or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of or any assets constituting a
business unit of, or make any other investment in (each an "Investment"), any
Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) Investments existing on the Effective Date and described in
Schedule 8.9(c), setting forth the respective amounts of such Investments
as of a recent date;
(d) Investments in notes receivable in connection with transactions
permitted by subsection 8.6(a)(iii);
(e) loans and advances to officers, directors or employees of
Holding, the Parent Borrower or any of their respective Subsidiaries (i)
in the ordinary course of business for travel and entertainment or
relocation expenses, (ii) existing on the Effective Date and described in
Schedule 8.9(c), (iii) made after the Effective Date for other purposes,
not to exceed (as to Holding and all its Subsidiaries), together with the
amount of all Guarantee Obligations permitted pursuant to subsection
8.4(f)(iii), $4,000,000 in the aggregate outstanding at any time or (iv)
relating to indemnification or reimbursement of any officers, directors or
employees in respect of liabilities relating to their serving in any such
capacity or as otherwise specified in subsection 8.11;
(f) Investments by the Parent Borrower in its Wholly Owned
Subsidiaries (other than any Receivables Subsidiary) and by such
Subsidiaries in the Parent Borrower and in Wholly Owned Subsidiaries of
the Parent Borrower (other than any Receivables Subsidiary);
(g) acquisitions expressly permitted by subsection 8.10;
(h) Investments of any of the Borrowers under Interest Rate
Protection Agreements relating to Indebtedness of such Borrower under this
Agreement, and Investments by the Parent Borrower and its Subsidiaries
under Permitted Hedging Arrangements;
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(i) any Investment by the Parent Borrower and its Subsidiaries
which, in the judgment of the Parent Borrower, is reasonably necessary in
connection with, and pursuant to, any Permitted Receivables
Securitization;
(j) Investments in the nature of pledges or deposits with respect to
leases or utilities provided to third parties in the ordinary course of
business or otherwise described in subsection 8.3(c), (d) or (f);
(k) Investments representing non-cash consideration received by the
Parent Borrower or any of its Subsidiaries in connection with any Asset
Sale, provided that in the case of any Asset Sale permitted under
subsection 8.6(a)(vii), such non-cash consideration constitutes not more
than 25% of the aggregate consideration received in connection with such
Asset Sale and any such non-cash consideration received by the Parent
Borrower or any of its Subsidiaries (other than Foreign Subsidiaries to
the extent that the Parent Borrower's obligations would be secured by a
pledge of such non-cash consideration) is pledged to the Administrative
Agent for the benefit of the Lenders pursuant to the Security Documents;
(l) Investments by the Parent Borrower or any of its Subsidiaries in
a Person in connection with a joint venture or similar arrangement in
respect of which no other co-investor or other Person has a greater legal
or beneficial ownership interest than the Parent Borrower or such
Subsidiary in an aggregate amount not to exceed at any time an amount
equal to $10,000,000, provided that such amount shall be reduced by the
aggregate principal amount of Indebtedness in respect of Guarantee
Obligations permitted by subsection 8.4(n);
(m) Investments representing evidences of Indebtedness, securities
or other property received from another Person by the Parent Borrower or
any of its Subsidiaries in connection with any bankruptcy proceeding or
other reorganization of such other Person or as a result of foreclosure,
perfection or enforcement of any Lien or exchange for evidences of
Indebtedness, securities or other property of such other Person held by
the Parent Borrower or any of its Subsidiaries, provided that any such
securities or other property received by the Parent Borrower or any of its
Subsidiaries (other than Foreign Subsidiaries (to the extent that the
Parent Borrower's obligations would be secured by a pledge of such
securities or other property) and any Insurance Subsidiary) is, to the
extent required under the Guarantee and Collateral Agreement, pledged to
the Administrative Agent for the benefit of the Lenders pursuant to the
Security Documents, and provided, further, that in the event that the
aggregate expected value of such securities or other property received
with respect to a Person is less than $250,000, the Parent Borrower or
such Subsidiary may, rather than pledge such securities and other property
to the Administrative Agent, dispose of such securities and other property
within 180 days of the receipt thereof so long as the Net Cash Proceeds of
such Disposition are utilized to prepay the Loans pursuant to subsection
4.4(c), and any such securities and other property not so disposed of by
such 180th day shall, to the extent required under the Guarantee and
Collateral Agreement, be pledged to the Administrative Agent for the
benefit of the Lenders pursuant to the Security Documents;
(n) loans and advances to Management Investors in connection with
the purchase by such Management Investors of Capital Stock of Holding of
up to $10,000,000 outstanding at any one
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time, provided that such amount shall be reduced by the aggregate
principal amount of Indebtedness in respect of Guarantee Obligations
permitted by subsection 8.4(b);
(o) loans of up to $20,000,000 outstanding at any one time to Agents
and Owner/Operators in the ordinary course of business for working capital
purposes, provided that such amount shall be reduced by the aggregate
principal amount of loans and advances in respect of Guarantee Obligations
permitted by subsection 8.4(l);
(p) advances to Agents and Owner/Operators in the ordinary course of
business for working capital purposes;
(q) Investments by the Parent Borrower and its Subsidiaries
represented by any Financing Lease or conditional sale of equipment by the
Parent Borrower or any of its Subsidiaries to Agents or Owner/Operators;
(r) Investments constituting, or acquired with amounts constituting,
reserves or surplus maintained by any Insurance Subsidiary in accordance
with any Requirement of Law in respect of obligations pursuant to
insurance policies issued by such Insurance Subsidiary in the ordinary
course of its insurance business;
(s) loans and advances by the Parent Borrower or any of its
Subsidiaries to Holding expressly permitted by subsection 8.7; and
(t) Investments not otherwise permitted by the preceding clauses of
this subsection 8.9 not to exceed in the aggregate $10,000,000.
8.10 Limitations on Certain Acquisitions. Acquire by purchase or
otherwise all the business or assets of, or stock or other evidences of
beneficial ownership of, any Person, except that the Parent Borrower and its
Subsidiaries shall be allowed to make any such acquisitions so long as:
(a) such acquisition is expressly permitted by subsection 8.5;
(b) the aggregate consideration (including cash and any Indebtedness
assumed in connection with such acquisitions) for all such acquisitions
made pursuant to this clause (b) since the Effective Date does not exceed
$35,000,000;
(c) (i) such acquisition is made at a time when the Senior Debt
Ratio, calculated on a pro forma basis after giving effect to such
acquisition (such calculation to be made in a manner reasonably
satisfactory to the Administrative Agent and to be evidenced by a
certificate in form and substance reasonably satisfactory to the
Administrative Agent signed by a Responsible Officer of the Parent
Borrower and delivered to the Administrative Agent (which shall promptly
deliver copies to each Lender) at least three Business Days prior to the
consummation of such acquisition), is less than 2.50 to 1.00 and the
Leverage Ratio (calculated on a pro forma basis in the manner set forth
above with respect to the Senior Debt Ratio) is less than 4.00 to 1.00 and
(ii) the aggregate consideration
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(including cash and any Indebtedness assumed in connection with such
acquisitions) for all such acquisitions pursuant to this clause (c) since
the Effective Date does not exceed $75,000,000; or
(d) the aggregate consideration for such acquisition consists
exclusively of Capital Stock thereof and no Indebtedness is assumed by the
Parent Borrower and or any of its Subsidiaries in connection with any such
acquisition pursuant to this clause (d);
provided in each case that, (x) the target of such acquisition has positive
EBITDA, calculated on a pro forma basis after giving effect to such acquisition
(such calculation to be made in a manner reasonably satisfactory to the
Administrative Agent and to be evidenced by a certificate in form and substance
reasonably satisfactory to the Administrative Agent signed by a Responsible
Officer of the Parent Borrower and delivered to the Administrative Agent (which
shall promptly deliver copies to each Lender) at least three Business Days prior
to the consummation of such acquisition) and (y) after giving effect thereto, no
Default or Event of Default shall occur as a result of such acquisition.
8.11 Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate of the
Parent Borrower unless such transaction is (a) otherwise permitted under this
Agreement, and (b) upon terms no less favorable to the Parent Borrower or such
Subsidiary, as the case may be, than it would obtain in a comparable arm's
length transaction with a Person which is not an Affiliate; provided that
nothing contained in this subsection 8.11 shall be deemed to prohibit:
(i) the Parent Borrower or any of its Subsidiaries from
entering into or performing any consulting, management or employment
agreements or other compensation arrangements with a director, officer or
employee of Holding or any of its Subsidiaries, provided that the annual
aggregate base compensation with respect to any such director, in its
capacity as such, is not in excess of $200,000;
(ii) the Parent Borrower or any of its Subsidiaries from
entering into or performing an agreement with CD&R for the rendering of
management consulting or financial advisory services for compensation not
to exceed in the aggregate $1,000,000 per year plus reasonable
out-of-pocket expenses;
(iii) the payment of transaction expenses in connection with
this Agreement, the Acquisition and the other transactions related hereto
and thereto (including, without limitation, a transaction fee to CD&R in
an amount not to exceed $5,000,000);
(iv) the Parent Borrower or any of its Subsidiaries from
entering into, making payments pursuant to and otherwise performing an
indemnification and contribution agreement in favor of CD&R, CD&R Fund V,
the Affiliates thereof and each person who becomes a director, officer,
agent or employee of Holding, the Parent Borrower or any of their
respective Subsidiaries, in respect of liabilities (A) arising under the
Securities Act, the Exchange Act and any other applicable securities laws
or otherwise, in connection with any offering of securities by Holding or
any of its Subsidiaries, (B) incurred to third parties for any action or
failure to act of Holding or any of its Subsidiaries, predecessors or
successors, (C) arising out of the performance by CD&R of
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management consulting or financial advisory services provided to Holding
or any of its Subsidiaries, (D) arising out of the fact that any
indemnitee was or is a director, officer, agent or employee of Holding or
any of its Subsidiaries, or is or was serving at the request of any such
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or enterprise or (E) to the
fullest extent permitted by Delaware or other applicable state law, out of
any breach or alleged breach by such indemnitee of his or her fiduciary
duty as a director or officer of Holding or any of its Subsidiaries;
(v) the Parent Borrower or any of its Subsidiaries from
performing any agreements or commitments with or to any Affiliate existing
on the Effective Date and described on Schedule 8.11(v); or
(vi) any transaction permitted under subsection 8.3(k),
8.4(b), 8.4(d), 8.4(f), 8.5, 8.7, 8.9(e), 8.9(n), 8.9(o), 8.9(p) or
8.9(q), or any transaction with a Wholly Owned Subsidiary of the Parent
Borrower.
For purposes of this subsection 8.11, (A) any transaction with any Affiliate
shall be deemed to have satisfied the standard set forth in subparagraph (b) of
the first sentence hereof if (i) such transaction is approved by a majority of
the Disinterested Directors of the Board of Directors of the Parent Borrower or
the applicable Subsidiary, or (ii) in the event that at the time of any such
transaction, there are no Disinterested Directors serving on the Board of
Directors of the Parent Borrower or such Subsidiary, such transaction shall be
approved by a nationally recognized expert with expertise in appraising the
terms and conditions of the type of transaction for which approval is required,
and (B) "Disinterested Director" shall mean, with respect to any Person and
transaction, a member of the Board of Directors of such Person who does not have
any material direct or indirect financial interest in or with respect to such
transaction.
8.12 Limitation on Sales and Leasebacks. Enter into any arrangement
with any Person providing for the leasing by the Parent Borrower or any
Subsidiary of real or personal property which has been or is to be sold or
transferred by the Parent Borrower or such Subsidiary to such Person or to any
other Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Parent Borrower or such
Subsidiary (any of such arrangements, a "Sale and Leaseback Transaction"), other
than in connection with any Disposition permitted under subsection 8.6., unless
(a) in the case of any Financing Lease pursuant to such arrangement, the
incurrence of such Financing Lease is permitted under subsection 8.2 or (b) in
the case of any other lease pursuant to such arrangements, (i) the lease
payments thereunder will be treated as an operating expense for purposes of
determining EBITDA and (ii) the aggregate Net Cash Proceeds from all Sale and
Leaseback Transactions permitted by this clause (b) shall not during the term of
this Agreement exceed $30,000,000 plus the aggregate amount of such Net Cash
Proceeds applied to prepay the Loans pursuant to subsection 4.4(c).
8.13 Limitations on Dispositions of Collateral. Convey, sell,
transfer, lease, or otherwise dispose of any of the Collateral, or attempt,
offer or contract to do so, except for (a) mergers, consolidations, sales,
leases, transfers or other Dispositions expressly permitted under subsection 8.5
and (b) sales or other Dispositions expressly permitted under subsection 8.6,
including sales of
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Inventory in the ordinary course of business; and the Administrative Agent
shall, and the Lenders hereby authorize the Administrative Agent to, execute
such releases of Liens and take such other actions as the Parent Borrower may
reasonably request in connection with the foregoing.
8.14 Limitation on Changes in Fiscal Year. Permit the fiscal year of
Holding, the Parent Borrower or any of its Subsidiaries to end on a day other
than the last Saturday of December or the last day of December.
8.15 Limitation on Negative Pledge Clauses. Enter into with any
Person any agreement, other than (a) this Agreement and the other Loan Documents
and (b) any industrial revenue or development bonds, purchase money mortgages,
acquisition agreements or Financing Leases or agreements in connection with any
Permitted Receivables Securitization permitted by this Agreement (in which
cases, any prohibition or limitation shall only be effective against the assets
financed or acquired thereby) or operating leases of real property entered into
in the ordinary course of business, which prohibits or limits the ability of the
Parent Borrower or any of its Subsidiaries (other than Foreign Subsidiaries and
Insurance Subsidiaries) to create, incur, assume or suffer to exist any Lien in
favor of the Lenders with respect to the obligations secured by the Security
Documents upon any of its property, assets or revenues, whether now owned or
hereafter acquired.
8.16 Limitation on Lines of Business; Creation of Subsidiaries. (a)
Enter into any business, either directly or through any Subsidiary, except for
those businesses of the same general type as those in which the Parent Borrower
and its Subsidiaries are engaged on the date of this Agreement or which are
related thereto, or permit any Insurance Subsidiary to engage in any business
other than the operation of a multiple-line property and liability insurance
program under the insurance laws of the States of Indiana and Illinois and
Ireland to insure Agents and Owner/Operators against loss from certain risks.
(b) Create any new Subsidiaries of the Parent Borrower other than
(i) any Receivables Subsidiary the relevant parent corporation of which shall
execute and deliver a stock pledge agreement and deliver or cause to be
delivered to the Administrative Agent the stock certificates representing all of
the outstanding Capital Stock of such new Receivables Subsidiary, together with
undated stock powers for each such certificate executed in blank by a duly
authorized officer of such parent corporation, or (ii) any other new Subsidiary
that (in the case of a new Domestic Subsidiary or a new Foreign Subsidiary
Borrower) shall execute and deliver to the Administrative Agent, as applicable,
the Guarantee and Collateral Agreement and appropriate Mortgages and other
security documents and take any necessary steps to perfect the security interest
to be created thereby and for which the relevant parent corporation (if such
parent corporation is the Parent Borrower or a Domestic Subsidiary) shall
execute and deliver to the Administrative Agent a stock pledge agreement and
take any necessary steps to perfect the security interest to be created thereby
(which security interest shall not apply to more than 65% of such parent
corporation's ownership interest in any Foreign Subsidiary Borrower).
8.17 Limitation on Optional Payments and Modifications of Debt
Instruments and other Material Agreements. (a) Make any optional payment,
prepayment, repurchase or redemption of the Senior Subordinated Notes or make
any payments on account of or for a sinking or other analogous fund for the
repurchase, redemption, defeasance or other acquisition thereof (other than
scheduled
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payments of principal and interest and payments of, in each case, fees and
expenses required by the Senior Subordinated Notes or the Senior Subordinated
Note Indenture, only to the extent permitted under the subordination provisions,
if any, applicable thereto).
(b) Make any amendment, supplement, modification or waiver of any of
the terms of the Senior Subordinated Notes or the Senior Subordinated Note
Indenture (i) which amends or modifies the subordination provisions contained in
the Senior Subordinated Notes or the Senior Subordinated Note Indenture, (ii)
which shortens the fixed maturity or increases the principal amount of, or
increases the rate or shortens the time of payment of interest on, or increases
the amount or shortens the time of payment of any principal or premium payable
whether at maturity, at a date fixed for prepayment or by acceleration or
otherwise of the Indebtedness evidenced by the Senior Subordinated Notes or
increases the amount of, or accelerates the time of payment of, any fees or
other amounts payable to any holder thereof in connection therewith, (iii) which
relates to any material affirmative or negative covenants or any events of
default or remedies thereunder and the effect of which, in the Parent Borrower's
good faith judgment, is to subject the Parent Borrower, or any of its
Subsidiaries, to any more onerous or more restrictive provisions or (iv) which
otherwise adversely affects, in the Parent Borrower's good faith judgment, the
interests of the Lenders as senior creditors with respect to the Senior
Subordinated Notes or the interests of the Lenders hereunder in any material
respect.
(c) In the event of the occurrence of a Change of Control, make any
payment, prepayment, repurchase or redemption of any Senior Subordinated Notes,
or make any payments on account of or for a sinking or other analogous fund for
the repurchase, redemption, defeasance or other acquisition thereof, unless the
Parent Borrower and the other Borrowers shall have (i) made payment in full of
the Loans, all Reimbursement Obligations and any other amounts then due and
owing to any Lender or the Administrative Agent hereunder and under any Note and
cash collateralized the L/C Obligations on terms reasonably satisfactory to the
Administrative Agent or (ii) made an offer to pay the Loans, all Reimbursement
Obligations and any amounts then due and owing to each Lender and the
Administrative Agent hereunder and under any Note and to cash collateralize the
L/C Obligations in respect of each Lender and shall have made payment in full
thereof to each such Lender or the Administrative Agent which has accepted such
offer and cash collateralized the L/C Obligations in respect of each such Lender
which has accepted such offer.
(d) Designate any Indebtedness (other than the obligations hereunder
and under the other Loan Documents) as "Designated Senior Indebtedness" for the
purposes of any Indenture.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Any of the Borrowers shall fail to pay any principal of any Loan
or any Reimbursement Obligation when due in accordance with the terms
hereof; or any of the Borrowers shall fail to pay any interest on any
Loan, or any other amount payable hereunder, within five days after any
such interest or other amount becomes due in accordance with the terms
hereof; or
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(b) Any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document (or in any amendment,
modification or supplement hereto or thereto) or which is contained in any
certificate furnished at any time by or on behalf of any Loan Party
pursuant to this Agreement or any such other Loan Document shall prove to
have been incorrect in any material respect on or as of the date made or
deemed made; or
(c) Any Loan Party shall default in the observance or performance of
any agreement contained in (i) subsection 7.7(a), subsection 7.11 or
Section 8 of this Agreement or (ii) Section 5.4 of the Guarantee and
Collateral Agreement, and, in the case of a default in the observance or
performance of its obligations under subsection 7.7(a) hereof, such
default shall have continued unremedied for a period of two days after a
Responsible Officer of the Parent Borrower shall have discovered or should
have discovered such default; or
(d) Any Loan Party shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section 9),
and such default shall continue unremedied for a period ending on the
earlier of (i) the date 32 days after a Responsible Officer of the Parent
Borrower shall have discovered or should have discovered such default and
(ii) the date 15 days after written notice has been given to the Parent
Borrower by the Administrative Agent or the Required Lenders; or
(e) Holding or any of its Subsidiaries shall (i) default in any
payment of principal of or interest on any Indebtedness (other than the
Holding Loan, the Loans and the Reimbursement Obligations) in excess of
$7,500,000 or in the payment of any Guarantee Obligation in excess of
$7,500,000, beyond the period of grace (not to exceed 30 days), if any,
provided in the instrument or agreement under which such Indebtedness or
Guarantee Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any
Indebtedness or Guarantee Obligation referred to in clause (i) above or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of
which default or other event or condition is to cause, or to permit the
holder or holders of such Indebtedness or beneficiary or beneficiaries of
such Guarantee Obligation (or a trustee or agent on behalf of such holder
or holders or beneficiary or beneficiaries) to cause, with the giving of
notice or lapse of time if required, such Indebtedness to become due prior
to its stated maturity or such Guarantee Obligation to become payable (an
"Acceleration"), and such time shall have lapsed and, if any notice (a
"Default Notice") shall be required to commence a grace period or declare
the occurrence of an event of default before notice of Acceleration may be
delivered, such Default Notice shall have been given; or
(f) (i) Holding, any Borrower or any Material Subsidiary shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets,
or Holding, any Borrower or any Material Subsidiary shall make a general
assignment for the benefit of
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its creditors; or (ii) there shall be commenced against Holding, any
Borrower or any Material Subsidiary any case, proceeding or other action
of a nature referred to in clause (i) above which (A) results in the entry
of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged, unstayed or unbonded for a period of 60
days; or (iii) there shall be commenced against Holding, any Borrower or
any Material Subsidiary any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results in
the entry of an order for any such relief which shall not have been
vacated, discharged, stayed or bonded pending appeal within 60 days from
the entry thereof; or (iv) Holding, any Borrower or any Material
Subsidiary shall take any corporate action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; or (v) Holding, any
Borrower or any Material Subsidiary shall be generally unable to, or shall
admit in writing its general inability to, pay its debts as they become
due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Parent Borrower or any Commonly Controlled Entity, (iii) a Reportable
Event shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is reasonably
likely to result in the termination of such Plan for purposes of Title IV
of ERISA (other than a standard termination pursuant to Section 4041(b) of
ERISA), (iv) any Single Employer Plan shall terminate for purposes of
Title IV of ERISA, (v) the Parent Borrower or any Commonly Controlled
Entity shall, or is reasonably likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of,
a Multiemployer Plan, (vi) the occurrence or expected occurrence of any
event or condition which results or is reasonably likely to result in the
Parent Borrower's or any Commonly Controlled Entity's becoming responsible
for any liability in respect of a Former Plan, or (vii) any other event or
condition shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (vii) above, such event or condition, together with
all other such events or conditions, if any, would be reasonably expected
to result in liability which would have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against
Holding or any of its Subsidiaries involving in the aggregate at any time
a liability (net of any insurance or indemnity payments actually received
in respect thereof prior to or within 60 days from the entry thereof, or
to be received in respect thereof in the event any appeal thereof shall be
unsuccessful) of $7,500,000 or more, and all such judgments or decrees
shall not have been vacated, discharged, stayed or bonded pending appeal
within 60 days from the entry thereof; or
(i) (i) Any of the Security Documents shall cease for any reason to
be in full force and effect (other than pursuant to the terms hereof or
thereof), or any Loan Party which is a party to any of the Security
Documents shall so assert in writing, or (ii) the Lien created by any of
the Security Documents shall cease to be perfected and enforceable in
accordance with its terms or of the same effect as to perfection and
priority purported to be created thereby with respect to any significant
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portion of the Collateral (other than in connection with any termination
of such Lien in respect of any Collateral as permitted hereby or by any
Security Document), and such failure of such Lien to be perfected and
enforceable with such priority shall have continued unremedied for a
period of 20 days; or
(j) Any Guarantee shall cease for any reason to be in full force and
effect (other than pursuant to the terms hereof or thereof) or any
Guarantor shall so assert in writing; or
(k) The Senior Subordinated Notes or the guarantees thereof, for any
reason, shall not be or shall cease to be validly subordinated as provided
therein and in the Senior Subordinated Note Indenture to the monetary
obligations of the Parent Borrower and its Subsidiaries under this
Agreement, any Notes and the other Loan Documents; or
(l) A Change of Control shall have occurred; or
(m) Any event entitling the Persons financing Receivables pursuant
to a Permitted Receivables Securitization to stop financing such
Receivables shall have occurred and be continuing and such Person shall
have stopped financing such Receivables; or
(n) Any Loan Document (other than this Agreement, any of the
Security Documents or any Guarantee) shall cease for any reason to be in
full force and effect (other than pursuant to the terms hereof or thereof)
or any Loan Party shall so assert in writing;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to any Borrower,
automatically the Revolving Credit Commitments shall immediately terminate and
the Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) and any Notes
shall immediately become due and payable, and (B) if such event is any other
Event of Default, either or both of the following actions may be taken: (i) with
the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Parent Borrower, declare the Revolving Credit Commitments to be terminated
forthwith, whereupon the Revolving Credit Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, the Administrative
Agent may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Parent Borrower, declare the Loans hereunder (with
accrued interest thereon) and all other amounts owing under this Agreement
(including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) and any Notes to be due and payable
forthwith, whereupon the same shall immediately become due and payable.
With respect to any Letter of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph, the applicable Borrower in respect of such
Letter of Credit shall at such time deposit in a cash collateral account opened
by the Administrative Agent an amount equal to the aggregate then undrawn and
unexpired
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amount of such Letter of Credit. Each Borrower hereby grants to the
Administrative Agent, for the benefit of the Issuing Lender and the L/C
Participants, a security interest in such cash collateral to secure all
obligations of such Borrower in respect of such Letter of Credit under this
Agreement and the other Loan Documents. Each Borrower shall execute and deliver
to the Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, such further documents and instruments as the Administrative Agent
may request to evidence the creation and perfection of such security interest in
such cash collateral account. Amounts held in such cash collateral account shall
be applied by the Administrative Agent to the payment of drafts drawn under such
Letter of Credit, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be applied to
repay other obligations of the Borrowers hereunder and under any Notes. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of
the Borrowers hereunder and under any Notes shall have been paid in full, the
balance, if any, in such cash collateral account shall be returned to the
Borrowers.
Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 10. THE ADMINISTRATIVE AGENT AND THE OTHER REPRESENTATIVES
10.1 Appointment. Each Lender hereby irrevocably designates and
appoints Chase as the Administrative Agent of such Lender under this Agreement
and the other Loan Documents, and each such Lender irrevocably authorizes Chase,
as the Administrative Agent for such Lender, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent and the Other Representatives shall not have any duties or
responsibilities, except, in the case of the Administrative Agent and the Other
Representatives, those expressly set forth herein, or any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Administrative Agent or the Other
Representatives.
10.2 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact, and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact or counsel selected by it with reasonable care.
10.3 Exculpatory Provisions. None of the Administrative Agent or any
Other Representative nor any of their officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by such Person under or in connection with this
Agreement or any other Loan Document (except for the gross negligence or willful
misconduct of such Person or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates) or (ii) responsible in any manner to any of the
Lenders for any recitals, statements,
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representations or warranties made by any Borrower or any other Loan Party or
any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any Notes or any
other Loan Document or for any failure of any Borrower or any other Loan Party
to perform its obligations hereunder or thereunder. Neither the Administrative
Agent nor any Other Representative shall be under any obligation to any Lender
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Borrower or any
other Loan Party. Each Lender agrees that, except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder or given to the Administrative Agent for the
account of or with copies for the Lenders, the Administrative Agent and the
Other Representatives shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
any Borrower or any other Loan Party which may come into the possession of the
Administrative Agent and the Other Representatives or any of their officers,
directors, employees, agents, attorneys-in-fact or affiliates.
10.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrowers),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified as between itself and the Lenders
in failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders and/or such other requisite percentage of the Lenders as is
required pursuant to subsection 11.1 as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and any
Notes and the other Loan Documents in accordance with a request of the Required
Lenders and/or such other requisite percentage of the Lenders as is required
pursuant to subsection 11.1, and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Loans.
10.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
the Parent Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action reasonably promptly with respect to such Default or Event of
Default as shall be directed by the Required Lenders and/or such other requisite
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percentage of the Lenders as is required pursuant to subsection 11.1; provided
that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
10.6 Acknowledgments and Representations by Lenders. Each Lender
expressly acknowledges that none of the Administrative Agent or the Other
Representatives nor any of their officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations or warranties to it
and that no act by the Administrative Agent or any Other Representative
hereafter taken, including any review of the affairs of any Borrower or any
other Loan Party, shall be deemed to constitute any representation or warranty
by the Administrative Agent or such Other Representative to any Lender. Each
Lender represents to the Administrative Agent, the Other Representatives and
each of the Loan Parties that, independently and without reliance upon the
Administrative Agent, the Other Representatives or any other Lender, and based
on such documents and information as it has deemed appropriate, it has made and
will make its own appraisal of and investigation into the business, operations,
property, financial and other condition and creditworthiness of each of the
Borrowers and the other Loan Parties, it has made its own decision to make its
Loans hereunder and enter into this Agreement and it will make its own decisions
in taking or not taking action under this Agreement and the other Loan
Documents. Each Lender represents to each other party hereto that it is a bank,
savings and loan association or other similar savings institution, insurance
company, investment fund or company or other financial institution which makes
or acquires commercial loans in the ordinary course of its business, that it is
participating hereunder as a Lender for its account and for such commercial
purposes, and that it has the knowledge and experience to be and is capable of
evaluating the merits and risks of being a Lender hereunder. Each Lender
acknowledges and agrees to comply with the provisions of subsection 11.6
applicable to the Lenders. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Administrative Agent
hereunder or given to the Administrative Agent for the account of or with copies
for the Lenders, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Borrower or any other Loan
Party which may come into the possession of the Administrative Agent or any of
its officers, directors, employees, agents, attorneys-in-fact or affiliates.
10.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent and the Other Representatives (provided that the Term Loan
Lenders shall have no obligation to indemnify the Issuing Lender) in their
capacities as such (to the extent not reimbursed by the Parent Borrower and
without limiting the obligation of the Parent Borrower or any of the other Loan
Parties to do so), ratably according to their respective Total Credit
Percentages in effect on the date on which indemnification is sought under this
subsection (or, if indemnification is sought after the date upon which the
Revolving Credit Commitments shall have terminated and the Loans shall have been
paid in full, ratably in accordance with their Total Credit Percentages
immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against the Administrative Agent or any
Other Representative in any way relating to or arising out of this
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Agreement, any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by the Administrative Agent or any Other
Representative under or in connection with any of the foregoing; provided that
no Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements to the extent resulting from the Administrative
Agent's or any Other Representative's gross negligence or willful misconduct.
The obligations to indemnify the Issuing Lender shall be ratable among the
Revolving Credit Lenders in accordance with their respective Revolving Credit
Commitments (or, if the Revolving Credit Commitments have been terminated, the
outstanding principal amount of their respective Revolving Credit Loans and L/C
Obligations and their respective participating interests in the outstanding
Letters of Credit). The agreements in this subsection shall survive the payment
of the Loans and all other amounts payable hereunder.
10.8 Administrative Agent and Other Representatives in Their
Respective Individual Capacities. The Administrative Agent, the Other
Representatives and their affiliates may make loans to, accept deposits from and
generally engage in any kind of business with any Borrower or any other Loan
Party as though the Administrative Agent and the Other Representatives were not
the Administrative Agent and the Other Representatives hereunder and under the
other Loan Documents. With respect to Loans made or renewed by them and any Note
issued to them and with respect to any Letter of Credit issued or participated
in by them, the Administrative Agent and the Other Representatives shall have
the same rights and powers under this Agreement and the other Loan Documents as
any Lender and may exercise the same as though they were not the Administrative
Agent or an Other Representative, and the terms "Lender" and "Lenders" shall
include the Administrative Agent in its individual capacity.
10.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 10 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent shall be
approved by the Parent Borrower (such approval not to be unreasonably withheld),
whereupon such successor agent shall succeed to the rights, powers and duties of
the Administrative Agent, and the term "Administrative Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this subsection shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.
10.10 Swing Line Lender. The provisions of this Section 10 shall
apply to the Swing Line Lender in its capacity as such to the same extent that
such provisions apply to the Administrative Agent.
10.11 Release of Liens in Connection with Permitted Receivables
Securitization. In connection with a Permitted Receivables Securitization, the
Parent Borrower may deliver to the Administrative Agent a written request for
release identifying the relevant Receivables and the terms of such Permitted
Receivables Securitization in reasonable detail together with a certification by
the Parent
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Borrower stating that such transaction is in compliance with this Agreement. The
Administrative Agent shall execute and deliver to the Parent Borrower (at the
sole cost and expense of the Parent Borrower) all releases and other documents
(including, without limitation, Uniform Commercial Code termination statements)
necessary or reasonably desirable for the release of the Liens created by the
Guarantee and Collateral Agreement on such Receivables as the Parent Borrower
may reasonably request, provided that the Loans have been prepaid and/or the
Revolving Credit Commitments shall have been reduced in accordance with
subsection 4.4. Each of the Lenders hereby authorizes the Administrative Agent
to deliver such releases or other documents.
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. (a) Neither this Agreement nor any
other Loan Document, nor any terms hereof or thereof, may be amended,
supplemented or modified except in accordance with the provisions of this
subsection. The Required Lenders may, or, with the written consent of the
Required Lenders, the Administrative Agent may, from time to time, (1) enter
into with the Borrowers and the other Loan Parties, as the case may be, written
amendments, supplements or modifications hereto and to the other Loan Documents
for the purpose of adding any provisions to this Agreement or the other Loan
Documents or changing in any manner the rights or obligations of the Lenders or
of the Borrowers and the other Loan Parties, as the case may be, hereunder or
thereunder or (2) waive at the Parent Borrower's or another Loan Party's
request, on such terms and conditions as the Required Lenders or the
Administrative Agent, as the case may be, may specify in such instrument, any of
the requirements of this Agreement or the other Loan Documents or any Default or
Event of Default and its consequences; provided, however, that no such waiver
and no such amendment, supplement or modification shall:
(i) reduce the amount or extend the scheduled date of maturity
of any Loan or any Reimbursement Obligation or of any scheduled
installment thereof, or reduce the stated rate of any interest or fee
payable hereunder or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Lender's
Revolving Credit Commitment or change the currency in which any Loan or
Reimbursement Obligation is payable, in each case without the consent of
each Lender directly affected thereby,
(ii) amend, modify or waive any provision of this subsection
11.1 or reduce the percentage specified in the definition of Required
Lenders or of Required Release Lenders, or consent to the assignment or
transfer by any Loan Party of any of its rights and obligations under this
Agreement and the other Loan Documents (other than pursuant to subsection
8.5 or 11.1(b)), in each case without the written consent of all the
Lenders,
(iii) release any Guarantee or, in the aggregate, a material
portion of the Collateral without the consent of the Required Release
Lenders, except as expressly permitted hereby or by any Guarantee or
Security Document (as such documents are in effect on the date hereof or,
if later, the date of execution and delivery thereof in accordance with
the terms hereof),
(iv) amend, modify or waive any provision of (x) subsection
2.6 (to the extent such subsection 2.6 relates to the Tranche A Term
Loans) or 2.7 without the written consent of
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Tranche A Term Loan Lenders, the Tranche A Term Loan Percentages of which
aggregate at least 51% or (y) subsection 2.6 (to the extent such
subsection 2.6 relates to the Tranche B Term Loans) or 2.8 without the
written consent of Tranche B Term Loan Lenders the Tranche B Term Loan
Percentages of which aggregate at least 51%,
(v) amend, modify or waive any provision of subsection 2.1,
2.2, 2.3, 2.4 or 2.5 or Section 3 without the written consent of the
Revolving Credit Lenders, the Revolving Credit Commitment Percentages of
which aggregate at least 51%,
(vi) amend, modify or waive any provision of Section 10
without the written consent of the then Administrative Agent and of any
Other Representative affected thereby,
(vii) amend, modify or waive any prepayment required by
subsection 4.4(c) or 4.4(d), or the order of application of prepayments
specified in subsection 4.4(f), without the consent of (x) Revolving
Credit Lenders, the Revolving Credit Commitment Percentages of which
aggregate at least 51%, (y) Tranche A Term Loan Lenders, the Tranche A
Term Loan Percentages of which aggregate at least 51% and (z) Tranche B
Term Loan Lenders, the Tranche B Term Loan Percentages of which aggregate
at least 51%,
(viii) amend, modify or waive any provision of subsection
4.4(g) without the consent of Tranche B Term Loan Lenders, the Tranche B
Term Loan Percentages of which aggregate at least 51%,
(ix) amend, modify or waive any provision of the Swing Line
Note (if any) or subsection 2.5 without the written consent of the Swing
Line Lender and each other Lender, if any, which holds a participation in
the Swing Line Loan pursuant to subsection 2.5(d),
(x) amend, modify or waive the provisions of any Letter of
Credit or any L/C Obligation without the written consent of the Issuing
Lender and each affected L/C Participant,
(xi) amend, modify or waive any provision of any Security
Document that provides for the ratable sharing by the Lenders of the
proceeds of any realization on the Collateral to provide for a non-ratable
sharing thereof, without the consent of (x) Revolving Credit Lenders the
Revolving Credit Commitment Percentages of which aggregate at least 51%,
(y) Tranche A Term Loan Lenders the Tranche A Term Loan Percentages of
which aggregate at least 51% and (z) Tranche B Term Loan Lenders the
Tranche B Term Loan Percentages of which aggregate at least 51%, or
(xii) require any Lender to make Loans having an Interest
Period of longer than six months without the consent of such Lender.
Any waiver and any amendment, supplement or modification pursuant to this
subsection 11.1 shall apply to each of the Lenders and shall be binding upon the
Borrowers, the other Loan Parties, the Lenders, the Administrative Agent and all
future holders of the Loans. In the case of any waiver, the Borrowers, the other
Loan Parties, the Lenders and the Administrative Agent shall be restored to
their former position and rights hereunder and under the other Loan Documents,
and any Default or Event of
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Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
(b) Schedule III and Schedule IV may be amended, so long as no
Default or Event of Default shall have occurred and be continuing, as follows:
(i) Schedule IV will be amended to add Subsidiaries as
additional Foreign Subsidiary Borrowers upon (A) execution and delivery by
the Parent Borrower, such additional Foreign Subsidiary Borrowers and the
Administrative Agent, of a Joinder Agreement, substantially in the form of
Exhibit K (a "Joinder Agreement"), providing for such Subsidiaries to
become Foreign Subsidiary Borrowers hereunder and Granting Parties,
Grantors and Pledgors under and as defined in the Guarantee and Collateral
Agreement (or shall otherwise enter into collateral and security documents
reasonably satisfactory to the Administrative Agent and providing, to the
extent reasonably practicable under relevant law, substantially the
equivalent of the lien and security interests contemplated to be provided
by Granting Parties, Grantors and Pledgors under the Guarantee and
Collateral Agreement), (B) delivery to the Administrative Agent of (w) in
the case of any Foreign Subsidiary Borrower the Capital Stock of which is
held by a Domestic Subsidiary, a stock pledge agreement (or, if the parent
corporation of such Foreign Subsidiary Borrower is a party to the
Guarantee and Collateral Agreement, a pledge pursuant to such agreement)
covering the Capital Stock of such Foreign Subsidiary Borrower, together
with any documents and instruments necessary to perfect the security
interest to be created thereby (which pledge shall not apply to more than
65% of such parent corporation's ownership interest in any such Foreign
Subsidiary Borrower), (x) corporate resolutions, other corporate
documents, certificates and legal opinions in respect of such additional
Foreign Subsidiary Borrowers substantially equivalent to comparable
documents delivered on the Effective Date in respect of the Foreign
Subsidiary Borrowers party to this Agreement on the Effective Date or, if
there are no Foreign Subsidiary Borrowers party to this Agreement on the
Effective Date, in respect of the Loan Parties on the Effective Date, (y)
a certificate of a Responsible Officer of the Parent Borrower stating that
such Subsidiaries are "Restricted Subsidiaries" for all purposes of each
of the Indentures and (z) such other documents with respect thereto as the
Administrative Agent shall reasonably request, and (C) execution and
delivery by the Parent Borrower, such Foreign Subsidiary Borrower, all of
the Revolving Credit Lenders and the Administrative Agent of a written
instrument providing for such amendment; provided that the Parent Borrower
and its Subsidiaries shall not be required to comply with the requirements
of the foregoing clauses (w), (x), (y) or (z) if the Administrative Agent,
in its sole discretion, determines that the cost of such compliance is
excessive in relation to the value of the collateral security to be
afforded thereby; provided, further, that no document described in the
foregoing clauses (w), (x), (y) or (z) shall be required, or the form of
such document shall be modified, to the extent required to avoid (A) any
violation of applicable law or (B) any violation of the provisions of any
joint venture or other material agreement governing or binding such
Domestic Subsidiary or other Subsidiary. Any Domestic Subsidiary or other
Subsidiary that cannot execute such a document or whose document must be
amended for the foregoing reasons shall promptly upon any change of law or
waiver or lapse of the applicable contractual restriction enter into such
document or amend the existing document to comply with this subsection
11.1(b)(i) in a manner satisfactory to the Administrative Agent.
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(ii) Schedule IV will be amended to remove any Subsidiary as a
Foreign Subsidiary Borrower upon execution and delivery by the Parent
Borrower to the Administrative Agent of a written notification to such
effect and repayment in full of all Loans made to such Foreign Subsidiary
Borrower, cash collateralization of all L/C Obligations in respect of
Letters of Credit issued for the account of such Foreign Subsidiary
Borrower and repayment in full of all other amounts owing by such Foreign
Subsidiary Borrower under this Agreement and the other Loan Documents.
(iii) Schedule III will be amended to add additional
Designated Foreign Currencies upon execution and delivery by the Parent
Borrower, all of the Revolving Credit Lenders and the Administrative Agent
of a written instrument providing for such amendment.
(c) In order to permit the Borrowers to enter into a replacement
working capital facility as contemplated by subsection 8.2(h), on or after the
Termination Date the Administrative Agent and the Loan Parties shall execute
such documents, including, without limitation, such amendments to the Security
Documents and the other Loan Documents, and take such other actions, as shall be
necessary to afford the lenders under such replacement working capital facility
the substantive realization of the benefits intended to be created by such
documents in favor of the Revolving Credit Lenders. Each of the Lenders hereby
authorizes the Administrative Agent to execute such documents and take such
actions as are required by this subsection 11.1(c).
11.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, or, in the case of delivery by a nationally recognized overnight
courier, when received, addressed as follows in the case of the Borrowers and
the Administrative Agent, and as set forth in Schedule I in the case of the
other parties hereto, or to such other address as may be hereafter notified by
the respective parties hereto and any future holders of the Loans:
The Borrowers: c/o North American Van Lines, Inc.
5001 U.S. Highway 30 West
P.O. Box 988
Fort Wayne, Indiana 46801-0988
Attention: General Counsel
Telecopy: (219) 429-3135
Telephone: (219) 429-2511
with a copy to: Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Attention: William Beekman, Esq.
Telecopy: (212) 909-6836
Telephone: (212) 909-6000
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The Administrative The Chase Manhattan Bank
Agent, the Swing 270 Park Avenue
Line Lender and New York, New York 10017
the Issuing Lender Attention: Richard W. Duker
Telecopy: (212) 972-9854
Telephone: (212) 270-3057
with a copy to: The Chase Manhattan Bank
c/o The Loan & Agency Services Group
One Chase Manhattan Plaza
8th Floor
New York, New York 10081
Attention: Janet Belden
Telecopy: (212) 552-5658
Telephone: (212) 552-7277
and, if to the Issuing Chase Manhattan Bank Delaware
Lender, with an Corporate Banking Department
additional copy to: 8th Floor
1201 Market Street
Wilmington, Delaware 19801
Attention: Michael Handago
Telecopy: (302) 428-3390
Telephone: (302) 428-3311
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.3, 2.9, 3.2, 4.2, 4.4 or 4.8 shall not
be effective until received.
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent, any Lender or any
Loan Party, any right, remedy, power or privilege hereunder or under the other
Loan Documents shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
11.4 Survival of Representations and Warranties. All representations
and warranties made hereunder and in the other Loan Documents (or in any
amendment, modification or supplement hereto or thereto) and in any certificate
delivered pursuant hereto or such other Loan Documents shall survive the
execution and delivery of this Agreement and the making of the Loans hereunder.
11.5 Payment of Expenses and Taxes. The Parent Borrower agrees (a)
to pay or reimburse the Administrative Agent and the Other Representatives for
all their reasonable out-of-pocket costs and expenses incurred in connection
with the preparation, execution and delivery of, and any amendment, supplement,
waiver or modification to, this Agreement and the other Loan Documents and any
other
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documents prepared in connection herewith or therewith, and the consummation and
administration of the transactions (including the syndication of the Revolving
Credit Commitments and Term Loans, the Administrative Agent's due diligence
investigation and any collateral audit) contemplated hereby and thereby,
including, without limitation, the reasonable fees and disbursements of one firm
of counsel and of local counsel to the Administrative Agent and the Other
Representatives, (b) to pay or reimburse each Lender, each Other Representative
and the Administrative Agent for all its respective reasonable costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the reasonable fees and disbursements
of one firm of counsel and of local counsel to the Administrative Agent, the
Other Representatives and the several Lenders, and any reasonable Environmental
Costs arising out of or in any way relating to any Loan Party or any property in
which any Loan Party has had any interest at any time, (c) to pay, and indemnify
and hold harmless each Lender, the Administrative Agent and the Other
Representatives from and against, any and all recording and filing fees and any
and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other similar taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, and indemnify and hold harmless each Lender, the
Administrative Agent and the Other Representatives (and their respective
directors, trustees, officers, employees, agents, successors and assigns) from
and against, any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever (whether or not caused by any such Person's own
negligence (other than gross negligence) and including, without limitation, the
reasonable fees and disbursements of counsel) with respect to the execution,
delivery, enforcement, performance and administration of this Agreement, the
other Loan Documents and any such other documents (regardless of whether the
Administrative Agent, any such Other Representative or any Lender is a party to
the litigation or other proceeding giving rise thereto), including, without
limitation, any of the foregoing relating to the use of proceeds of the Loans or
the violation of, noncompliance with, or liability under, any Environmental Laws
or any orders, requirements or demands of Governmental Authorities related
thereto applicable to the operations of the Parent Borrower, any of its
Subsidiaries or any of the Properties (all the foregoing in this clause (d),
collectively, the "Indemnified Liabilities"), provided that the Parent Borrower
shall not have any obligation hereunder to the Administrative Agent, any such
Other Representative or any Lender with respect to Environmental Costs or
Indemnified Liabilities arising from (i) the gross negligence or willful
misconduct of the Administrative Agent, any Other Representative or any such
Lender (or any of their respective directors, officers, employees, agents,
successors and assigns) or (ii) legal proceedings commenced against the
Administrative Agent, any Other Representative or any such Lender by any
securityholder or creditor thereof arising out of and based upon rights afforded
any such securityholder or creditor solely in its capacity as such.
Notwithstanding the foregoing, except as provided in clauses (b) and (c) above,
the Parent Borrower shall have no obligation under this subsection 11.5 to the
Administrative Agent, any Other Representative or any Lender with respect to any
tax, levy, impost, duty, charge, fee, deduction or withholding imposed, levied,
collected, withheld or assessed by any Governmental Authority. The agreements in
this subsection shall survive repayment of the Loans and all other amounts
payable hereunder.
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11.6 Successors and Assigns; Participations and Assignments. (a)
This Agreement shall be binding upon and inure to the benefit of the Borrowers
party hereto, the Lenders, the Administrative Agent, the Other Representatives,
all future holders of the Loans and their respective successors and assigns,
except that none of the Borrowers may, other than in accordance with subsection
8.5 or 11.1(b), assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of each Lender.
(b) Any Lender may, 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 Note held by such Lender, any
Revolving Credit Commitment of such Lender or any other interest of such Lender
hereunder and under the other Loan Documents; provided that (unless the Parent
Borrower and the Administrative Agent otherwise consent in writing) no such
participating interests shall be in an aggregate principal amount of less than
(i) in the case of Tranche A Term Loans and Revolving Credit Commitments,
$5,000,000 in the aggregate (or, if less, the full amount of such selling
Lender's Revolving Credit Loans, Tranche A Term Loans and Revolving Credit
Commitments) or (ii) in the case of Tranche B Term Loans, $5,000,000 (or, if
less, the full amount of such selling Lender's Tranche B Term Loans). Such sale
of participating interests need not be ratable as among the Tranche A Term
Loans, the Revolving Credit Commitments and the Tranche B Term Loans of such
Lender. In the event of any such sale by a Lender of a participating interest to
a Participant, such Lender's obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Loan (and any Note evidencing such Loan) for all purposes
under this Agreement and the other Loan Documents and the Borrowers and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents, and such Lender shall be solely responsible for any
withholding taxes or any filing or reporting requirements relating to such
Participant. Any agreement pursuant to which any Lender shall sell any such
participating interest shall provide that such Lender shall retain the sole
right and responsibility to exercise such Lender's rights and enforce each of
the Borrowers' obligations hereunder, including the right to consent to any
amendment, supplement, modification or waiver of any provision of this Agreement
or any of the other Loan Documents, provided that such participation agreement
may provide that such Lender will not agree to any amendment, supplement,
modification or waiver described in clause (i) or (ii) of the proviso to the
second sentence of subsection 11.1(a) without the consent of the Participant.
Each of the Borrowers agrees that each Lender shall be entitled to the benefits
of subsections 4.9, 4.10, 4.11, 4.12, 11.1 and 11.5 without regard to whether it
has granted any participating interests, and that all amounts payable to a
Lender under subsections 4.9, 4.10, 4.11, 4.12 and 11.5 shall be determined as
if such Lender had not granted any such participating interests.
(c) Any Lender may, in accordance with applicable law, at any time
and from time to time assign to any Lender or any affiliate thereof or to any
Approved Fund or, with the prior written consent of the Administrative Agent and
the Parent Borrower (which in each case shall not be unreasonably withheld), to
an additional bank, savings and loan association or other similar savings
institution, insurance company, investment fund or company or other financial
institution (an "Assignee") all or any part of its rights and obligations under
this Agreement and any Notes, including, without limitation, its Revolving
Credit Commitments and Loans, pursuant to an Assignment and Acceptance,
substantially in
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the form of Exhibit H (an "Assignment and Acceptance"), executed by such
Assignee, such assigning Lender (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof or an Approved Fund, by the Parent
Borrower and the Administrative Agent) and delivered to the Administrative Agent
for its acceptance and recording in the Register; provided that (i) (unless the
Administrative Agent and the Parent Borrower otherwise consent in writing (such
consent not to be unreasonably withheld)) no such transfer to an Assignee (other
than a Lender or any affiliate thereof or any Approved Fund) shall be in an
aggregate principal amount less than (x) in the case of Tranche A Term Loans and
Revolving Credit Commitments, $5,000,000 in the aggregate (or, if less, the full
amount of such assigning Lender's Tranche A Term Loans, Revolving Credit Loans
and Revolving Credit Commitments) or (y) in the case of Tranche B Term Loans,
$5,000,000 (or, if less, the full amount of such assigning Lender's Tranche B
Term Loans) and (ii) if any Lender assigns all or any part of its rights and
obligations under this Agreement to one of its affiliates in connection with or
in contemplation of the sale or other disposition of its interest in such
affiliate, the Parent Borrower's prior written consent shall be required for
such assignment. Any such assignment shall be ratable as between the Tranche A
Term Loans and the Revolving Credit Commitments of such Lender unless the
Administrative Agent and the Parent Borrower otherwise consent in writing, but
need not be ratable as between the Tranche A Term Loans and the Revolving Credit
Commitments of such Lender, on the one hand, and the Tranche B Term Loans of
such Lender, on the other hand. Upon such execution, delivery, acceptance and
recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder with a Revolving Credit Commitment,
Tranche A Term Loan and Tranche B Term Loan as set forth therein, and (y) the
assigning Lender thereunder shall be released from its obligations under this
Agreement to the extent that such obligations shall have been expressly assumed
by the Assignee pursuant to such Assignment and Acceptance (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such assigning
Lender shall cease to be a party hereto but shall nevertheless continue to be
entitled to the benefits of subsections 4.10, 4.11, 4.12 and 11.5).
Notwithstanding the foregoing, no Assignee, which as of the date of any
assignment to it pursuant to this subsection 11.6(c) would be entitled to
receive any greater payment under subsection 4.10 or 4.11 than the assigning
Lender would have been entitled to receive as of such date under such
subsections with respect to the rights assigned, shall be entitled to receive
such payments unless the Parent Borrower has consented in writing to the
assignment.
(d) The Administrative Agent, on behalf of each of the Borrowers,
shall maintain at its address referred to in subsection 11.2 a copy of each
Assignment and Acceptance delivered to it and a register (the "Register") for
the recordation of the names and addresses of the Lenders and the Revolving
Credit Commitment of, and the principal amount of the Loans owing to, and the
Notes evidencing such Loans owed by, each Lender from time to time.
Notwithstanding anything in this Agreement to the contrary, the Borrowers, the
Administrative Agent and the Lenders shall treat each Person whose name is
recorded in the Register as the owner of the Loan, the Notes and the Revolving
Credit Commitments recorded therein for all purposes of this Agreement. The
Register shall be available for inspection by the Parent Borrower or any Lender
at any reasonable time and from time to time upon reasonable prior notice.
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(e) Notwithstanding anything in this Agreement to the contrary, no
assignment under subsection 11.6(c) of any rights or obligations under or in
respect of the Loans or the Notes evidencing such Loans shall be effective
unless and until the Administrative Agent shall have recorded the assignment
pursuant to subsection 11.6(d). Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an Assignee (and, in the case of an Assignee
that is not then a Lender or an affiliate thereof, by the Administrative Agent
and the Parent Borrower), together with payment to the Administrative Agent of a
registration and processing fee of $3,500 (which fee need not be paid in the
case of any assignment to an affiliate of the assigning Lender or to an Approved
Fund; and provided that in the case of contemporaneous assignments by a Lender
to more than one fund managed by the same investment advisor (which funds are
not then Lenders hereunder, affiliates thereof or Approved Funds), only a single
fee of $3,500 shall be payable for all such contemporaneous assignments), the
Administrative Agent shall (i) promptly accept such Assignment and Acceptance
and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give prompt notice of such
acceptance and recordation to the Lenders and the Parent Borrower. On or prior
to such effective date, the assigning Lender shall surrender any outstanding
Notes held by it all or a portion of which are being assigned, and the Parent
Borrower, at its own expense, shall, upon the request to the Administrative
Agent by the assigning Lender or the Assignee, as applicable, execute and
deliver (and cause the applicable Foreign Subsidiary Borrowers to execute and
deliver) to the Administrative Agent (in exchange for the outstanding Notes of
the assigning Lender) a new Revolving Credit Note, Tranche A Term Note, Tranche
B Term Note and/or Swing Line Note, as the case may be, to the order of such
Assignee in an amount equal to (i) in the case of a Revolving Credit Note, the
lesser of (A) the amount of such Assignee's Revolving Credit Commitment and (B)
the aggregate principal amount of all Revolving Credit Loans made by such
Assignee, (ii) in the case of a Tranche A Term Note, the amount of such
Assignee's Tranche A Term Loan, (iii) in the case of a Tranche B Term Note, the
amount of such Assignee's Tranche B Term Loan and (iv) in the case of a Swing
Line Note, the lesser of (A) the Swing Line Commitment and (B) the aggregate
principal amount of all Swing Line Loans made by such Assignee, in each case
with respect to the relevant Loan, Swing Line Commitment, or Revolving Credit
Commitment after giving effect to such Assignment and Acceptance and, if the
assigning Lender has retained a Swing Line Commitment, Revolving Credit
Commitment or Term Loan hereunder, a new Revolving Credit Note, Tranche A Term
Note, Tranche B Term Note and/or Swing Line Note, as the case may be, to the
order of the assigning Lender in an amount equal to (i) in the case of a
Revolving Credit Note, the lesser of (A) the amount of such Lender's Revolving
Credit Commitment and (B) the aggregate principal amount of all Revolving Credit
Loans made by such Lender, (ii) in the case of a Tranche A Term Note, the amount
of such Lender's Tranche A Term Loan, (iii) in the case of a Tranche B Term
Note, the amount of such Lender's Tranche B Term Loan and (iv) in the case of a
Swing Line Note, the lesser of (A) the Swing Line Commitment and (B) the
aggregate principal amount of all Swing Line Loans made by such Lender, in each
case with respect to the relevant Loan, Swing Line Commitment or Revolving
Credit Commitment after giving effect to such Assignment and Acceptance. Any
such new Notes shall be dated the Effective Date and shall otherwise be in the
form of the Note replaced thereby. Any Notes surrendered by the assigning Lender
shall be returned by the Administrative Agent to the Parent Borrower marked
"cancelled".
(f) Each Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee,
subject to the provisions of subsection 11.16, any and all information in such
Lender's possession concerning any Borrower and its Affiliates which has been
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delivered to such Lender by or on behalf of any Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of any
Borrower in connection with such Lender's credit evaluation of each Borrower and
its Affiliates prior to becoming a party to this Agreement. No assignment or
participation made or purported to be made to any Transferee shall be effective
without the prior written consent of the Parent Borrower if it would require the
Parent Borrower to make any filing with any Governmental Authority or qualify
any Loan or Note under the laws of any jurisdiction, and the Parent Borrower
shall be entitled to request and receive such information and assurances as it
may reasonably request from any Lender or any Transferee to determine whether
any such filing or qualification is required or whether any assignment or
participation is otherwise in accordance with applicable law.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection 11.6 concerning assignments
of Loans and Notes relate only to absolute assignments and that such provisions
do not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law, provided that any
foreclosure or similar action shall be subject to the provisions of this
subsection concerning assignments and shall be void and of no force or effect
unless effected in compliance with such provisions.
11.7 Adjustments; Set-off. (a) If any Lender (a "Benefitted Lender")
shall at any time receive any payment of all or part of its Revolving Credit
Loans, Term Loans or the Reimbursement Obligations owing to it, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 9(f), or otherwise (except pursuant to subsection 4.4,
4.13(d) or 11.6)), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Revolving Credit Loans, Term Loans or the Reimbursement Obligations, as
the case may be, owing to it, or interest thereon, such Benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Revolving Credit Loans, Term Loans or the
Reimbursement Obligations, as the case may be, owing to it, or shall provide
such other Lenders with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such Benefitted Lender to share the
excess payment or benefits of such collateral or proceeds ratably with each of
the Lenders; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such Benefitted Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to any Borrower,
any such notice being expressly waived by each Borrower to the extent permitted
by applicable law, upon the occurrence of an Event of Default under Section 9(a)
to set-off and appropriate and apply against any amount then due and payable
under Section 9(a) by such Borrower any and all deposits (general or special,
time or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any affiliate, branch or agency thereof to or for the
credit or the account of such Borrower. Each Lender agrees promptly to notify
the Parent Borrower and the Administrative Agent
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after any such set-off and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such set-off and
application.
11.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be delivered to the Parent Borrower and the
Administrative Agent.
11.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.10 Integration. This Agreement and the other Loan Documents
represent the entire agreement of the Borrowers party hereto, the other Loan
Parties, the Administrative Agent and the Lenders with respect to the subject
matter hereof, and there are no promises, undertakings, representations or
warranties by any of the Borrowers party hereto, the other Loan Parties, the
Administrative Agent or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
11.11 GOVERNING LAW. THIS AGREEMENT AND ANY NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND ANY NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
11.12 Submission To Jurisdiction; Waivers. (a) Each party hereto
hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts
of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient forum and agrees not
to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the applicable Borrower (or, in the case of any Foreign
Subsidiary Borrower, as specified in paragraph (b)), the applicable Lender
or the Administrative Agent, as the case may be, at
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the address specified in subsection 11.2 or at such other address of which
the Administrative Agent, any such Lender and any such Borrower shall have
been notified pursuant thereto;
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(v) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this subsection any punitive damages.
(b) Upon any Foreign Subsidiary becoming a Foreign Subsidiary
Borrower in accordance with subsection 11.1(b), such Foreign Subsidiary Borrower
hereby agrees to irrevocably and unconditionally appoint an agent for service of
process located in The City of New York (the "New York Process Agent"),
reasonably satisfactory to the Administrative Agent, as its agent to receive on
behalf of such Foreign Subsidiary Borrower and its property service of copies of
the summons and complaint and any other process which may be served in any
action or proceeding in any such New York State or Federal court described in
paragraph (a) of this subsection and agrees promptly to appoint a successor New
York Process Agent in The City of New York (which successor New York Process
Agent shall accept such appointment in a writing reasonably satisfactory to the
Administrative Agent) prior to the termination for any reason of the appointment
of the initial New York Process Agent. In any such action or proceeding in such
New York State or Federal court, such service may be made on such Foreign
Subsidiary Borrower by delivering a copy of such process to such Foreign
Subsidiary Borrower in care of the New York Process Agent at the New York
Process Agent's address and by depositing a copy of such process in the mails by
certified or registered air mail, addressed to such Foreign Subsidiary Borrower
at its address specified in subsection 11.2 with (if applicable) a copy to the
Parent Borrower (such service to be effective upon such receipt by the New York
Process Agent and the depositing of such process in the mails as aforesaid).
Each of the Foreign Subsidiary Borrowers hereby irrevocably and unconditionally
authorizes and directs the New York Process Agent to accept such service on its
behalf. As an alternate method of service, each of the Foreign Subsidiary
Borrowers irrevocably and unconditionally consents to the service of any and all
process in any such action or proceeding in such New York State or Federal court
by mailing of copies of such process to such Foreign Subsidiary Borrower by
certified or registered air mail at its address specified in subsection 11.2.
Each of the Foreign Subsidiary Borrowers agrees that, to the fullest extent
permitted by applicable law, a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(c) To the extent that any Foreign Subsidiary Borrower has or
hereafter may acquire any immunity (sovereign or otherwise) from any legal
action, suit or proceeding, from jurisdiction of any court or from set-off or
any legal process (whether service or notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise)
with respect to itself or any of its property, such Foreign Subsidiary Borrower
hereby irrevocably waives and agrees not to plead or claim such immunity in
respect of its obligations under this Agreement and any Note.
11.13 Judgment. (a) If for the purpose of obtaining judgment in any
court it is necessary to convert a sum due hereunder in one 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
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accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency on the Business Day
preceding the day on which final judgment is given.
(b) The obligations of any Borrower in respect of this Agreement and
any Note due to any party hereto or any holder of any bond shall,
notwithstanding any judgment in a currency (the "judgment currency") other than
the currency in which the sum originally due to such party or such holder is
denominated (the "original currency"), be discharged only to the extent that on
the Business Day following receipt by such party or such holder (as the case may
be) of any sum adjudged to be so due in the judgment currency such party or such
holder (as the case may be) may in accordance with normal banking procedures
purchase the original currency with the judgment currency; if the amount of the
original currency so purchased is less than the sum originally due to such party
or such holder (as the case may be) in the original currency, such Borrower
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify such party or such holder (as the case may be) against such loss, and
if the amount of the original currency so purchased exceeds the sum originally
due to any party to this Agreement or any holder of Notes (as the case may be),
such party or such holder (as the case may be), agrees to remit to such
Borrower, such excess. This covenant shall survive the termination of this
Agreement and payment of the Loans and all other amounts payable hereunder.
11.14 Acknowledgments. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Other Representative or
Lender has any fiduciary relationship with or duty to any Borrower arising
out of or in connection with this Agreement or any of the other Loan
Documents, and the relationship between the Administrative Agent and
Lenders, on the one hand, and the Borrowers, on the other hand, in
connection herewith or therewith is solely that of creditor and debtor;
and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby and thereby among the Lenders or among any of the Borrowers and the
Lenders.
11.15 WAIVER OF JURY TRIAL. EACH OF THE BORROWERS, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY NOTES OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
11.16 Confidentiality. The Administrative Agent and each Lender
agrees to keep confidential any written or oral information (a) provided to it
by or on behalf of Holding, the Parent Borrower or any of their Subsidiaries
pursuant to or in connection with this Agreement or (b) obtained by such Lender
based on a review of the books and records of Holding, the Parent Borrower or
any of their Subsidiaries; provided that nothing herein shall prevent any Lender
from disclosing any such information (i) to the Administrative Agent or any
other Lender, (ii) to any Transferee or prospective
124
Transferee which agrees to comply with the provisions of this subsection, (iii)
to its Affiliates, its Subsidiaries and the employees, directors, agents,
attorneys, accountants and other professional advisors of it, its Affiliates and
its Subsidiaries, provided that such Lender shall inform each such Person of the
agreement under this subsection 11.16 and take reasonable actions to cause
compliance by any such Person referred to in this clause (iii) with this
agreement (including, where appropriate, to cause any such Person to acknowledge
its agreement to be bound by the agreement under this subsection 11.16), (iv)
upon the request or demand of any Governmental Authority having jurisdiction
over such Lender or to the extent required in response to any order of any court
or other Governmental Authority or as shall otherwise be required pursuant to
any Requirement of Law, provided that such Lender shall, unless prohibited by
any Requirement of Law, notify the Parent Borrower of any disclosure pursuant to
this clause (iv) as far in advance as is reasonably practicable under such
circumstances, (v) which has been publicly disclosed other than in breach of
this Agreement, (vi) in connection with the exercise of any remedy hereunder,
(vii) in connection with periodic regulatory examinations, (viii) in connection
with any litigation to which such Lender may be a party, subject to the proviso
in clause (iv), (ix) to any direct or indirect contractual counterparty in swap
agreements or such contractual counterparty's professional advisor (so long as
such contractual counterparty or professional advisor to such contractual
counterparty (A) has been approved in writing by the Parent Borrower and (B)
agrees in a writing enforceable by the Parent Borrower to be bound by the
provisions of this subsection 11.16) and (x) if, prior to such information
having been so provided or obtained, such information was already in the
Administrative Agent's or a Lender's possession on a nonconfidential basis
without a duty of confidentiality to any Borrower being violated.
11.17 Amendment and Restatement. This Agreement represents an
amendment and restatement of the Credit Agreement, dated as of November 19,
1999, among the Parent Borrower, the Lenders party thereto, the Administrative
Agent and the Other Representatives.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
NORTH AMERICAN VAN LINES, INC.
By:/s/Ralph A. Ford
----------------
Name: Ralph A. Ford
Title: Secretary
THE CHASE MANHATTAN BANK, as Collateral
Agent, Administrative Agent, Swing Line
Lender, Issuing Lender and Lender
By:/s/Bruce Borden
-------------------
Name: Bruce Borden
Title: Vice President
THE BANK OF NEW YORK, as Documentation
Agent and Lender
By:/s/David G. Shedd
---------------------
Name: David G. Shedd
Title: Vice President
BANK OF AMERICA SECURITIES LLC, as
Syndication Agent
By:/s/Elizabeth Borow
----------------------
Name: Elizabeth Borow
Title: Managing Director
BANK OF AMERICA, N.A.
By:/s/Elizabeth Borow
----------------------
Name: Elizabeth Borow
Title: Managing Director
BANKERS TRUST COMPANY
By:/s/Mary Kay Coyle
--------------------
Name: Mary Kay Coyle
Title: Managing Director
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:/s/Nicholas J. Campbell
--------------------------
Name: Nicholas J. Campbell
Title: Vice President
FLEET NATIONAL BANK
By:/s/Mark S. Pelletier
-----------------------
Name: Mark S. Pelletier
Title: Vice President
HSBC BANK USA
By:/s/Christopher F. French
---------------------------
Name: Christopher F. French
Title: Authorized Signatory
KZH ING-2 L.L.C.
By:/s/Peter Chin
----------------
Name: Peter Chin
Title: Authorized Agent
NATIONAL CITY BANK OF INDIANA
By:/s/Mark A. Minnick
---------------------
Name: Mark A. Minnick
Title: Senior Vice President
PPM SPYGLASS FUNDING TRUST
By:/s/Kelly C. Walker
---------------------
Name: Kelly C. Walker
Title: Authorized Agent
THE PROVIDENT BANK
By:/s/Thomas W. Doe
-------------------
Name: Thomas W. Doe
Title: Vice President
SUNTRUST BANK, CENTRAL FLORIDA, NA
By:/s/Christopher A. Black
--------------------------
Name: Christopher A. Black
Title: Director
THE BANK OF NOVA SCOTIA
By:/s/F.C.H. Ashby
-----------------
Name: F.C.H. Ashby
Title: Senior Manager Loan Operations
VAN KAMPEN SENIOR FLOATING RATE FUND
By: Van Kampen Investment Advisory Corp.
By:/s/Darvin D. Pierce
---------------------
Name: Darvin D. Pierce
Title: Vice President
VAN KAMPEN SENIOR INCOME TRUST
By: Van Kampen Investment Advisory Corp.
By:/s/Darvin D. Pierce
---------------------
Name: Darvin D. Pierce
Title: Vice President
Schedule I
Commitments and Addresses
Schedule II
Applicable Margin and Commitment Fee Step-Downs
Step-Downs for Revolving Credit Loans, Tranche A Term Loans and Commitment Fees
- -------------------------------------------------------------------------------
================================================================================
Leverage Eurocurrency Loans ABR Loans
Ratio Applicable Margin Applicable Margin Commitment Fee
- --------------------------------------------------------------------------------
Greater than or equal to
4.00 to 1.00 3.00% 2.00% 0.50%
- --------------------------------------------------------------------------------
Greater than or equal to
3.50 to 1.00 and
Less than 4.00 to 1.00 2.75% 1.75% 0.50%
- --------------------------------------------------------------------------------
Greater than or equal to
3.00 to 1.00 and
Less than 3.50 to 1.00 2.50% 1.50% 0.45%
- --------------------------------------------------------------------------------
Greater than or equal to
2.50 to 1.00 and
Less than 3.00 to 1.00 2.25% 1.25% 0.40%
- --------------------------------------------------------------------------------
Less than 2.50 to 1.00 2.00% 1.00% 0.35%
================================================================================
Schedule III
Designated Foreign Currencies
For purposes of Tranche A Term Loans, Revolving Credit Loans, Swing Line Loans
and Letters of Credit, Designated Foreign Currencies are the following:
Currency Principal Financial Center
-------- --------------------------
Euros Frankfurt
Sterling London
Schedule IV
Foreign Subsidiary Borrowers
Name Jurisdiction
- ---- ------------
None
SCHEDULE V
SUBSIDIARY GUARANTORS
1. Fleet Insurance Management, Inc.
2. FrontRunner Worldwide, Inc.
3. NACAL, Inc.
4. North American Distribution Systems, Inc.
5. North American Logistics, Ltd.
6. North American Van Lines of Texas, Inc.
7. NAVTRANS International Freight Forwarding, Inc.
8. Relocation Management Systems, Inc.
9. Great Falls North American, Inc.
10. Vanguard Insurance Agency, Inc.
11. Allied Van Lines, Inc.
12. Allied Freight Forwarding, Inc.
13. A Relocation Solutions Management Company
14. Allied International N.A., Inc.
14. Allied Van Lines Terminal Company
SCHEDULE VI
INDICATIVE TERMS OF PERMITTED RECEIVABLES SECURITIZATIONS
TRANSACTION SUMMARY: The Parent Borrower may establish, directly or
indirectly, one or more special purpose,
bankruptcy remote subsidiaries (collectively,
the "RECEIVABLES COMPANY") that will purchase,
on a revolving basis, all or a designated
portion of the trade account receivables,
together with any designated assets related to
such receivables such as agreements, security
arrangements, guarantees and other related
assets (collectively, the "RECEIVABLES"),
generated by the Parent Borrower and its
subsidiaries. The purchases of the Receivables
by the Receivables Company will be financed in
part by the creation of a receivables
facility, with or without external credit
enhancement, in which ownership interests in,
or notes, commercial paper, certificates or
other debt instruments secured by or
representing beneficial interests in the
Receivables (such ownership interests, notes,
commercial paper, certificates or instruments,
the "RECEIVABLES SECURITIES") will be sold in
one or more registered public offerings,
private placements, or other available capital
markets transactions by the Receivables
Company or an unaffiliated special purpose
entity. If the financing is provided through
an unaffiliated special purpose entity, the
Parent Borrower may or may not elect to create
a Receivables Company to implement the
transaction.
INTEREST RATE ON
RECEIVABLES SECURITIES: Under the terms of the definitive
documentation for the creation and issuance of
the Receivables Securities (the "RECEIVABLES
FACILITY DOCUMENTS"), the Receivables
Securities will bear interest or have an
equivalent yield thereon at a rate that at the
time of issuance the Parent Borrower
reasonably expects to be less than the
interest rate provided for on the Revolving
Credit Loans (including, in the case of a
fixed rate offering of Receivables Securities,
the interest rate swap equivalent in respect
thereof on the date of issuance thereof).
LIMITED RECOURSE: The transfer of Receivables by the Parent
Borrower to the Receivables Company will be
made with limited recourse. The Parent
Borrower may be liable under the Receivables
Facility Documents for customary recourse
events, and in any event may be liable for (a)
the breach of certain representations and
warranties (consistent with similar financing
transactions of this type) set forth therein,
(b) the aggregate amount of any dilution with
respect to any transferred Receivables, (c)
its other agreements and obligations
(consistent with similar financing
transactions of this type) under the
Receivables Facility Documents, (d) any
obligations incurred in respect of any
underwriting or placement agency agreements
entered into in connection with the offering
of the Receivables Securities, (e) its
servicing obligations and (f) customary
indemnification and repurchase provisions.
DEFAULT/TERMINATION/
AMORTIZATION EVENTS
UNDER THE RECEIVABLES
FACILITY DOCUMENTS: The Receivables Facility Documents may contain
customary defaults/termination/amortization
events, and in any event may contain the
following defaults/termination/amortization
events: failure to pass certain performance
tests, including maintenance of a minimum
amount of eligible receivables outstanding or
generated during a specified period, a maximum
dilution ratio, delinquency ratio, default
ratio, and maximum days sales outstanding
ratio; nonpayment of amounts when due;
violation of covenants; failure of any
representation or warranty to be true in all
material respects; cross-acceleration to
Parent Borrower's credit facilities;
bankruptcy events with respect to all parties
to the transaction; change in control;
material judgments; tax and ERISA matters; and
actual or asserted (by the Parent Borrower,
the Receivables Company or any of their
affiliates) invalidity of any Receivables
Facility Documents or security or beneficial
interests thereunder; and such other events as
are required by any rating agency rating the
Receivables Securities.
2
SCHEDULE VII
EXISTING LETTERS OF CREDIT
1. Letter of Credit No. P-399085 in the amount of $20,000 in favor of Air
Cargo.
2. Letter of Credit No. P-289339 in the amount of $17,500 in favor of Spieker
Properties.
3. Letter of Credit No. P-291199 in the amount of $100,000 in favor of
Clearview Limited Partnership.
4. Letter of Credit No. P-293028 in the amount of $500,000 in favor of Golden
Springs Development.
5. Letter of Credit No. P-373046 in the amount of $9,645,000 in favor of
Protective Insurance Company.
6. Letter of Credit No. P-365663 in the amount of $2,300,000 in favor of Safeco
Insurance Company of America.
7. Letter of Credit No. P-373044 in the amount of $250,000 in favor of Chubb
and Son, Inc.
8. Letter of Credit No. P-373042 in the amount of $260,000 in favor of Houston
Casualty Company.
9. Letter of Credit No. P-366734 in the amount of $1,650,000 in favor of
Republic Underwriters Insurance Company.
10. Letter of Credit No. 4674710 in the amount of $2,000,000 in favor of
Underwriters at Lloyds.
SCHEDULE 4.4(d)
LAST DAY OF FISCAL YEARS
FISCAL YEAR LAST DAY
- ----------- --------
1999 12/25/99
2000 12/30/00
2001 12/29/01
2002 12/28/02
2003 12/27/03
2004 12/25/04
2005 12/31/05
2006 12/30/06
SCHEDULE 5.4
CONSENTS, AUTHORIZATIONS, NOTICES AND FILINGS REQUIRED
None.
SCHEDULE 5.14
FILING JURISDICTIONS AND LIEN SEARCHES
PART A: FILING JURISDICTIONS
1. NAVL
STATE COUNTY/PARISH
- ----- -------------
Arizona Secretary of State
California Secretary of State
Colorado Secretary of State
Connecticut Secretary of State
Delaware Secretary of State
Georgia Clayton, Fulton, Gwinnett
Hawaii Secretary of State
Iowa Secretary of State
Illinois Secretary of State
Indiana Secretary of State, Allen
Kentucky Secretary of State, Boone
Massachusetts Secretary of State, Chelsea, Framingham,
Milford, Millis, Waltham, Westborough
Maryland Secretary of State
Michigan Secretary of State
Minnesota Secretary of State
Missouri Secretary of State, St. Louis
Montana Secretary of State
STATE COUNTY/PARISH
- ----- -------------
North Carolina Secretary of State, Durham, Guilford,
Johnston, Mecklenberg, Orange, Wake
Nebraska Secretary of State
New Hampshire Secretary of State, Rockingham
New Jersey Secretary of State
New Mexico Secretary of State
Nevada Secretary of State
New York Secretary of State, Albany, Erie, Nassau,
New York, Onondaga, Westchester
Ohio Secretary of State, Cuyahoga, Franklin
Oregon Secretary of State
Pennsylvania Secretary of State, Butler, Cumberland,
Delaware, Lehigh, Northampton
Texas Secretary of State
Utah Secretary of State
Virginia Secretary of State, Fairfax, Henrico
Washington Secretary of State
Wisconsin Secretary of State
2. Fleet Insurance Management, Inc.
STATE COUNTY/PARISH
- ----- -------------
Indiana Secretary of State
2
3. FrontRunner Worldwide, Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Indiana Secretary of State
4. NACAL, Inc.
STATE COUNTY/PARISH
- ----- -------------
Indiana Secretary of State
California Secretary of State
5. NAVTRANS International Freight Forwarding, Inc.
STATE COUNTY/PARISH
- ----- -------------
Indiana Secretary of State
6. North American Distribution Systems, Inc.
STATE COUNTY/PARISH
- ----- -------------
Indiana Secretary of State
7. North American Logistics, Ltd.
STATE COUNTY/PARISH
- ----- -------------
Indiana Secretary of State
8. North American Van Lines of Texas, Inc.
STATE COUNTY/PARISH
- ----- -------------
Indiana Secretary of State
3
STATE COUNTY/PARISH
- ----- -------------
Texas Secretary of State
9. Relocation Management Systems, Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Indiana Secretary of State
10. NA Holding Corporation
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Indiana Secretary of State
11. Great Falls North American, Inc.
STATE COUNTY/PARISH
- ----- -------------
Montana Secretary of State
Indiana Secretary of State
12. Vanguard Insurance Agency, Inc.
STATE COUNTY/PARISH
- ----- -------------
Illinois Secretary of State
13. Allied Van Lines, Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
4
STATE COUNTY/PARISH
- ----- -------------
Illinois Secretary of State, Cook, Du Page
Texas Secretary of State, Tarrant
14. Allied Freight Forwarding, Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Illinois Secretary of State
15. A Relocation Solutions Management Company
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Illinois Secretary of State
16. Allied International N.A., Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Illinois Secretary of State
17. Allied Van Lines Terminal Company
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Illinois Secretary of State
5
PART B. LIEN SEARCHES
1. NAVL
STATE COUNTY/PARISH
- ----- -------------
Arizona Secretary of State
California Secretary of State
Colorado Secretary of State
Connecticut Secretary of State
Delaware Secretary of State
Georgia Secretary of State, Clayton, Fulton,
Gwinnett
Hawaii Secretary of State
Iowa Secretary of State
Illinois Secretary of State
Indiana Secretary of State, Allen
Kentucky Secretary of State, Boone
Massachusetts Secretary of State, Middlesex, Norfolk,
Suffolk, Worcester
Maryland Secretary of State
Michigan Secretary of State
Minnesota Secretary of State
Missouri Secretary of State, St. Louis
Montana Secretary of State
North Carolina Secretary of State, Durham, Guilford,
Johnston, Mecklenberg, Orange, Wake
Nebraska Secretary of State
New Hampshire Secretary of State, Rockingham
6
STATE COUNTY/PARISH
- ----- -------------
New Jersey Secretary of State
New York Secretary of State, Albany, Erie, Nassau,
New York, Onondaga, Westchester
New Mexico Secretary of State
Nevada Secretary of State
Ohio Secretary of State, Cuyahoga, Franklin
Oregon Secretary of State
Pennsylvania Secretary of State, Butler, Cumberland,
Delaware, Lehigh, Northampton
Texas Secretary of State
Utah Secretary of State
Virginia Secretary of State, Fairfax, Henrico
Washington Secretary of State
Wisconsin Secretary of State
2. A Five Star Forwarding, Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Indiana Secretary of State
3. A Three Rivers Forwarding, Inc.
STATE COUNTY/PARISH
- ----- -------------
Indiana Secretary of State
7
4. A-1 Above Van Lines, Inc.
STATE COUNTY/PARISH
- ----- -------------
Indiana Secretary of State
5. A-1 Summit Van Lines, Inc.
STATE COUNTY/PARISH
- ----- -------------
Indiana Secretary of State
6. Able Van Lines, Inc.
STATE COUNTY/PARISH
- ----- -------------
Indiana Secretary of State
7. Alaska USA Van Lines, Inc.
STATE COUNTY/PARISH
- ----- -------------
Indiana Secretary of State
8. Americas Best Van Lines, Inc.
STATE COUNTY/PARISH
- ----- -------------
Indiana Secretary of State
9. Americas Quality Van Lines, Inc.
STATE COUNTY/PARISH
- ----- -------------
Indiana Secretary of State
8
10. City Storage & Transfer, Inc.
STATE COUNTY/PARISH
- ----- -------------
Colorado Secretary of State
Indiana Secretary of State
11. Fleet Insurance Management, Inc.
STATE COUNTY/PARISH
- ----- -------------
Indiana Secretary of State
12. FrontRunner Worldwide, Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Indiana Secretary of State
13. Great Falls North American, Inc.
STATE COUNTY/PARISH
- ----- -------------
Montana Secretary of State
Indiana Secretary of State
14. Move Management Services, Inc.
STATE COUNTY/PARISH
- ----- -------------
Indiana Secretary of State
9
15. NACAL, Inc.
STATE COUNTY/PARISH
- ----- -------------
California Secretary of State
Indiana Secretary of State
16. World Class Van Lines, Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Indiana Secretary of State
17. NAVTRANS Container Lines, Inc.
STATE COUNTY/PARISH
- ----- -------------
Florida Secretary of State
Indiana Secretary of State
18. NAVTRANS International Freight Forwarding, Inc.
STATE COUNTY/PARISH
- ----- -------------
Indiana Secretary of State
19. NorAm Forwarding, Inc.
STATE COUNTY/PARISH
- ----- -------------
Indiana Secretary of State
10
20. North American Distribution Systems, Inc.
STATE COUNTY/PARISH
- ----- -------------
Indiana Secretary of State
21. North American Forwarding, Inc.
STATE COUNTY/PARISH
- ----- -------------
Indiana Secretary of State
22. North American Logistics, Ltd.
STATE COUNTY/PARISH
- ----- -------------
Indiana Secretary of State
23. North American Moving & Storage, Inc.
STATE COUNTY/PARISH
- ----- -------------
Indiana Secretary of State
24. North American Van Lines of Texas, Inc.
STATE COUNTY/PARISH
- ----- -------------
Texas Secretary of State
Indiana Secretary of State
25. Relocation Management Systems, Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Indiana Secretary of State
11
26. Manufacturing Support Services, L.L.C.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
California Secretary of State
Indiana Secretary of State
27. NA Holding Corporation
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Indiana Secretary of State
28. Vanguard Insurance Agency, Inc.
STATE COUNTY/PARISH
- ----- -------------
Illinois Secretary of State
29. Allied Van Lines, Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Illinois Secretary of State, Cook, Du Page
Texas Secretary of State, Tarrant
30. Allied Freight Forwarding, Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Illinois Secretary of State
12
31. A Relocation Solutions Management Company
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Illinois Secretary of State
32. Allied International N.A., Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Illinois Secretary of State
33. Allied Intermodal Forwarding, Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Illinois Secretary of State
34. Allied Domestic Forwarding, Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Illinois Secretary of State
35. Allied Transcontinental Forwarding, Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Illinois Secretary of State
13
36. Allied Transportation Forwarding, Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Illinois Secretary of State
37. A.V.L. Transportation, Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Illinois Secretary of State
38. Allied Interstate Transportation, Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Illinois Secretary of State
39. Allied Mobility Transportation, Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Illinois Secretary of State
40. Allied Universal Transportation, Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Illinois Secretary of State
14
41. Allied Van Lines, Inc. of Indiana
STATE COUNTY/PARISH
- ----- -------------
Indiana Secretary of State
Illinois Secretary of State
42. Allied Van Lines Terminal Company
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Illinois Secretary of State
43. Meridian Mobility Resources, Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Illinois Secretary of State
44. Trident Transport International, Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Illinois Secretary of State
45. TransGuard Insurance Company of America, Inc.
STATE COUNTY/PARISH
- ----- -------------
Illinois Secretary of State
15
46. Allied Alliance Forwarding, Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Illinois Secretary of State
47. Allied Continental Forwarding, Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Illinois Secretary of State
48. ClaimGuard, Inc.
STATE COUNTY/PARISH
- ----- -------------
Delaware Secretary of State
Illinois Secretary of State
49. TransGuard General Agency, Inc.
STATE COUNTY/PARISH
- ----- -------------
Illinois Secretary of State
Oklahoma Secretary of State
Texas Secretary of State, Dallas
16
SCHEDULE 5.16
SUBSIDIARIES
SUBSIDIARIES OF NA HOLDING CORPORATION
North American Van Lines, Inc. (Delaware) (100%)
SUBSIDIARIES OF NORTH AMERICAN VAN LINES, INC.
Allied Van Lines, Inc. (Delaware) (100%)
A Five Star Forwarding, Inc. (Delaware) (100%)
A Three Rivers Forwarding, Inc. (Indiana) (100%)
A-1 Above Van Lines, Inc. (Indiana) (100%)
A-1 Summit Van Lines, Inc. (Indiana) (100%)
Able Van Lines, Inc. (Indiana) (100%)
Alaska USA Van Lines, Inc. (Indiana) (100%)
Americas Best Van Lines, Inc. (Indiana) (100%)
Americas Quality Van Lines, Inc. (Indiana) (100%)
City Storage & Transfer, Inc. (Colorado) (100%)
Fleet Insurance Management, Inc. (Indiana) (100%)
FrontRunner Worldwide, Inc. (Delaware) (100%)
Great Falls North American, Inc. (Montana) (100%)
Move Management Services, Inc. (Indiana) (100%)
NACAL, Inc. (California) (100%)
NAVTRANS Container Lines, Inc. (Florida) (100%)
NAVTRANS International Freight Forwarding, Inc. (Indiana) (100%)
NORAM Forwarding, Inc. (Indiana) (100%)
North American Distribution Systems, Inc. (Indiana) (100%)
North American Forwarding, Inc. (Indiana) (100%)
North American International Holding Corporation (Delaware) (100%)
North American Logistics, Ltd. (Indiana) (100%)
North American Moving & Storage, Inc. (Indiana) (100%)
North American Transport Insurance Company (Indiana) (100%)
North American Van Lines of Texas, Inc. (Texas) (100%)
Relocation Management Systems, Inc. (Delaware) (100%)
World Class Van Lines, Inc. (Delaware) (100%)
SUBSIDIARY OF NORTH AMERICAN LOGISTICS, LTD.
Manufacturing Support Services, L.L.C. (Delaware) (51%)
SUBSIDIARIES OF NORTH AMERICAN INTERNATIONAL HOLDING CORPORATION
Mididata Spedition GMBH (Germany) (100%)
North American (U.K.) Limited (England) (99+%)
North American Van Lines Canada Ltd. (Canada) (100%)
NAVTRANS International Speditions GMBH (Germany) (100%)
Westmount Moving & Storage, Inc. (Canada) (99+%)
NA Acquisition (Ireland) (100%)
NFC International Holdings (Australasia) Pty Ltd (Aus) (100%)
NA (UK) GP Corporation (Delaware) (100%)
NA (UK) Limited Partnership (Delaware) (Limited Partner)
Allied Arthur Pierre SA (Lux) (100%)
Allied Pickfords KeS Kft (Hun) (100%)
A.L. Movers Private Ltd (India) (45%)
Allied Pickfords LLC (UAE) (49%)
Allied Pickfords Ltd (Hong Kong) (100%)
NFC Investment Asia Pacific Pte Ltd (Sing) (100%)
Pierre Finance (Neth) Renting BV (100%)
Allied Pickfords BV (Neth) (100%)
Allied Varekamp BV (Neth) (100%)
Allied Pickfords SP ZOO (Poland) (100%)
Allied Pickfords SRO (Czech) (100%)
Allied Arthur Pierre NV (Belgium) (100%)
Allied Arthur Pierre SA (France) (100%)
Allied International SA (Spain) (100%)
SUBSIDIARY OF NFC INTERNATIONAL HOLDINGS (AUSTRALASIA) PTY LTD
Allied Pickfords Pty Ltd (Aus) (100%)
SUBSIDIARIES OF ALLIED PICKFORDS PTY LTD
Trans International Moving & Shipping Pty Ltd (Aus) (100%)
NFC Australasia Superannuation Pty Ltd (Aus) (100%)
Downward Pickfords (North Queensland) Pty Ltd (Aus) (100%)
NFC New Zealand Ltd (NZ) (100%)
2
SUBSIDIARIES OF NFC NEW ZEALAND LTD
Allied Pickfords Ltd (NZ) (100%)
Trans International Moving & Shipping (NZ) 1992 Ltd (NZ) (100%)
Imaging Systems (NZ) Ltd (NZ) (100%)
SUBSIDIARIES OF NA (UK) LIMITED PARTNERSHIP
NA Acquisition (UK) Limited (100%)
SUBSIDIARIES OF NA ACQUISITION (UK) LIMITED
Pickfords Ltd. (E&W) (100%)
SUBSIDIARIES OF PICKFORDS LTD.
Pickfords 1999 Limited (E&W) (100%)
A&N Removals Ltd (E&W) (100%)
Arthur Pierre (UK) Ltd (E&W) (100%)
Bullens Ltd (E&W) (100%)
Hoults Removals Ltd (E&W) (100%)
GB Crate Hire Ltd (E&W) (100%)
NFC Moving Services Ltd (E&W) (100%)
Pitt & Scott Ltd (E&W) (100%)
Allied Pickfords Ltd (E&W) (100%)
Pickfords Manhire Ltd (UK) (100%)
Irish Securities Ltd (NI) (100%)
Moving Services Property Ltd (E&W) (100%)
Removedeal Ltd (E&W) (100%)
Irish Security Archives Ltd (Ire) (100%)
SUBSIDIARY OF IRISH SECURITY ARCHIVES LTD
Allied Pickfords Ltd (Ire) (100%)
EQUITY INTEREST OF PICKFORDS 1999 LIMITED
The Baxendale Insurance Company Ltd (Ire) (10%)
SUBSIDIARIES OF ALLIED PICKFORDS LTD (HONG KONG)
3
Pickfords Worldwide Moving Ltd (HK)
Pickfords Ltd (HK) (100%)
SUBSIDIARIES OF NFC INVESTMENT ASIA PACIFIC PTE LTD
Allied Pickfords (S) Pte Ltd (Sing) (100%)
Allied Pickfords (M) Sdn Bhd (Mal) (100%)
SUBSIDIARY OF NA ACQUISITION (IRELAND)
The Baxendale Insurance Company Ltd (Ire) (90%)
SUBSIDIARY OF MIDIDATA SPEDITION GMBH
Mididata Logistik GMBH (Germany) (100%)
SUBSIDIARY OF NORTH AMERICAN VAN LINES CANADA LTD.
North American Platinum Transportation Group Ltd. (Canada) (100%)
SUBSIDIARIES OF ALLIED VAN LINES, INC.
A Relocation Solutions Management Company (Delaware) (100%)
A.V.L. Transportation, Inc. (Delaware) (100%)
Allied International N.A., Inc. (Delaware) (100%)
Allied Interstate Transportation, Inc. (Delaware) (100%)
Allied Mobility Transportation, Inc. (Delaware) (100%)
Allied Universal Transportation, Inc. (Delaware) (100%)
Allied Van Lines, Inc. of Indiana (Indiana) (100%)
Allied Van Lines Terminal Company (Delaware) (100%)
Meridian Mobility Resources, Inc. (Delaware) (100%)
Trident Transport International, Inc. (Delaware) (100%)
TransGuard Insurance Company of America, Inc. (Illinois) (100%)
Vanguard Insurance Agency, Inc. (Illinois) (100%)
SUBSIDIARY OF ALLIED VAN LINES TERMINAL COMPANY
Allied Freight Forwarding, Inc. (Delaware) (100%)
4
SUBSIDIARIES OF ALLIED FREIGHT FORWARDING, INC.
Allied Alliance Forwarding, Inc. (Delaware) (100%)
Allied Continental Forwarding, Inc. (Delaware) (100%)
Allied Domestic Forwarding, Inc. (Delaware) (100%)
Allied Intermodal Forwarding, Inc. (Delaware) (100%)
Allied Transcontinental Forwarding, Inc. (Delaware) (100%)
Allied Transportation Forwarding, Inc. (Delaware) (100%)
SUBSIDIARY OF TRANSGUARD INSURANCE COMPANY OF AMERICA, INC.
ClaimGuard, Inc. (Delaware) (100%)
SUBSIDIARY OF VANGUARD INSURANCE AGENCY, INC.
TransGuard General Agency, Inc. (Oklahoma) (100%)
*All subsidiaries whose name contains the term "NFC" will undergo a name change
either prior to or immediately after the Effective Date to replace the term
"NFC" with "AWG."
5
SCHEDULE 8.2(e)
PERMITTED INDEBTEDNESS
1. NAVL Canada Ltd. has a line of credit with Scotiabank for $2,500,000
(Canadian dollars).
2. Obligations of midiData Logistik GmbH specified as Item 8 on Schedule
8.4(a) to the extent constituting Indebtedness.
3. Indebtedness with respect to the 1,500,000 DM credit facility
specified as Item 9 on Schedule 8.4(a).
4. Obligations of NAVL and its Subsidiaries specified as Items 10 and 12
on Schedule 8.4(a) to the extent constituting Indebtedness.
SCHEDULE 8.3(j)
PERMITTED LIENS
The following liens identified by lien searches ordered in connection with the
closing:
1. Judgment, dated as of June 16, 1995, in favor of Ferguson
Transportation, Inc. and against NAVL in the amount of $1,300,000 was
recorded in Nassau County, New York. A Satisfaction of Final Judgment
was filed in Palm Beach County, Florida on April 4, 1997. A Notice of
Filing the Clerk's Receipt evidencing the deposit of funds by NAVL in
the amount of $1,987,633.96, was filed in Palm Beach County, Florida,
on April 14, 1997.
2. Judgment, dated as of October 20, 1990, in favor of Bruce D. Rodgers,
Sr. and Carol Rodgers and against NAVL in the amount of $30,000 was
recorded in Camden County, New Jersey. A written release, dated as of
September 4, 1990, was signed evidencing payment of $35,000. A
Stipulation of Dismissal with Prejudice was issued by the U.S.
District Court for the District of New Jersey on September 14, 1990.
3. Judgment, dated as of August 5, 1993, in favor of Casnel Sinclair and
against NAVL in the amount of $6,979 was recorded in Fulton County,
Georgia. A written release, dated as of October 4, 1993, was signed
evidencing payment of $3,250. A Stipulation of Dismissal with
Prejudice was issued by the State Court of Georgia on October 4,
1990.
4. Judgment, dated as of August 29, 1991, in favor of Jeff Beck and
against NAVL and Victor Nilges in the amount of $4,000 was recorded
in Cuyahoga County, Ohio. A written release, dated as of July 14,
1992, was signed evidencing payment of $4,000.
5. Judgment, dated as of June 4, 1991, in favor of R. Clarke Maiocco and
against NAVL in the amount of $132.50 was recorded in Fulton County,
Georgia. Internal NAVL records indicate the judgment was paid as of
June 27, 1991.
6. Judgment in favor of John and Ann Foltz and against NAVL in the
amount of $1,460.09 recorded in Wake County, North Carolina. Internal
NAVL records indicate the judgment was paid as of March 8, 1988 in
the amount of $1,460.09.
7. Judgment in favor of Fred L. Moye and against NAVL in the amount of
$154.50 recorded in Wake County, North Carolina. Internal NAVL
records indicate the judgment was paid as of November 20, 1992 in the
amount of $154.85.
8. Judgment, dated as of March 14, 1985, in favor of Allied Stores Inc.
and T/A Sterns Inc. and against NAVL Agency in the amount of $550.92
was recorded in New Jersey.
9. Judgment, dated as of January 15, 1993, in favor of the City of
Kentwood regarding title and possession of real property, recorded in
Kent County, Michigan.
10. Judgment, dated as of March 16, 1998, in favor of Keith D. Whitlock,
Sr. and against North American Van Lines Claims Department in the
amount of $94,067, recorded in Dallas County, Texas.
11. Judgment, dated as of April 21, 1992, in favor of Barbara Moorer, et
al. and against Allied Van Lines, Inc. et al. in the amount of
approximately $22,000, recorded in Jefferson County, Texas.
12. Judgment, dated as of April 15, 1999 in favor of Arthur Price and
against North American Van Lines Claims Department in the amount of
$1,176, recorded in Dallas County, Texas.
13. Judgment, dated as of March 24, 1994 in favor of Michaela Andruzzi
and against North American Van Lines in the amount of $390.75,
recorded in Salt Lake County, Utah.
14. Financing Statement Number 2121442 in favor of IBM Credit
Corporation. (IBM Equipment)
15. Financing Statement Number 2132417 in favor of Amdahl Corporation.
(Computer Equipment)
16. Financing Statement Number 2215456 in favor of Pitney Bowes Credit
Corporation. (Pitney Bowes Equipment)
17. Financing Statement Number 2224177 in favor of General Electric
Capital Corporation. (Kentucky Van Trailers)
18. Financing Statement Number 2225833 in favor of Nationscredit
Commercial Corporation. (Computer Equipment)
2
19. Financing Statement Number 2253629 in favor of Associates Leasing,
Inc. (4 1999 Nissan Vehicles)
20. Financing Statement Number 2253903 in favor of WINR Business Credit,
a trade name of Winthrop Resources Corporation. (Specified leased
property and specified leased furniture)
21. Financing Statement Number 2260643 in favor of General Electric
Capital Corporation. (Furniture Trailers, 30 Kentucky Furniture
Trailers with Leyman Lift Gates and 80 Kentucky Furniture Trailers)
22. Financing Statement Number 2266441 in favor of General Electric
Capital Corporation. (39 1999 Kentucky Furniture Trailers and 50
1999 Strick Furniture Trailers)
23. Financing Statement Number 2267093 in favor of Gelco Corporation dba
GE Capital Fleet Services. (25 Cargo Master 8000 Series Cranes)
24. Financing Statement Number 2269714 in favor of General Electric
Capital Corporation. (46 1999 Kentucky Furniture Trailers)
25. Financing Statement Number 2274059 in favor of General Electric
Capital Corporation. (18 1999 Kentucky Trailers (Model FVCC)
26. Financing Statement Number 2275164 in favor of Amdahl Corporation.
(18 1999 Kentucky Trailers (Model FVCC) and 180 1999 Kentucky
Trailers (Model FVCC-D))
27. Financing Statement Number 2278229 in favor of General Electric
Capital Corporation. (2 1999 Kentucky Trailers (Model FVCC) and 25
1999 Kentucky Trailers (Model FVCC-D))
28. Financing Statement Number 2279529 in favor of General Electric
Capital Corporation. (5 Kentucky Trailers)
29. Financing Statement Number 2280482 in favor of Telimagine, Inc.
(Specified leased video and computer equipment)
30. Financing Statement Number 199906070143421 in favor of Caterpillar
Financial Services Corporation. (3 Caterpillar Lift Trucks lease)
3
31. Financing Statement Number 199917012 in favor of MCI Capital
Services. (Leased Equipment and Software)
32. Financing Statement Number 002764069 in favor of Pitney Bowes Credit
Corp. (two 1990 Kenworth Tractors and one 1990 Kentucky Trailer)
33. Financing Statement Number 002808774 in favor of Pitney Bowes Credit
Corp. (two 1990 IHC Straight Trucks, two 1990 Kenworth Tractors and
one 1990 Semi Trailer)
34. Financing Statement Number 002936792 in favor of Security Pacific
Equipment Leasing Inc. (Trailers, tractors and trucks)
35. Financing Statement Number 003035701 in favor of Forsythe McArthur
Associates, Inc. (Computer, data processing, telecommunications and
other equipment)
36. Financing Statement Number 003204943 in favor of Fleet Credit Corp
nka Fleet Capital Corp. (Various truck, tractors and trailers)
37. Financing Statement Number 003639803 in favor of Fleet Capital Corp.
as Agent. (Sprint Phone System)
38. Financing Statement Number 003639804 in favor of Fleet Capital Corp.
as Agent. (Computer Equipment)
39. Financing Statement Number 003690547 in favor of General Electric
Capital Corp. (Specified Equipment)
40. Financing Statement Number 003691837 in favor of Fleet Capital Corp.
as Agent. 12 GB Upgrade Raide Access Storage)
41. Financing Statement Number 003763095 in favor of Bell & Howell
Publication Systems Co. (Reader/Printer, Prism Lens, Workstation)
42. Financing Statement Number 003770965 in favor of General Electric
Capital Corp. (Specified Vehicles)
43. Financing Statement Number 003780753 in favor of Bell & Howell
Document Management Products Co. (ABR 2600 Reader Printer and Zoom
Lens and Carrier)
4
44. Financing Statement Number 003835278 in favor of Associates
Commercial Corp. (Thirteen Specified Vehicles)
45. Financing Statement Number 003904936 in favor of American
Technologies Credit Inc. (Qualcomm tracking units)
46. Financing Statement Number 004004508 in favor of MCI Capital
Services. (Leased Equipment and Software)
47. Financing Statement Number 004008517 in favor of Associates
Commercial Corp. (Twenty-five Specified Vehicles)
48. Financing Statement Number 004018707 in favor of MCI Capital
Services. (Leased Equipment and Software)
49. Financing Statement Number 004047113 in favor of Banc One Leasing
Corp. (Specified Equipment)
50. Financing Statement Number 004062967 in favor of American
Technologies Credit Inc. (Omnitracs Systems)
51. Financing Statement Number 004071402 in favor of American
Technologies Credit Inc. (Qualcomm Mobile Units)
52. Financing Statement Number 004085489 in favor of American
Technologies Credit Inc. (Qualcomm Mobile Units)
53. Financing Statement Number 004101318 in favor of MCI Capital
Services. (Leased Equipment and Software)
54. Financing Statement Number 93-00245029 in favor of Fleet Credit
Corporation. (Leased Specified Truck and Trailers)
55. Financing Statement Number 99-00070678 in favor of MCI Capital
Services. (Leased Equipment Software)
56. Tax Lien Number 9608609421301, dated as of April 8, 1996, in favor of
the Illinois Department of Revenue against Vanguard Insurance Agency,
Inc., in the amount of $5,693.15.
5
57. Liens listed in Schedule 2.12(a)(ii)(A) to the Disclosure Letter,
dated as of September 14, 1999 from NFC plc to NA Holding
Corporation.
58. Tax liens identified in Attachment 8.3(j)(57) hereto.
6
SCHEDULE 8.4(a)
GUARANTEE OBLIGATIONS
1. Guarantee given by NAVL Canada Ltd., dated as of December
31, 1989, to the Bank of Nova Scotia in connection with
the Promissory Note issued by Household Movers & Shippers
Limited, dated June 16, 1989, in the original principal
amount of $987,499.99 (Canadian dollars).
2. Guarantee given by NAVL, dated as of May 12, 1999, to Scotiabank in
connection with NAVL Canada Ltd.'s line of credit for $2,500,000
(Canadian dollars).
3. Guarantee given by NAVL Canada Ltd., dated as of February 9, 1996, to
Canadian Imperial Bank of Commerce in connection with a loan issued
to Charles Fair and Penny Fair, who in turn are re-lending to
Dolittle Services, Ltd., an agent of NAVL, in the amount of $50,000
(Canadian dollars).
4. The following Letters of Credit:
START DATE/
ISSUER/BENEFICIARY AMOUNT EXP. DATE REASON
NATIONAL CITY BANK OF
INDIANA
1. Old Republic Ins. Co. $100,000 12/31/98- Transtar Auto Insurance
12/31/99
THE CHASE MANHATTAN
BANK
1. Air Cargo $20,000 4/2/99-4/2/00 Association Membership
2. Spieker Properties $17,500 7/1/99-7/1/00 San Diego, CA Lease
3. Clearview Limited $100,000 9/1/98-9/1/00 Edison, NJ Lease
Partnership
4. Golden Springs Development $500,000 9/23/99-9/23/00 Santa Fe Springs, CA
Lease
5. Protective Insurance $9,645,000 2/28/97-3/3/00 Bodily injury and
Company property fund
6. Safeco Insurance Company of $2,300,000 12/20/96- Bonds
America 12/22/99
7. Chubb and Son, Inc. $250,000 2/28/97-3/3/00 Reinsurance
8. Houston Casualty Company $260,000 2/28/97-2/28/00 Reinsurance
9. Republic Underwriterers $1,650,000 12/31/96- Reinsurance
Insurance Company 12/31/99
10. Underwriters at Lloyds $2,000,000 3/10/99-3/10/00 Bodily injury and
property fund
FIRST UNION
1. American Technologies Credit, Inc. $1,000,000 7/1/99-7/1/01 Lease for Qualcomm
truck tracking units
2. American Technologies Credit, Inc. $110,000 7/28/99-7/7/01 Lease for Qualcomm
truck tracking units
3. American Technologies Credit, Inc. $2,600,000 9/1/99-7/7/01 Lease for Qualcomm
truck tracking units
5. Indemnity Agreements
a. General Indemnity Agreement between St. Paul Fire and
Marine Insurance Company and NAVL, dated as of March 18,
1998 entered into in connection with the execution of
bonds for NAVL and its subsidiaries, as supplemented.
6. Active Surety Bonds of NAVL and Subsidiaries
See attached listing regarding bonds issued under Item 5(a) above.
7. Equipment lease guarantees by midiData Spedition GmbH of the
following equipment leases entered into by midi Data Logistik GmbH.
- -------------------------------------------------------------
EQUIPMENT AMOUNT
- -------------------------------------------------------------
vehicle HH-MD 465 62,620.88 DM
- -------------------------------------------------------------
vehicle DZ-MD 26 (KYF-MD 17) 62,567.08 DM
- -------------------------------------------------------------
vehicle F0-DT 375 (F0-DT 175) 60,249.96 DM
- -------------------------------------------------------------
2
- -------------------------------------------------------------
EQUIPMENT AMOUNT
- -------------------------------------------------------------
vehicle F0-DT 148 95,916.15 DM
- -------------------------------------------------------------
vehicle F0-DT 183 103,581.99 DM
- -------------------------------------------------------------
vehicle DZ-MD 14 (KYF-MD 21) 99,363.78 DM
- -------------------------------------------------------------
trailer GG-MD 153 34,132.28 DM
- -------------------------------------------------------------
trailer GG-MD 109 34,132.28 DM
- -------------------------------------------------------------
vehicle NE-MD 532 (GG-MD 158) 112,812.41 DM
- -------------------------------------------------------------
vehicle HH-MD 638 104,295.50 DM
- -------------------------------------------------------------
vehicle GG-MD 545 137,430.00 DM
- -------------------------------------------------------------
vehicle GG-MD 149 18,294.38 DM
- -------------------------------------------------------------
vehicle H-ML 971 66,518.08 DM
- -------------------------------------------------------------
vehicle GG-MD 75 17,811.64 DM
- -------------------------------------------------------------
vehicle LB-MD 218 (GG-MD 365) 105,084.81 DM
- -------------------------------------------------------------
vehicle MB 1424L 137,544.06 DM
- -------------------------------------------------------------
vehicle MB 1631L 162,745.38 DM
- -------------------------------------------------------------
vehicle MB 1628L 149,657.34 DM
- -------------------------------------------------------------
vehicle MB 817L 94,056.16 DM
- -------------------------------------------------------------
vehicle MB 1528L 153,829.92 DM
- -------------------------------------------------------------
vehicle MB 817 84,645.24 DM
- -------------------------------------------------------------
Design stage 91,116.84 DM
- -------------------------------------------------------------
vehicle HH-MD 656 0.00 DM
- -------------------------------------------------------------
vehicle HVL-MD 24 0.00 DM
- -------------------------------------------------------------
vehicle HVL-MD 23 45,529.80 DM
- -------------------------------------------------------------
vehicle F0-DT 714 0.00 DM
- -------------------------------------------------------------
vehicle H-ML 290 0.00 DM
- -------------------------------------------------------------
3
- -------------------------------------------------------------
EQUIPMENT AMOUNT
- -------------------------------------------------------------
vehicle GG-MD 208 14,320.28 DM
- -------------------------------------------------------------
vehicle GG-MD 216 0.00 DM
- -------------------------------------------------------------
vehicle GG-MD 221 0.00 DM
- -------------------------------------------------------------
vehicle GG-MD 273 0.00 DM
- -------------------------------------------------------------
vehicle LB-MD 417 6,687.29 DM
- -------------------------------------------------------------
vehicle LB-MD 219 94,145.10 DM
- -------------------------------------------------------------
vehicle LB-MD 371 137,030.40 DM
- -------------------------------------------------------------
vehicle DZ-MD 21 (KYF-MD 12) 40,739.71 DM
- -------------------------------------------------------------
vehicle DZ-MD 33 15,367.76 DM
- -------------------------------------------------------------
vehicle H-MD 306 0.00 DM
- -------------------------------------------------------------
vehicle HH-MD 1097 0.00 DM
- -------------------------------------------------------------
vehicle HH-MD 1621 0.00 DM
- -------------------------------------------------------------
vehicle HVL-MD 25 0.00 DM
- -------------------------------------------------------------
vehicle A-M 110 57,868.38 DM
- -------------------------------------------------------------
vehicle A-M 8757 90,271.44 DM
- -------------------------------------------------------------
vehicle A-M 9890 80,806.88 DM
- -------------------------------------------------------------
vehicle A-M 1137 0.00 DM
- -------------------------------------------------------------
vehicle A-M 2827 0.00 DM
- -------------------------------------------------------------
vehicle A-M 3699 0.00 DM
- -------------------------------------------------------------
vehicle A-M 8832 85,367.76 DM
- -------------------------------------------------------------
vehicle NE-MD 1241 (GG-MD 112) 57,786.30 DM
- -------------------------------------------------------------
vehicle NE-MD 1240 (GG-MD 124) 57,766.30 DM
- -------------------------------------------------------------
trailer GG-MD 170 39,485.16 DM
- -------------------------------------------------------------
trailer GG-MD 419 0.00 DM
- -------------------------------------------------------------
4
- -------------------------------------------------------------
EQUIPMENT AMOUNT
- -------------------------------------------------------------
trailer GG-MD 430 0.00 DM
- -------------------------------------------------------------
vehicle H-MD 570 57,257.18 DM
- -------------------------------------------------------------
vehicle H-MD 760 57,786.30 DM
- -------------------------------------------------------------
vehicle HVL-MD 80 65,005.00 DM
- -------------------------------------------------------------
vehicle HVL-MD 81 56,005.60 DM
- -------------------------------------------------------------
vehicle HVL-MD 82 57,297.50 DM
- -------------------------------------------------------------
vehicle HVL-MD 83 57,297.50 DM
- -------------------------------------------------------------
trailer GG-MD 195 39,485.16 DM
- -------------------------------------------------------------
8. Other guarantees given by midiData Spedition GmbH with respect to
obligations of midiData Logistik GmbH specified below.
5
OBLIGATIONS OF MIDIDATA SPEDITION/LOGISTIK GMBH
AS OF 8/31/99
- -------------------------------------------------------------------------------------------------------------------------------
GUARANTOR DEBTOR SUBJECT GUARANTEE GIVEN TO AMOUNT/DM
- -------------------------------------------------------------------------------------------------------------------------------
NAVL/Commerzbank midiLOG Customs Duty Hauptzollamt 50.000,00 DM
- -------------------------------------------------------------------------------------------------------------------------------
NAVL/Commerzbank midiLOG Customs Duty Hauptzollamt 50.000,00 DM
- -------------------------------------------------------------------------------------------------------------------------------
NAVL/Commerzbank midiLOG Hauptzollamt Ausfuhr Hauptzollamt Ausfuhr 20.000,00 DM
- -------------------------------------------------------------------------------------------------------------------------------
NAVL/Commerzbank midiLOG BDF BDF 10.000,00 DM
- -------------------------------------------------------------------------------------------------------------------------------
NAVL/Commerzbank midiLOG IATA IATA 50.000,00 DM
- -------------------------------------------------------------------------------------------------------------------------------
NAVL/Commerzbank midiLOG DEMEX SYSTEMBAU GmbH DEMEX SYSTEMBAU GmbH 40.967,00 DM
- -------------------------------------------------------------------------------------------------------------------------------
NAVL/Commerzbank midiLOG M. Korn, Dr. S. Korn, M. Arend GbR M. Korn, Dr. S. Korn, M. Arend GbR 58.991.58 DM
- -------------------------------------------------------------------------------------------------------------------------------
NAVL/Commerzbank midiLOG Johann Max Bottcher Johann Max Bottcher 103.962,00 DM
- -------------------------------------------------------------------------------------------------------------------------------
NAVL/Commerzbank midiLOG Brixton Estate Neuss GmbH Brixton Estate Neuss GmbH 102.000,00 DM
- -------------------------------------------------------------------------------------------------------------------------------
NAVL/Commerzbank midiLOG Werner Rindlaub Werner Rindlaub 75.000,00 DM
- -------------------------------------------------------------------------------------------------------------------------------
NAVL/Commerzbank midiLOG Thum + Taxis Imm. Service GmbH Thum + Taxis Imm. Service GmbH 130.000,00 DM
- -------------------------------------------------------------------------------------------------------------------------------
NAVL/Commerzbank midiLOG Notel Dasa Network Systems GmbH Notel Dasa Network Systems GmbH 50.000,00 DM
- -------------------------------------------------------------------------------------------------------------------------------
NAVL/Commerzbank midiLOG DEMEX SYSTEMBAU GmbH DEMEX SYSTEMBAU GmbH 85.212,00 DM
- -------------------------------------------------------------------------------------------------------------------------------
Subtotal (Deutschmarks Guarantees) 826.132,58 DM
- -------------------------------------------------------------------------------------------------------------------------------
NAVL/Commerzbank midiLOG Gruppe Internationaler GIM 10.320 DM
Mobelspediteure e.v. (GM)
- -------------------------------------------------------------------------------------------------------------------------------
- --------------------------------
GUARANTOR AMOUNT/USD
- --------------------------------
NAVL/Commerzbank
- --------------------------------
NAVL/Commerzbank
- --------------------------------
NAVL/Commerzbank
- --------------------------------
NAVL/Commerzbank
- --------------------------------
NAVL/Commerzbank
- --------------------------------
NAVL/Commerzbank
- --------------------------------
NAVL/Commerzbank
- --------------------------------
NAVL/Commerzbank
- --------------------------------
NAVL/Commerzbank
- --------------------------------
NAVL/Commerzbank
- --------------------------------
NAVL/Commerzbank
- --------------------------------
NAVL/Commerzbank
- --------------------------------
NAVL/Commerzbank
- --------------------------------
NAVL/Commerzbank $6,000.00
- --------------------------------
6
9. Letter of Comfort, dated January 21, 1998 and signed February
18, 1998, issued by NAVL to Commerzbank Aktiengesellschaft,
Frankfort Hoechst branch, regarding midiData Spedition GmbH
and midiData Logistik GmbH credit facility in the amount of
1,500,000 DM.
10. Guarantee from NAVL to Generale Bank for Exel Logistics
(Belgium) NV and other Belgian companies, including Allied
Arthur Pierre NV (apx.
$BF55,000,000).
11. Guarantee from NAVL for Contract between Woodside Offshore
Petroleum Pty. Ltd. (Western Australia) and Allied Pickfords
Pty. Ltd. (Victoria) (performance guarantee).
12. Guarantee from Pickfords Limited, NA Moving Services Limited
and others to HSBC Bank plc (guarantee of a bank facility in
the amount of 5,000,000 Pounds).
7
SCHEDULE 8.9(c)
PERMITTED INVESTMENTS
1. NAVL holds a 51% interest in Manufacturing Support Services
L.L.C., with a capital investment of $554,880.
2. NAVL holds a 40% interest in UTS Europe Holding, B.V., a Dutch
household goods removal company, with a capital investment of
$213,178.
3. NAVTRANS International Freight Forwarding,
Inc. holds a 20% interest in Net-Trans Pty.
Ltd., an Australian freight forwarding
company with a capital investment of $3,864.
4. Note/indebtedness in the amount of $1,200,000 held by NAVL
from Thomas James Malloy, an agent of NAVL, dated as of
September 29, 1995 and signed October 3, 1995.
5. Promissory note in the principal amount of $1,000,000 issued
to NAVL by University Moving & Storage Company, dated as of
March 19, 1997, as amended as of June 16, 1999. The current
principal value on this note is $380,000.
6. NAVL holds a twenty-five percent interest in Conquest
Partners, LLP which was formed for the purpose of purchasing
and operating a 1982 Cessna Citation aircraft.
7. Amended Restated and Consolidated Promissory Note in the
principal amount of $1,090,293.40 issued to Allied Van Lines,
Inc. by Connell Storage & Moving Co., Inc., dated as of
September 22, 1994.
8. Promissory Note in the principal amount of C$670,562.00 issued
to Allied Van Lines Limited and Western Cartage and Storage
(1962) Ltd. by APM Delstar Inc., dated as of April 26, 1996.
9. Promissory Note in the principal amount of C$800,000 issued to
Allied Van Lines, a division of NFC Canada Ltd. by APM Delstar
Inc., dated as of October 31, 1997.
10. Promissory Note in the principal amount of C$912,711.30 issued
to Allied Van Lines, a division of NFC Canada Ltd. by APM
Delstar Inc., dated as of October 31, 1996.
11. Promissory Note in the principal amount of C$874,704.09 issued
to NFC Canada Ltd. by APM Delstar Inc., dated as of September
29, 1998.
12. Promissory Note in the principal amount of C$300,000 issued to
Allied Van Lines Limited by APM Delstar Inc., dated as of
September 29, 1995.
13. Promissory Note in the principal amount of C$553,830.00 issued
to Allied Van Lines Limited by APM Delstar Inc., dated as of
January 2, 1996.
14. Promissory Note in the principal amount of C$296,170 issued to
Allied Van Lines Limited by APM Delstar Inc., dated as of
March 1, 1996.
15. Promissory Note in the principal amount of C$150,000 issued to
Allied Van Lines Limited by APM Delstar Inc., dated as of
March 5, 1996.
16. Conditional Sales Agreement with terms related to payment of
purchase price among Western Cartage & Storage (1962) Ltd. and
APM Delstar Inc. and Dixon Van Lines, Ltd., Wallace Warehouse
& Cartage Ltd., and Western Moving & Storage Ltd. The sum of
C$1,632,911.25 is to be paid to Western Cartage & Storage
(1962) Ltd. by APM Delstar Inc. pursuant to the terms of the
agreement.
17. Promissory Note in the principal amount of C$650,000 issued to
NFC Canada Ltd. by APM Delstar Inc., dated as of September 29,
1998.
18. Promissory Note in the principal amount of C$325,000 issued to
NFC Canada Ltd. by APM Delstar Inc., dated as of September 29,
1998.
19. Conversion Agreement by and between Allied Van Lines Ltd. and
Jay B. Lilge and MacCosham Van Lines (Canada) Co. Ltd.
whereby Allied would lend up to C$800,000 to Lilge and
MacCosham. As of November 15, 1999, the amount outstanding
on the Conversion Agreement is C$310,225.32. A further
C$400,000 would become due and payable upon the occurrence
of certain specified events such as MacCosham's termination
of its agency contract prior to the tenth anniversary
thereof.
20. North American International Holding Corporation holds a 45%
interest in A.L. Movers Private Ltd (India).
21. North American International Holding Corporation holds a 49%
interest in Allied Pickfords LLC (UAE).
2
22. Other Equity Interests:
- -------------------------------------------------------------------------------
COMPANY SHARES CERTIFICATE NO.
- -------------------------------------------------------------------------------
ABW Systems Corporation 9294 81
- -------------------------------------------------------------------------------
Allied Products Corporation 20 CS16014
- -------------------------------------------------------------------------------
Allied Products Corporation 61 CS16010
- -------------------------------------------------------------------------------
American Healthcare Management, Inc. 420 AHM65
- -------------------------------------------------------------------------------
America West Airlines, Inc. 710 B18278
- -------------------------------------------------------------------------------
Ames Department Stores, Inc. 34 RC20564
- -------------------------------------------------------------------------------
Ames Department Stores, Inc. 35 RC11917
- -------------------------------------------------------------------------------
Ames Department Stores, Inc. 153 RC6556
- -------------------------------------------------------------------------------
Anoka County Farm Bureau Service 1 A3181
Association
- -------------------------------------------------------------------------------
Anoka County Farm Service Cooperative 2 A4017
- -------------------------------------------------------------------------------
ARIX Corporation 468 SFU8413
- -------------------------------------------------------------------------------
Astrodata, Inc. 143 LU459
- -------------------------------------------------------------------------------
Century Geophysical Corporation 24 TCU33477
- -------------------------------------------------------------------------------
Chipwich, Inc. 43 CH0219
- -------------------------------------------------------------------------------
Comstar Corporation 52 1109
- -------------------------------------------------------------------------------
Compace Corporation 299 12210
- -------------------------------------------------------------------------------
Computer Devices, Inc. 18 P276
- -------------------------------------------------------------------------------
Computone Corporation 50 C0394
- -------------------------------------------------------------------------------
Computr Ex Centres Ltd. 26 A-055
- -------------------------------------------------------------------------------
Containers Terminal of Baltimore, Inc. 10 1
- -------------------------------------------------------------------------------
Continental Information Systems 76 CIS1331
Corporation
- -------------------------------------------------------------------------------
Continental Information Systems 6 CIS2218
Corporation
- -------------------------------------------------------------------------------
3
- -------------------------------------------------------------------------------
COMPANY SHARES CERTIFICATE NO.
- -------------------------------------------------------------------------------
Continental Information Systems 1 CIS3603
Corporation
- -------------------------------------------------------------------------------
Digitech, Inc. 166 P3662
- -------------------------------------------------------------------------------
Extek Microsystems, Inc. 554 LU5122
- -------------------------------------------------------------------------------
M.H. Fishman Co. Inc. 20 FC024300
- -------------------------------------------------------------------------------
Foodbrands America, Inc. 123 FBA0429
- -------------------------------------------------------------------------------
Foodbrands America, Inc. 2 FBA2384
- -------------------------------------------------------------------------------
Gamex Industries, Inc. 8897 U19502
- -------------------------------------------------------------------------------
Hillcrest Carpets, Inc. 28 CPS0156
- -------------------------------------------------------------------------------
Interdyne Company 1323 N2100
- -------------------------------------------------------------------------------
Jetflorida, Inc. 14 JCO612
- -------------------------------------------------------------------------------
W.P. Acquisition Corporation 10 272
- -------------------------------------------------------------------------------
Keydata Corporation 1985 B3577
- -------------------------------------------------------------------------------
Keydata Corporation 4 B5007
- -------------------------------------------------------------------------------
Lezak Group Inc. 8477 LA003217
- -------------------------------------------------------------------------------
Lori Corporation 5 LC339
- -------------------------------------------------------------------------------
MPS International Corp. 26 05242
- -------------------------------------------------------------------------------
Maxicare Health Plans, Inc. 22 M9399
- -------------------------------------------------------------------------------
Maxicare Health Plans, Inc. 16 M3372
- -------------------------------------------------------------------------------
Maxicare Health Plans, Inc. 37 M15367
- -------------------------------------------------------------------------------
Miller Shoe Industries, Inc. 1503 MSU514
- -------------------------------------------------------------------------------
Miller Shoe Industries, Inc. 2074 MSU264
- -------------------------------------------------------------------------------
Paladin Computer Systems, Inc. 961 160
- -------------------------------------------------------------------------------
Pet Bazaar, Inc. 184 CU959
- -------------------------------------------------------------------------------
Pizza Inn, Inc. 98 PI5525
- -------------------------------------------------------------------------------
4
- -------------------------------------------------------------------------------
COMPANY SHARES CERTIFICATE NO.
- -------------------------------------------------------------------------------
Pizza Inn, Inc. 330 PI0116
- -------------------------------------------------------------------------------
RM Electronics Company, Inc. 19 60
- -------------------------------------------------------------------------------
Ramtek Corporation 1948 SF0294
- -------------------------------------------------------------------------------
Ranger Industries, Inc. 3 N4353
- -------------------------------------------------------------------------------
Ranger Industries, Inc. 62 N1330
- -------------------------------------------------------------------------------
Ranger Industries, Inc. 5 N1879
- -------------------------------------------------------------------------------
Reunited Holdings, Inc. 2200 RHO313
- -------------------------------------------------------------------------------
Robeson Industries Corp. 8 RIC0429
- -------------------------------------------------------------------------------
Santec Corporation 1445 FBU16982
- -------------------------------------------------------------------------------
Savin Corporation 275 SVC681
- -------------------------------------------------------------------------------
SeraCare, Inc. 46 1249
- -------------------------------------------------------------------------------
Servico, Inc. 29 SI5188
- -------------------------------------------------------------------------------
Servico, Inc. 16 SI11854
- -------------------------------------------------------------------------------
Servico, Inc. 222 SI2112
- -------------------------------------------------------------------------------
Servico, Inc. 20 SI14396
- -------------------------------------------------------------------------------
Servico, Inc. 65 SI18011
- -------------------------------------------------------------------------------
Servico, Inc. 1 SI22853
- -------------------------------------------------------------------------------
Solvation, Inc. 902 47
- -------------------------------------------------------------------------------
Strata Search, Inc. 3 PC64
- -------------------------------------------------------------------------------
Synergistics, Inc. 791 5058
- -------------------------------------------------------------------------------
Tetrahedron Associates, Inc. 173 JU626
- -------------------------------------------------------------------------------
Thinking Machines Corporation 361 0067
- -------------------------------------------------------------------------------
Thinking Machines Corporation 904 0067
- -------------------------------------------------------------------------------
Triad Hotels 7 394
- -------------------------------------------------------------------------------
Triad Hotels 30 410
- -------------------------------------------------------------------------------
5
- -------------------------------------------------------------------------------
COMPANY SHARES CERTIFICATE NO.
- -------------------------------------------------------------------------------
Triad Hotels 7 411
- -------------------------------------------------------------------------------
United Merchants and Manufacturers, Inc. 4 31007
- -------------------------------------------------------------------------------
Vicom Systems, Inc. 959.39388 PA-62
- -------------------------------------------------------------------------------
Vicom Systems, Inc. 36.51693 C-62
- -------------------------------------------------------------------------------
World-Wide Technology Inc. 131 ZQ0006127
- -------------------------------------------------------------------------------
Z&B Investments Co., Inc. 810 63
- -------------------------------------------------------------------------------
AM Diagnostics, Inc. 10 AA0000389
- -------------------------------------------------------------------------------
AM International, Inc. 10 ST 041647
- -------------------------------------------------------------------------------
AM International, Inc. 83 ST 029599
- -------------------------------------------------------------------------------
AM International, Inc. 199 ST 029518
- -------------------------------------------------------------------------------
AM International, Inc. 4 ST 070712
- -------------------------------------------------------------------------------
AM International, Inc. 10 ST 073502
- -------------------------------------------------------------------------------
AM International, Inc. 6 ST 041563
- -------------------------------------------------------------------------------
AM International, Inc. 395 ST 016090
- -------------------------------------------------------------------------------
AM International, Inc. 165 ST 016101
- -------------------------------------------------------------------------------
Apeco Corporation 3 CA16124
- -------------------------------------------------------------------------------
Beehive International 733 SFS 91559
- -------------------------------------------------------------------------------
Beehive International 1683 SFS 85585
- -------------------------------------------------------------------------------
BSL Technology 3348 1452
- -------------------------------------------------------------------------------
Helionetics, Inc. 252 SF 43574
- -------------------------------------------------------------------------------
Helionetics, Inc. 256 SF 43575
- -------------------------------------------------------------------------------
Helionetics, Inc. 512 SW 0211
- -------------------------------------------------------------------------------
Helionetics, Inc. 504 SW 0210
- -------------------------------------------------------------------------------
Imutech, Inc. 540 8694
- -------------------------------------------------------------------------------
KSW, Inc. 21 KS 0026
- -------------------------------------------------------------------------------
6
- -------------------------------------------------------------------------------
COMPANY SHARES CERTIFICATE NO.
- -------------------------------------------------------------------------------
Mayflower Group, Inc. 10 M 0001284
- -------------------------------------------------------------------------------
Minstar 10 10771
- -------------------------------------------------------------------------------
Norfolk Southern Corporation 60 NS 043157
- -------------------------------------------------------------------------------
Norfolk Southern Corporation 20 N 901318
- -------------------------------------------------------------------------------
Norfolk Southern Corporation 10 N 199933
- -------------------------------------------------------------------------------
Peripheral Systems, Inc. 239 C01-0107
- -------------------------------------------------------------------------------
Peripheral Systems, Inc. 197 C01-0108
- -------------------------------------------------------------------------------
Peripheral Systems, Inc. 56 C01-0109
- -------------------------------------------------------------------------------
Puridyne, Inc. 270 1006
- -------------------------------------------------------------------------------
Savin Corporation 24 SVC 225
- -------------------------------------------------------------------------------
Seatrain Lines, Inc. 1845 SLR 2007
- -------------------------------------------------------------------------------
Seatrain Lines, Inc. 3945 SLR 2009
- -------------------------------------------------------------------------------
Seatrain Lines, Inc. 571 SLW 0081
- -------------------------------------------------------------------------------
Seatrain Lines, Inc. 1219 SLW 0085
- -------------------------------------------------------------------------------
Servico, Inc. 26 SI 15347
- -------------------------------------------------------------------------------
Servico, Inc. 20 SI 10051
- -------------------------------------------------------------------------------
Servico, Inc. 70 SI 16582
- -------------------------------------------------------------------------------
Servico, Inc. 284 SI 0120
- -------------------------------------------------------------------------------
Servico, Inc. 1 SI 21267
- -------------------------------------------------------------------------------
The Shirt Shed, Inc. 233 1087
- -------------------------------------------------------------------------------
Storagetek 2 ST 66427
- -------------------------------------------------------------------------------
Storagetek 2 ST 66426
- -------------------------------------------------------------------------------
Telelogic, Inc. 122 299
- -------------------------------------------------------------------------------
Templeton Energy, Inc. 91 C 21475
- -------------------------------------------------------------------------------
Templeton Energy, Inc. 24 C 25102
- -------------------------------------------------------------------------------
7
- -------------------------------------------------------------------------------
COMPANY SHARES CERTIFICATE NO.
- -------------------------------------------------------------------------------
Tocoma Boatbuilding Co. 172 TBC 0104
- -------------------------------------------------------------------------------
Tri-lite Inc. 1 TL 0461
- -------------------------------------------------------------------------------
Tri-lite Inc. 1 TL0460
- -------------------------------------------------------------------------------
Vanderbilt Gold Corporation 500 LU 8069
- -------------------------------------------------------------------------------
8
SCHEDULE 8.11(v)
PERMITTED TRANSACTIONS WITH AFFILIATES
1. Letter of Intent from UTS Europe Holding, B.V. to lease PROPAC
containers from NAVL, dated as of June 15, 1994, and related
agreements to be entered into.
2. Agreement between NAVTRANS International Freight Forwarding,
Inc. and Net-Trans Pty, Ltd., dated as of May 27, 1993, for
each party to act as the nonexclusive agent of the other for
the handling and forwarding of ocean and air cargo.
3. Indemnification Agreement, dated as of March 30, 1998, among
the Buyer, NAVL, Clayton, Dubilier & Rice, Inc. and CD&R Fund V.
4. Consulting Agreement, dated as of March 30, 1998, among the
Buyer, NAVL and Clayton, Dubilier & Rice, Inc., as amended by
Amendment No. 1, dated April 1, 1998.
5. Registration and Participation Agreement, dated as of March 30,
1998, by and between the Buyer and CD&R Fund V, as amended.
6. Amendment No. 1 to the Registration and Participation
Agreement, dated as of the Closing Date, between NA Holding
Corporation and Clayton, Dubilier & Rice Fund V Limited Partnership.
7. Management and Cost Allocation Agreement, dated as of July 18,
1990, by and between NAVL and North American Transport
Insurance Company, as amended.
8. Stock Subscription Agreement, dated as of March 30, 1998, by
and between the Buyer and CD&R Fund V.
9. Transition Services Agreement, dated as of the Closing Date,
between NFC plc and NA Holding Corporation.
10. Various shared facilities leases with Pickfords Ltd. and its
Subsidiaries with respect to facilities located in the United
Kingdom.
11. Tax Matters Agreement between NA Holding Corporation and NFC
plc, dated as of September 14, 1999.
12. Letter Agreement, dated as of the Closing Date, among NA
Holding Corporation, North American Van Lines, Clayton,
Dubilier & Rice Fund V Limited Partnership and NFC plc.
13. Acquisition Agreement, dated as of September 14, 1999, between
NFC plc and NA Holding Corporation.
14. Stock Subscription Agreement, dated as of November 19, 1999,
between NA Holding Corporation and Clayton, Dubilier & Rice
Fund V Limited Partnership, a Cayman Islands exempted limited
partnership.
15. Stock Subscription Agreement, dated as of November 19, 1999,
between NA Holding Corporation and NFC plc.
2
Attachment
Item 8.4(a)(6)
- -----------------------------------------------------------------------------------------------------------------------------------
TYPE ST OBLIGEE PRINCIPAL AMOUNT EFFECTIVE EXPIRATION
- -----------------------------------------------------------------------------------------------------------------------------------
Fidelity IN IN Dept. of North American 150,000 01/16/1998 01/16/2001
Insurance Transport Inc. Co.
- -----------------------------------------------------------------------------------------------------------------------------------
Game of CN Repe des North American Van 7,680 02/11/1999 02/11/2000
Chance Alcoofs des Lines Canada, Inc.
courses et des
Jeux
- -----------------------------------------------------------------------------------------------------------------------------------
Lost OK 1st Bk of North American Van 185.80 04/09/1998 04/09/2005
Instrument Chandler/OK Lines, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Toll Charge FL FL DOT North American Van 35,000 09/01/1999 08/01/2000
Lines, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Performance US GSA North American Van 20,000 11/01/1998 12/31/1999
Lines, Inc. (NAVI)
- -----------------------------------------------------------------------------------------------------------------------------------
Performance US GSA North American Van 75,000 11/01/1998 12/31/1999
Lines, Inc. (NAVI)
- -----------------------------------------------------------------------------------------------------------------------------------
Lost FL Bank of North American Van 10,490.17 10/21/1998 10/21/2005
Instrument Ormond by the Lines, Inc.
Sea
- -----------------------------------------------------------------------------------------------------------------------------------
Lost TX Lone Star North American Van 1,992.42 11/12/1998 11/12/2005
Instrument Bank, N.A. Lines, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
NVOOC US Federal FrontRunner 75,000 04/20/1999 04/20/2000
Maritime Worldwide, Inc.
Commission
- -----------------------------------------------------------------------------------------------------------------------------------
NVOOC US Federal North American Van 95,000 04/20/1999 04/20/2000
Maritime Lines, Inc.
Commission
- -----------------------------------------------------------------------------------------------------------------------------------
NVOOC US Federal North American (U.K.) 75,000 04/20/1999 04/20/2000
Maritime Limited
Commission
- -----------------------------------------------------------------------------------------------------------------------------------
NVOOC US Federal NAVTRANS 185,000 04/20/1999 04/20/2000
Maritime Container Lines, Inc.
Commission
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
TYPE ST OBLIGEE PRINCIPAL AMOUNT EFFECTIVE EXPIRATION
- -----------------------------------------------------------------------------------------------------------------------------------
Freight US Federal NAVTRANS IFF dba 160,000 04/20/1999 04/20/2000
Forwarder Maritime No. Amer. Intl.
Commission
- -----------------------------------------------------------------------------------------------------------------------------------
Fuel Tax OR Oregon, State North American Van 2,000 05/20/1999 05/20/2000
of Lines Canada Ltd.
- -----------------------------------------------------------------------------------------------------------------------------------
Escrow IN Duke Weeks North American Van 4,000,000 09/20/1999 09/20/2000
Guarantee Realty Lines, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Institutional IN IN North American Van 5,000 10/01/1999 10/01/2000
Commission Lines, Inc.
on Proprietary
Education
- -----------------------------------------------------------------------------------------------------------------------------------
Lost U.S. Bank Banasch, Marcia 1,914 10/21/1999 10/25/2008
Instrument
- -----------------------------------------------------------------------------------------------------------------------------------
Producer IL Illinois Dept. Fleet Insurance 1,000 10/17/1997 10/17/2000
of Ins. Management
- -----------------------------------------------------------------------------------------------------------------------------------
Liquor PA PA Liquor North American Van 3,000 12/31/1997 12/31/1999
Control Board Lines, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Customs - CN CN Revenue North American Van 50,000 12/15/1998 12/15/1999
Canada Lines, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Workers IN IN WCB North American Van 5,500,000 09/01/1998 UC
Compensation Lines, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Customs - US US Dept. of the North American Van 100,000 09/12/1998 09/12/1999
Treasury Lines Canada Ltd.
- -----------------------------------------------------------------------------------------------------------------------------------
Property US ICC NAVTRANS IFF dba 10,000 02/25/1999 02/26/2000
Broker No. Amer. Intl.
- -----------------------------------------------------------------------------------------------------------------------------------
Performance US Military North American Van 25,000 09/01/1995 03/01/1999
Traffic Mgmt. Lines, Inc. (NAVH)
Command
- -----------------------------------------------------------------------------------------------------------------------------------
Performance US U.S. Dept. of North American Van 25,000 09/28/1996 09/28/1998
State Lines, Inc. (NOAM)
- -----------------------------------------------------------------------------------------------------------------------------------
Toll Charge PA PA Turnpike North American Van 10,000 09/22/1997 09/22/2000
Commission Lines, Inc. (FLB)
- -----------------------------------------------------------------------------------------------------------------------------------
Toll Charge PA PA Turnpike North American Van 15,000 09/22/1997 09/22/2000
Commission Lines, Inc. (RSD)
- -----------------------------------------------------------------------------------------------------------------------------------
2
- -----------------------------------------------------------------------------------------------------------------------------------
TYPE ST OBLIGEE PRINCIPAL AMOUNT EFFECTIVE EXPIRATION
- -----------------------------------------------------------------------------------------------------------------------------------
Toll Charge NY NY Thruway North American Van 250,000 01/03/1999 01/03/2000
Authority Lines, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
COD CA California North American Van 2,000 01/01/1997 01/01/2000
PUC Lines, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
COD CA California NACAL, Inc. 15,000 01/01/1997 01/01/2000
PUC
- -----------------------------------------------------------------------------------------------------------------------------------
Subhauler CA California NACAL, Inc. 15,000 01/01/1997 01/01/2000
PUC
- -----------------------------------------------------------------------------------------------------------------------------------
Toll Charge PA PA Turnpike North American Van 55,000 02/04/1999 02/04/2000
Commission Lines, Inc. (HVP)
- -----------------------------------------------------------------------------------------------------------------------------------
Toll Charge PA PA Turnpike North American Van 25,000 02/04/1999 02/04/2000
Commission Lines, Inc. (BLK)
- -----------------------------------------------------------------------------------------------------------------------------------
Property US IDS/STB(?) North American Van 10,000 02/17/1999 02/17/2000
Broker Lines, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Performance US Military North American Van 185,465 03/31/1999 03/31/2000
Traffic Mgmt. Lines, Inc.
Command
- -----------------------------------------------------------------------------------------------------------------------------------
Insurance LA LA Fleet Insurance 25,000 04/23/1999 04/23/2000
Broker Commissioner Management
of Insurance
- -----------------------------------------------------------------------------------------------------------------------------------
Insurance LA LA James E. Phillabaum 25,000 04/23/1999 04/23/2000
Broker Commissioner
of Insurance
- -----------------------------------------------------------------------------------------------------------------------------------
Property US ICC FrontRunner 10,000 04/19/1999 04/19/2000
Broker Worldwide, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Subhauler CA California North American Van 10,000 08/31/1997 08/31/2000
PUC Lines, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Property US ICC North American 10,000 08/26/1997 08/26/2000
Broker Logistics Ltd.
- -----------------------------------------------------------------------------------------------------------------------------------
Freight XX TPAFBO North American Van 200,000 10/31/1997 10/31/2000
Indemnity Lines, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Toll Charge MA MA Turnpike North American Van 4,500 12/02/1997 12/02/2000
Authority Lines, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Property US ICC North American 10,000 01/08/1999 01/06/2000
Broker Forwarding, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
3
- -----------------------------------------------------------------------------------------------------------------------------------
TYPE ST OBLIGEE PRINCIPAL AMOUNT EFFECTIVE EXPIRATION
- -----------------------------------------------------------------------------------------------------------------------------------
Freight XX TAAFLO North American Van 100,000 05/31/1999 05/31/2000
Indemnity Lines, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Institutional IN Indiana, State No. Amer. Van Lines 5,000 02/22/1999 02/22/2000
of dba CDL Plus
- -----------------------------------------------------------------------------------------------------------------------------------
Freight XX Pasha North American Van 30,000 04/06/1999 04/06/2000
Indemnity International Lines, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Financial KY KY, Common James E. Phillabaum 1,000 06/19/1999 06/19/2000
Responsibility wealth of
- -----------------------------------------------------------------------------------------------------------------------------------
Customs - US US Dept. of the North American Van 200,000 05/02/1999 05/02/2000
Treasury Lines, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Employment IN Indiana, State North American Van 5,000 07/05/1999 07/05/2000
Agency of Lines, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Insurance IL IL Dept. of James E. Phillabaum 2,600 03/13/1999 03/13/2000
Producer Insurance
- -----------------------------------------------------------------------------------------------------------------------------------
Highway Use OR Oregon PUC North American Van 30,000 06/06/1999 06/05/2000
Lines, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Toll Charge NJ NJ Turnpike North American Van 60,000 09/25/1996 09/25/1999
Authority Lines, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Toll Charge IN IN DOT/Toll North American Van 30,000 09/26/1996 09/25/1999
Road Division Lines, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Toll Charge OH Ohio Turnpike North American Van 100,000 09/25/1996 09/25/1999
Commission Lines, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Toll Charge MA MA Turnpike North American Van 15,000 09/25/1998 09/25/1999
Authority Lines, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Property US ICC Move Management 10,000 10/14/1998 10/14/1999
Broker Services, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Performance US GSA North American Van 20,000 11/01/1998 10/31/1999
Lines, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Customs Suff. CN Revenue NAVLCL dba All 20,000 12/15/1998 12/15/1999
Whse Canada Cities NA
- -----------------------------------------------------------------------------------------------------------------------------------
Customs - ON CN Revenue North American Van 25,000 12/15/1998 12/15/1999
Canada Lines Canada Ltd.
- -----------------------------------------------------------------------------------------------------------------------------------
4
SAFECO BONDS
- -----------------------------------------------------------------------------------------------------------------------------------
BOND Principal Obligee Description Eff. & Bond Amount
NO. Exp.
Date
- -----------------------------------------------------------------------------------------------------------------------------------
4788984 A Relocation Federal Highway Admin- License & 1/31/99 $10,000
Solutions Offc of M.C. Permit - 00
Management
Company
- -----------------------------------------------------------------------------------------------------------------------------------
5894094 A.V.L. Federal Hwy Admin-Sec of Property 2/15/99 $10,000
Transportation Ins. Broker's Surety - 00
, Inc. Bond Under 49
U.S.C.
- -----------------------------------------------------------------------------------------------------------------------------------
4684527 Allied Freight Trans-Pacific American Freight 11/17/9 $50,000
Forwarding, Flag Berth Operators Indemnity Bond 8 - 01
Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
5083969 Allied Freight Military Traffic Mgmt Annual 4/1/99 - $189,990
Forwarding, Command-Dept of Army Performance 00
Inc. Bond (Supply)
- -----------------------------------------------------------------------------------------------------------------------------------
5353481 Allied Freight Trans-Atlantic American Freight 3/4/99 - $50,000
Forwarding, Flag Liner Operators Indemnity Bond 00
Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
5685258 Allied Freight Federal Maritime Non-Vessel 2/14/99 $75,000
Forwarding, Commission Operating - 00
Inc. Common Carrier
Bond
- -----------------------------------------------------------------------------------------------------------------------------------
5894093 Allied Freight Federal Hwy Admin-Sec of License & 2/15/99 $10,000
Forwarding, Insurance Permit - 00
Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
5963086 Allied Freight American President Lines, Freight 4/30/99 $125,000
Forwarding, Ltd. Indemnity Bond - 00
Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
4368750 Allied U.S.A. Federal Maritime Federal 7/9/99 - $50,000
International Commission Maritime 00
N.A., Inc. Commission
Independent
Ocean Freight
Forwarder's
Bond
- -----------------------------------------------------------------------------------------------------------------------------------
4383534 Allied Federal Highway Admin.- Broker's Surety 11/3/99 $10,000
International Office of Motor Carriers Bond Under - 00
N.A., Inc. Section 211(C)
of the Interstate
Commerce Act
- -----------------------------------------------------------------------------------------------------------------------------------
Charee/SafecoBonds
5
SAFECO BONDS
- -----------------------------------------------------------------------------------------------------------------------------------
5685257 Allied Federal Maritime Non-Vessel 2/14/99 $75,000
International Commission Operating - 00
N.A., Inc. Common Carrier
Bond
- -----------------------------------------------------------------------------------------------------------------------------------
5877826 Allied Federal Maritime Ocean Freight 10/26/9 $40,000
International Commission Forwarder Bond 9 - 00
N.A., Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
5894072 Allied GSA Centralized Performance 11/1/99 $75,000
International Household Goods Traffic Bond -
N.A., Inc. Mgmt Program 9/30/00
- -----------------------------------------------------------------------------------------------------------------------------------
5894092 Allied Federal Hwy Admin-Sec of License & 2/15/99 $10,000
International Insurance Permit - 00
N.A., Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
5894073 Allied GSA Centralized Performance 11/1/99 $20,000
Relocation Household Goods Traffic Bond - 00
Services, Inc. Mgmt Program
- -----------------------------------------------------------------------------------------------------------------------------------
5894079 Allied GSA Centralized Performance 10/31/9 $20,000
Relocation Household Goods Traffic Bond 9 - 00
Services, Inc. Mgmt Program
- -----------------------------------------------------------------------------------------------------------------------------------
5913771 Allied GSA Centralized Performance 11/1/99 $75,000
Relocation Household Goods Traffic Bond - 00
Services, Inc. Mgmt Program
- -----------------------------------------------------------------------------------------------------------------------------------
892897 Allied Van Commonwealth of License & 8/11/99 $1,000
Lines, Inc. Kentucky, Div of Motor Permit - 00
Carriers
- -----------------------------------------------------------------------------------------------------------------------------------
921826 Allied Van Kentucky Dept. of Vehicle License & 6/21/99 $25,000
Lines, Inc. Regulations Permit - 00
- -----------------------------------------------------------------------------------------------------------------------------------
2436352 Allied Van State of California License & 9/1/99 - $15,000
Lines, Inc. Permit 00
- -----------------------------------------------------------------------------------------------------------------------------------
2537278 Allied Van State of Texas License & 5/27/99 $2,500
Lines, Inc. Permit - 02
- -----------------------------------------------------------------------------------------------------------------------------------
2585794 Allied Van Georgia Public Service Miscellaneous 12/23/9 $1,000
Lines, Inc. Commission 8 - 99
- -----------------------------------------------------------------------------------------------------------------------------------
2881637 Allied Van United States of America License & 9/6/99 - $10,000
Lines, Inc. Permit 00
- -----------------------------------------------------------------------------------------------------------------------------------
2894033 Allied Van Trans-Atlantic American Freight 8/9/97 - $50,000
Lines & Flag Liner Operators Indemnity Bond 00
Allied Int'l
NA
- -----------------------------------------------------------------------------------------------------------------------------------
4160704 Allied Van State of Wyoming WC Financial 10/28/9 $1,000
Lines, Inc. Officer The State Treasury Guarantee 9 - 00
- -----------------------------------------------------------------------------------------------------------------------------------
5173518 Allied Van United States of America Carriers Bond 8/28/99 $25,000
Lines, Inc. - 00
- -----------------------------------------------------------------------------------------------------------------------------------
Charee/SafecoBonds
6
SAFECO BONDS
- -----------------------------------------------------------------------------------------------------------------------------------
5202597 Allied Van Interstate Commerce License & 11/22/9 $10,000
Lines, Inc. Commission Permit 9 - 00
- -----------------------------------------------------------------------------------------------------------------------------------
5749785 Allied Van Military Traffic Performance 1/15/99 $100,000
Lines, Inc. Management Command Bond - 00
- -----------------------------------------------------------------------------------------------------------------------------------
5894091 Allied Van Federal Hwy Admin-Sec of License & 2/15/99 $10,000
Lines, Inc. Ins. Permit - 00
- -----------------------------------------------------------------------------------------------------------------------------------
5930666 Allied Van Commonwealth of Court & 4/28/99 $267,671
Lines, Inc. Pennsylvania Fiduciary - 00
- -----------------------------------------------------------------------------------------------------------------------------------
5930667 Allied Van Commonwealth of Court & 4/28/99 $13,206
Lines, Inc. Pennsylvania Fiduciary - 00
- -----------------------------------------------------------------------------------------------------------------------------------
5894082 TransGuard California Dept. of Ins. License & 1/30/99 $10,000
General Permit - 00
Agency, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
5899897 TransGuard State of IL Dept. of Ins. License & 5/8/99 - $32,500
General Permit 00
Agency, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
5963063 TransGuard New Hampshire Ins. Dept. License & 1/25/99 $2,500
General Permit - 00
Agency, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
5963064 TransGuard General Treasurer of License & 1/25/99 $5,000
General Rhode Island Permit - 00
Agency, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
5963065 TransGuard Arizona Ins. Licensing License & 1/25/99 $1,000
General Section Permit - 00
Agency, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
5963066 TransGuard Indiana Dept. of Insurance License & 1/25/99 $2,500
General Permit - 00
Agency, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
5963069 TransGuard Insurance Administration License & 4/30/99 $10,000
General Permit - 01
Agency, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
5946258 Trident Federal Maritime Non-Vessel 5/1/99 - $75,000
Transport Commission Operating 00
International, Comm Carrier
Inc. Bond
- -----------------------------------------------------------------------------------------------------------------------------------
2383279 Vanguard Ins. State of Nevada License & 1/21/98 $5,000
Agency, Inc. Permit - 01
- -----------------------------------------------------------------------------------------------------------------------------------
2383281 Vanguard Ins. General Treasurer of the License & 1/21/98 $1,000
Agency, Inc. State of Rhode Island Permit - 01
- -----------------------------------------------------------------------------------------------------------------------------------
2585804 Vanguard Ins. State of IL License & 2/28/97 $50,000
Agency, Inc. Permit - 00
- -----------------------------------------------------------------------------------------------------------------------------------
2868052 Vanguard Ins. Pennsylvania Dept. of Ins. License & 5/8/99 - $2,500
Agency, Inc. Permit 02
Charee/SafecoBonds
7
SAFECO BONDS
- -----------------------------------------------------------------------------------------------------------------------------------
4791951 Vanguard Ins. New York Dept. of Ins. License & 5/21/9 - $2,500
Agency, Inc. Broker Div. Permit 00
- -----------------------------------------------------------------------------------------------------------------------------------
5083972 Vanguard Ins. State of Oklahoma License & 2/5/99 - $2,500
Agency, Inc. Permit 00
- -----------------------------------------------------------------------------------------------------------------------------------
5083981 Vanguard Ins. North Dakota Dept. of Ins. License & 2/11/99 $20,000
Agency, Inc. Permit - 00
- -----------------------------------------------------------------------------------------------------------------------------------
5257390 Vanguard Ins. State of Maryland - Ins. License & 6/30/99 $10,000
Agency, Inc. Div. Permit - 00
- -----------------------------------------------------------------------------------------------------------------------------------
5759494 Vanguard Ins. Arizona Dept. of Ins. Non Resident 5/24/99 $1,000
Agency, Inc. Ins. Broker - 00
- -----------------------------------------------------------------------------------------------------------------------------------
5873083 Vanguard Ins. IL Director of Ins. Broker License & 5/8/99 - $20,000
Agency, Inc. Licensing Div. Permit 00
- -----------------------------------------------------------------------------------------------------------------------------------
2383275 Vanguard Ins. People of the State of License & 1/24/98 $10,000
Agency, Inc. Idaho Permit - 01
- -----------------------------------------------------------------------------------------------------------------------------------
2382853 Vanguard Ins. State of New Hampshire License & 5/9/98 - $1,000
Agency, Inc. Permit 01
- -----------------------------------------------------------------------------------------------------------------------------------
2223941 Vanguard Ins. California Dept. of Ins. License & 2/22/99 $10,000
Agency, Inc. Permit - 02
- -----------------------------------------------------------------------------------------------------------------------------------
Charee/SafecoBonds
8
SAFECO BONDS
Attachment 8.3(j)(57)
- -----------------------------------------------------------------------------------------------------------------------------------
JURISDICTION SERVICE FILE DATE AND NUMBER SECURED PARTY COLLATERAL DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 10/08/1992 Pitney Bowes Credit Corp Specified Leases
003038407
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 05/14/1993 Pitney Bowes Credit Corp Specified Leases
003121627
- -----------------------------------------------------------------------------------------------------------------------------------
Cook Illinois JUD 08/04/1995 Daniel M. Salata $598.00
95M3 2536
- -----------------------------------------------------------------------------------------------------------------------------------
Harris Texas JUD 07/29/1994 Donald T. Markland $5,000.00
9274
- -----------------------------------------------------------------------------------------------------------------------------------
Harris Texas JUD 08/02/1993 Felicia C. Willis There are no proceedings
621619 pending to enforce any
judgment in connection
with this case. The
Borrower will determine
and report to the
Administrative Agent the
status of this case.
- -----------------------------------------------------------------------------------------------------------------------------------
Jefferson Texas JUD 12/20/1996 Jerry Peveto et al Settled
82146
- -----------------------------------------------------------------------------------------------------------------------------------
Charee/SafecoBonds
SAFECO BONDS
- -----------------------------------------------------------------------------------------------------------------------------------
JURISDICTION SERVICE FILE DATE AND NUMBER SECURED PARTY COLLATERAL DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
Dallas Texas JUD 12/13/1983 Kathy Keown $11.00
02436935
- -----------------------------------------------------------------------------------------------------------------------------------
Brazoria Texas JUD 05/01/1995 Southwest Sids $3,046.00
15284A Research Institute
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 09/07/1989 First Choice Bank Specified Leases
002618815
- -----------------------------------------------------------------------------------------------------------------------------------
Cook Illinois STL 02/03/1993 Internal Revenue Service $9,237.00
93086377
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois STL 02/01/1993 Internal Revenue Service $9,237.00
16752
- -----------------------------------------------------------------------------------------------------------------------------------
Cook Illinois JUD 01/28/1993 American President Lines $541.00
92M1 183263
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 05/25/1989 Chrysler Systems Leasing Inc. Specified Leases
002579304
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 07/28/1989 Chrysler Systems Leasing Inc. Specified Leases
002603793
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 09/14/1989 Chrysler Systems Leasing Inc. Specified Leases
002621470
- -----------------------------------------------------------------------------------------------------------------------------------
Charee/SafecoBonds
10
SAFECO BONDS
- -----------------------------------------------------------------------------------------------------------------------------------
JURISDICTION SERVICE FILE DATE AND NUMBER SECURED PARTY COLLATERAL DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 05/14/1991 Chrysler Systems Leasing Inc. Specified Leases, Leased
002850766 Equipment, and Proceeds
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 07/11/1991 Chrysler Systems Leasing Inc. Specified Leases, Leased
002871555 Equipment, and Proceeds
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 03/24/1992 Chrysler Systems Leasing Inc. Specified Leases, Leased
002964746 Equipment, and Proceeds
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 08/11/1992 Chrysler Systems Leasing Inc. Specified Leases, Leased
003018576 Computer Equipment
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 04/23/1998 Fleet Capital Corp as Agent Leased Equipment, Leased
003839606 Computer Equipment and
Proceeds
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 03/07/1984 General Electric Credit Corp Specified Leases
001844628
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 03/07/1984 General Electric Credit Corp Specified Leases
001844648
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 12/19/1998 General Electric Credit Corp Specified Leases, Leased
002512367 Equipment, Specified
Chattel Paper, Including
Proceeds
- -----------------------------------------------------------------------------------------------------------------------------------
Charee/SafecoBonds
11
SAFECO BONDS
- -----------------------------------------------------------------------------------------------------------------------------------
JURISDICTION SERVICE FILE DATE AND NUMBER SECURED PARTY COLLATERAL DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 12/19/1998 General Electric Credit Corp Specified Equipment,
002512368 Leased Equipment,
Vehicles, Including
Proceeds and Products
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 07/07/1994 IBM Corp Specified Equipment,
00328788 Specified Computer
Equipment and Proceeds
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 08/10/1990 Pitney Bowes Credit Group Specified Leases, Specified
002749733 Equipment and Proceeds
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 01/10/1985 QRZX Leasing Co Inc., DBA Specified Leases
001952699 Great Western Leasing
- -----------------------------------------------------------------------------------------------------------------------------------
Du Page Illinois JUD 04/10/1995 Peggy J. Wilson $15,689.00
95AR 572
- -----------------------------------------------------------------------------------------------------------------------------------
Harris Texas JUD 06/13/1984 Irving Abrams There are no proceedings
J553928 pending to enforce any
judgment in connection
with this case. The
Borrower will determine
and report to the
Administrative Agent the
status of this case.
- -----------------------------------------------------------------------------------------------------------------------------------
Charee/SafecoBonds
12
SAFECO BONDS
- -----------------------------------------------------------------------------------------------------------------------------------
JURISDICTION SERVICE FILE DATE AND NUMBER SECURED PARTY COLLATERAL DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
Harris Texas JUD 06/01/1998 Acosta Albert $7,883.00
700733
- -----------------------------------------------------------------------------------------------------------------------------------
Tarrant Texas JUD 05/26/1988 Other Party; Allied Van Lines Inc. $1,157.00
00346213
- -----------------------------------------------------------------------------------------------------------------------------------
Jefferson Texas JUD 03/17/1995 Anthony Walters Settled
B151307
- -----------------------------------------------------------------------------------------------------------------------------------
Harris Texas JUD 11/10/1995 Charles D. Morgan Settled
56164
- -----------------------------------------------------------------------------------------------------------------------------------
Harris Texas JUD 08/10/1993 Cotton Moving & Storage Inc. Settled
9341347334
- -----------------------------------------------------------------------------------------------------------------------------------
Harris Texas JUD 07/15/1993 CYD D. Dillahunty Settled
60913
- -----------------------------------------------------------------------------------------------------------------------------------
Harris Texas JUD 12/21/1995 Dale Glass MD Settled
9561390
- -----------------------------------------------------------------------------------------------------------------------------------
Charee/SafecoBonds
13
SAFECO BONDS
- -----------------------------------------------------------------------------------------------------------------------------------
JURISDICTION SERVICE FILE DATE AND NUMBER SECURED PARTY COLLATERAL DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
Smith Texas JUD 08/02/1996 Daniel Bruce Groves There are no proceedings
39225 pending to enforce any
judgment in connection
with this case. The
Borrower will determine
and report to the
Administrative Agent the
status of this case.
- -----------------------------------------------------------------------------------------------------------------------------------
Bexar Texas JUD 08/03/1993 Deborah Jamail Judgment Satisfied
210/610
- -----------------------------------------------------------------------------------------------------------------------------------
Harris Texas JUD 01/11/1994 Gary Allen Jackson $5,000.00
940134961
- -----------------------------------------------------------------------------------------------------------------------------------
Harris Texas JUD 07/02/1984 Other Party; Houston NW There are no proceedings
J582963 Aviation Inc. pending to enforce any
judgment in connection
with this case. The
Borrower will determine
and report to the
Administrative Agent the
status of this case.
- -----------------------------------------------------------------------------------------------------------------------------------
Galveston Texas JUD 05/30/1997 Hugh House et al $12,400.00
SC6699
- -----------------------------------------------------------------------------------------------------------------------------------
Charee/SafecoBonds
14
SAFECO BONDS
- -----------------------------------------------------------------------------------------------------------------------------------
JURISDICTION SERVICE FILE DATE AND NUMBER SECURED PARTY COLLATERAL DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
McLennan Texas JUD 11/28/1994 Lawrence E. Greenwood Settled
9442073
- -----------------------------------------------------------------------------------------------------------------------------------
Harris Texas JUD 01/12/1996 Michael D. Rowland et al Settled
9601741
- -----------------------------------------------------------------------------------------------------------------------------------
Galveston Texas JUD 03/09/1994 Murray Reynolds $10,000.00
94CV0247
- -----------------------------------------------------------------------------------------------------------------------------------
Harris Texas JUD 03/08//1995 Murray Reynolds $10,000.00
951202955
- -----------------------------------------------------------------------------------------------------------------------------------
Montgomery Texas JUD 07/21/1993 Paul Baraai $195,770.00
930702080CV
- -----------------------------------------------------------------------------------------------------------------------------------
Dallas Texas JUD 01/07/1980 Other Party; Allied Van Lines Inc. $1,588.20
00052195
- -----------------------------------------------------------------------------------------------------------------------------------
Dallas Texas JUD 08/30/1979 Other Party; Allied Van Lines Inc. $1,588.20
01715428
- -----------------------------------------------------------------------------------------------------------------------------------
Hidalgo Texas JUD 12/12/1994 Scott Breittenwischer Settled
CL25359D
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 07/18/1989 AT&T Credit Corp Specified Leases
002599620
- -----------------------------------------------------------------------------------------------------------------------------------
Charee/SafecoBonds
15
SAFECO BONDS
- -----------------------------------------------------------------------------------------------------------------------------------
JURISDICTION SERVICE FILE DATE AND NUMBER SECURED PARTY COLLATERAL DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 09/01/1989 AT&T Credit Corp Specified Leases
002617239
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 12/04/1989 AT&T Credit Corp Specified Leases
002652035
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 03/20/1989 Capital Associates International Specified Leases
002549280 Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 04/10/1989 Chrysler Systems Leasing Inc. Specified Leases
002558544
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 11/20/1989 Chrysler Systems Leasing Inc. Specified Leases
002647161
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 03/24/1992 Chrysler Systems Leasing Inc. Specified Leases, Leased
002964745 Equipment and Proceeds
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 03/21/1990 COM - L 1989-B Corp Specified Leases, Leased
002693221 Business
Machinery/Equipment and
Proceeds
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 09/20/1989 Comdisco Inc. Specified Leases
002624073 (computer printers)
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 02/07/1989 Mt. Greenwood Bank Specified Leases
002533035
- -----------------------------------------------------------------------------------------------------------------------------------
Charee/SafecoBonds
16
SAFECO BONDS
- -----------------------------------------------------------------------------------------------------------------------------------
JURISDICTION SERVICE FILE DATE AND NUMBER SECURED PARTY COLLATERAL DESCRIPTION
- -----------------------------------------------------------------------------------------------------------------------------------
State of Illinois UCC 06/27/1989 Mid-States Financial Corp. Specified Leases, Leased
002591956 Equipment and Proceeds
- -----------------------------------------------------------------------------------------------------------------------------------
Dallas Texas JUD 05/25/1994 Charlie Nzeakor $2,000.00
29400079N
- -----------------------------------------------------------------------------------------------------------------------------------
State of Texas UCC 06/01/1999 MCI Capital Services Specified accounts
9900106189 receivable
- -----------------------------------------------------------------------------------------------------------------------------------
State of Texas UCC 10/10/1995 Home Juice Co. Specified Equipment
003455490 (Cafeteria Equipment)
- -----------------------------------------------------------------------------------------------------------------------------------
UCC = UCC STL = State Tax Lien FTL = Federal Tax Lien JUD = Judgment Lien
Charee/SafecoBonds
17