SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
AMONG
INTERIM SERVICES INC.,
VARIOUS SUBSIDIARIES THEREOF,
THE LENDERS PARTY HERETO,
NATIONSBANK, N.A.,
AS DOCUMENTATION AGENT,
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS ADMINISTRATIVE AGENT
DATED AS OF JANUARY 15, 1997
Arranged by
FIRST CHICAGO CAPITAL MARKETS, INC.
TABLE OF CONTENTS
ARTICLE I DEFINITIONS 1
ARTICLE II THE CREDITS 12
2.1 Description of the Credits 12
2.1.1 Available Facilities 12
2.1.2 Allocation among Borrowing Entities 12
2.2 Swing Line Loans 12
2.2.1 Swing Line Request 12
2.2.2 Making of Swing Line Loans 13
2.2.3 Swing Line Note 13
2.2.4 Repayment of Swing Line Loans 13
2.3 Advances 13
2.3.1 Commitment 13
2.3.2 Ratable Loans; Types of Advances 14
2.3.3 Minimum Amount of Each Advance 14
2.3.4 Applicable Margin, etc 14
2.3.5 Method of Selecting Types and Interest Periods for
New Advances 15
2.3.6 Conversion and Continuation of Outstanding Advances 15
2.4 Method of Borrowing 16
2.5 Fees 16
2.5.1 Facility Fee 16
2.5.2 Administrative Agent Fees 16
2.6 Reductions and Increases in Aggregate Commitment 17
2.6.1 Reductions in Aggregate Commitment 17
2.6.2 Increases in Aggregate Commitment 17
2.7 Principal Payments 17
2.7.1 Optional Prepayments 17
2.7.2 Currency Fluctuations 18
2.7.3 Termination 18
2.8 Changes in Interest Rate, etc 18
2.9 Rates Applicable After Default 18
2.10 Method of Payment 19
2.10.1 General 19
2.10.2 Currency of Payment 19
2.11 Notes; Telephonic Notices 19
2.12 Interest Payment Dates; Interest and Fee Basis 20
2.13 Notification by the Administrative Agent 20
2.14 Lending Installations 20
2.15 Non-Receipt of Funds by the Administrative Agent 20
2.16 Withholding Tax Exemption 21
2.17 Facility Letters of Credit 21
2.17.1 Obligation to Issue 21
2.17.2 Conditions for Issuance 21
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2.17.3 Procedure for Issuance 22
2.17.4 Payment of Reimbursement Obligations;
Duties of Issuer 23
2.17.5 Participation 24
2.17.6 Compensation for Facility Letters of Credit 26
2.17.7 Letter of Credit Collateral Account 26
2.18 Designation of Borrowing Subsidiaries 26
ARTICLE III - CHANGE IN CIRCUMSTANCES 26
3.1 Taxes 26
3.2 Yield Protection 28
3.3 Changes in Capital Adequacy Regulations 28
3.4 Availability of Eurocurrency Advances 29
3.5 Funding Indemnification 29
3.6 Mitigation of Additional Costs or Adverse Circumstances 29
3.7 Lender Statements; Survival of Indemnity 30
3.8 Market Disruption 30
ARTICLE IV - CONDITIONS PRECEDENT 30
4.1 Effectiveness 30
4.2 Initial Advance to Each Borrowing Subsidiary 31
4.3 Each Credit Extension 32
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF THE BORROWER 33
5.1 Corporate Existence and Standing 33
5.2 Authorization and Validity 33
5.3 No Conflict; Government Consent 33
5.4 Financial Statements 33
5.5 Material Adverse Change 34
5.6 Taxes 34
5.7 Litigation and Contingent Obligations 34
5.8 Subsidiaries 34
5.9 ERISA 34
5.10 Accuracy of Information 34
5.11 Regulation U 34
5.12 Material Agreements 35
5.13 Compliance With Laws 35
5.14 Ownership of Properties 35
5.15 Investment Company Act 35
5.16 Public Utility Holding Company Act 35
5.17 Insurance 35
ARTICLE VI- REPRESENTATIONS AND WARRANTIES OF BORROWING SUBSIDIARIES 35
6.1 Corporate Existence and Standing 35
6.2 Authorization and Validity 36
6.3 No Conflict; Government Consent 36
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6.4 Filing 36
6.5 No Immunity 36
6.6 Regulation U 37
ARTICLE VII - COVENANTS 37
7.1 Financial Reporting 37
7.2 Use of Proceeds 38
7.3 Notice of Default 38
7.4 Conduct of Business; New Active Subsidiaries 38
7.5 Taxes 39
7.6 Insurance 39
7.7 Compliance with Laws 39
7.8 Maintenance of Properties 39
7.9 Inspection 39
7.10 Dividends 39
7.11 Merger 39
7.12 Sale of Assets 40
7.13 Sale of Accounts 40
7.14 Investments and Acquisitions 40
7.15 Liens 41
7.16 Affiliates 42
7.17 Financial Covenants 42
7.17.1 Leverage Ratio 42
7.17.2 Net Worth 42
7.18 Pledge of Stock of Foreign Subsidiaries 42
7.19 Limitation on Foreign Subsidiaries 43
7.20 Payroll Accounts 43
ARTICLE VIII - DEFAULTS 43
ARTICLE IX - ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES 45
9.1 Acceleration 45
9.2 Amendments 46
9.3 Preservation of Rights 47
ARTICLE X - GENERAL PROVISIONS 47
10.1 Survival of Representations 47
10.2 Governmental Regulation 47
10.3 Taxes 47
10.4 Headings 47
10.5 Entire Agreement 47
10.6 Several Obligations; Benefits of this Agreement 47
10.7 Expenses; Indemnification 48
10.8 Numbers of Documents 48
10.9 Accounting 48
10.10 Severability of Provisions 48
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10.11 Nonliability of Lenders 48
10.12 Confidentiality 48
10.13 CHOICE OF LAW 49
10.14 CONSENT TO JURISDICTION 49
10.15 WAIVER OF JURY TRIAL 49
10.16 New Credit Facilities 49
10.17 Language 50
ARTICLE XI - THE ADMINISTRATIVE AGENT 50
11.1 Appointment 50
11.2 Powers 50
11.3 General Immunity 50
11.4 No Responsibility for Loans, Recitals, etc 50
11.5 Action on Instructions of Lenders 51
11.6 Employment of Agents and Counsel 51
11.7 Reliance on Documents; Counsel 51
11.8 Administrative Agent's Reimbursement and Indemnification 51
11.9 Rights as a Lender 51
11.10 Lender Credit Decision 52
11.11 Successor Administrative Agent 52
11.12 Documentation Agent; Co-Agents 52
ARTICLE XII - SETOFF; RATABLE PAYMENTS 53
12.1 Setoff 53
12.2 Ratable Payments 53
ARTICLE XIII - BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS 53
13.1 Successors and Assigns 53
13.2 Participations 54
13.2.1 Permitted Participants; Effect 54
13.2.2 Voting Rights 54
13.2.3 Benefit of Setoff 54
13.3 Assignments 54
13.3.1 Permitted Assignments 54
13.3.2 Effect; Effective Date 55
13.4 Dissemination of Information 55
13.5 Tax Treatment 55
ARTICLE XIV - NOTICES 55
14.1 Giving Notice 55
14.2 Change of Address 56
14.3 Notices to and by Borrowing Subsidiaries 56
ARTICLE XV - BORROWER GUARANTY OF BORROWING SUBSIDIARY OBLIGATIONS 56
15.1 Direct Obligations 56
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15.2 Obligations Unconditional 56
15.3 Discharge Only Upon Payment in Full; Reinstatement in
Certain Circumstances 57
15.4 Waiver 57
15.5 Stay of Acceleration 58
15.6 Payments 58
15.7 Delay of Subrogation 58
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EXHIBITS
EXHIBIT "A-1" - FORM OF NOTE
EXHIBIT "A-2" - FORM OF SWING LINE NOTE
EXHIBIT "B" - FORM OF OPINION OF COUNSEL TO THE BORROWER
EXHIBIT "C" - COMPLIANCE CERTIFICATE
EXHIBIT "D" - LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
EXHIBIT "E" - ASSIGNMENT AGREEMENT
EXHIBIT "F" - FORM OF AMENDMENT FOR AN INCREASED OR NEW COMMITMENT
EXHIBIT "G" - FORM OF PLEDGE AGREEMENT
EXHIBIT "H" - FORM OF ASSUMPTION LETTER
EXHIBIT "I" - FORM OF LETTER OF CREDIT REQUEST
SCHEDULES
SCHEDULE "1" - COMMITMENTS AND PERCENTAGES
SCHEDULE "2" - SUBSIDIARIES AND OTHER INVESTMENTS
SCHEDULE "3" - LIENS
SCHEDULE "4" - CONTINGENT OBLIGATIONS
SCHEDULE "5" - ASSOCIATED COSTS RATE
vi
INTERIM SERVICES INC.
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
This Agreement, dated as of January 15, 1997, is among Interim Services
Inc., the Borrowing Subsidiaries, the Lenders, NationsBank, N.A., as
Documentation Agent, and The First National Bank of Chicago, as Administrative
Agent.
W I T N E S S E T H:
WHEREAS, the Borrower, The First National Bank of Chicago, individually and
as Agent, and certain banks named therein have entered into that certain Amended
and Restated Credit Agreement, dated as of June 2, 1995 (as amended from time to
time prior to the date hereof, the "Existing Agreement"), pursuant to which the
banks party thereto agreed to make available to the Borrower revolving loans in
an aggregate principal amount and on terms and conditions more fully described
therein (the "Existing Credit Facilities"); and
WHEREAS, the Borrower and the Lenders desire to restructure the Existing
Credit Facilities so as to amend various provisions of the Existing Agreement;
and
WHEREAS, pursuant to the terms of this Agreement, on the Effective Date,
(i) the Existing Credit Facilities shall be replaced in their entirety by the
credit facilities described herein (the "New Credit Facilities"), (ii) all loans
and other obligations of the Borrower outstanding as of such date under the
Existing Credit Facilities shall be deemed to be loans and obligations
outstanding under the New Credit Facilities, and (iii) all provisions of this
Agreement not theretofore in effect shall become effective;
NOW, THEREFORE, in consideration of the undertakings set forth herein and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
I
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which
the Borrower or any of its Subsidiaries (i) acquires any going business or
all or substantially all of the assets of any firm, corporation or division
thereof, whether through purchase of assets, merger or otherwise or (ii)
directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power
for the election of directors (other than securities having such power only
by reason of the happening of a contingency) or a majority (by percentage or
voting power) of the outstanding partnership interests of a partnership or
other equity interests in any other entity.
"Active Subsidiary" means a Subsidiary of the Borrower that is then doing
business of any kind.
"Administrative Agent" means The First National Bank of Chicago in its
capacity as administrative agent for the Lenders pursuant to Article XI, and not
in its individual capacity as a Lender, and any successor Administrative Agent
appointed pursuant to Article XI.
"Administrative Agent's Domestic Office" means the Administrative Agent's
office at One First National Plaza, Chicago, Illinois, USA 60670, or such other
office as the Administrative Agent may designate from time to time by notice to
the other parties hereto.
"Administrative Agent's London Office" means the Administrative Agent's
office at Mail Suite 5000, First Chicago House, 90 Long Acre, London, WC2E 9RB,
England, or such other office as the Administrative Agent may designate from
time to time by notice to the other parties hereto.
"Advance" means a borrowing hereunder consisting of the aggregate amount of
the several Loans made by the Lenders to the same Borrowing Entity of the same
Type and, in the case of Eurocurrency Advances, in the same Eurocurrency and for
the same Interest Period.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means, as of any date, the aggregate of the Lenders'
then-current Commitments under this Agreement, as reduced or increased from time
to time in accordance with Section 2.6, but in no event shall the Aggregate
Commitment exceed $300,000,000 without the approval of the Borrower, the
Administrative Agent and all of the Lenders. The Aggregate Commitment as of the
date of this Agreement is $200,000,000, as shown on Schedule "1".
2
"Agreement" means this second amended and restated credit agreement, as it
may be amended or modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
that used in preparing the December 29, 1995 financial statements referred to in
Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Corporate Base Rate for such day and (ii) the sum
of Federal Funds Effective Rate for such day plus 1/2% per annum.
"Alternate Base Rate Advance" means an Advance, denominated in Dollars,
which bears interest at the Alternate Base Rate.
"Alternate Base Rate Loan" means a Loan, denominated in Dollars, which
bears interest at the Alternate Base Rate.
"Applicable Margin" means, at any date of determination thereof with
respect to any Eurocurrency Advance, the rate per annum for such Eurocurrency
Advance calculated in accordance with the terms of Section 2.3.4.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Officer" means any of the President/Chief Executive Officer,
Chief Financial Officer, Financial Vice President, Treasurer or any Senior Vice
President of the Borrower, acting singly, or any two Vice Presidents of the
Borrower, acting jointly.
"Borrower" means Interim Services Inc., a Delaware corporation, and its
successors.
"Borrowing Date" means a date on which an Advance or a Swing Line Loan is
made hereunder.
"Borrowing Entities" means the Borrower and each Borrowing Subsidiary.
"Borrowing Notice" is defined in Section 2.3.5.
"Borrowing Subsidiary" means any Subsidiary of the Borrower which has been
designated as a Borrowing Subsidiary pursuant to Section 2.18.
"Borrowing Subsidiary Obligations" means, with respect to any Borrowing
Subsidiary, any and all amounts payable by such Borrowing Subsidiary under or in
respect of this Agreement or any Note issued by such Borrowing Subsidiary.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurocurrency Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and New York for the conduct of
substantially all of their commercial lending activities and on which dealings
in
3
United States dollars are carried on in the London interbank market and (ii)
for all other purposes, a day (other than a Saturday or Sunday) on which
banks generally are open in Chicago for the conduct of substantially all of
their commercial lending activities.
"Capitalized Lease" of a Person means any lease of Property by such Person
as lessee which would be capitalized on a balance sheet of such Person prepared
in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Change in Control" means the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of 20% or more of the outstanding shares of voting stock of the
Borrower.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of such Lender to make
Loans, and to participate in Swing Line Loans and Facility Letters of Credit, in
an aggregate Dollar Equivalent amount not exceeding its Percentage of the
Aggregate Commitment.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, or take-or-pay contract.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower or any of its Subsidiaries, are treated as a
single employer under Section 414 of the Code.
"Conversion/Continuation Notice" is defined in Section 2.3.6.
"Corporate Base Rate" means a rate per annum equal to the corporate base
rate of interest announced by First Chicago from time to time, changing when and
as said corporate base rate changes.
"Default" means an event described in Article VIII.
"Dollar" and "$" mean United States Dollars.
"Dollar Equivalent" means, with respect to any amount denominated in a
Foreign Currency, the Dollar equivalent amount of such Foreign Currency
calculated on the basis of the arithmetical mean of the
4
buy and sell spot rates of exchange of the Administrative Agent for such
Foreign Currency in the London market at 11:00 a.m., London time, two
Business Days prior to the date on which such amount is to be determined.
"Domestic Subsidiary" means any Subsidiary other than a Foreign Subsidiary.
"EBITDA" means, for any period, earnings before interest expense, income
taxes, depreciation expense and amortization expense, all determined on a
consolidated basis for the Borrower and its Subsidiaries; PROVIDED that, with
respect to any Acquisition which is treated as a "purchase," EBITDA for the four
fiscal quarters following such Acquisition shall include the results of the
operations of the Person or assets so acquired (which results shall be
determined on an historical pro forma basis in form and substance satisfactory
to the Required Lenders so long as the Borrower has furnished to the Lenders
financial information acceptable to the Required Lenders with respect to the
Person or assets so acquired).
"Effective Date" is defined in Section 4.1.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurocurrency" means, subject to Section 3.8, (i) Dollars, (ii) Canadian
dollars, German marks, Netherlands guilders, Japanese yen, Belgian francs,
French francs and British pounds sterling, so long as any such currency is one
(A) which is freely transferable and convertible into Dollars and (B) in which
deposits are customarily offered to banks in the London interbank market, and
(iii) any other currency (A) which is freely transferable and convertible into
Dollars, (B) in which deposits are customarily offered to banks in the London
interbank market, (C) which the Borrower requests the Administrative Agent to
include as a Eurocurrency hereunder and (D) which is acceptable to each Lender.
"Eurocurrency Advance" means an Advance which bears interest at a
Eurocurrency Rate requested by the Borrower pursuant to Section 2.3.
"Eurocurrency Base Rate" means, with respect to a Eurocurrency Advance for
the relevant Interest Period, the rate determined by the Administrative Agent to
be the rate at which deposits in the applicable Eurocurrency are offered by
First Chicago to first-class banks in the London interbank market at
approximately 11 a.m. (London time) two Business Days prior to the first day of
such Interest Period, in the approximate amount of First Chicago's relevant
Eurocurrency Loan and having a maturity approximately equal to such Interest
Period.
"Eurocurrency Loan" means a Loan which bears interest at a Eurocurrency
Rate requested by the Borrower pursuant to Section 2.3.
"Eurocurrency Rate" means, with respect to a Eurocurrency Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurocurrency
Base Rate applicable to such Interest Period, divided by (b) one minus the
Reserve Requirement (expressed as a decimal) applicable to such Interest Period,
plus (ii) the Applicable Margin. The Eurocurrency Rate shall be rounded to the
next higher multiple of 1/16 of 1% if the rate is not such a multiple.
5
"Eurodollar Advance" means a Eurocurrency Advance denominated in Dollars.
"Existing Agreement" is defined in the preamble to this Agreement.
"Existing Credit Facilities" is defined in the preamble to this Agreement.
"Facility Fee Rate" means, at any date of determination, the rate per annum
calculating in accordance with Section 2.3.4.
"Facility Letter of Credit" means an irrevocable standby Letter of Credit
issued by the Issuer pursuant to Section 2.17.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not
a Business Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations at approximately 10
a.m. (Chicago time) on such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by the Administrative Agent in its sole discretion.
"First Chicago" means The First National Bank of Chicago in its individual
capacity, and its successors.
"Foreign Currency" means any Eurocurrency other than Dollars.
"Foreign Currency Advance" means any Advance in a Foreign Currency.
"Foreign Currency Loan" means any Loan in a Foreign Currency.
"Foreign Subsidiary" means any Subsidiary (other than Spectrum) which (i)
is organized under the laws of a jurisdiction other than the United States of
America or a state thereof and (ii) conducts substantially all of its business
and operations outside of the United States of America.
"Governmental Agency" means any government, foreign or domestic, or any
state, department or other political subdivision thereof, or governmental body,
agency, authority, department or commission (including without limitation any
taxing authority or political subdivision) or instrumentality (including without
limitation any court or tribunal) exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government and any
corporation, partnership or other entity, directly or indirectly owned by or
subject to the control of any of the foregoing.
"Guarantor Subsidiary" means each Subsidiary which is a party to the
Guaranty.
"Guaranty" means that certain Third Amended and Restated Guaranty dated as
of January 15, 1997 executed by each of Interim Accounting Personnel, Inc.,
Interim Assisted Care, Inc., Interim Financial Corporation, Interim HealthCare
Inc., Interim HealthCare of New York Inc., Interim Legal Services Inc., Interim
Personnel Inc., Interim Physicians, Inc., Interim Temporary Personnel Inc., Rich
Field Agency, Inc.,
6
Interim Technology Inc., Interim Real Estate Solutions Inc., Cornell Computer
Corp., Spectrum Financial Corporation, Interim Services (Europe) Inc. and
Interim Occupational Health Inc. (and such other Subsidiaries which may
become party thereto pursuant to a joinder agreement acceptable to the
Administrative Agent) in favor of the Administrative Agent and the Lender
Parties (as defined therein), as it may be amended or modified and in effect
from time to time.
"Inactive Subsidiary" means a Subsidiary of the Borrower that is not an
Active Subsidiary.
"Indebtedness" of a Person means (without duplication) such Person's (i)
obligations for borrowed money, (ii) obligations representing the deferred
purchase price of Property or services (other than accounts payable arising in
the ordinary course of such Person's business payable on terms customary in the
trade), (iii) obligations, whether or not assumed, secured by Liens or payable
out of the proceeds or production from property now or hereafter owned or
acquired by such Person, (iv) obligations which are evidenced by notes,
acceptances, or other instruments, (v) Capitalized Lease Obligations, (vi) lease
obligations under leases entered into by such Person upon such Person's sale or
transfer of any of its Property in order to concurrently lease as lessee such or
similar Property, (vii) net liabilities of such Person under Rate Hedging
Agreements, (viii) obligations, whether matured or contingent, in respect of
Letters of Credit issued for the account of such Person, and (ix) Contingent
Obligations.
"Interest Period" means, with respect to a Eurocurrency Advance, a period
of one, two, three or six months commencing on a Business Day selected by the
Borrower pursuant to this Agreement. Such Interest Period shall end on (but
exclude) the day which corresponds numerically to such date one, two, three or
six months thereafter, provided, however, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such
Interest Period shall end on the last Business Day of such next, second, third
or sixth succeeding month. If an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than commission,
travel and similar advances to officers and employees made in the ordinary
course of business), extension of credit (other than accounts receivable arising
in the ordinary course of business on terms customary in the trade), deposit
account or contribution of capital by such Person to any other Person or any
investment in, or purchase or other acquisition of, the stock, partnership
interests, notes, debentures or other securities of any other Person made by
such Person.
"Issuance Date" is defined in Section 2.17.3(a).
"Issuance Notice" is defined in Section 2.17.3(c).
"Issuer" means First Chicago in its capacity as issuer of Facility Letters
of Credit.
"L/C Fee Percentage" means, at any date of determination, the rate per
annum calculated in accordance with the terms of Section 2.3.4.
7
"Lenders" means the lending institutions listed on the signature pages of
this Agreement or which become parties hereto pursuant to Section 2.6.2 or 13.3
and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the
Administrative Agent, any office, branch, subsidiary or affiliate of such Lender
or the Administrative Agent.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Letter of Credit Collateral Account" is defined in Section 2.17.7.
"Letter of Credit Obligations" means, at any time, all liabilities, whether
actual or contingent, of the Borrower with respect to Facility Letters of
Credit, including (a) Reimbursement Obligations and (b) the aggregate undrawn
face amount of all outstanding Facility Letters of Credit.
"Letter of Credit Request" is defined in Section 2.17.3(a).
"Leverage Ratio" means, at any time, the ratio of (i) Total Debt to (ii)
EBITDA for the period of four fiscal quarters ending on the last day of the most
recently-ended fiscal quarter of the Borrower, all determined on a consolidated
basis for the Borrower and its Subsidiaries.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever intended as or having the effect of a lien (including, without
limitation, the interest of a vendor or lessor under any conditional sale,
Capitalized Lease or other title retention agreement).
"Loan" means, with respect to a Lender, a loan made by such Lender
hereunder as part of an Advance (and, in the case of the Swing Line Bank, also
means any Swing Line Loan).
"Loan Documents" means this Agreement, the Notes, the Guaranty and each
Pledge Agreement.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents to
which it is a party, or (iii) the validity or enforceability of any of the Loan
Documents or the rights or remedies of the Administrative Agent or the Lenders
thereunder.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Net Income" means, for any period, the net income (or loss) of the
Borrower and its Subsidiaries on a consolidated basis for such period taken as a
single accounting period determined in conformity with Agreement Accounting
Principles; PROVIDED, HOWEVER, that to the extent reported as a separate item on
the
8
Borrower's financial statements delivered pursuant to Section 7.1, there
shall be excluded (i) the income (or loss) of any Affiliate of the Borrower
or other Person (other than a Subsidiary of the Borrower) in which any Person
(other than the Borrower or any of its Subsidiaries) has a joint interest,
except to the extent of the amount of dividends or other distributions
actually paid to the Borrower, or any of its Subsidiaries by such Affiliate
or other Person during such period and (ii) the income (or loss) of any
Person accrued prior to the date such Person becomes a Subsidiary of the
Borrower or is merged into or consolidated with the Borrower or any of its
Subsidiaries or that Person's assets are acquired by the Borrower or any of
its Subsidiaries.
"Net Worth" means the aggregate amount of shareholders equity as determined
from a consolidated balance sheet of the Borrower and its Subsidiaries, prepared
in accordance with Agreement Accounting Principles; PROVIDED that the amount of
any foreign currency translation adjustment shall be excluded for purposes of
determining Net Worth.
"New Credit Facilities" is defined in the preamble to this Agreement.
"Note" means (a) a promissory note in substantially the form of Exhibit
"A-1" hereto, with appropriate insertions, duly executed and delivered to
Administrative Agent by a Borrowing Entity for the account of a Lender and
payable to the order of such Lender in the amount of its Commitment, including
any amendment, modification, renewal or replacement of such promissory note, and
(b) the Swing Line Note.
"Notice of Assignment" is defined in Section 13.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Notes, all Letter of Credit Obligations, all accrued and
unpaid fees and all expenses, reimbursements, indemnities and other
obligations of any Borrowing Entity to any Lender, the Administrative Agent
or any indemnified party hereunder arising under the Loan Documents.
"Participants" is defined in Section 13.2.1.
"Payment Date" means the last day of each March, June, September and
December.
"Payroll Account" means a bank account maintained by the Borrower or any
Subsidiary solely for the purpose of paying salary, bonuses and similar items to
employees.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Percentage" means, for each Lender, the percentage set forth opposite its
name on Schedule "1" attached hereto, as such percentage (and such schedule) may
be modified from time to time pursuant to the terms hereof, including but not
limited to the provisions of Section 2.6.2 or 13.3.2.
"Person" means any natural person, corporation, firm, joint venture,
limited liability company, partnership, association, enterprise, trust or other
entity or organization, or any Governmental Agency.
9
"Plan" means an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Pledge Agreement" means a pledge agreement between the Borrower or a
Domestic Subsidiary and the Administrative Agent pursuant to which 65% of the
stock of one or more Foreign Subsidiaries is pledged to the Administrative Agent
to secure the Obligations (and any obligations to any Lender or any affiliate
thereof arising under a Rate Hedging Agreement). A Pledge Agreement shall be in
the form of Exhibit "G" or in such other form as is reasonably acceptable to the
Administrative Agent for the stock being pledged thereunder.
"Property" of a Person means any and all property, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets owned, leased or
operated by such Person.
"Purchasers" is defined in Section 13.3.1.
"Rate Hedging Agreement" means any agreement, device or arrangement
designed to protect at least one of the parties thereto from fluctuations in
interest rates, exchange rates or forward rates applicable to such party's
assets, liabilities or exchange transactions, including, but not limited to,
dollar-denominated or cross-currency interest rate exchange agreements, forward
currency exchange agreements, interest rate collar agreements, forward rate
currency or interest rate options, puts, calls or warranties.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Reimbursement Obligations" means at any time the aggregate amount of the
Obligations of the Borrower to the Issuer, the Lenders and the Administrative
Agent in respect of all Unreimbursed Amounts and any other disbursement made by
the Issuer, a Lender or the Administrative Agent under or in respect of any
Facility Letter of Credit.
"Rentals" of a Person means the aggregate fixed amounts payable by such
Person under any lease of Property having an original term (including any
required renewals or any renewals at the option of the lessor or lessee) of one
year or more, but does not include any amounts payable under Capitalized Leases
of such Person.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided, however, that a failure to meet the
minimum funding
10
standard of Section 412 of the Code and of Section 302 of ERISA shall be a
Reportable Event regardless of the issuance of any such waiver of the notice
requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least 66 2/3%
of the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding at least 66 2/3% of the aggregate unpaid Dollar
Equivalent principal amount of the outstanding Loans (it being understood that
if any Swing Line Loan is outstanding, each Lender shall be deemed to hold its
Percentage thereof).
"Reserve Requirement" means, with respect to any Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Spectrum" means Spectrum Insurance Company, Ltd., a Cayman Islands
corporation.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, association, joint venture or similar business
organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the Borrower
and its Subsidiaries, Property which (i) represents more than 10% of the
consolidated assets of the Borrower and its Subsidiaries as would be shown in
the consolidated financial statements of the Borrower and its Subsidiaries as
at the beginning of the twelve-month period ending with the month in which
such determination is made, or (ii) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the Borrower and
its Subsidiaries as reflected in the financial statements referred to in
clause (i) above.
"Swing Line Bank" means First Chicago in its capacity as swing line lender
hereunder.
"Swing Line Commitment" means the obligation of the Swing Line Bank to make
Swing Line Loans up to a maximum of $5,000,000 at any one time outstanding.
"Swing Line Loan" means a Loan made available to the Borrower by the Swing
Line Bank pursuant to Section 2.2 hereof.
11
"Swing Line Note" means a promissory note, in substantially the form of
Exhibit "A-2" hereto, duly executed by the Borrower and payable to the order of
the Swing Line Bank in the amount of the Swing Line Commitment, including any
amendment, modification, renewal or replacement of such note.
"Termination Date" means January 15, 2002.
"Total Debt" means all Indebtedness of the Borrower and its Subsidiaries on
a consolidated basis.
"Total Outstandings" means at any time an amount equal to the sum of the
aggregate principal Dollar Equivalent amount of all outstanding Advances plus
the amount of all Letter of Credit Obligations plus the aggregate principal
amount of all Swing Line Loans.
"Transferee" is defined in Section 13.4.
"Type" means, with respect to any Loan or Advance, its nature as an
Alternate Base Rate Advance or Loan or a Eurocurrency Advance or Loan.
"Unfunded Liabilities" means the amount (if any) by which the present value
of all vested nonforfeitable benefits under all Single Employer Plans exceeds
the fair market value of all Plan assets allocable to such benefits, all
determined as of the then most recent valuation date for such Plans.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"Unreimbursed Amount" is defined in Section 2.17.5(b).
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of the
outstanding voting securities of which shall at the time be owned or controlled,
directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries
of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of
such Person, or (ii) any partnership, association, joint venture or similar
business organization 100% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
12
II
THE CREDITS
-----------
II.1. DESCRIPTION OF THE CREDITS.
II.1.1. AVAILABLE FACILITIES. Upon the terms and subject to
the conditions set forth in this Agreement, the Lenders hereby grant to the
Borrowing Entities a revolving credit facility pursuant to which: (i) each
Lender severally agrees to make Loans to the Borrowing Entities in accordance
with Section 2.3; (ii) the Issuer agrees to issue, and each Lender agrees to
participate in, Facility Letters of Credit for the account of the Borrowing
Entities in accordance with Section 2.17; and (iii) the Swing Line Bank
agrees to make Swing Line Loans in an amount not exceeding the Swing Line
Commitment in accordance with Section 2.2; PROVIDED that in no event may the
aggregate Total Outstandings exceed the Aggregate Commitment. The revolving
credit facility shall be available from the date of this Agreement to the
Termination Date, and during such period the Borrowing Entities may borrow,
repay and reborrow from time to time.
II.1.2. ALLOCATION AMONG BORROWING ENTITIES. The Borrowing
Entities understand and agree that (i) subject to the terms of this
Agreement, the Lenders and the Issuer will honor requests for Borrowings and
the issuance of Facility Letters of Credit in the order received by the
Administrative Agent, and (ii) as a result, one or more of the Borrowing
Entities may be unable to borrow or increase Borrowings hereunder, or obtain
Facility Letters of Credit hereunder, if other Borrowing Entities have
already borrowed or obtained Facility Letters of Credit hereunder in amounts
which have caused the Total Outstandings to equal the Aggregate Commitment.
II.2. SWING LINE LOANS. Subject to the terms and conditions
of the Agreement (including but not limited to the limitations set forth in
Section 2.1), the Swing Line Bank agrees to make the Swing Line Loans to the
Borrower in accordance with this Section 2.2 up to the amount of the Swing
Line Commitment. Amounts borrowed under this Section 2.2 may be borrowed,
repaid and reborrowed to, but not including, the Termination Date. All
outstanding Swing Line Loans shall be paid in full on the Termination Date.
II.2.1. SWING LINE REQUEST. The Borrower may request a Swing
Line Loan from the Swing Line Bank on any Business Day before the Termination
Date by giving the Administrative Agent and the Swing Line Bank notice by
12:00 noon (Chicago time) (or such later time as the Borrower, the Swing Line
Bank and the Administrative Agent may agree) on such Borrowing Date
specifying the aggregate amount of such Swing Line Loan, which shall be an
amount not less than $100,000. The Administrative Agent shall promptly notify
each Lender of such request.
II.2.2. MAKING OF SWING LINE LOANS. The Swing Line Bank shall,
no later than 3:00 p.m. on such Borrowing Date, make the funds for such Swing
Line Loan available to the Borrower at the Agent's Domestic Office or at such
other place as indicated in written money transfer instructions from the
Borrower in form and substance satisfactory to the Swing Line Bank.
13
II.2.3. SWING LINE NOTE. The Swing Line Loans shall be
evidenced by the Swing Line Note and each Swing Line Loan shall be paid in
full by the Borrower on or before the fifth Business Day after the Borrowing
Date for such Swing Line Loan.
II.2.4. REPAYMENT OF SWING LINE LOANS. The Borrower may at any
time pay, without penalty or premium, all outstanding Swing Line Loans, or,
in a minimum amount of $100,000, any portion of the outstanding Swing Line
Loans upon notice to the Administrative Agent and the Swing Line Bank. In
addition, the Administrative Agent shall: (i) at any time at the request of
the Swing Line Bank and (ii) on the fifth Business Day after the Borrowing
Date for such Swing Line Loan, require the Lenders (including the Swing Line
Bank) to make an Alternate Base Rate Advance in an amount up to the amount of
Swing Line Loans outstanding on such date for the purpose of repaying Swing
Line Loans; PROVIDED, HOWEVER, that the obligation of each Lender to make
such Advance is subject to the condition that the Swing Line Bank believed in
good faith that all conditions under Section 4.3 were satisfied at the time
the Swing Line Loan was made. If the Swing Line Bank receives notice from
any Lender that a condition under Section 4.3 has not been satisfied, no
Swing Line Loans shall be made until (a) such notice is withdrawn by such
Lender or (b) the Required Lenders have waived satisfaction of any such
condition. The Lenders shall deliver the proceeds of such Advance to the
Administrative Agent by 12:00 noon (Chicago time) on the applicable Borrowing
Date for application to the Swing Line Bank's outstanding Swing Line Loans.
Subject to the proviso contained in the first sentence of this Section 2.2.4,
each Lender's obligation to make available its Percentage of the Advance
referred to in this Section shall be absolute and unconditional and shall not
be affected by any circumstance, including without limitation, (i) any
set-off, counterclaim, recoupment, defense or other right which such Lender
may have against the Swing Line Bank, or anyone else, (ii) the occurrence or
continuance of a Default or Unmatured Default, (iii) any adverse change in
the condition (financial or otherwise) of the Borrower or (iv) any other
circumstance, happening or event whatsoever. If for any reason a Lender does
not make available its Percentage of the foregoing Advance, such Lender shall
be deemed to have unconditionally and irrevocably purchased from the Swing
Line Bank, without recourse or warranty, an undivided interest and
participation in each Swing Line Loan then being repaid, equal to its
Percentage of all such Swing Line Loans being repaid, so long as such
purchase would not cause such Lender to exceed its Commitment. If any
portion of any amount paid (or deemed paid) to the Administrative Agent
should be recovered by or on behalf of the Borrower from the Administrative
Agent in bankruptcy, otherwise, the loss of the amount so recovered shall be
shared ratably among all Lenders.
II.3. ADVANCES.
II.3.1. COMMITMENT. From and including the date of this
Agreement and prior to the Termination Date, each Lender severally agrees, on
the terms and conditions set forth in this Agreement, to make Loans to the
Borrowing Entities from time to time in Dollar Equivalent amounts which,
together with such Lender's Percentage of the outstanding Letter of Credit
Obligations and of the outstanding Swing Line Loans, will not exceed in the
aggregate at any time outstanding the amount of its Commitment. The
Commitments to lend hereunder shall expire on the Termination Date.
II.3.2. RATABLE LOANS; TYPES OF ADVANCES. Each Advance
hereunder shall consist of Loans made from the several Lenders ratably in
proportion to the ratio that their respective Commitments bear to the
Aggregate Commitment. The Advances may be Alternate Base Rate Advances or
Eurocurrency Advances, or a combination thereof, selected by the Borrowing
Entities in accordance with Sections 2.3.5
14
and 2.3.6; PROVIDED, HOWEVER, that there shall not be more than 12
Eurocurrency Advances outstanding at any one time.
II.3.3. MINIMUM AMOUNT OF EACH ADVANCE. Each Advance shall be
in the minimum Dollar Equivalent amount of $5,000,000 (and, with respect to
Eurocurrency Advances, in multiples of $500,000 or of 100,000 units of the
applicable Foreign Currency); PROVIDED, HOWEVER, that any Alternate Base Rate
Advance may be in the amount of the unused Aggregate Commitment.
II.3.4. APPLICABLE MARGIN, ETC. The Applicable Margin set
forth below with respect to each Eurocurrency Advance, and the L/C Fee
Percentage and the Facility Fee Rate, shall be subject to adjustment (upwards
or downwards, as appropriate) based on the Borrower's Status as at the end of
each fiscal quarter in accordance with the table set forth below. The
Borrower's Status as at the last day of each fiscal quarter shall be
determined from the then most recent annual or quarterly financial statements
of the Borrower (the "Financials"). The adjustment, if any, to the Applicable
Margin, the L/C Fee Percentage and the Facility Fee Rate shall be effective
five days after the Administrative Agent has received the Financials. In the
event that the Borrower shall at any time fail to furnish to the Lenders the
Financials within the time limitations specified by Section 7.1, then the
Borrower's Status shall be Level IV Status from the date of such failure
until such Financials are so delivered. Notwithstanding anything to the
contrary contained herein, the Borrower's Status as of the Effective Date
shall be deemed to be Level I Status and shall be adjusted as set forth above
effective five days after the Administrative Agent receives the Borrower's
annual financial statements for its year ended December 27, 1996.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
LEVEL I LEVEL II LEVEL III LEVEL IV
STATUS STATUS STATUS STATUS
APPLICABLE MARGIN AND .17% .20% .275% .45%
L/C FEE PERCENTAGE
FACILITY FEE RATE .08% .10% .125% .15%
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
For purposes of the foregoing, the Borrower's Status will be determined based on
the following definitions:
"Level I Status" exists at any date if, as of the last day of the fiscal
quarter of the Borrower referred to in the Financials, the Leverage Ratio is
less than 1.00 to 1.
"Level II Status" exists at any date if, as of the last day of the fiscal
quarter of the Borrower referred to in the Financials, the Leverage Ratio is
equal to or greater than 1.00 to 1 but less than 2.00 to 1.
"Level III Status" exists at any date if, as of the last day of the fiscal
quarter of the Borrower referred to in the Financials, the Leverage Ratio is
equal to or greater than 2.00 to 1 but less than 3.00 to 1.
"Level IV Status" exists at any date if the requirements necessary to
achieve Level I Status, Level II Status or Level III Status shall not have been
satisfied.
15
II.3.5. METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR NEW
ADVANCES. The applicable Borrowing Entity shall give the Administrative Agent
irrevocable notice (a "Borrowing Notice") at the Administrative Agent's
Domestic Office for (a) any Advance denominated in Dollars not later than (x)
10:00 a.m. (Chicago time) on the Borrowing Date, in the case of an Alternate
Base Rate Advance, and (y) 12:00 noon (Chicago time) at least three Business
Days before the Borrowing Date, in the case of a Eurodollar Advance, and (b)
any Foreign Currency Advance not later than 10:00 a.m. (Chicago time) at the
Administrative Agent's Domestic Office at least three Business Days before
the Borrowing Date of such Foreign Currency Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the name of the Borrowing Entity,
(iii) the aggregate amount of such Advance,
(iv) the Type of Advance selected, and
(v) in the case of each Eurocurrency Advance, the Eurocurrency and
the Interest Period applicable thereto.
II.3.6. CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES.
Alternate Base Rate Advances shall continue as Alternate Base Rate Advances
unless and until such Alternate Base Rate Advances are converted into
Eurodollar Advances. Each Eurocurrency Advance shall continue as a
Eurocurrency Advance until the end of the then applicable Interest Period
therefor, at which time, unless such Eurocurrency Advance is paid in full or
the applicable Borrowing Entity shall have given the Administrative Agent a
Conversion/Continuation Notice requesting that such Eurocurrency Advance
continue as a Eurocurrency Advance in the same Eurocurrency for the same or
another Interest Period (a) in the case of a Eurodollar Advance, such
Eurodollar Advance shall automatically be converted into an Alternate Base
Rate Advance, and (b) in the case of a Foreign Currency Advance, such Foreign
Currency Advance shall automatically be continued for a new Interest Period
of one month (commencing on the last day of the expiring Interest Period).
Subject to the terms of Section 2.3.3, any Borrowing Entity may elect from
time to time to convert all or any part of an Alternate Base Rate Advance
into a Eurodollar Advance. The applicable Borrowing Entity shall give the
Administrative Agent irrevocable notice (a "Conversion/Continuation Notice")
(a) of each conversion of an Alternate Base Rate Advance or continuation of a
Eurodollar Advance, which notice shall be sent to the Administrative Agent's
Domestic Office not later than 12:00 noon (Chicago time) at least three
Business Days prior to the date of the requested conversion or continuation
and (b) of each continuation of a Foreign Currency Advance, which notice
shall be sent to the Administrative Agent's Domestic Office not later than
10:00 a.m. (Chicago time) at least three Business Days prior to the date of
the requested continuation, specifying in each case:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation;
(ii) the aggregate amount, Eurocurrency and Type of the Advance which
is to be converted or continued; and
16
(iii) the amount and Type(s) of Advance(s) into which such Advance is
to be converted or continued and, in the case of a conversion
into or continuation of a Eurocurrency Advance, the duration of
the Interest Period applicable thereto.
Notwithstanding the foregoing provisions of this Section 2.3.6, no Advance shall
be continued as or converted into a Eurocurrency Advance if, after giving effect
to such continuation or conversion, the Total Outstandings would exceed the
Aggregate Commitment.
II.4. METHOD OF BORROWING. In the case of Foreign Currency
Advances, not later than 2:00 p.m. (London time) on each Borrowing Date, each
Lender shall make available its Foreign Currency Loan in funds immediately
available in London, in the Foreign Currency selected by the applicable
Borrowing Entity, to the Administrative Agent at the Administrative Agent's
London Office or at any other Lending Installation of the Administrative
Agent specified in writing by the Administrative Agent. In the case of all
other Advances, not later than 12:00 noon (Chicago time) on each Borrowing
Date, each Lender shall make available its Loan in funds immediately
available in Chicago, in Dollars, to the Administrative Agent's Domestic
Office or at any other Lending Installation of the Administrative Agent
specified in writing by the Administrative Agent. The Administrative Agent
will (i) make the funds so received from the Lenders in Foreign Currencies
available to the applicable Borrowing Entity at the Administrative Agent's
London Office and (ii) deposit the funds so received from the Lenders in
Dollars in the Borrower's account number 5228824 maintained with First
Chicago or will make such funds available as directed in writing by an
Authorized Officer. Notwithstanding the foregoing provisions of this Section
2.4, to the extent that a Loan made by a Lender matures on the Borrowing Date
of a requested Loan to the same Borrowing Entity in the same Eurocurrency,
such Lender shall apply the proceeds of the Loan it is then making to the
repayment of principal of the maturing Loan.
II.5. FEES. The Borrower agrees to pay the following fees:
II.5.1. FACILITY FEE. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender, for the period from the
date hereof to and including the Termination Date, a facility fee equal to
the product of (i) such Lender's Commitment times (ii) the Facility Fee Rate,
payable on each Payment Date hereafter and on the Termination Date or on the
effective date of any termination of the obligations of the Lenders to make
Loans hereunder.
II.5.2. ADMINISTRATIVE AGENT FEES. The Borrower agrees to pay
certain fees to the Administrative Agent on the dates and in the amounts set
forth in that certain fee letter between the Borrower and the Administrative
Agent dated November 7, 1996, as it may be amended from time to time.
II.6. REDUCTIONS AND INCREASES IN AGGREGATE COMMITMENT.
II.6.1. REDUCTIONS IN AGGREGATE COMMITMENT. The Borrower may
permanently reduce the Aggregate Commitment in whole, or in part ratably
among the Lenders in a minimum aggregate amount of $10,000,000, upon at least
five Business Days' written notice to the Administrative Agent, which notice
shall specify the amount of any such reduction; PROVIDED, HOWEVER, that the
amount of the Aggregate Commitment may not be reduced below the Total
Outstandings.
17
II.6.2. INCREASES IN AGGREGATE COMMITMENT.
(i) INCREASES TO AGGREGATE COMMITMENT. The Borrower shall have the
right to increase the Aggregate Commitment by obtaining additional Commitments,
either from one or more of the Lenders or another lending institution provided
that (A) the Administrative Agent has approved the identity of any such new
Lender, such approval not to be unreasonably withheld, (B) any such new Lender
assumes all of the rights and obligations of a "Lender" hereunder, and (C) the
procedure described in clause (ii) has been complied with, provided further that
the Aggregate Commitment shall not at any time exceed $300,000,000 without the
approval of the Administrative Agent and all of the Lenders.
(ii) PROCEDURE FOR INCREASES AND ADDITION OF NEW LENDERS. This
Agreement permits certain increases in a Lender's Commitment and the admission
of new Lenders providing new Commitments without any consent or approval from
the other Lenders. Any amendment hereto for such an increase or addition shall
be in the form attached hereto as Exhibit "F" and shall only require the written
signatures of the Administrative Agent, the Borrower and the Lender(s) being
added or increasing their Commitment, subject only to the approval of all
Lenders if any such increase would cause the Aggregate Commitment to exceed
$300,000,000. In addition, within a reasonable time after the effective date of
any increase, the Administrative Agent shall, and is hereby authorized and
directed to, revise Schedule "1" reflecting such increase and shall distribute
such revised Schedule to each of the Lenders and the Borrower, whereupon such
revised Schedule shall replace the old Schedule and become part of this
Agreement.
II.7. PRINCIPAL PAYMENTS.
II.7.1. OPTIONAL PREPAYMENTS. Any Borrowing Entity may from
time to time prepay, without penalty or premium, any outstanding Advance to
such Borrowing Entity; PROVIDED that:
(a) the applicable Borrowing Entity shall notify the Administrative
Agent of such prepayment not later than (i) the Business Day preceding such
prepayment, in the case of an Alternate Base Rate Advance, (ii) 12:00 noon
(Chicago time) at least three Business Days prior to the date of such
prepayment, in the case of a Eurodollar Advance, or (iii) 12:00 noon
(Chicago time) at least four Business Days prior to such prepayment, in the
case of a Foreign Currency Advance, specifying in each case the Advance to
be prepaid and the date and amount of such prepayment;
(b) any prepayment of an Alternate Base Rate Advance shall be in a
minimum amount of $500,000 or a larger integral multiple of $100,000;
(c) any prepayment of a Eurocurrency Advance shall be in a minimum
Dollar Equivalent amount of $5,000,000 (and in an integral multiple of
$500,000 or 100,000 units of the applicable Foreign Currency);
(d) after giving effect to any partial prepayment of a Eurocurrency
Advance, the amount of such Advance shall be in compliance with Section
2.3.3; and
18
(e) any prepayment of a Eurocurrency Advance on a day other than the
last day of an Interest Period therefor shall be subject to Section 3.5.
II.7.2. CURRENCY FLUCTUATIONS. If at any time the
Administrative Agent shall determine that the Total Outstandings (and the
Administrative Agent shall calculate the Total Outstandings upon the request
of any Lender) are greater than 101% of the Aggregate Commitment then in
effect, one or more of the Borrowing Entities shall, upon one Business Day's
written notice to the Borrower from the Administrative Agent, prepay an
aggregate principal amount of Advances such that the Total Outstandings do
not exceed the Aggregate Commitment then in effect.
II.7.3. TERMINATION. All outstanding Advances and all other
unpaid Obligations shall be paid in full by the Borrowing Entities on the
Termination Date.
II.8. CHANGES IN INTEREST RATE, ETC. Each Alternate Base Rate
Advance shall bear interest on the outstanding principal amount thereof, for
each day from and including the date such Advance is made or is converted
from a Eurodollar Advance into an Alternate Base Rate Advance pursuant to
Section 2.3.6 to but excluding the date it becomes due or is converted into a
Eurodollar Advance pursuant to Section 2.3.6, at a rate per annum equal to
the Alternate Base Rate for each such day. Each Swing Line Loan shall bear
interest on the outstanding principal amount thereof, from and including the
date such Loan is made to but excluding the date it becomes due, at a rate
per annum equal to the Alternate Base Rate for each such day. Changes in the
rate of interest on that portion of any Advance maintained as an Alternate
Base Rate Advance and on each Swing Line Loan will take effect simultaneously
with each change in the Alternate Base Rate. Each Eurocurrency Advance shall
bear interest from and including the first day of the Interest Period
applicable thereto to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such Interest Period.
No Interest Period may end after the Termination Date.
II.9. RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything to the
contrary contained in Section 2.3.5 or 2.3.6, during the continuance of a
Default under Section 8.2, 8.6 or 8.7 (and during the continuance of any other
Default or Unmatured Default the Required Lenders may, at their option, by
notice to the Borrower, declare that) no Advance may be made as, converted into
or continued as a Eurodollar Advance. During the continuance of a Default under
Section 8.2, 8.6 or 8.7 (and during the continuance of any other Default the
Required Lenders may, at their option, by notice to the Borrower, declare that)
(i) each Eurocurrency Advance shall bear interest for the remainder of the
applicable Interest Period at the rate otherwise applicable to such Interest
Period plus 2% per annum and (ii) each Alternate Base Rate Advance and Swing
Line Loan shall bear interest at a rate per annum equal to the Alternate Base
Rate plus 2% per annum.
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II.10 METHOD OF PAYMENT.
II.10.1 GENERAL. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds and in the applicable currency to the Administrative Agent at
(a) in the case of payments in Dollars, the Administrative Agent's Domestic
Office, and (b) in the case of payments in any other currency, the
Administrative Agent's London Office or, in each case, at any other Lending
Installation of the Administrative Agent specified in writing by the
Administrative Agent to the applicable Borrowing Entity. All such payments
shall be made by noon (local time) on the date when due and shall be applied
ratably by the Administrative Agent among the Lenders according to the amount
due to each Lender. Each payment delivered to the Administrative Agent for
the account of any Lender shall be delivered promptly by the Administrative
Agent to such Lender in the same type of funds that the Administrative Agent
received at such Lender's address specified pursuant to Article XIV or at any
Lending Installation specified in a notice received by the Administrative
Agent from such Lender. The Administrative Agent is hereby authorized to
charge any account of the applicable Borrowing Entity maintained with First
Chicago for each payment of principal, interest and fees as it becomes due
hereunder.
II.10.2 CURRENCY OF PAYMENT. All payments of principal of and
interest on any Advance or any other Obligations hereunder shall be made by
the applicable Borrowing Entity in the currency borrowed or otherwise payable
(the "Specified Currency") in the manner and at the address (the "Specified
Place") specified in Section 2.10.1. Payment of the Obligations shall not be
discharged by an amount paid in another currency or in another place, whether
pursuant to a judgment or otherwise, to the extent that the amount so paid on
conversion to the Specified Currency and transfer to the Specified Place
under normal banking procedures does not yield the amount of the Specified
Currency due at the Specified Place. If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum due hereunder in the
Specified Currency into another currency (the "Judgment Currency"), the rate
of exchange which shall be applied shall be that at which, in accordance with
normal banking procedures, the Administrative Agent could purchase the
Specified Currency with that amount of the Judgment Currency on the Business
Day next preceding that on which such judgment is rendered. The obligation
of the applicable Borrowing Entity in respect of any such sum due from it to
the Administrative Agent or any Lender hereunder (an "Entitled Person")
shall, notwithstanding the rate of exchange actually applied in rendering
such judgment, be discharged only to the extent that on the Business Day
following receipt by such Entitled Person of any sum adjudged to be due
hereunder or under the Notes in the Judgment Currency, such Entitled Person
may in accordance with normal banking procedures purchase and transfer to the
Specified Place the Specified Currency with the amount of the Judgment
Currency so adjudged to be due; and the Borrowing Entities, on a joint and
several basis, hereby, as a separate Obligation and notwithstanding any such
judgment, agree to indemnify such Entitled Person against, and to pay such
Entitled Person on demand, in the Specified Currency, any difference between
the sum originally due to such Entitled Person in the Specified Currency and
the amount of the Specified Currency so purchased and transferred.
II.11 NOTES; TELEPHONIC NOTICES. Each Lender is hereby authorized to
record the principal amount of each of its Loans and each repayment on the
schedule attached to the Note issued by the applicable Borrowing Entity,
provided, however, that the failure to so record shall not affect the
obligations of such Borrowing Entity under such Note. Each Borrowing Entity
hereby authorizes the Lenders and the Administrative Agent to extend, convert
or continue Advances, effect selections of Types of Advances and
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to transfer funds, and the Issuer to issue Facility Letters of Credit, based
on telephonic notices made by any person or persons the Administrative Agent
or any Lender in good faith believes to be acting on behalf of such Borrowing
Entity. Each Borrowing Entity agrees to deliver promptly to the
Administrative Agent, if requested by the Administrative Agent or any Lender,
a written confirmation of each telephonic notice given by such Borrowing
Entity. If the written confirmation differs in any material respect from the
action taken by the Administrative Agent and the Lenders, the records of the
Administrative Agent and the Lenders shall govern absent manifest error.
II.12 INTEREST PAYMENT DATES; INTEREST AND FEE BASIS. Interest
accrued on each Alternate Base Rate Advance shall be payable on each Payment
Date, commencing with the first such date to occur after the date hereof, on
any date on which such Alternate Base Rate Advance is prepaid due to
acceleration, and at maturity. Interest accrued on each Eurocurrency Advance
shall be payable on the last day of each applicable Interest Period, on any
date on which such Eurocurrency Advance is prepaid, whether by acceleration
or otherwise, and at maturity. Interest accrued on each Eurocurrency Advance
having an Interest Period longer than three months shall also be payable on
the last day of each three-month interval during such Interest Period.
Interest and fees shall be calculated for actual days elapsed on the basis of
a 360-day year; PROVIDED, HOWEVER, that (i) interest on Foreign Currency
Advances denominated in British pounds sterling or Belgian francs shall be
calculated for actual days elapsed on the basis of a 365-day year, and (ii)
at the same time interest is payable on Foreign Currency Advances denominated
in British pounds sterling, the additional costs referred to in Schedule "5"
shall also be payable. Interest shall be payable for the day an Advance is
made but not for the day of any payment on the amount paid if payment is
received prior to noon (local time) at the place of payment. If any payment
of principal of or interest on an Advance shall become due on a day which is
not a Business Day, such payment shall be made on the next succeeding
Business Day and, in the case of a principal payment, such extension of time
shall be included in computing interest in connection with such payment.
II.13 NOTIFICATION BY THE ADMINISTRATIVE AGENT. Promptly after receipt
thereof, the Administrative Agent will notify each Lender of the contents of
each Aggregate Commitment reduction notice, Borrowing Notice,
Conversion/Continuation Notice, Letter of Credit Request, Issuance Notice and
repayment notice received by it hereunder. The Administrative Agent will notify
each applicable Lender of the interest rate applicable to each Eurocurrency
Advance promptly upon determination of such interest rate and will give each
Lender prompt notice of each change in the Alternate Base Rate.
II.14 LENDING INSTALLATIONS. Each Lender may book its Loans and
participations in Facility Letters of Credit at any Lending Installation
selected by such Lender and may change its Lending Installation from time to
time. All terms of this Agreement shall apply to any such Lending Installation
and the Notes shall be deemed held by each Lender for the benefit of such
Lending Installation. Each Lender may, by written or telex notice to the
Administrative Agent and the Borrower, designate a Lending Installation through
which Loans will be made by it and for whose account Loan payments are to be
made.
II.15 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. Unless a
Borrowing Entity or a Lender, as the case may be, notifies the Administrative
Agent prior to the date on which it is scheduled to make payment to the
Administrative Agent of (i) in the case of a Lender, the proceeds of a Loan
or an Unreimbursed Amount or (ii) in the case of a Borrowing Entity, a
payment of principal, interest or fees to the Administrative Agent for the
account of the Lenders, that it does not intend to make such payment, the
Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but
21
shall not be obligated to, make the amount of such payment available to the
intended recipient in reliance upon such assumption. If such Lender or
Borrowing Entity, as the case may be, has not in fact made such payment to
the Administrative Agent, the recipient of such payment shall, on demand by
the Administrative Agent, repay to the Administrative Agent the amount so
made available together with interest thereon in respect of each day during
the period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender,
the Federal Funds Effective Rate for such day or (ii) in the case of payment
by a Borrowing Entity, the interest rate applicable to the relevant Loan (or,
in the case of fees, the Alternate Base Rate).
II.16 WITHHOLDING TAX EXEMPTION. At least five Business Days prior to
the first date on which interest or fees are payable hereunder for the
account of any Lender, each Lender that is not incorporated under the laws of
the United States of America, or a state thereof, agrees that it will deliver
to each of the Borrower and the Administrative Agent two duly completed
copies of United States Internal Revenue Service Form 1001 or 4224 (or a
successor form), certifying in either case that such Lender is entitled to
receive payments under this Agreement and the Notes without deduction or
withholding of any United States federal income taxes. Each Lender which so
delivers a Form 1001 or 4224 further undertakes to deliver to each of the
Borrower and the Administrative Agent two additional copies of such form (or
a successor form) on or before the date that such form expires (currently,
three successive calendar years for Form 1001 and one calendar year for Form
4224) or becomes obsolete or after the occurrence of any event requiring a
change in the most recent forms so delivered by it, and such amendments
thereto or extensions or renewals thereof as may be reasonably requested by
the Borrower or the Administrative Agent, in each case certifying that such
Lender is entitled to receive payments under this Agreement and the Notes
without deduction or withholding of any United States federal income taxes,
unless an event (including without limitation any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required 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 advises the Borrower and the
Administrative Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax.
II.17 FACILITY LETTERS OF CREDIT.
II.17.1 OBLIGATION TO ISSUE. Subject to the terms and
conditions of this Agreement and in reliance upon the representations and
warranties of the Borrower set forth herein, the Issuer hereby agrees to
issue upon the request of and for the account of the Borrower, through such
of the Issuer's Lending Installations or Affiliates as the Issuer and the
Borrower may mutually agree, one or more Facility Letters of Credit in
accordance with this Section 2.17, from time to time during the period
commencing on the Effective Date and ending on the Business Day prior to the
Termination Date.
II.17.2 CONDITIONS FOR ISSUANCE. In addition to being subject
to the satisfaction of the conditions contained in Section 4.3, the
obligation of the Issuer to issue any Facility Letter of Credit is subject to
the satisfaction in full of the following conditions:
(a) the aggregate maximum amount then available for drawing under
Facility Letters of Credit issued by the Issuer, after giving effect to the
Facility Letter of Credit requested hereunder, shall not exceed any limit
imposed by law or regulation upon the Issuer;
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(b) after giving effect to the requested issuance of any Facility
Letter of Credit, the Letter of Credit Obligations shall not exceed
$50,000,000;
(c) after giving effect to the requested issuance of any Facility
Letter of Credit, the Total Outstandings shall not exceed the Aggregate
Commitment as then in effect;
(d) the requested Facility Letter of Credit shall be denominated and
payable in Dollars and shall have an expiration date not later than the
earlier of (x) the Business Day prior to the Termination Date and (y) one
year after its date of issuance;
(e) the Borrower shall have delivered to the Issuer at such times and
in such manner as the Issuer may reasonably prescribe such documents and
materials as may be required pursuant to the terms of the proposed Facility
Letter of Credit, and the proposed Facility Letter of Credit shall be
satisfactory to the Issuer as to form and content; and
(f) as of the date of issuance, no order, judgment or decree of any
court, arbitrator or Governmental Agency shall purport by its terms to
enjoin or restrain the Issuer from issuing the Facility Letter of Credit
and no law, rule or regulation applicable to the Issuer and no request or
directive (whether or not having the force of law) from any Governmental
Agency with jurisdiction over the Issuer shall prohibit or request that the
Issuer refrain from the issuance of Letters of Credit generally or the
issuance of such Facility Letter of Credit.
II.17.3 PROCEDURE FOR ISSUANCE.
(a) The Borrower shall give the Issuer at least five Business Days'
prior written notice of any requested issuance of a Facility Letter of Credit
(any such notice, which shall be substantially in the form of Exhibit "I," a
"Letter of Credit Request"). Such notice shall specify:
(1) the stated amount of the Facility Letter of Credit requested
(which shall not be less than $500,000);
(2) the effective date (which shall be a Business Day) of
issuance of such requested Facility Letter of Credit (the "Issuance
Date");
(3) the date on which such requested Facility Letter of Credit
is to expire (which shall be a Business Day and shall comply with the
provisions of Section 2.17.2(d));
(4) the purpose for which such Facility Letter of Credit is to
be issued; and
(5) the Person for whose benefit the requested Facility Letter
of Credit is to be issued.
At the time a Letter of Credit Request is made, the Borrower shall also provide
the Administrative Agent and the Issuer with a copy of the form of the Facility
Letter of Credit it is requesting be issued. Such Letter of Credit Request, to
be effective, must be received by the Issuer and the Administrative Agent not
later
23
than 2:00 p.m. (Chicago time) on the last Business Day on which such Letter of
Credit Request can be given under this Section 2.17.3(a).
(b) Subject to the terms and conditions of this Section 2.17 and
provided that the applicable conditions set forth in Section 4.3 hereof have
been satisfied, the Issuer shall, on the Issuance Date, issue a Facility Letter
of Credit on behalf of the Borrower in accordance with the Issuer's usual and
customary business practices unless the Issuer has actually received (i) written
notice from the Borrower specifically revoking the Letter of Credit Request with
respect to such Facility Letter of Credit, (ii) written notice from a Lender,
which complies with the provisions of Section 2.17.5(a) or (iii) written or
telephonic notice from the Administrative Agent stating that the issuance of
such Facility Letter of Credit would violate Section 2.17.2.
(c) The Issuer shall give the Administrative Agent and the Borrower
written notice, or telephonic notice confirmed promptly in writing, of the
issuance of a Facility Letter of Credit (an "Issuance Notice").
(d) The Issuer shall not extend or amend any Facility Letter of
Credit or allow a Facility Letter of Credit to be automatically extended unless
the requirements of this Section 2.17.3 are met as though a new Facility Letter
of Credit were being requested and issued.
II.17.4 PAYMENT OF REIMBURSEMENT OBLIGATIONS; DUTIES OF ISSUER.
(a) (i) The Issuer shall promptly notify the Borrower and the
Administrative Agent of any draw under a Facility Letter of Credit and the
Borrower shall reimburse the Issuer in accordance with Section 2.17.4(c) and
(ii) any Reimbursement Obligation shall bear interest from the date of any draw
under such Facility Letter of Credit until payment in full is received by the
Issuer at (A) the Alternate Base Rate until the Business Day after payment of
such draw is made by the Issuer and (B) the Alternate Base Rate plus 2%
thereafter.
(b) Any action taken or omitted to be taken by the Issuer under or in
connection with any Facility Letter of Credit, if taken or omitted in the
absence of willful misconduct or gross negligence, shall not put the Issuer
under any resulting liability to any Lender or, assuming that the Issuer has
complied with the procedures specified in Section 2.17.3, all conditions to the
issuance of a Facility Letter of Credit have been satisfied and any such Lender
has not given a notice contemplated by Section 2.17.5(a) that continues in full
force and effect, relieve any such Lender of its obligations hereunder to the
Issuer. In determining whether to pay under any Facility Letter of Credit, the
Issuer shall have no obligation other than to confirm that any documents
required to be delivered under such Facility Letter of Credit appear to have
been delivered in compliance, and that they appear to comply on their face, with
the requirements of such Facility Letter of Credit.
(c) The Borrower agrees to pay to the Issuer the amount of all
Reimbursement Obligations, interest and other amounts payable to the Issuer
under or in connection with any Facility Letter of Credit immediately when due
(and in any event shall reimburse the Issuer for drawings under a Facility
Letter of Credit no later than the next Business Day after notice of payment by
the Issuer), irrespective of any claim, set-off, defense or other right which
the Borrower or any Subsidiary may have at any time against the Issuer
24
or any other Person, under all circumstances including, without limitation,
any of the following circumstances:
(1) any lack of validity or enforceability of this Agreement or
any of the other Loan Documents;
(2) the existence of any claim, setoff, defense or other right
which the Borrower or any Subsidiary may have at any time against a
beneficiary named in a Facility Letter of Credit or any transferee of
any Facility Letter of Credit (or any Person for whom any such
transferee may be acting), the Administrative Agent, the Issuer, any
Lender, or any other Person, whether in connection with this
Agreement, any Facility Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any
underlying transactions between the Borrower or any Subsidiary and the
beneficiary named in any Facility Letter of Credit):
(3) any draft, certificate or any other document presented under
any Facility Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect (except to the extent any such
invalidity or insufficiency is found in a final judgment of a court of
competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Issuer);
(4) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents; or
(5) the occurrence of any Default or Unmatured Default.
(d) As among the Borrower, the Issuer, the Administrative Agent and
the Lenders, the Borrower assumes all risks of the acts and omissions of, or
misuse of the Facility Letters of Credit by, the respective beneficiaries of the
Facility Letters of Credit (except such as are found in a final judgment by a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Issuer). In furtherance and not in limitation of the
foregoing, the Issuers, the Administrative Agent and the Lenders shall not be
responsible (absent gross negligence or willful misconduct in connection
therewith, as determined by the final judgment of a court of competent
jurisdiction) for (i) the forms, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection with the
application for and issuance of any Facility Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Facility Letter
of Credit or the rights or benefits thereunder or proceeds thereof, in whole or
in part, which may prove to be invalid or ineffective for any reasons; (iii)
failure of the beneficiary of a Facility Letter of Credit to comply fully with
conditions required in order to draw upon such Facility Letter of Credit (iv)
errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise; (v) errors in
interpretation of technical terms; (vi) misapplication by the beneficiary of a
Facility Letter of Credit of the proceeds of any drawing under such Facility
Letter of Credit; or (viii) any consequences arising from causes beyond the
control of the Issuer, the Administrative Agent or any Lender.
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II.17.5 PARTICIPATION.
(a) Immediately upon issuance by the Issuer of any Facility Letter of
Credit in accordance with the procedures set forth in Section 2.17.3, each
Lender shall be deemed to have irrevocably and unconditionally purchased and
received from the Issuer, without recourse or warranty, an undivided interest
and participation equal to its Percentage of such Facility Letter of Credit
(including, without limitation, all rights and obligations of the Issuer with
respect thereof) and any security therefor or guaranty pertaining thereto;
PROVIDED, HOWEVER, that a Letter of Credit issued by the Issuer shall not be
deemed to be a Facility Letter of Credit for purposes of this Agreement if the
Administrative Agent and the Issuer shall have received written notice from any
Lender on or before the Business Day prior to the date of the issuance of such
Letter of Credit that Issuer receives such a notice, it shall have no further
obligation to issue any Facility Letter of Credit until such notice is withdrawn
by such Lender or its receives a notice from the Administrative Agent that such
condition has been effectively waived in accordance with the provisions of this
Agreement.
(b) In the event that the Issuer makes any payment under any
Facility Letter of Credit and the Borrower shall not have repaid such amount
to the Issuer pursuant to Section 2.17.4 (the "Unreimbursed Amount"), the
Issuer shall promptly notify the Administrative Agent, which shall promptly
notify each Lender, of such failure, and each Lender shall promptly and
unconditionally pay to the Administrative Agent for the account of the Issuer
the amount of such Lender's Percentage of the Unreimbursed Amount. The
failure of any Lender to make available to the Administrative Agent its
Percentage of the Unreimbursed Amount shall not relieve any other Lender of
its obligation hereunder to make available to the Administrative Agent its
Percentage of the Unreimbursed Amount on the date such payment is to be made,
but no Lender shall be responsible for the failure of any other Lender to
make available to the Administrative Agent its Percentage of the Unreimbursed
Amount on the date such payment is to be made.
(c) Whenever the Issuer receives a payment on account of a
Reimbursement Obligation, including any interest thereon, it shall promptly pay
to the Administrative Agent, and the Administrative Agent shall promptly pay to
each Lender which has funded its participating interest therein, an amount equal
to such Lender's Percentage thereof.
(d) Upon the request of the Administrative Agent or any Lender, the
Issuer shall furnish to the Administrative Agent or such Lender copies of any
Facility Letter of Credit and such other documentation as may reasonably be
requested by the Administrative Agent or such Lender.
(e) The obligations of a Lender to make payments to the
Administrative Agent for the account of the Issuer with respect to a Facility
Letter of Credit shall be absolute, unconditional and irrevocable, not subject
to any counterclaim, set-off, qualification or exception whatsoever and shall be
made in accordance with the terms and conditions of this Agreement under all
circumstances.
(f) In the event any payment by the Borrower received by the Issuer
with respect to a Facility Letter of Credit and distributed by the
Administrative Agent to the Lenders on account of their participations is
thereafter set aside, avoided or recovered from the Issuer in connection with
any receivership, liquidation, reorganization or bankruptcy proceeding, each
Lender which received such distribution shall, upon demand by the Issuer,
contribute such Lender's Percentage of the amount set aside,
26
avoided or recovered together with interest at the rate required to be paid by
the Issuer upon the amount required to be repaid by it.
II.17.6 COMPENSATION FOR FACILITY LETTERS OF CREDIT.
(a) The Borrower shall pay to the Administrative Agent for the
ratable account of the Lenders, based upon the Lenders' respective Percentages,
a fee with respect to each Facility Letter of Credit, for the period from the
Issuance Date thereof to and including the final expiration date thereof, in a
per annum amount equal to the product of (A) the average daily undrawn amount of
such Facility Letter of Credit times (B) the L/C Fee Percentage. Such fee shall
be due and payable in arrears on each Payment Date and, to the extent any such
fees are then due and unpaid, on the Termination Date. Promptly upon its
receipt of such fee, the Administrative Agent shall remit to each Lender its
portion thereof.
(b) The Borrower shall pay to the Issuer issuance fees for any
Facility Letter of Credit solely for the Issuer's own account in an amount in
accordance with the Issuer's standard fee schedule or such other amount to which
the Issuer and the Borrower may agree in writing. In addition, the Borrower
shall pay to the Issuer the Issuer's reasonable out-of-pocket costs of issuing
and servicing Facility Letters of Credit.
II.17.7 LETTER OF CREDIT COLLATERAL ACCOUNT. From and after
the occurrence and during the continuance of a Default, the Borrower hereby
agrees that it will maintain a special collateral account (the "Letter of
Credit Collateral Account") at the Administrative Agent's Domestic Office, in
the name of the Borrower but under the sole dominion and control of the
Administrative Agent, for the benefit of the Lenders, and in which the
Borrower shall have no interest other than as set forth in Section 9.1. In
addition to the foregoing, the Borrower hereby grants to the Administrative
Agent, for the benefit of the Lenders, a security interest in and to the
Letter of Credit Collateral Account and any funds that may hereafter be on
deposit in such account.
II.18 DESIGNATION OF BORROWING SUBSIDIARIES. The Borrower may from time
to time designate any Foreign Subsidiary of the Borrower as a "Borrowing
Subsidiary" hereunder by causing such Foreign Subsidiary to execute and deliver
a duly completed Assumption Letter to the Administrative Agent, with the written
consent of the Borrower at the foot thereof. Upon such execution, delivery and
consent such Foreign Subsidiary shall for all purposes be a party hereto as a
Borrowing Subsidiary as fully as if it had executed and delivered this
Agreement. So long as the principal of and interest on all Advances made to any
Borrowing Subsidiary under this Agreement shall have been paid in full and all
other obligations of such Borrowing Subsidiary shall have been fully performed,
such Borrowing Subsidiary may, by not less than five Business Days' prior notice
to the Administrative Agent (which shall promptly notify the Lenders thereof),
terminate its status as a "Borrowing Subsidiary" hereunder.
III
CHANGE IN CIRCUMSTANCES
III.1 TAXES.
27
(a) PAYMENTS TO BE FREE AND CLEAR. All sums payable by any Borrowing
Entity whether in respect of principal, interest, fees or otherwise shall be
paid without deduction for any present and future taxes, levies, imposts,
deductions, charges or withholdings imposed by any country, any Governmental
Agency thereof or therein, any jurisdiction from which any or all such payments
are made and any political subdivision or taxing authority thereof or therein
(collectively, "Taxes"), which amounts shall be paid by such Borrowing Entity as
provided in Section 3.1(b). Each Borrowing Entity will pay each Lender the
amounts necessary such that the net amount of the principal, interest, fees or
other sums received and retained by each Lender is not less than the amount
payable under this Agreement.
(b) GROSSING-UP OF PAYMENTS. If, after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation thereof, or the compliance of any Lender therewith,
(a) requires any Borrowing Entity or any other Person to make any deduction or
withholding on account of any such Tax or other amount from any sum paid or
expressed to be payable by any Borrowing Entity to any Lender under this
Agreement; or (b) requires any party to this Agreement (or any Person on its
behalf) other than any Borrowing Entity to make any deduction or withholding
from, or (other than on account of tax on the overall net income of that party)
any payment on or calculated by reference to the amount of, any such sum
received or receivable by any Lender under this Agreement:
(i) the applicable Borrowing Entity shall notify the Administrative
Agent of any such requirement or any change in any such
requirement as soon as such Borrowing Entity becomes aware of it:
(ii) the applicable Borrowing Entity shall pay any such Tax or other
amount before the date on which penalties attached thereto become
due and payable, such payment to be made (if the liability to pay
is imposed on such Borrowing Entity) for its own account or (if
such liability is imposed on any other party to this Agreement)
on behalf of and in the name of such other party;
(iii) the sum payable by any Borrowing Entity in respect of which the
relevant deduction, withholding or payment is required shall
(except, in the case of any such payment, to the extent that the
amount thereof is not ascertainable when such sum is paid) be
increased to the extent necessary to ensure that, after the
making of such deduction, withholding or payment, such party
receives on the due date and retains (free from any liability in
respect of any such deduction, withholding or payment) a sum
equal to that which it would have received and retained had no
such deduction, withholding or payment been required or made; and
(iv) within thirty (30) days after payment of any sum from which any
Borrowing Entity is required by law to make any deduction or
withholding, and within thirty (30) days after the due date of
payment of any Tax or other amount which it is required by
Section 3.1(b)(ii) to pay, it shall deliver to the Administrative
Agent all such certified documents and other evidence as to the
making of such deduction, withholding or payment as (a) are
satisfactory to the other affected parties as proof of such
deduction, withholding or payment and of the remittance thereof
to the relevant taxing or other authority and (b) are required by
any such
28
party to enable it to claim a tax credit with respect to such
deduction, withholding or payment.
III.2 YIELD PROTECTION. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law), or any interpretation thereof, or the compliance
of any Lender therewith,
(i) subjects any Lender or any applicable Lending Installation to any
tax, duty, charge or withholding on or from payments due from any
Borrowing Entity (excluding taxation of the overall net income of
any Lender or applicable Lending Installation), or changes the
basis of taxation of payments to any Lender in respect of its
Loans or other amounts due it hereunder, or
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation
(other than reserves and assessments taken into account in
determining the interest rate applicable to Eurocurrency
Advances), or
(iii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation of
making, funding or maintaining loans or letters of credit (or
participations therein) or reduces any amount receivable by any
Lender or any applicable Lending Installation in connection with
loans or letters of credit (or participations therein), or
requires any Lender or any applicable Lending Installation to make
any payment calculated by reference to the amount of loans or
letters of credit (or participations therein) held or interest
received by it, by an amount deemed material by such Lender,
then, within 15 days of demand by such Lender, the applicable Borrowing Entities
shall pay such Lender that portion of such increased expense incurred or
reduction in an amount received which such Lender determines is attributable to
making, funding and maintaining its Loans, its Facility Letters of Credit (or
participations therein) and its Commitment.
III.3 CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender
determines the amount of capital required or expected to be maintained by
such Lender, any Lending Installation of such Lender or any corporation
controlling such Lender is increased as a result of a Change, then, within 15
days of demand by such Lender, the Borrower shall pay such Lender the amount
necessary to compensate for any shortfall in the rate of return on the portion
of such increased capital which such Lender determines is attributable to this
Agreement, its Loans, its Facility Letters of Credit (or participations therein)
or its obligation to make Loans and issue (or participate in) Facility
Letters of Credit hereunder (after taking into account such Lender's policies
as to capital adequacy). "Change" means (i) any change after the date of
this Agreement in the Risk-Based Capital Guidelines or (ii) any adoption of
or change in any other law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or not having the force
of law) after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or any Lending Installation
or any corporation controlling any Lender. "Risk-Based Capital Guidelines"
means (i) the risk-based capital guidelines in effect in the United States on
29
the date of this Agreement, including transition rules, and (ii) the
corresponding capital regulations promulgated by regulatory authorities
outside the United States implementing the July 1988 report of the Basle
Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted
prior to the date of this Agreement.
III.4 AVAILABILITY OF EUROCURRENCY ADVANCES. If (a) any Lender
determines that maintenance of any of its Eurocurrency Loans at a suitable
Lending Installation would violate any applicable law, rule, regulation, or
directive, whether or not having the force of law, or (b) the Required
Lenders determine that (i) deposits in the relevant Eurocurrency of a type
and maturity appropriate to match fund Eurocurrency Loans are not available
or (ii) the interest rate applicable to a Eurocurrency Advance does not
accurately reflect the cost of making or maintaining such Eurocurrency
Advance, then so long as such circumstances shall continue, the Borrowing
Entities may not request, convert into or continue any applicable
Eurocurrency Advance (and, in the case of clause (a) above, if so required by
the applicable law, rule, regulation or directive, the applicable Borrowing
Entity shall repay each applicable Eurocurrency Loan).
III.5 FUNDING INDEMNIFICATION. If any payment of a Eurocurrency
Advance occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment or otherwise, or a
Eurocurrency Advance is not made on the date specified by the applicable
Borrowing Entity for any reason other than default by the Lenders, the
applicable Borrowing Entity will indemnify each Lender for any loss or cost
incurred by it resulting therefrom, including, without limitation, any loss
or cost in liquidating or employing deposits acquired to fund or maintain
such Eurocurrency Advance.
III.6 MITIGATION OF ADDITIONAL COSTS OR ADVERSE CIRCUMSTANCES. If, in
respect of any Lender, circumstances arise which would or would upon the giving
of notice result in:
(a) an increase in the liability of any Borrowing Entity to such
Lender under Section 3.1, 3.2 or 3.3,
(b) the unavailability of a Eurocurrency Advance under Section 3.4 or
(c) a Lender being incapable of receiving payments without deduction
or withholding of United States federal income tax;
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Borrowing Entities under any of the Sections referred to
above in this Section 3.6, such Lender shall promptly upon becoming aware of the
same notify the Administrative Agent thereof and shall, in consultation with the
Administrative Agent and the Borrower and to the extent that it can do so
without disadvantaging itself, take such reasonable steps as may be reasonably
open to it to mitigate the effects of such circumstances (including, without
limitation, the designation of an alternate Lending Installation or the transfer
of its Loans to another Lending Installation). If and so long as a Lender has
been unable to take, or has not taken, steps acceptable to the Borrower to
mitigate the effect of the circumstances in question, such Lender shall be
obliged, at the request of the Borrower, to assign all its rights and
obligations hereunder to another Person nominated by the Borrower with the
approval of the Administrative Agent (which shall not be unreasonably withheld)
and willing to participate in the facility in place of such Lender; PROVIDED
THAT such Person satisfies all of the requirements of this Agreement including,
but not limited to, providing the forms required by Sections 2.16
30
and 13.3.2. Notwithstanding any such assignment, the obligations of the
Borrowing Entities under Sections 3.1, 3.2, 3.3 and 10.7 shall survive any such
assignment and be enforceable by such Lender.
III.7 LENDER STATEMENTS; SURVIVAL OF INDEMNITY. Each Lender shall
deliver a written statement of such Lender as to the amount due, if any,
under Section 3.1, 3.2, 3.3 or 3.5. Such written statement shall set forth
in reasonable detail the calculations upon which such Lender determined such
amount and shall be final, conclusive and binding on the Borrowing Entities
in the absence of manifest error. Determination of amounts payable under
such Sections in connection with a Eurocurrency Loan shall be calculated as
though each Lender funded its Eurocurrency Loan through the purchase of a
deposit of the Eurocurrency, type and maturity corresponding to the deposit
used as a reference in determining the Eurocurrency Rate applicable to such
Loan, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement shall be payable on
demand after receipt by the applicable Borrowing Entity of the written
statement. The obligations of the Borrowing Entities under Sections 3.1,
3.2, 3.3 and 3.5 shall survive payment of the Obligations and termination of
this Agreement.
III.8 MARKET DISRUPTION. Notwithstanding the satisfaction of all
conditions referred to in Article IV with respect to any Foreign Currency
Advance, if there shall occur on or prior to the date of such Advance any
change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which would in the
reasonable opinion of the Administrative Agent or Lenders which are to make
20% or more of the principal amount of such Advance make it impracticable for
the Foreign Currency Loans comprising such Advance to be denominated in the
Eurocurrency specified by the applicable Borrowing Entity, then the
Administrative Agent shall forthwith give notice thereof to the Borrowing
Entities and the Lenders, and such Loans shall not be denominated in such
Eurocurrency but shall be made on such Borrowing Date to the Borrower in
Dollars in an aggregate principal amount equal to the Dollar Equivalent of
the aggregate principal amount specified in the related Borrowing Notice as
Alternate Base Rate Loans, unless the Borrower notifies the Administrative
Agent at least one Business Day before such date that it elects not to borrow
on such date.
IV
CONDITIONS PRECEDENT
IV.1 EFFECTIVENESS. The Lenders shall not be required to make the
initial Advance hereunder, the Swing Line Bank shall not be required to make
any Swing Line Loan, the Issuer shall not be required to issue any Facility
Letter of Credit and this Agreement shall not become effective unless the
Borrower has furnished to the Administrative Agent, with sufficient copies
for the Lenders, the following items (and the date upon which all such items
shall have been so furnished is referred to as the "Effective Date"):
(i) Copies of a certificate of good standing of the Borrower and each
Guarantor Subsidiary, certified by the appropriate governmental
officer in their respective jurisdictions of incorporation.
(ii) Certificates, executed by the Secretary or Assistant Secretary of
the Borrower and each Guarantor Subsidiary, attaching true and
correct copies of (i) their respective articles of incorporation
and by-laws and (ii) their respective Board of Directors'
resolutions (and
31
resolutions of other bodies, if any are deemed necessary by
counsel for any Lender) authorizing the execution of the Loan
Documents to be executed by such entity.
(iii) Incumbency certificates, executed by the Secretary or Assistant
Secretary of the Borrower and each Guarantor Subsidiary, which
shall identify by name and title and bear the signature of the
officers of such entity authorized to sign the Loan Documents to
which such entity is a party and, in the case of the Borrower, to
request borrowings and Facility Letters of Credit hereunder, upon
which certificates the Administrative Agent and the Lenders shall
be entitled to rely until informed of any change in writing by
the Borrower or the applicable Subsidiary, as the case may be.
(iv) A certificate, signed by the chief financial officer or financial
vice president of the Borrower, stating that on Effective Date no
Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of internal counsel to the Borrower and the
Guarantor Subsidiaries, addressed to the Lenders in substantially
the form of Exhibit "B" hereto.
(vi) Notes issued by the Borrower payable to the order of each of the
Lenders (including the Swing Line Note payable to the order of
the Swing Line Bank).
(vii) Written money transfer instructions, in substantially the form of
Exhibit "D" hereto, addressed to the Administrative Agent and
signed by an Authorized Officer on behalf of the Borrower,
together with such other related money transfer authorizations as
the Administrative Agent may have reasonably requested.
(viii) The insurance certificate described in Section 5.17.
(ix) The Guaranty executed by each of the Guarantor Subsidiaries.
(x) A compliance certificate substantially in the form of Exhibit "C"
hereto completed as of the Effective Date (except that the
calculation of EBITDA therein shall be as of the last day of the
most recently-completed fiscal quarter).
(xi) Such other documents as any Lender or its counsel may have
reasonably requested.
IV.2 INITIAL ADVANCE TO EACH BORROWING SUBSIDIARY. No Lender shall be
required to make any Advance to a Borrowing Subsidiary unless such Borrowing
Subsidiary has furnished to the Administrative Agent, with sufficient copies for
the Lenders, the following items:
(i) Copies of the articles of incorporation or similar organizational
documents of such Borrowing Subsidiary, together with all
amendments, and a certificate of good standing (if available),
both certified by the appropriate governmental officer in its
jurisdiction of incorporation.
32
(ii) Copies, certified by an appropriate officer or director of such
Borrowing Subsidiary, of its by-laws or similar organizational
documents and of its Board of Directors' resolutions (and
resolutions of other bodies, if any are deemed necessary by
counsel for any Lender) authorizing the execution of the Loan
Documents to which such Borrowing Subsidiary is a party.
(iii) An incumbency certificate, executed by an appropriate officer or
director of such Borrowing Subsidiary, which shall identify by
name and title and bear the signature of the officers or
directors of such Borrowing Subsidiary authorized to sign the
Loan Documents and to request Loans hereunder, upon which
certificate the Administrative Agent and the Lenders shall be
entitled to rely until informed of any change in writing by such
Borrowing Subsidiary.
(iv) A written opinion of counsel to such Borrowing Subsidiary,
addressed to the Lenders, in form and substance satisfactory to
the Administrative Agent.
(v) Notes issued by such Borrowing Subsidiary to the order of each of
the Lenders.
(vi) Written money transfer instructions, in substantially the form of
Exhibit "D" hereto, addressed to the Administrative Agent on
behalf of such Borrowing Subsidiary and signed by an Authorized
Officer, together with such other related money transfer
authorizations as the Administrative Agent may have reasonably
requested.
(vii) Such other documents as any Lender or its counsel may have
reasonably requested.
IV.3 EACH CREDIT EXTENSION. No Lender shall be required to make any
Advance, the Swing Line Bank shall not be required to make any Swing Line Loan,
and the Issuer shall not be required to issue any Facility Letter of Credit
unless on the applicable Borrowing Date or Issuance Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties of the Borrower contained in
Article V are true and correct as of such Borrowing Date or
Issuance Date except to the extent any such representation or
warranty is stated to relate solely to an earlier date, in which
case such representation or warranty shall be true and correct on
and as of such earlier date (other than the representations and
warranties made under Sections 5.4 and 5.5, which shall be deemed
to refer to the most recent annual audited financial statements
furnished to the Lenders pursuant to Section 7.1(i) hereof).
(iii) If such Advance is requested by a Borrowing Subsidiary, the
representations and warranties of such Borrowing Subsidiary
contained in Article VI are true and correct as of such Borrowing
Date except to the extent any such representation or warranty is
stated to relate solely to the earlier date, in which case such
representation or warranty shall be true and correct on and as of
such earlier date.
33
(iv) All legal matters incident to the making of such Advance shall be
satisfactory to the Lenders and their counsel.
Each Borrowing Notice with respect to an Advance, each request for a Swing
Line Loan and each Letter of Credit Request with respect to a Facility Letter of
Credit shall constitute a representation and warranty by the Borrower that the
conditions contained in Sections 4.3(i) and (ii) have been satisfied and, if
applicable, by the applicable Borrowing Subsidiary that the conditions contained
in Sections 4.3(i) and (iii) have been satisfied. Any Lender may require, a
duly completed compliance certificate in substantially the form of Exhibit "C"
hereto, dated as of the day preceding the applicable Borrowing Date or Issuance
Date, as a condition to the making of an Advance or the issuance of a Facility
Letter of Credit.
V
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
The Borrower represents and warrants to the Lenders that:
V.1 CORPORATE EXISTENCE AND STANDING. Each of the Borrower and its
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation and has all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted, except to the extent that failure to be in good
standing or to have any requisite authority could not reasonably be expected
to have a Material Adverse Effect.
V.2 AUTHORIZATION AND VALIDITY. The Borrower has the corporate
power and authority and legal right to execute and deliver the Loan Documents
to which it is a party and to perform its obligations thereunder. The
execution and delivery by the Borrower of the Loan Documents to which it is a
party and the performance of its obligations thereunder have been duly
authorized by proper corporate proceedings, and such Loan Documents
constitute legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally.
V.3 NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and
delivery by the Borrower of the Loan Documents to which it is a party, nor
the consummation of the transactions therein contemplated, nor compliance
with the provisions thereof will violate any law, rule, regulation, order,
writ, judgment, injunction, decree or award binding on the Borrower or any of
its Subsidiaries or the Borrower's or any Subsidiary's articles of
incorporation or by-laws or the provisions of any indenture, instrument or
agreement to which the Borrower or any of its Subsidiaries is a party or is
subject, or by which it, or its Property, is bound, or conflict with or
constitute a default thereunder, or result in the creation or imposition of
any Lien in, of or on the Property of the Borrower or a Subsidiary pursuant
to the terms of any such indenture, instrument or agreement. No order,
consent, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, any Governmental Agency is
required to authorize, or is required in connection with the execution,
delivery and performance of, or the legality, validity, binding effect or
enforceability of, any of the Loan Documents.
34
V.4 FINANCIAL STATEMENTS. The December 29, 1995 and the September
27, 1996 consolidated financial statements of the Borrower and its
Subsidiaries heretofore delivered to the Lenders were prepared in accordance
with generally accepted accounting principles in effect on the dates such
statements were prepared and fairly present the consolidated financial
condition and operations of the Borrower and its Subsidiaries at such dates
and the consolidated results of their operations for the periods then ended,
subject to normal year-end adjustments in the case of September 30, 1996
statements.
V.5 MATERIAL ADVERSE CHANGE. Since December 29, 1995, there has
been no change in the business, Property, prospects, condition (financial or
otherwise) or results of operations of the Borrower and its Subsidiaries
which has had or could reasonably be expected to have a Material Adverse
Effect.
V.6 TAXES. The Borrower and its Subsidiaries have filed all United
States federal tax returns and all other material tax returns which are
required to be filed and have paid (or made arrangements for the timely
payment of) all taxes due pursuant to said returns or pursuant to any
assessment received by the Borrower or any of its Subsidiaries, except such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided. The United States income tax returns of the
Borrower and its Subsidiaries have not been audited by the Internal Revenue
Service. No tax liens have been filed and no claims are being asserted with
respect to any such taxes (other than liens and claims in respect of state
taxes which do not exceed in the aggregate $500,000). The charges, accruals
and reserves on the books of the Borrower and its Subsidiaries in respect of
any taxes or other governmental charges are adequate.
V.7 LITIGATION AND CONTINGENT OBLIGATIONS. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their officers, threatened against or affecting the
Borrower or any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect. The Borrower has no material contingent obligations
not provided for or disclosed in the financial statements referred to in Section
5.4 or listed on Schedule "4" hereto.
V.8 SUBSIDIARIES. Schedule "2" hereto contains an accurate list of
all of the presently existing Subsidiaries of the Borrower, setting forth
their respective jurisdictions of incorporation, the percentage of their
respective capital stock owned by the Borrower or other Subsidiaries and
whether such Subsidiary is an Active Subsidiary or an Inactive Subsidiary.
All of the issued and outstanding shares of capital stock of such
Subsidiaries have been duly authorized and issued and are fully paid and
non-assessable.
V.9 ERISA. There are no Unfunded Liabilities for any Single
Employer Plans. Neither the Borrower nor any other member of the Controlled
Group has incurred, or is reasonably expected to incur, any withdrawal
liability to Multiemployer Plans. Each Plan complies in all material
respects with all applicable requirements of law and regulations, no
Reportable Event has occurred with respect to any Plan, neither the Borrower
nor any other members of the Controlled Group has withdrawn from any Plan or
initiated steps to do so, and no steps have been taken to reorganize or
terminate any Plan.
V.10 ACCURACY OF INFORMATION. No information, exhibit or report
furnished by the Borrower or any of its Subsidiaries to the Administrative
Agent or to any Lender in connection with the negotiation of, or compliance
with, the Loan Documents contained any material misstatement of fact or
omitted to state a material fact or any fact necessary to make the statements
contained therein not misleading.
35
V.11 REGULATION U. Margin stock (as defined in Regulation U)
constitutes less than 25% of those assets of the Borrower and its
Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder.
V.12 MATERIAL AGREEMENTS. Neither the Borrower nor any Subsidiary
is a party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in (i) any agreement to which it is a party, which
default could reasonably be expected to have a Material Adverse Effect or
(ii) any agreement or instrument evidencing or governing Indebtedness.
V.13 COMPLIANCE WITH LAWS. The Borrower and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any Governmental Agency having jurisdiction over the conduct
of their respective businesses or the ownership of their respective Property,
except as permitted under clauses (a) and (b) of Section 7.7. Neither the
Borrower nor any Subsidiary has received any notice to the effect that its
operations are not in material compliance with any of the requirements of
applicable federal, state and local environmental, health and safety statutes
and regulations or the subject of any federal or state investigation
evaluating whether any remedial action is needed to respond to a release of
any toxic or hazardous waste or substance into the environment, which
non-compliance or remedial action could reasonably be expected to have a
Material Adverse Effect.
V.14 OWNERSHIP OF PROPERTIES. Except as set forth on Schedule "3"
hereto, on the date of this Agreement, the Borrower and its Subsidiaries will
have good title, free of all Liens other than those permitted by Section
7.15, to all of the Property and assets reflected in the financial statements
as owned by it.
V.15 INVESTMENT COMPANY ACT. Neither the Borrower nor any Subsidiary
thereof is an "investment company" or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
V.16 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Borrower nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
V.17 INSURANCE. The certificate signed by the President or Chief
Financial Officer of the Borrower, that attests to the existence and adequacy
of, and summarizes, the property and casualty insurance program carried by
the Borrower and in effect as of the Effective Date and that has been
furnished by the Borrower to the Administrative Agent and the Lenders, is
complete and accurate.
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VI
REPRESENTATIONS AND WARRANTIES OF BORROWING SUBSIDIARIES
Each Borrowing Subsidiary represents and warrants to the Lenders that:
VI.1 CORPORATE EXISTENCE AND STANDING. Such Borrowing Subsidiary
and each of its Subsidiaries is a corporation duly incorporated, validly
existing and, to the extent the concept of good standing is recognized in the
jurisdiction of its incorporation, in good standing under the laws of its
jurisdiction of incorporation and has all requisite authority to conduct its
business in each jurisdiction in which its business is conducted, except to
the extent that failure to be in good standing or to have any requisite
authority could not reasonably be expected to have a Material Adverse Effect.
VI.2 AUTHORIZATION AND VALIDITY. Such Borrowing Subsidiary has the
corporate power and authority and legal right to execute and deliver the Loan
Documents to which it is a party and to perform its obligations thereunder. The
execution and delivery by such Borrowing Subsidiary of the Loan Documents to
which it is a party and the performance of its obligations thereunder have been
duly authorized by proper corporate proceedings, and the Loan Documents to which
it is a party constitute legal, valid and binding obligations of such Borrowing
Subsidiary enforceable against such Borrowing Subsidiary in accordance with
their terms, except as enforceability may be limited by bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights generally.
VI.3 NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and
delivery by such Borrowing Subsidiary of the Loan Documents to which it is a
party, nor the consummation of the transactions therein contemplated, nor
compliance with the provisions thereof will violate any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding on
such Borrowing Subsidiary or any of its Subsidiaries or such Borrowing
Subsidiary's or any of its Subsidiary's certificate or articles of
incorporation or by-laws or the provisions of any indenture, instrument or
agreement to which such Borrowing Subsidiary or any of its Subsidiaries is a
party or is subject, or by which it, or its Property, is bound, or conflict
with or constitute a default thereunder, or result in the creation or
imposition of any Lien in, of or on the Property of such Borrowing Subsidiary
or any of its Subsidiaries pursuant to the terms of any such indenture,
instrument or agreement. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with,
or exemption by, any Governmental Agency is required to authorize, or is
required in connection with the execution, delivery and performance of, or
the legality, validity, binding effect or enforceability of, any of the Loan
Documents.
VI.4 FILING. To ensure the enforceability or admissibility in
evidence of this Agreement and the Notes issued by such Borrowing Subsidiary
in such Borrowing Subsidiary's country or organization or incorporation and
country which is its principal place of business (each, a "Subject Country"),
it is not necessary that this Agreement or such Notes or any other documents
be filed or recorded with any court or other authority in any Subject Country
or that any stamp or similar tax be paid in respect of this Agreement or such
Notes. The qualification by any Lender or the Administrative Agent for
admission to do business under the laws of any Subject Country does not
constitute a condition to, and the failure to so qualify does not affect, the
exercise by any Lender or the Administrative Agent of any right, privilege,
or remedy afforded to any Lender or the Administrative Agent in connection
with the Loan Documents or the enforcement of any such right, privilege, or
remedy. The performance by any Lender or the Administrative
37
Agent of any action required or permitted under the Loan Documents will not
violate any law or regulation of any Subject Country or any political
subdivision thereof or result in any tax liability or other unfavorable
consequence to such party pursuant to the laws of any such Subject Country or
political subdivision or taxing authority thereof or any rule or regulation
of any federation or organization or similar entity of which such Subject
Country is a member.
VI.5 NO IMMUNITY. Neither such Borrowing Subsidiary nor any of its
assets is entitled to immunity from suit, execution, attachment or other
legal process. Such Borrowing Subsidiary's execution and delivery of the Loan
Documents to which it is a party constitute, and the exercise of its rights
and performance of and compliance with its obligations under such Loan
Documents will constitute, private and commercial acts done and performed for
private and commercial purposes.
VI.6 REGULATION U. Margin stock (as defined in Regulation U)
constitutes less than 25% of those assets of such Borrowing Subsidiary and
its Subsidiaries which are subject to any limitation on sale, pledge, or
other restriction hereunder.
VII
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
VII.1 FINANCIAL REPORTING. The Borrower will maintain, for itself
and each Subsidiary which is then conducting business, a system of accounting
established and administered in accordance with generally accepted accounting
principles, and furnish to the Lenders:
(i) Within 110 days after the close of each of its fiscal years, an
unqualified audit report certified by independent certified public
accountants, acceptable to the Lenders, prepared in accordance with
Agreement Accounting Principles on a consolidated basis for itself and
the Subsidiaries, including balance sheets as of the end of such
period, related profit and loss statements, statements of changes in
stockholders equity, and a statement of cash flows (the delivery of
which may be satisfied by delivery of the Borrower's annual report on
Form 10-K filed with the Securities and Exchange Commission for such
fiscal year, which report includes such financial statements),
accompanied by any management letter prepared by said accountants.
(ii) Within 60 days after the close of the first three quarterly periods of
each of its fiscal years, for itself and the Subsidiaries,
consolidated unaudited balance sheets as at the close of each such
period and consolidated profit and loss statements and a statement of
cash flows for the period from the beginning of such fiscal year to
the end of such quarter (the delivery of which may be satisfied by
delivery of the Borrower's quarterly report on Form 10-Q filed with
the Securities and Exchange Commission for such fiscal quarter, which
report includes such financial statements), all certified by its chief
financial officer.
38
(iii) Together with the financial statements required hereunder, a
compliance certificate in substantially the form of Exhibit "C" hereto
signed by an Authorized Officer showing the calculations necessary to
determine compliance with this Agreement and stating that no Default
or Unmatured Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof.
(iv) Promptly upon the creation or acquisition of any Single Employer Plan,
notice of such creation or acquisition; and thereafter, so long as any
Single Employer Plan exists, within 270 days after the close of each
fiscal year, a statement of the Unfunded Liabilities of each Single
Employer Plan, certified as correct by an actuary enrolled under
ERISA.
(v) As soon as possible and in any event within 10 days after the Borrower
knows that any Reportable Event has occurred with respect to any Plan,
a statement, signed by the chief financial officer of the Borrower,
describing said Reportable Event and the action which the Borrower
proposes to take with respect thereto.
(vi) As soon as possible and in any event within 10 days after receipt by
the Borrower, a copy of (a) any notice or claim to the effect that the
Borrower or any of its Subsidiaries is or may be liable to any Person
as a result of the release by the Borrower, any of its Subsidiaries,
or any other Person of any toxic or hazardous waste or substance into
the environment, and (b) any notice alleging any violation of any
federal, state or local environmental, health or safety law or
regulation by the Borrower or any of its Subsidiaries, which, in
either case, could reasonably be expected to have a Material Adverse
Effect.
(vii) Promptly upon the furnishing thereof to the shareholders of the
Borrower or the Securities and Exchange Commission, copies of all
financial statements, registration statements, reports and proxy
statements so furnished.
(viii) Such other information (including non-financial information) as the
Administrative Agent or any Lender may from time to time reasonably
request.
VII.2 USE OF PROCEEDS. The Borrower will, and will cause each
Subsidiary to, use the proceeds of the Advances and other credit extensions
hereunder to refinance certain existing indebtedness, for general corporate
purposes and to repay outstanding Obligations. The Borrower will not, nor
will it permit any Subsidiary to, use any of the proceeds of the Advances to
purchase or carry any "margin stock" (as defined in Regulation U).
VII.3 NOTICE OF DEFAULT. The Borrower will, and will cause each
Subsidiary to, give prompt notice in writing to the Lenders of the occurrence
of any Default or Unmatured Default and of any other development, financial
or otherwise, which could reasonably be expected to have a Material Adverse
Effect.
VII.4 CONDUCT OF BUSINESS; NEW ACTIVE SUBSIDIARIES. The Borrower
will, and will cause each Active Subsidiary to, carry on and conduct its
business in substantially the same manner and in substantially the same
fields of enterprise as it is presently conducted and to do all things
necessary to remain duly incorporated, validly existing and in good standing
as a domestic corporation in its jurisdiction of incorporation and maintain
all requisite authority to conduct its business in each jurisdiction in which
its
39
business is conducted. The Borrower will cause each Active Subsidiary (other
than Spectrum and any Foreign Subsidiary) to be a party to the Guaranty; it
being understood that any newly-formed Active Subsidiary, or any Inactive
Subsidiary which is to become an Active Subsidiary, shall (unless it is a
Foreign Subsidiary): (a) become a party to the Guaranty (by execution of an
agreement in form and substance satisfactory to the Administrative Agent) and
(b) deliver to the Administrative Agent (in form and substance satisfactory
to the Administrative Agent) the items listed in Section 4.1(i), (ii), (iii)
and (v) (which are the items that would have been required to be delivered if
such Subsidiary had been a Guarantor Subsidiary as of the Effective Date),
whereupon the Borrower shall deliver to the Lenders a revised Schedule "2"
showing the addition of such newly-formed Active Subsidiary or the change
from Inactive Subsidiary to Active Subsidiary, and such revised Schedule
shall replace the old Schedule and shall be deemed to have become part of
this Agreement.
VII.5 TAXES. The Borrower will, and will cause each Subsidiary to,
pay when due all taxes, assessments and governmental charges and levies upon
it or its income, profits or Property, except those which are being contested
in good faith by appropriate proceedings and with respect to which adequate
reserves have been set aside.
VII.6 INSURANCE. The Borrower will, and will cause each Subsidiary
to, maintain self-insurance, or insurance with financially sound and
reputable insurance companies, on all their Property in such amounts and
covering such risks as is consistent with sound business practice, and the
Borrower will furnish to any Lender upon request full information as to the
insurance maintained.
VII.7 COMPLIANCE WITH LAWS. The Borrower will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject, except (a)
such as may be contested in good faith or as to which a bona fide dispute exists
(and which, in each case, could not reasonably be expected to result in any
material fine, penalty, forfeiture or other liability) and (b) noncompliance
which in the aggregate could not reasonably be expected to result in material
liability to the Borrower and its Subsidiaries or otherwise result in a Material
Adverse Effect.
VII.8 MAINTENANCE OF PROPERTIES. The Borrower will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition, and make all necessary
and proper repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times.
VII.9 INSPECTION. The Borrower will, and will cause each Subsidiary to,
permit the Lenders, by their respective representatives and agents, to inspect
any of the Property, corporate books and financial records of the Borrower and
each Subsidiary, to examine and make copies of the books of accounts and other
financial records of the Borrower and each Subsidiary, and to discuss the
affairs, finances and accounts of the Borrower and each Subsidiary with, and to
be advised as to the same by, their respective officers at such reasonable times
and intervals as the Lenders may designate.
VII.10 DIVIDENDS. At any time after a Default, pursuant to Section
8.2, has occurred and is continuing, the Borrower will not, nor will it
permit any Subsidiary to, declare any dividends (or pay any dividends which
were not declared or permitted to be declared hereunder) on its capital stock
(other than dividends payable in its own capital stock) or redeem, repurchase
or otherwise acquire or retire any of its
40
capital stock at any time outstanding, except that any Subsidiary may declare
and pay dividends to the Borrower or to a Wholly-Owned Subsidiary.
VII.11 MERGER. The Borrower will not, nor will it permit any
Subsidiary to, merge or consolidate with or into any other Person, except (a)
any merger or consolidation of a Subsidiary with or into the Borrower or a
Wholly-Owned Subsidiary and (b) pursuant to an Acquisition permitted by
Section 7.14(b), provided that the survivor of any merger or consolidation
permitted by this clause (b) shall be (i) in the case of any transaction
involving the Borrower, the Borrower, and (b) in the case of any other
transaction, a Subsidiary.
VII.12 SALE OF ASSETS. The Borrower will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property to any other
Person except for (i) sales of inventory in the ordinary course of business and
(ii) leases, sales or other dispositions of its Property that, together with all
other Property of the Borrower and its Subsidiaries previously leased, sold or
disposed of (other than inventory in the ordinary course of business) as
permitted by this Section during the twelve-month period ending with the month
in which any such lease, sale or other disposition occurs, do not constitute a
Substantial Portion of the Property of the Borrower and its Subsidiaries.
VII.13 SALE OF ACCOUNTS. The Borrower will not, nor will it permit any
Subsidiary to, sell or otherwise dispose of any notes receivable or accounts
receivable, with or without recourse; provided that the Borrower and its
Domestic Subsidiaries may sell or transfer receivables to each other
VII.14 INVESTMENTS AND ACQUISITIONS. The Borrower will not, nor will it
permit any Subsidiary to:
(a) Make or suffer to exist any Investments (including without
limitation, loans and advances to, and other Investments in, Subsidiaries),
or commitments therefor, or become or remain a partner in any partnership
or joint venture, except:
(i) obligations maturing in not more than one year issued, or
fully guaranteed, by the United States of America.
(ii) commercial paper maturing in not more than 270 days rated
A-2 or better by Standard and Poor's Corporation ("S&P") or
P-2 or better by Moody's Investors Service, Inc.
("Moody's").
(iii) demand deposit accounts maintained in the ordinary course of
business.
(iv) certificates of deposit issued by and time deposits with
commercial banks (whether domestic or foreign) having
capital and surplus in excess of $100,000,000.
(v) any repurchase agreement with a term of one year or less
which (x) is entered into with any Lender or any other
commercial bank of the stature referred to in clause (iv)
above and (y) is secured by a perfected Lien in any
obligation of the type described in clause (i), (ii) or (iv)
above (and that has a market value at the time such
repurchase agreement is entered into of not less than 100%
of the repurchase obligation of the other party to such
agreement).
41
(vi) money market preferred stock of companies listed on the S&P
500 and having a long-term debt rating of A- or better by
S&P or A3 or better by Moody's, and short-term (one-year or
less) debt instruments, so long as the underlying obligor
has a short-term debt rating of A-2 (or MIG-2) or better by
S&P or P-2 (or MIG-2) or better by Moody's.
(vii) Investments in money market funds that invest primarily in
items described in clauses (i), (ii), (iv), (v) and (vi)
above.
(viii) participations in short-term loans to any corporation (other
than the Company or any subsidiary thereof) organized under
the United States of America and rated at least A-2 by S&P
or P-2 by Moody's.
(ix) Investments in the capital stock of Active Subsidiaries;
PROVIDED that after giving effect thereto the Borrower is in
compliance with Section 7.19.
(x) Investments in existence on the date hereof (but not
including loans and advances to licensees and franchisees)
and described in Schedule "2" hereto.
(xi) loans and advances to any Active Subsidiary; PROVIDED that
the aggregate amount of all loans and advances by the
Borrower and its Domestic Subsidiaries to Foreign
Subsidiaries shall not at any time exceed a Dollar
Equivalent amount equal to 15% of Net Worth.
(xii) Investments by the Borrower in Spectrum at any time;
PROVIDED that, after giving effect to such Investments,
Spectrum's total assets are less than 5% of Net Worth.
(xiii) Investments by Spectrum.
(xiv) other Investments in Affiliates, licensees and
franchisees; PROVIDED, HOWEVER, that the aggregate amount
of all Investments permitted solely by this clause does
not at any time exceed $30,000,000 (it being understood
that any such Investment which passes through more than
one entity shall be counted only once in determining
compliance herewith).
(b) Make any Acquisition, except for an Acquisition: (i) for
which the board of directors of the Person being acquired has approved the
terms of the Acquisition and (ii) where the Person (or assets) being
acquired is in (or are to be used in) substantially the same line of
business as the Borrower and (iii) for which, if the purchase price
(including assumed liabilities) is greater than $50,000,000, the Borrower
has first provided the Administrative Agent (which will promptly deliver
copies thereof to the Lenders) with (a) financial information with respect
to the entity or assets to be acquired (including historical financial
statements, pro-forma statements after giving effect to the Acquisition and
projections) and (b) a description of the entity or assets to be acquired,
the products thereof, markets served and customer concentrations. Upon the
consummation of any
42
Acquisition permitted hereunder, the Borrower may deliver to the Lenders a
revised Schedule "2" listing its new Subsidiary, if any, and such revised
Schedule shall replace the old Schedule and shall be deemed to have become
part of this Agreement.
VII.15 LIENS. The Borrower will not, nor will it permit any Subsidiary
to, create, incur, or suffer to exist any Lien in, of or on the Property of the
Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or
levies on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are
being contested in good faith and by appropriate proceedings
and for which adequate reserves in accordance with generally
accepted principles of accounting shall have been set aside
on its books.
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of
obligations not more than 60 days past due.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a
nature generally existing with respect to properties of a
similar character and which do not in any material way
affect the marketability of the same or interfere with the
use
thereof in the business of the Borrower or the Subsidiaries.
(v) Liens arising under one or more Pledge Agreements.
(vi) Other Liens securing obligations not exceeding 10% of the
consolidated assets of the Borrower and its Subsidiaries.
VII.16 AFFILIATES. The Borrower will not, and will not permit any
Subsidiary to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate (other than the Borrower or another Subsidiary)
except in the ordinary course of business and pursuant to the reasonable
requirements of the Borrower's or such Subsidiary's business and upon fair and
reasonable terms no less favorable to the Borrower or such Subsidiary than the
Borrower or such Subsidiary would obtain in a comparable arms-length
transaction.
VII.7 FINANCIAL COVENANTS.
VII.17.1 LEVERAGE RATIO. The Borrower shall maintain, on a
consolidated basis, at all times a Leverage Ratio not exceeding 3.5 to 1.0.
VII.17.2 NET WORTH. The Borrower shall maintain, on a
consolidated basis, at all times Net Worth of not less than the sum of (i)
$375,000,000 plus (ii) 50% of the Borrower's quarterly Net
43
Income, if positive, for each fiscal quarter ending after September 27, 1996
PLUS (iii) the aggregate net proceeds of any equity offering (including net
proceeds under any stock option or executive compensation plan) received by
the Borrower after the date of this Agreement.
VII.18 PLEDGE OF STOCK OF FOREIGN SUBSIDIARIES. The Borrower will,
and will cause each applicable Subsidiary to, take such actions as are
necessary or as the Administrative Agent or the Required Lenders may from
time to time request to ensure that the Obligations are secured by a
perfected Lien on 65% of each class of the capital stock of each Foreign
Subsidiary (other than a Foreign Subsidiary which is a Wholly-Owned
Subsidiary of a Foreign Subsidiary); it being understood that promptly upon
the creation or acquisition of any new Foreign Subsidiary (other than a
Foreign Subsidiary which is a Wholly-Owned Subsidiary of a Foreign
Subsidiary), the Borrower will, or will cause the applicable Domestic
Subsidiary to, (a) execute and deliver a Pledge Agreement (in form and
substance satisfactory to the Administrative Agent) pledging such stock and
(b) deliver to the Administrative Agent an opinion of appropriate counsel
confirming the effectiveness of such pledge and such other matters as the
Administrative Agent or the Required Lenders may reasonably request,
whereupon the Borrower shall deliver to the Lenders a revised Schedule "2"
showing the addition of such Foreign Subsidiary, and such revised Schedule
shall replace the old Schedule and shall be deemed to have become a part of
this Agreement. Notwithstanding the foregoing provisions of this Section
7.18, the Borrower will not be required to (or to cause the applicable
Domestic Subsidiary to) complete the pledge of the stock of (x) Interim
Technology (UK) Limited until February 21, 1997 or (y) the first-tier
Subsidiaries of the Borrower in the Netherlands (or their successors) until
May 29, 1997; it being understood that failure of any of such pledges to be
completed by the applicable date shall constitute a breach of this Agreement.
VII.19 LIMITATION ON FOREIGN SUBSIDIARIES. The Borrower will not at
any time permit more than 25% of the total consolidated assets of the
Borrower and its Subsidiaries to be owned by, or more than 25% of the
consolidated revenues of the Borrower and its Subsidiaries in any fiscal year
to be generated by, Foreign Subsidiaries.
VII.20 PAYROLL ACCOUNTS. Not at any time permit the aggregate amount
of all funds in Payroll Accounts to exceed 110% of the aggregate amount of
salary, bonuses and similar items reasonably expected to be paid to employees
of the Company and its Subsidiaries during the ten days following such time.
VIII
DEFAULTS
The occurrence of any one or more of the following events shall constitute
a Default:
VIII.1 Any representation or warranty made or deemed made by or on
behalf of the Borrower or any of its Subsidiaries to the Lenders or the
Administrative Agent under or in connection with this Agreement, any Loan,
any Facility Letter of Credit, or any certificate or information delivered in
connection with this Agreement or any other Loan Document shall be materially
false on the date as of which made.
44
VIII.2 Nonpayment of principal of any Note when due; nonpayment of any
Reimbursement Obligation when due; or nonpayment of interest upon any Note or of
any facility fee or other obligation under any of the Loan Documents within five
days after the same becomes due.
VIII.3 The breach by the Borrower of the second sentence of Section
7.2 or the second sentence of Section 7.18 or any of the terms or provisions
of Section 7.10, 7.11, 7.12, 7.13, 7.14, 7.15, 7.17 or 7.19.
VIII.4 The breach by any Borrowing Entity (other than a breach which
constitutes a Default under Section 8.1, 8.2 or 8.3) of any of the terms or
provisions of this Agreement which is not remedied within thirty days after the
earlier to occur of (i) written notice from the Administrative Agent or any
Lender or (ii) the date such Borrowing Entity becomes aware of any such breach.
VIII.5 Failure of the Borrower or any of its Subsidiaries to pay any
Indebtedness in excess of $10,000,000 in the aggregate when due; or the default
by the Borrower or any of its Subsidiaries in the performance of any term,
provision or condition contained in any agreement under which any Indebtedness
in excess of $10,000,000 in the aggregate was created or is governed, or any
other event shall occur or condition exist, the effect of which is to cause, or
to permit the holder or holders of such Indebtedness to cause, such Indebtedness
to become due prior to its stated maturity; or any Indebtedness in excess of
$10,000,000 in the aggregate of the Borrower or any of its Subsidiaries shall be
declared to be due and payable or required to be prepaid (other than by a
regularly scheduled payment) prior to the stated maturity thereof; or the
Borrower or any of its Subsidiaries shall not pay, or admit in writing its
inability to pay, its debts generally as they become due.
VIII.6 The Borrower or any of its Subsidiaries shall (i) have an order
for relief entered with respect to it under the Federal bankruptcy laws as
now or hereafter in effect, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or
similar official for it or any Substantial Portion of its Property, (iv)
institute any proceeding seeking an order for relief under the Federal
bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a
bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief
of debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any corporate
action to authorize or effect any of the foregoing actions set forth in this
Section 8.6 or (vi) fail to contest in good faith any appointment or
proceeding described in Section 8.7.
VIII.7 Without the application, approval or consent of the Borrower or
any of its Subsidiaries, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any of its Subsidiaries or
any of its Property which constitutes a Substantial Portion, or a proceeding
described in Section 8.6(iv) shall be instituted against the Borrower or any
of its Subsidiaries and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of 60 consecutive
days.
VIII.8 The Borrower or any of its Subsidiaries shall fail within 30
days to pay, bond or otherwise discharge any judgment or order for the
payment of money in excess of $10,000,000, which is not stayed on appeal or
otherwise being appropriately contested in good faith.
45
VIII.9 There are any Unfunded Liabilities for any Single Employer
Plan or any Reportable Event shall occur in connection with any Plan.
VIII.10 The Borrower or any other member of the Controlled Group
shall have been notified by the sponsor of a Multiemployer Plan that it has
incurred withdrawal liability to such Multiemployer Plan.
VIII.11 The Borrower or any other member of the Controlled Group
shall have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the other
members of the Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years of each such Multiemployer Plan immediately preceding
the plan year in which the reorganization or termination occurs.
VIII.12 The Borrower or any of its Subsidiaries shall be the subject
of any proceeding or investigation pertaining to the release by the Borrower
or any of its Subsidiaries, or any other Person, of any toxic or hazardous
waste or substance into the environment, or any violation of any federal,
state or local environmental, health or safety law or regulation, which, in
either case, could reasonably be expected to have a Material Adverse Effect.
VIII.13 Any Change in Control shall occur.
VIII.14 The Guaranty shall fail to remain in full force or effect or
any action shall be taken to discontinue or to assert the invalidity or
unenforceability of the Guaranty, or any guarantor shall fail to comply with
any of the terms or provisions of the Guaranty, or any guarantor denies that
it has any further liability under the Guaranty, or gives notice to such
effect.
VIII.15 Article XV shall fail to remain in full force or effect or
any action shall be taken to discontinue or assert the invalidity or
unenforceability of the guaranty contained therein, or the Borrower shall
deny that it has any further liability thereunder, or shall give notice to
such effect.
VIII.16 Any Pledge Agreement shall fail to remain in full force or
effect or any action shall be taken to discontinue or assert the invalidity
or unenforceability of any Pledge Agreement, or the pledgor thereunder shall
fail to comply with any of the terms or provisions of any Pledge Agreement or
shall deny that it has any further liability under any Pledge Agreement or
shall give notice to such effect.
IX
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
IX.1 ACCELERATION. If any Default described in Section 8.6 or 8.7
occurs with respect to any Borrowing Entity, the obligations of the Lenders
to make Loans and of the Issuer to issue Facility Letters of Credit shall
automatically terminate and the Obligations shall immediately become due and
payable without any election or action on the part of the Administrative
Agent or any Lender. If any other Default occurs
46
and is continuing, the Required Lenders may terminate or suspend the
obligations of the Lenders to make Loans and of the Issuer to issue Facility
Letters of Credit, or declare the Obligations to be due and payable, or both,
whereupon the Obligations shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which each
Borrowing Entity hereby expressly waives. In addition to the foregoing,
following the occurrence and during the continuance of a Default, so long as
any Facility Letter of Credit has not been fully drawn and has not been
cancelled or expired by its terms, upon demand by the Administrative Agent
the Borrower shall deposit in the Letter of Credit Collateral Account cash in
an amount equal to the aggregate undrawn face amount of all outstanding
Facility Letters of Credit and all fees and other amounts due or which may
become due with respect thereto. The Borrower shall have no control over
funds in the Letter of Credit Collateral Account, which funds shall be
invested by the Administrative Agent from time to time in its discretion in
certificates of deposit of First Chicago having a maturity not exceeding
thirty days, so long as the Borrower has provided the Administrative Agent
with such documents as the Administrative Agent shall have requested in order
to perfect a security interest in such certificates of deposit. Such funds
shall be promptly applied by the Administrative Agent to reimburse the Issuer
for drafts drawn from time to time under the Facility Letters of Credit.
Such funds, if any, remaining in the Letter of Credit Collateral Account
following the payment of all Obligations in full shall, unless the
Administrative Agent is otherwise directed by a court of competent
jurisdiction, be promptly paid over to the Borrower.
If, within 14 days after acceleration of the maturity of the Obligations
or termination of the obligations of the Lenders to make Loans and of the
Issuer to issue Facility Letters of Credit as a result of any Default (other
than any Default as described in Section 8.6 or 8.7 with respect to a
Borrowing Entity) and before any judgment or decree for the payment of the
Obligations due shall have been obtained or entered, the Required Lenders (in
their sole discretion) shall so direct, the Administrative Agent shall, by
notice to the Borrower, rescind and annul such acceleration and/or
termination.
IX.2 AMENDMENTS. Subject to the provisions of this Article IX,
the Required Lenders (or the Administrative Agent with the consent in writing
of the Required Lenders) and the Borrowing Entities may enter into agreements
supplemental hereto for the purpose of adding or modifying any provisions to
the Loan Documents or changing in any manner the rights of the Lenders or the
Borrowing Entities hereunder or waiving any Default hereunder; PROVIDED,
HOWEVER, that no such supplemental agreement shall, without the consent of
each Lender:
(i) Extend the maturity of any Loan or Note or forgive all or any
portion of the principal amount thereof, or reduce the rate or
extend the time of payment of interest or fees thereon.
(ii) Reduce the percentage specified in the definition of Required
Lenders.
(iii) Extend the Termination Date, or reduce the amount or extend the
payment date for the payments required under Section 2.7.3, or
(except pursuant to Section 2.6.2) increase the amount of the
Commitment of any Lender hereunder, or permit any Borrowing
Entity to assign its rights under this Agreement.
(iv) Amend this Section 9.2 or Article XV.
47
(v) Increase the maximum drawable amount or extend the expiration
date of any outstanding Facility Letter of Credit (except
as expressly permitted by its terms and in accordance with
Section 2.17) or reduce the principal amount of or extend the
time of payment of any Reimbursement Obligation or fee
associated with any Facility Letter of Credit.
(vi) Release any guarantor of any of the Obligations or any of the
collateral (if any).
No amendment of any provision of this Agreement relating to (i) the
Administrative Agent shall be effective without the written consent of the
Administrative Agent, (ii) the Swing Line Bank shall be effective without the
written consent of the Swing Line Bank and (iii) the Issuer shall be
effective without the written consent of the Issuer. The Administrative
Agent may waive payment of the fee required under Section 2.5.2 without
obtaining the consent of any other party to this Agreement.
IX.3 PRESERVATION OF RIGHTS. No delay or omission of the Lenders
or the Administrative Agent to exercise any right under the Loan Documents
shall impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of a Loan or the issuance of a Facility
Letter of Credit notwithstanding the existence of a Default or the inability
of any Borrowing Entity to satisfy the conditions precedent to such Loan or
Facility Letter of Credit shall not constitute any waiver or acquiescence.
Any single or partial exercise of any such right shall not preclude other or
further exercise thereof or the exercise of any other right, and no waiver,
amendment or other variation of the terms, conditions or provisions of the
Loan Documents whatsoever shall be valid unless in writing signed by the
Lenders required pursuant to Section 9.2, and then only to the extent in such
writing specifically set forth. All remedies contained in the Loan Documents
or by law afforded shall be cumulative and all shall be available to the
Administrative Agent and the Lenders until the Obligations have been paid in
full.
X
GENERAL PROVISIONS
X.1 SURVIVAL OF REPRESENTATIONS. All representations and
warranties of the Borrowing Entities contained in this Agreement shall
survive delivery of the Notes and the making of the Loans and the issuance of
the Facility Letters of Credit herein contemplated.
X.2 GOVERNMENTAL REGULATION. Anything contained in this
Agreement to the contrary notwithstanding, no Lender shall be obligated to
extend credit to any Borrowing Entity in violation of any limitation or
prohibition provided by any applicable statute or regulation.
X.3 TAXES. Any taxes (excluding federal income taxes on the
overall net income of any Lender) or other similar assessments or charges
made by any Governmental Agency in respect of the Loan Documents shall be
paid by the relevant Borrowing Entity, together with interest and penalties,
if any.
X.4 HEADINGS. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any
of the provisions of the Loan Documents.
X.5 ENTIRE AGREEMENT. The Loan Documents embody the entire
agreement and understanding among the Borrowing Entities, the Administrative
Agent and the Lenders and supersede all prior
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agreements and understandings among the Borrowing Entities, the
Administrative Agent and the Lenders relating to the subject matter thereof.
X.6 SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The
respective obligations of the Lenders hereunder are several and not joint and
no Lender shall be the partner or agent of any other (except to the extent to
which the Administrative Agent is authorized to act as such). The failure of
any Lender to perform any of its obligations hereunder shall not relieve any
other Lender from any of its obligations hereunder. This Agreement shall not
be construed so as to confer any right or benefit upon any Person other than
the parties to this Agreement and their respective successors and assigns.
X.7 EXPENSES; INDEMNIFICATION. The Borrowing Entities shall
reimburse the Administrative Agent for any costs, internal charges and
out-of-pocket expenses (including attorneys' fees and time charges of
attorneys for the Administrative Agent, which attorneys may be employees of
the Administrative Agent) paid or incurred by the Administrative Agent in
connection with the preparation, negotiation, execution, delivery, review,
amendment, modification, and administration of the Loan Documents. The
Borrowing Entities also agree to reimburse the Administrative Agent and the
Lenders for any costs, internal charges and out-of-pocket expenses (including
attorneys' fees and time charges of attorneys for the Administrative Agent
and the Lenders, which attorneys may be employees of the Administrative Agent
or the Lenders) paid or incurred by the Administrative Agent or any Lender in
connection with the collection and enforcement of the Loan Documents. The
Borrowing Entities further agree to indemnify the Administrative Agent and
each Lender, its directors, officers and employees against all losses,
claims, damages, penalties, judgments, liabilities and expenses (including,
without limitation, all expenses of litigation or preparation therefor
whether or not the Administrative Agent or any Lender is a party thereto)
which any of them may pay or incur arising out of or relating to this
Agreement, the other Loan Documents, the transactions contemplated hereby or
the direct or indirect application or proposed application of the proceeds of
any Loan hereunder. The obligations of the Borrowing Entities under this
Section shall survive the termination of this Agreement.
X.8 NUMBERS OF DOCUMENTS. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Administrative
Agent with sufficient counterparts so that the Administrative Agent may
furnish one to each of the Lenders.
X.9 ACCOUNTING. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement
Accounting Principles, except that any calculation or determination which is
to be made on a consolidated basis shall be made for the Borrower and all its
Subsidiaries, including those Subsidiaries, if any, which are unconsolidated
on the Borrower's audited financial statements.
X.10 SEVERABILITY OF PROVISIONS. Any provision in any Loan
Document that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable,
or invalid without affecting the remaining provisions in that jurisdiction or
the operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are
declared to be severable.
X.11 NONLIABILITY OF LENDERS. The relationship between the
Borrowing Entities and the Lenders and the Administrative Agent shall be
solely that of borrower and lender. Neither the Administrative Agent
49
nor any Lender shall have any fiduciary responsibilities to any Borrowing
Entity. Neither the Administrative Agent nor any Lender undertakes any
responsibility to any Borrowing Entity to review or inform such Borrowing
Entity of any matter in connection with any phase of such Borrowing Entity's
business or operations.
X.12 CONFIDENTIALITY. Each Lender agrees to hold any confidential
information which it may receive from any Borrowing Entity pursuant to this
Agreement in confidence, except for disclosure (i) to other Lenders and their
respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to that Lender or to a Transferee, (iii) to regulatory
officials, (iv) to any Person as requested pursuant to or as required by law,
regulation, or legal process, (v) to any Person in connection with any legal
proceeding to which that Lender is a party, and (vi) permitted by Section
13.4.
X.13 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE
OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
X.14 CONSENT TO JURISDICTION. EACH BORROWING ENTITY HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND EACH
BORROWING ENTITY HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE
OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH
COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST ANY BORROWING
ENTITY IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
ANY BORROWING ENTITY AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY
AFFILIATE OF THE ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
X.15 WAIVER OF JURY TRIAL. THE BORROWING ENTITIES, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY WAIVE TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED
THEREUNDER.
X.16 NEW CREDIT FACILITIES. The Borrower, the Administrative
Agent, and the Lenders agree that on the Effective Date the following
transactions shall be deemed to occur automatically, without further action
by any party thereto:
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(a) The Existing Credit Facilities shall be replaced by the
New Credit Facilities and the Existing Agreement shall be deemed to be
amended and restated in its entirety in the form of this Agreement; and
(b) All Indebtedness, liabilities and obligations
outstanding under the Existing Agreement and the promissory notes
delivered thereunder shall, to the extent not paid on the Effective
Date, be deemed to be Obligations outstanding hereunder. Each Lender
party to the Existing Agreement shall, promptly after receipt of its
Notes hereunder, return to the Borrower the promissory notes received
by it in connection with the Existing Agreement.
The Borrower, the Administrative Agent, and the Lenders agree that (i) all
terms and conditions of the Existing Agreement which are amended and restated
by this Agreement shall remain effective until such amendment and restatement
becomes effective hereunder, and (ii) the representations, warranties and
covenants set forth herein shall become effective concurrently with the
occurrence of the Effective Date.
X.17 LANGUAGE. The Loan Documents and all notices,
communications, opinions and other documents to be furnished by or on behalf
of any Borrowing Entity pursuant to the Loan Documents shall be in the
English language or, in the case of any notices, communications, opinions or
other documents submitted in another language, accompanied by a certified
English translation thereof, and in the event of any conflict between the
English text and such other text of any such document, the English text shall
prevail.
XI
THE ADMINISTRATIVE AGENT
XI.1 APPOINTMENT. The First National Bank of Chicago is hereby appointed
Administrative Agent hereunder and under each other Loan Document, and each
of the Lenders irrevocably authorizes the Administrative Agent to act as the
agent of such Lender. The Administrative Agent agrees to act as such upon
the express conditions contained in this Article XI. The Administrative
Agent shall not have a fiduciary relationship in respect of any Borrowing
Entity or any Lender by reason of this Agreement.
XI.2 POWERS. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers
as are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan
Documents to be taken by the Administrative Agent.
XI.3 GENERAL IMMUNITY. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to any Borrowing
Entity, the Lenders or any Lender for any action taken or omitted to be taken
by it or them hereunder or under any other Loan Document or in connection
herewith or therewith except for its or their own gross negligence or willful
misconduct.
XI.4 NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into,
51
or verify (i) any statement, warranty or representation made in connection
with any Loan Document or any borrowing hereunder; (ii) the performance or
observance of any of the covenants or agreements of any obligor under any
Loan Document, including, without limitation, any agreement by an obligor to
furnish information directly to each Lender; (iii) the satisfaction of any
condition specified in Article IV, except receipt of items required to be
delivered to the Administrative Agent; or (iv) the validity, effectiveness or
genuineness of any Loan Document or any other instrument or writing furnished
in connection therewith. The Administrative Agent shall have no duty to
disclose to the Lenders information that is not required to be furnished by a
Borrowing Entity to the Administrative Agent at such time, but is voluntarily
furnished by a Borrowing Entity to the Administrative Agent (either in its
capacity as Administrative Agent or in its individual capacity).
XI.5 ACTION ON INSTRUCTIONS OF LENDERS. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders, and such instructions and any
action taken or failure to act pursuant thereto shall be binding on all of
the Lenders and on all holders of Notes. The Administrative Agent shall be
fully justified in failing or refusing to take any action hereunder and under
any other Loan Document unless it shall first be indemnified to its
satisfaction by the Lenders pro rata against any and all liability, cost and
expense that it may incur by reason of taking or continuing to take any such
action.
XI.6 EMPLOYMENT OF AGENTS AND COUNSEL. The Administrative Agent may
execute any of its duties as Administrative Agent hereunder and under any
other Loan Document by or through employees, agents, and attorneys-in-fact
and shall not be answerable to the Lenders, except as to money or securities
received by it or its authorized agents, for the default or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall be entitled to advice of counsel concerning all
matters pertaining to the agency hereby created and its duties hereunder and
under any other Loan Document.
XI.7 RELIANCE ON DOCUMENTS; COUNSEL. The Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit,
letter, telegram, statement, paper or document believed by it to be genuine
and correct and to have been signed or sent by the proper person or persons,
and, in respect to legal matters, upon the opinion of counsel selected by the
Administrative Agent, which counsel may be employees of the Administrative
Agent.
XI.8 ADMINISTRATIVE AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Commitments (i) for any amounts not reimbursed
by a Borrowing Entity for which the Administrative Agent is entitled to
reimbursement by such Borrowing Entity under the Loan Documents, (ii) for any
other expenses incurred by the Administrative Agent on behalf of the Lenders
in connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent in any way relating
to or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents,
provided that no Lender shall be liable for any of the foregoing to the
extent they
52
arise from the gross negligence or willful misconduct of the Administrative
Agent. The obligations of the Lenders under this Section 11.8 shall survive
payment of the Obligations and termination of this Agreement.
XI.9 RIGHTS AS A LENDER. In the event the Administrative Agent is a
Lender, the Administrative Agent shall have the same rights and powers
hereunder and under any other Loan Document as any Lender and may exercise
the same as though it were not the Administrative Agent, and the term
"Lender" or "Lenders" shall, at any time when the Administrative Agent is a
Lender, unless the context otherwise indicates, include the Administrative
Agent in its individual capacity. The Administrative Agent may accept
deposits from, lend money to, and generally engage in any kind of trust,
debt, equity or other transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with the Borrower or any of its
Subsidiaries in which the Borrower or such Subsidiary is not restricted
hereby from engaging with any other Person. The Administrative Agent, in its
individual capacity, is not obligated to remain a Lender; PROVIDED that at
any time that the Administrative Agent is not a Lender, the Administrative
Agent agrees to resign in accordance with Section 11.11 upon the request of
the Borrower or the Required Lenders so long as arrangements are made to
replace First Chicago (or the institution then acting as Administrative
Agent) as Issuer and Swing Line Bank concurrently with the effectiveness of
such resignation.
XI.10 LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on the financial statements prepared by the Borrower and
such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement and the other
Loan Documents. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents.
XI.11 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign at anytime by giving written notice thereof to the Lenders and the
Borrowing Entities, such resignation to be effective upon the appointment of
a successor Administrative Agent or, if no successor Administrative Agent has
been appointed, forty-five days after the retiring Administrative Agent gives
notice of its intention to resign. Upon any such resignation, the Required
Lenders shall have the right to appoint (with, so long as no Default or
Unmatured Default has occurred and is continuing, the consent of the
Borrower, which consent shall not be unreasonably withheld), on behalf of the
Borrowing Entities and the Lenders, a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders within thirty days after the resigning Administrative Agent's giving
notice of its intention to resign, then the resigning Administrative Agent
may appoint, on behalf of the Borrowing Entities and the Lenders, a successor
Administrative Agent. If the Administrative Agent has resigned and no
successor Administrative Agent has been appointed, the Lenders may perform
all the duties of the Administrative Agent hereunder and the Borrowing
Entities shall make all payments in respect of the Obligations to the
applicable Lender and for all other purposes shall deal directly with the
Lenders. No successor Administrative Agent shall be deemed to be appointed
hereunder until such successor Administrative Agent has accepted the
appointment. Any such successor Administrative Agent shall be a commercial
bank having capital and retained earnings of at least $50,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the
53
resigning Administrative Agent. Upon the effectiveness of the resignation of
the Administrative Agent, the resigning Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan
Documents. After the effectiveness of the resignation of an Administrative
Agent, the provisions of this Article XI shall continue in effect for the
benefit of such Administrative Agent in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative Agent
hereunder and under the other Loan Documents.
XI.12 DOCUMENTATION AGENT; CO-AGENTS. None of the Lenders identified in
this Agreement or any other Loan Document as the "Documentation Agent" or as
a "Co-Agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement or any other Loan Document other
than those applicable to all Lenders as such. Each Lender acknowledges that
it has not relied, and will not rely, on any of the Lenders so identified in
deciding to enter into this Agreement or any other Loan Document or in taking
or refraining from taking any action hereunder or thereunder or pursuant
hereto or thereto.
XII
SETOFF; RATABLE PAYMENTS
XII.1 SETOFF. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default or Unmatured Default occurs and is continuing, any
and all deposits (including all account balances, whether provisional or
final and whether or not collected or available, but excluding deposits in
accounts which have been designated by the Borrower to the applicable Lender
as Payroll Accounts) and any other Indebtedness at any time held or owing by
any Lender to or for the credit or account of any Borrowing Entity may be
offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part hereof, shall then be due.
XII.2 RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise,
has payment made to it upon its share of any Advance (other than payments
received pursuant to Section 3.1, 3.2, 3.3 or 3.5) or its participation in
any Facility Letter of Credit in a greater proportion than that received by
any other Lender, such Lender agrees, promptly upon demand, to purchase a
portion of the Loans comprising that Advance or of the participations in
Facility Letters of Credit held by the other Lenders so that after such
purchase each Lender will hold its ratable proportion of Loans comprising
that Advance or participations in the Facility Letters of Credit. If any
Lender, whether in connection with setoff or amounts which might be subject
to setoff or otherwise, receives collateral or other protection for its
Obligations or such amounts which may be subject to setoff, such Lender
agrees, promptly upon demand, to take such action necessary such that all
Lenders share in the benefits of such collateral ratably in proportion to
their Loans and Facility Letters of Credit. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments
shall be made.
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XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
XIII.1 SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowing
Entities, the Lenders, the Issuer and the Administrative Agent and their
respective successors and assigns, except that (i) no Borrowing Entity shall
have the right to assign its rights or obligations under the Loan Documents
and (ii) any assignment by any Lender must be made in compliance with Section
13.3. Notwithstanding clause (ii) of this Section, any Lender may at any
time, without the consent of any Borrowing Entity, the Issuer or the
Administrative Agent, assign all or any portion of its rights under this
Agreement and its Notes to a Federal Reserve Bank; PROVIDED, HOWEVER, that no
such assignment shall release the transferor Lender from its obligations
hereunder. The Administrative Agent may treat the payee of any Note as the
owner thereof for all purposes hereof unless and until such payee complies
with Section 13.3 in the case of an assignment thereof or, in the case of any
other transfer, a written notice of the transfer is filed with the
Administrative Agent. Any assignee or transferee of a Note agrees by
acceptance thereof to be bound by all the terms and provisions of the Loan
Documents. Any request, authority or consent of any Person, who at the time
of making such request or giving such authority or consent is the holder of
any Note, shall be conclusive and binding on any subsequent holder,
transferee or assignee of such Note or of any Note or Notes issued in
exchange therefor.
XIII.2 PARTICIPATIONS.
XIII.2.1 PERMITTED PARTICIPANTS; EFFECT. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at any
time sell to one or more banks or other entities ("Participants")
participating interests in any Loan owing to such Lender, any Note held by
such Lender, any Commitment of such Lender or any other interest of such
Lender under the Loan Documents. In the event of any such sale by a Lender
of participating interests to a Participant, such Lender's obligations under
the Loan Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, such Lender shall remain the holder of any such Note for all
purposes under the Loan Documents, all amounts payable by the Borrowing
Entities under this Agreement shall be determined as if such Lender had not
sold such participating interests, and the Borrowing Entities and the
Administrative Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under the Loan
Documents.
XIII.2.2 VOTING RIGHTS. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification
or waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Loan, Facility Letter of Credit or
Commitment in which such Participant has an interest which forgives
principal, interest or fees or reduces the interest rate or fees payable with
respect to any such Loan, Facility Letter of Credit or Commitment, postpones
any date fixed for any regularly-scheduled payment of principal of, or
interest or fees on, any such Loan, Letter of Credit Obligation or
Commitment, releases any guarantor of any such Loan or releases any of the
collateral, if any, securing any such Loan, Letter of Credit Obligation or
Commitment.
XIII.2.3 BENEFIT OF SETOFF. The Borrowing Entities agree that each
Participant shall be deemed to have the right of setoff provided in Section
12.1 in respect of its participating interest in amounts
55
owing under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the Loan
Documents, provided that each Lender shall retain the right of setoff
provided in Section 12.1 with respect to the amount of participating
interests sold to each Participant. The Lenders agree to share with each
Participant, and each Participant, by exercising the right of setoff provided
in Section 12.1, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such amounts to be shared in
accordance with Section 12.2 as if each Participant were a Lender.
XIII.3 ASSIGNMENTS.
XIII.3.1 PERMITTED ASSIGNMENTS. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time
assign to one or more banks or other entities ("Purchasers") all or any part
of its rights and obligations under the Loan Documents; PROVIDED, HOWEVER,
that any such assignment shall be in a minimum amount of $5,000,000; and
PROVIDED, FURTHER, that any Lender which is assigning less than all of its
rights and obligations hereunder shall retain a Commitment of at least
$10,000,000. Such assignment shall be substantially in the form of Exhibit
"E" hereto or in such other form as may be agreed to by the parties thereto.
The consent of the Borrower and the Administrative Agent shall be required
prior to an assignment becoming effective with respect to a Purchaser which
is not a Lender or an Affiliate thereof; PROVIDED, HOWEVER, that if a Default
has occurred and is continuing, the consent of the Borrower shall not be
required. Such consent shall not be unreasonably withheld.
XIII.3.2 EFFECT; EFFECTIVE DATE. Upon (i) delivery to the
Administrative Agent of a notice of assignment, substantially in the form
attached as Annex "I" to Exhibit "E" hereto (a "Notice of Assignment"),
together with any consents required by Section 13.3.1, and (ii) payment of a
$3,000 fee to the Administrative Agent for processing such assignment, such
assignment shall become effective on the effective date specified in such
Notice of Assignment. The Notice of Assignment shall contain a
representation by the Purchaser to the effect that none of the consideration
used to make the purchase of the Commitment and or rights and obligations
under the applicable assignment agreement are "plan assets" as defined under
ERISA and that the rights and interests of the Purchaser in and under the
Loan Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser shall for all purposes be a
Lender party to this Agreement and any other Loan Document executed by the
Lenders and shall have all the rights and obligations of a Lender under the
Loan Documents, to the same extent as if it were an original party hereto,
and no further consent or action by any Borrowing Entity, any Lender or the
Administrative Agent shall be required to release the transferor Lender with
respect to the percentage of the Aggregate Commitment assigned to such
Purchaser. Upon the consummation of any assignment pursuant to this Section
13.3.2 to a Purchaser which is not already a Lender, the transferor Lender,
the Administrative Agent and the Borrowing Entities shall make appropriate
arrangements so that new Notes are issued to such Purchaser. In addition,
within a reasonable time after the effective date of any assignment, the
Administrative Agent shall, and is hereby authorized and directed to, revise
Schedule "1" reflecting the revised Percentages of each of the Lenders and
shall distribute such revised Schedule "1" to each of the Lenders and the
Borrower and such revised Schedule "1" shall replace the old Schedule "1" and
become part of this Agreement.
XIII.4 DISSEMINATION OF INFORMATION. The Borrowing Entities authorize
each Lender to disclose to any Participant or Purchaser or any other Person
acquiring an interest in the Loan Documents by operation
56
of law (each a "Transferee") and any prospective Transferee any and all
information in such Lender's possession concerning the creditworthiness of
the Borrower and its Subsidiaries.
XIII.5 TAX TREATMENT. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the
transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of Section 2.16.
XIV
NOTICES
XIV.1 GIVING NOTICE. Except as otherwise permitted by Section 2.11 with
respect to borrowing notices, all notices and other communications provided
to any party hereto under this Agreement or any other Loan Document shall be
in writing or by telex or by facsimile and addressed or delivered to such
party at its address set forth below its signature hereto or at such other
address as may be designated by such party in a notice to the other parties;
PROVIDED that any notices and communications to NationsBank, N.A. shall be as
follows: (i) all original documentation shall be directed to NationsBank,
NC1-001-1503, 101 North Tryon, Charlotte, North Carolina 28255, Attention:
Corporate Credit Support, with a copy to NationsBank, N.A. at its address set
forth below its signature hereto, or at such other address to be designated
by it in a notice to the other parties; and (ii) any notice or communication
regarding other credit matters shall be directed to NationsBank, N.A. at its
address set forth below its signature hereto or at such other address as may
be designated by it in a notice to the other parties. Any notice, if mailed
or delivered by courier or overnight delivery service and properly addressed
with postage or delivery fees prepaid, shall be deemed given when received;
any notice, if transmitted by telex or facsimile, shall be deemed given when
transmitted (answerback confirmed in the case of telexes).
XIV.2 CHANGE OF ADDRESS. Any Borrowing Entity, the Administrative Agent
and any Lender may each change the address for service of notice upon it by a
notice in writing to the other parties hereto.
XIV.3 NOTICES TO AND BY BORROWING SUBSIDIARIES. Any notice to be given
to any Borrowing Subsidiary may be given to the Borrower (and shall
conclusively be deemed to have been received by such Borrowing Subsidiary
when received, or deemed received, by the Borrower). Each Borrowing
Subsidiary agrees that the Borrower may give notices hereunder on behalf of
such Borrowing Subsidiary, and that any such notice given by the Borrower on
behalf of such Borrowing Subsidiary shall be binding upon such Borrowing
Subsidiary.
XV
BORROWER GUARANTY OF BORROWING SUBSIDIARY OBLIGATIONS
XV.1 DIRECT OBLIGATIONS. The Borrower hereby unconditionally and
irrevocably affirms to the Lenders its direct liability for, and guarantees
to the Lenders, the due and punctual payment of the Borrowing Subsidiary
Obligations, including, but not limited to, the due and punctual payment of
principal
57
of and interest on the Notes issued by each Borrowing Subsidiary, and
punctual payment of all other sums now or hereafter owed by each Borrowing
Subsidiary under this Agreement and each Note issued by such Borrowing
Subsidiary as and when the same shall become due (whether by acceleration or
otherwise) and according to the terms hereof and thereof. In case of failure
by any Borrowing Subsidiary punctually to pay any Borrowing Subsidiary
Obligation, the Borrower hereby unconditionally agrees to cause such payment
to be made punctually as and when the same shall become due and payable,
whether at maturity or by declaration or otherwise, and as if such payment
were made by the Borrowing Subsidiary.
XV.2 OBLIGATIONS UNCONDITIONAL. The obligations of the Borrower under
this Article XV shall be irrevocable, unconditional and absolute and, without
limiting the generality of the foregoing, shall not be released, discharged
or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of any Borrowing Subsidiary hereunder or under
any Note issued by such Borrowing Subsidiary, by operation of law or
otherwise;
(b) any modification or amendment of or supplement to any Loan
Document;
(c) any compromise, settlement, modification, amendment, waiver,
release, non-perfection or invalidity of or to any direct or indirect
security, guarantee or other liability of any third party with respect
to any Borrowing Subsidiary Obligation;
(d) any change in the corporate existence, structure, or ownership
of, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting, any Borrowing Subsidiary or its assets or any
resulting release or discharge of any Borrowing Subsidiary Obligation;
(e) the existence of any claim, set-off or other right which the
Borrower may have at any time against any Borrowing Subsidiary, the
Administrative Agent, any Lender or any other Person, whether or not
arising in connection with this Agreement, PROVIDED, HOWEVER, that nothing
herein shall prevent the assertion of any such claim by separate suit or
compulsory counterclaim;
(f) any invalidity or unenforceability relating to or against any
Borrowing Subsidiary for any reason of any Loan Document, or any provision
of applicable law or regulation purporting to prohibit the payment by any
Borrowing Subsidiary of the principal of or interest on any Note issued by
such Borrowing Subsidiary or any other amount payable by any Borrowing
Subsidiary under this Agreement; or
(g) any other act or omission to act or delay of any kind by any
Borrowing Subsidiary, the Administrative Agent, any Lender or any other
Person or any other circumstance whatsoever that might, but for the
provisions of this paragraph, constitute a legal or equitable discharge of
the obligations of the Borrower under this Article XV.
XV.3 DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN CERTAIN
CIRCUMSTANCES. The Borrower's obligations under this Article XV shall remain
in full force and effect until the Aggregate Commitment has expired or is
terminated and the principal of and interest on the Notes and all other
58
Obligations payable under the Loan Documents shall have been paid in full.
If at any time any payment of the principal of or interest on any Note issued
by any Borrowing Subsidiary or any other amount payable by any Borrowing
Subsidiary under any Loan Document is rescinded or must be otherwise restored
or returned upon the insolvency, bankruptcy or reorganization of any
Borrowing Subsidiary or otherwise, the Borrower's obligations under this
Article XV with respect to such payment shall be reinstated at such time as
though such payment had become due but had not been made at such time. This
Section 15.3 shall survive the termination of this Agreement and the payment
in full of the Obligations.
XV.4 WAIVER. The Borrower irrevocably waives acceptance hereof,
presentment, demand, protest and any notice not provided for herein, as well
as any requirement that at any time any action be taken by any Person against
any Borrowing Subsidiary or any other Person. The Borrower waives any
benefit of the collateral, if any, which may from time to time secure the
Obligations or any part thereof and authorizes the Administrative Agent or
the Lenders to take any action, or exercise any remedy with respect thereto,
which the Administrative Agent or the Lenders in its or their sole discretion
shall determine, without notice to the Borrower. In the event the Lenders in
their sole discretion elect to give notice of any action with respect to the
collateral, if any, securing the Obligations or any part thereof, ten days'
written notice mailed to the Borrower by certified mail at the address shown
hereon shall be deemed reasonable notice of any matter contained in such
notice.
XV.5 STAY OF ACCELERATION. If acceleration of the time for payment of
any amount payable by any Borrowing Subsidiary under any of the Loan
Documents is stayed upon the insolvency, bankruptcy or reorganization of any
Borrowing Subsidiary, all such amounts otherwise subject to acceleration
under the terms of this Agreement shall nonetheless be payable by the
Borrower hereunder forthwith on demand by the Administrative Agent.
XV.6 PAYMENTS. All payments to be made by the Borrower pursuant to this
Article XV shall be made at the times and in the manner and in the currency
prescribed for payments in this Agreement.
XV.7 DELAY OF SUBROGATION. Until the Borrower's Obligations under this
Article XV have been paid in full and terminated, the Borrower shall not
exercise any right of subrogation with respect to payments made by the
Borrower pursuant to this Article XV.
XVI
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Administrative Agent and the Lenders and each party has notified the
Administrative Agent by telex or telephone, that it has taken such action.
59
IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative
Agent have executed this Agreement as of the date first above written.
By: /s/ Shanon Allen
---------------------------------------
Print Name: Shanon Allen
-------------------------------
Title: Assistant Treasurer
------------------------------------
2050 Spectrum Boulevard
Fort Lauderdale, FL 33309
Phone: (954) 351-8244
Fax: (954) 489-6085
Attention: Shannon Allen
THE FIRST NATIONAL BANK OF CHICAGO,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT
AND AS ISSUER
By: /s/ James Heinz
-----------------------------------------
Print Name: James Heinz
---------------------------------
Title: Vice President
--------------------------------------
One First National Plaza
Chicago, Illinois 60670
Phone: (312) 732-7343
Fax: (312) 732-3885
Attention: James Heinz
60
NATIONSBANK, N.A.,
INDIVIDUALLY AND AS DOCUMENTATION AGENT
By: /s/ Andrew Airheart
---------------------------------------
Print Name: Andrew Airheart
-------------------------------
Title: Sr. Vice President
------------------------------------
Corporate Banking
100 Southeast Second Street, 14th
Floor
Miami, Florida 33131
Phone: (305) 533-2428
Fax: (305) 533-2437
Attention: Maria Conroy
61
BANK OF AMERICA ILLINOIS
By: /s/ Laurens F. Schaad, Jr.
----------------------------------------
Print Name: Laurens F. Schaad, Jr.
--------------------------------
Title: Vice President
-------------------------------------
1230 Peachtree Street
Suite 3800
Atlanta, Georgia 30309
Phone: (404) 249-6915
Fax: (404) 249-6938
Attention: Laurens F. Schaad, Jr.
62
THE FUJI BANK, LIMITED,
By: /s/ Masa Kobayashi
----------------------------------------
Name Printed: Masa Kobayashi
------------------------------
Title:
-------------------------------------
Two World Trade Center Place, 79th
Floor
New York, New York 10048
Phone: (212) 898-2085
Attention: Masa Kobayashi
63
ABN AMRO BANK N.V.
BY ABN AMRO NORTH AMERICA, INC.,
AS AGENT
By: /s/ Deborah Day Orozco
----------------------------------------
Print Name: Deborah Day Orozco
--------------------------------
Title: Vice President
-------------------------------------
By: /s/ Richard Lavinia
----------------------------------------
Print Name: Richard Lavinia
--------------------------------
Title: Group Vice President
-------------------------------------
200 S. Biscayne Blvd., 22nd Floor
Miami, Florida 33131
Phone: (305) 579-9760
Fax: (305) 372-2397
Attention: Deborah Day Orozco
64
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ Jeffrey Hwang
----------------------------------------
Print Name: Jeffrey Hwang
--------------------------------
Title: Vice President
-------------------------------------
60 Wall Street
New York, New York 10260-0060
Phone: (212) 648-6503
Fax: (212) 648-5014
Attention: Jeffrey Hwang
65
BARNETT BANK, N.A.
By: /s/ Michael Cooney
----------------------------------------
Print Name: Michael Cooney
--------------------------------
Title: Vice President
-------------------------------------
One East Broward Boulevard
4th Floor
Fort Lauderdale, Florida 33301
Phone: (954) 765-1675
Fax: (954) 765-1663
Attention: Michael Cooney, Vice President
66
EXHIBIT "A-1"
FORM OF NOTE
_________,
___________________, a _____________ (the "Borrowing Entity"), promises to
pay to the order of ___________ (the "Lender") the aggregate unpaid principal
amount of all Loans made by the Lender to the Borrowing Entity pursuant to the
Second Amended and Restated Credit Agreement (as the same may be amended,
supplemented or otherwise modified from time to time, the "Agreement")
hereinafter referred to, in immediately available funds in the currency and at
the place specified pursuant to the Agreement, together with interest on the
unpaid principal amount hereof at the rates and on the dates set forth in the
Agreement. The Borrower shall pay the principal of and accrued and unpaid
interest on all Loans in full on the Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date, currency and amount of each Loan and the date and amount of each
principal payment hereunder, PROVIDED, HOWEVER, that any failure to so record
shall not affect the Borrowing Entity's obligations under any Loan Document.
This Note is one of the Notes issued pursuant to, and is entitled to the
benefits of, the Second Amended and Restated Credit Agreement, dated as of
January 15, 1997 among [the Borrowing Entity, various Borrowing Subsidiaries
thereof] [Interim Services Inc., various Borrowing Subsidiaries thereof
(including the Borrowing Entity)], NationsBank, N.A., individually and as
Documentation Agent, The First National Bank of Chicago, individually and as
Administrative Agent, and the lenders named therein, including the Lender, to
which Agreement, as it may be amended from time to time, reference is hereby
made for a statement of the terms and conditions governing this Note, including
the terms and conditions under which this Note may be prepaid or its maturity
date accelerated. Capitalized terms used herein and not otherwise defined
herein are used with the meanings attributed to them in the Agreement. This
Note shall be governed by the internal laws (and not the law of conflicts) of
the State of Illinois.
[INTERIM SERVICES INC./BORROWING SUBSIDIARY]
By:________________________________________
Title:____________________________________
STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
The foregoing note was executed before me this ________ day of
_____________, ____, by _____________________________________________, a
____________________________ of _________________________, on behalf of said
corporation.
___________________________________
My Commission Expires:__________
2
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF _____________________
DATED _________, ____
Currency and
Principal Maturity Principal
Amount of Interest Amount Unpaid
Date of Loan Period Paid Balance
- ---- ------------- ----------- --------- -------
3
EXHIBIT "A-2"
FORM OF
SWING LINE NOTE
$5,000,000 January 15, 1997
INTERIM SERVICES INC., a Delaware corporation (the "Borrower"), promises to
pay to the order of The First National Bank of Chicago (the "Swing Line Bank")
the lesser of the principal sum of Five Million Dollars or the aggregate unpaid
principal amount of all Swing Line Loans made by the Lender to the Borrower
pursuant to Section 2.2 of the Second Amended and Restated Credit Agreement (as
amended or otherwise modified from time to time, the "Agreement") hereinafter
referred to, in immediately available funds at the main office of The First
National Bank of Chicago in Chicago, Illinois, as Administrative Agent, together
with interest on the unpaid principal amount hereof at the rates and on the
dates set forth in the Agreement. The Borrower shall pay the principal of and
accrued and unpaid interest on the Swing Line Loans in full on the Termination
Date.
The Swing Line Bank shall, and is hereby authorized to, record on the
schedule attached hereto, or to otherwise record in accordance with its usual
practice, the date and amount of each Swing Line Loan and the date and amount of
each principal payment hereunder.
This Swing Line Note is one of the Notes issued pursuant to, and is
entitled to the benefits of, the Second Amended and Restated Credit Agreement,
dated as of January 15, 1997 among the Borrower, various Borrowing Subsidiaries
thereof, NationsBank, N.A., as Documentation Agent, The First National Bank of
Chicago, as Administrative Agent, and the lenders named therein, including the
Swing Line Bank, to which Agreement, as it may be amended or otherwise modified
from time to time, reference is hereby made for a statement of the terms and
conditions governing this Swing Line Note, including the terms and conditions
under which this Swing Line Note may be prepaid or its maturity date
accelerated. Capitalized terms used herein and not otherwise defined herein are
used with the meanings attributed to them in the Agreement.
____________________________________________
By:_________________________________________
Print Name:_________________________________
Title:______________________________________
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
SWING LINE NOTE OF INTERIM SERVICES INC.
DATED JANUARY 15, 1997
Principal Principal
Amount Maturity Amount Unpaid
Date of Loan Date Paid Balance
- ---- --------- -------- ---------- -------
2
EXHIBIT "B"
FORM OF OPINION
OF COUNSEL TO THE BORROWER
January __, 1997
The Administrative Agent and the Lenders who are parties to the
Credit Agreement described below.
Gentlemen/Ladies:
I am counsel for Interim Services Inc. (the "Borrower") and each of its
Subsidiaries, and have represented (i) the Borrower in connection with its
execution and delivery of the Second Amended and Restated Credit Agreement
among the Borrower, various Borrowing Subsidiaries thereof, NationsBank,
N.A., as Documentation Agent, The First National Bank of Chicago, as
Administrative Agent, and the Lenders named therein, providing for Advances
in an aggregate principal amount not exceeding $200,000,000 (subject to
increases up to $300,000,000) at any one time outstanding and dated as of
January 15, 1997 (the "Agreement") and (ii) the Guarantor Subsidiaries in
connection with their execution and delivery of the Guaranty. All
capitalized terms used in this opinion and not otherwise defined shall have
the meanings attributed to them in the Agreement.
I have examined executed originals or copies, certified or otherwise
identified to my satisfaction, of (i) certificates of the Secretary of State
of the states in which the Borrower and the Guarantor Subsidiaries are
incorporated, attesting to the continued corporate existence and good
standing of the Borrower and the Guarantor Subsidiaries, (ii) the Loan
Documents and (iii) such corporate records of the Borrower and the Guarantor
Subsidiaries and such agreements, instruments and documents, including
certificates of public officials, as I have deemed necessary as a basis for
the opinions expressed herein.
Based upon the foregoing, it is my opinion that:
l. Each of the Borrower and each Guarantor Subsidiary is a corporation
duly incorporated, validly existing and in good standing under the laws of
its jurisdiction of incorporation and has all requisite authority to conduct
its business in each jurisdiction in which its business is conducted.
2. The execution and delivery of the Loan Documents by the Borrower and
the Guarantor Subsidiaries and the performance by the Borrower and the
Guarantor Subsidiaries of their respective obligations thereunder have been
duly authorized by all necessary corporate action and proceedings on the part
of the Borrower and the Guarantor Subsidiaries and will not:
(a) require any consent of the Borrower's or any Guarantor
Subsidiary's shareholders;
(b) violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Borrower or any Guarantor
Subsidiary or the Borrower's or any Guarantor Subsidiary's articles of
incorporation or by-laws or any indenture, instrument or agreement binding
upon the Borrower or any Guarantor Subsidiary; or
(c) result in, or require, the creation or imposition of any Lien
pursuant to the
provisions of any indenture, instrument or agreement binding upon the
Borrower or any provisions Guarantor Subsidiary.
3. The Agreement and the Notes issued by the Borrower have been duly
executed and delivered by the Borrower and constitute legal, valid and
binding obligations of the Borrower enforceable in accordance with their
terms except to the extent the enforcement thereof may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and subject also to the availability of equitable
remedies if equitable remedies are sought.
4. The Guaranty has been duly executed and delivered by each Guarantor
Subsidiary and the Guaranty constitutes the legal, valid and binding
obligation of each Guarantor Subsidiary enforceable in accordance with its
terms except to the extent the enforcement thereof may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and subject also to the availability of equitable
remedies if equitable remedies are sought.
5. There is no litigation or proceeding against the Borrower or any of
its Subsidiaries which, if adversely determined, could reasonably be expected
to have a Material Adverse Effect.
6. No approval, authorization, consent, adjudication or order of any
Governmental Agency, which has not been obtained by the Borrower or any
Guarantor Subsidiary, is required to be obtained by the Borrower or any
Guarantor Subsidiary in connection with the execution and delivery of the
Loan Documents, the borrowings under the Agreement or the payment by the
Borrower or any Guarantor Subsidiary of any of the Obligations.
The opinion expressed herein is limited by, subject to and based upon the
following assumptions, exceptions, qualifications and limitations:
a) My opinion in paragraph 1 as to good standing is based upon the
applicable Good Standing Certificates.
b) This opinion is limited to the laws of the State of Florida, the
General Corporation Law of the State of Delaware and the Federal laws of
the United States of America. In rendering my opinion as to the legality,
validity, binding effect and enforceability of any Loan Document, I have
assumed that such Loan Document is governed by the laws of the State of
Florida notwithstanding the parties' selection of Illinois law as the
governing law. In making such assumption, I do not imply that the Florida
courts would not give effect to the selection of Illinois law as the
governing law of the Loan Documents.
c) This opinion is limited to the matters stated herein and no opinion is
implied or may be inferred beyond the matters expressly stated.
d) This opinion is as of the date hereof, and I assume no obligation to
update or supplement this opinion to reflect any facts or circumstances
which may hereafter come to my attention or any changes in law which may
hereafter occur.
2
This opinion is being delivered to you pursuant to Section 4.1(v) of the
Agreement and may be relied upon by the Administrative Agent, the Lenders and
their permitted assignees. Without my prior written consent, this opinion
may not be relied upon by any other person or quoted in whole or in part or
otherwise referred to in any legal opinion, report or other document.
Very truly yours,
________________________________________
3
EXHIBIT "C"
COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to the Second Amended and
Restated Credit Agreement dated as of January 15, 1997 (as amended, modified,
renewed or extended from time to time, the "Agreement") among the Borrower,
various Borrowing Subsidiaries thereof, the lenders party thereto, NationsBank,
N.A., as Documentation Agent, and The First National Bank of Chicago, as
Administrative Agent. Unless otherwise defined herein, capitalized terms used
in this Compliance Certificate have the meanings ascribed thereto in the
Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _____________________ of the Borrower;
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the Borrower and its Subsidiaries during the accounting period
covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I have
no knowledge of, the existence of any condition or event which constitutes a
Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and computations
evidencing the Borrower's compliance with certain covenants of the Agreement,
all of which data and computations are true, complete and correct, and Schedule
II attached hereto sets forth the determination of the interest rate to be paid
for Advances commencing five days following the delivery hereof.
Described below are the exceptions, if any, to paragraph 3 by listing, in
detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
4
The foregoing certifications, together with the computations set forth in
Schedule I and Schedule II hereto and the financial statements delivered with
this Certificate in support hereof, are made and delivered this ____ day of
_____________ , _____.
-------------------------------
Name Printed:
------------------
2
[SAMPLE]
SCHEDULE I TO COMPLIANCE CERTIFICATE
Schedule of Compliance as of with
Provisions of _______ and ________ of
the Agreement
3
EXHIBIT "D"
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To The First National Bank of Chicago,
as Administrative Agent (the "Administrative Agent") under the Credit Agreement
Described Below.
Re: Second Amended and Restated Credit Agreement, dated as of January 15, 1997
(as the same may be amended or modified, the "Credit Agreement"), among
Interim Services Inc. (the "Borrower"), various Borrowing Subsidiaries
thereof, NationsBank, N.A., as Documentation Agent, The First National Bank
of Chicago, as Administrative Agent, and the Lenders named therein Terms
used herein and not otherwise defined shall have the meanings assigned
thereto in the Credit Agreement.
The Administrative Agent is specifically authorized and directed to act
upon the following standing money transfer instructions with respect to the
proceeds of Advances or other extensions of credit from time to time until
receipt by the Administrative Agent of a specific written revocation of such
instructions by [Name of Borrowing Entity] (the "Borrowing Entity"), provided,
however, that the Administrative Agent may otherwise transfer funds as hereafter
directed in writing by the Borrowing Entity in accordance with Section 14.1 of
the Credit Agreement or based on any telephonic notice made in accordance with
Section 2.11 of the Credit Agreement.
Facility Identification Number(s)
---------------------------------
Customer/Account Name
-----------------------------------------------------
Transfer Funds To
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
For Account No.
-----------------------------------------------------------
Reference/Attention To
----------------------------------------------------
Authorized Officer (Customer Representative) Date ____________________
- -------------------------------------------- -------------------------
(Please Print) Signature
Bank Officer Name Date ____________________
- -------------------------------------------- -------------------------
(Please Print) Signature
(DELIVER COMPLETED FORM TO CREDIT SUPPORT STAFF FOR IMMEDIATE PROCESSING)
EXHIBIT "E"
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
_________________________ (the "Assignor") and __________________ (the
"Assignee") is dated as of ________________ , _____ . The parties hereto agree
as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit Agreement
(which, as it may be amended, modified, renewed or extended from time to time
is herein called the "Credit Agreement") described in Item 1 of Schedule 1
attached hereto ("Schedule 1"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings attributed to them in the
Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the
Assignor, an interest in and to the Assignor's rights and obligations under
the Credit Agreement such that after giving effect to such assignment the
Assignee shall have purchased pursuant to this Assignment Agreement the
percentage interest specified in Item 3 of Schedule 1 of all outstanding
rights and obligations under the Credit Agreement relating to the facilities
listed in Item 3 of Schedule 1 and the other Loan Documents. The aggregate
Commitment (or Loans and participations in Facility Letters of Credit and
Swing Line Loans, if the applicable Commitment has been terminated) purchased
by the Assignee hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement
(the "Effective Date") shall be the later of the date specified in Item 5 of
Schedule 1 or two Business Days (or such shorter period agreed to by the
Administrative Agent) after a Notice of Assignment substantially in the form
of Annex "I" attached hereto has been delivered to the Administrative Agent.
Such Notice of Assignment must include any consents required to be delivered
to the Administrative Agent by Section 13.3.1 of the Credit Agreement. In no
event will the Effective Date occur if the payments required to be made by
the Assignee to the Assignor on the Effective Date under Sections 4 and 5
hereof are not made on the proposed Effective Date. The Assignor will notify
the Assignee of the proposed Effective Date no later than the Business Day
prior to the proposed Effective Date. As of the Effective Date, (i) the
Assignee shall have the rights and obligations of a Lender under the Loan
Documents with respect to the rights and obligations assigned to the Assignee
hereunder and (ii) the Assignor shall relinquish its rights and be released
from its corresponding obligations under the Loan Documents with respect to
the rights and obligations assigned to the Assignee hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Administrative Agent all payments of
principal, interest and fees with respect to the interest assigned hereby.
The Assignee shall advance funds directly to the Administrative Agent with
respect to all Loans and reimbursement payments made on or after the
Effective Date with respect to the interest assigned hereby. [In
consideration for the sale and assignment of Loans hereunder, (i) the
Assignee shall pay the Assignor, on the Effective Date, an amount equal to
the principal amount of the portion of all Alternate Base Rate Loans assigned
to the Assignee hereunder and (ii) with respect to each Eurocurrency Loan
made by the Assignor and assigned to the Assignee hereunder which is
outstanding on the Effective Date, (a) on the last day of the Interest Period
therefor or (b) on such earlier date agreed to by the Assignor
and the Assignee or (c) on the date on which any such Eurocurrency Loan
becomes due, by acceleration or otherwise (the date as described in the
foregoing clauses (a), (b) or (c) being hereinafter referred to as the
"Payment Date"), the Assignee shall pay the Assignor an amount equal to the
principal amount of the portion of such Eurocurrency Loan assigned to the
Assignee which is outstanding on the Payment Date. If the Assignor and the
Assignee agree that the Payment Date for such Eurocurrency Loan shall be the
Effective Date, they shall agree to the interest rate applicable to the
portion of such Loan assigned hereunder for the period from the Effective
Date to the end of the existing Interest Period applicable to such
Eurocurrency Loan (the "Agreed Interest Rate") and any interest received by
the Assignee in excess of the Agreed Interest Rate shall be remitted to the
Assignor. In the event interest for the period from the Effective Date to
but not including the Payment Date is not paid by the applicable Borrowing
Entity with respect to any Eurocurrency Loan sold by the Assignor to the
Assignee hereunder, the Assignee shall pay to the Assignor interest for such
period on the portion of such Eurocurrency Loan sold by the Assignor to the
Assignee hereunder at the applicable rate provided by the Credit Agreement.
In the event a prepayment of any Eurocurrency Loan which is existing on the
Payment Date and assigned by the Assignor to the Assignee hereunder occurs
after the Payment Date but before the end of the Interest Period applicable
to such Eurocurrency Loan, the Assignee shall remit to the Assignor the
excess of the prepayment penalty paid with respect to the portion of such
Eurocurrency Loan assigned to the Assignee hereunder over the amount which
would have been paid if such prepayment penalty was calculated based on the
Agreed Interest Rate. The Assignee will also promptly remit to the Assignor
(i) any principal payments received from the Administrative Agent with
respect to Eurocurrency Loans prior to the Payment Date and (ii) any amounts
of interest on Loans and fees received from the Administrative Agent which
relate to the portion of the Loans assigned to the Assignee hereunder for
periods prior to the Effective Date, in the case of Alternate Base Rate
Loans, or the Payment Date, in the case of Eurocurrency Loans, and not
previously paid by the Assignee to the Assignor.]* In the event that either
party hereto receives any payment to which the other party hereto is entitled
under this Assignment Agreement, then the party receiving such amount shall
promptly remit it to the other party hereto.
5. FEES PAYABLE BY THE ASSIGNEE. The Assignee shall pay to the Assignor
a fee on each day on which a payment of interest or facility fees is made
under the Credit Agreement with respect to the amounts assigned to the
Assignee hereunder (other than a payment of interest or facility fees for the
period prior to the Effective Date or, in the case of Eurocurrency Loans, the
Payment Date, which the Assignee is obligated to deliver to the Assignor
pursuant to Section 4 hereof). The amount of such fee shall be the
difference between (i) the interest or fee, as applicable, paid with respect
to the amounts assigned to the Assignee hereunder and (ii) the interest or
fee, as applicable, which would have been paid with respect to the amounts
assigned to the Assignee hereunder if each interest rate was ___ of 1% less
than the interest rate paid by the applicable Borrowing Entity or if the
facility fee was ___ of 1% less than the facility fee paid by the Borrower,
as applicable. In addition, the Assignee agrees to pay ___ % of the
recordation fee required to be paid to the Administrative Agent in connection
with this Assignment Agreement.
* Each Assignor may insert its standard payment provisions in lieu of the
payment terms included in this Exhibit.
2
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. It
is understood and agreed that the assignment and assumption hereunder are
made without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither the Assignor
nor any of its officers, directors, employees, agents or attorneys shall be
responsible for (i) the due execution, legality, validity,
enforceability, genuineness, sufficiency or collectability of any Loan
Document, including without limitation, documents granting the Assignor and
the other Lenders a security interest in assets of any Borrowing Entity or
any guarantor, (ii) any representation, warranty or statement made in or in
connection with any of the Loan Documents, (iii) the financial condition or
creditworthiness of any Borrowing Entity or any guarantor, (iv) the
performance of or compliance with any of the terms or provisions of any of
the Loan Documents, (v) inspecting any of the Property, books or records of
any Borrowing Entity, (vi) the validity, enforceability, perfection,
priority, condition, value or sufficiency of any collateral securing or
purporting to secure the Obligations or (vii) any mistake, error of judgment,
or action taken or omitted to be taken in connection with the Loans, the
Facility Letters of Credit or the Loan Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements requested by the Assignee and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment Agreement, (ii) agrees that it will,
independently and without reliance upon the Administrative Agent, the Issuer,
the Assignor or any other Lender and based on such documents and information
at it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Loan Documents, (iii)
appoints and authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers under the Loan Documents as are
delegated to the Administrative Agent by the terms thereof, together with
such powers as are reasonably incidental thereto, (iv) agrees that it will
perform in accordance with their terms all of the obligations which by the
terms of the Loan Documents are required to be performed by it as a Lender,
(v) agrees that its payment instructions and notice instructions are as set
forth in the attachment to Schedule 1, (vi) confirms that none of the funds,
monies, assets or other consideration being used to make the purchase and
assumption hereunder are "plan assets" as defined under ERISA and that its
rights, benefits and interests in and under the Loan Documents will not be
"plan assets" under ERISA, [and (vii) attaches the forms prescribed by the
Internal Revenue Service of the United States certifying that the Assignee
is entitled to receive payments under the Loan Documents without deduction
or withholding of any United States federal income taxes].*
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the
Assignor in connection with or arising in any manner from the Assignee's
non-performance of the obligations assumed under this Assignment Agreement.
*to be inserted if the Assignee is not incorporated under the laws of the United
States, or a state thereof.
3
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
have the right pursuant to Section 13.3.1 of the Credit Agreement to assign
the rights which are assigned to the Assignee hereunder to any entity or
person, provided that (i) any such subsequent assignment does not violate any
of the terms and conditions of the Loan Documents or any law, rule,
regulation, order, writ, judgment, injunction or decree and that any consent
required under the terms of the Loan Documents has been obtained and (ii)
unless the prior written consent of the Assignor is obtained, the Assignee is
not thereby released from its obligations to the Assignor hereunder, if any
remain unsatisfied, including, without limitation, its obligations under
[Sections 4, 5 and 8] hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the
Aggregate Commitment occurs between the date of this Assignment Agreement and
the Effective Date, the percentage interest specified in Item 3 of Schedule 1
shall remain the same, but the dollar amount purchased shall be recalculated
based on the reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice
of Assignment embody the entire agreement and understanding between the
parties hereto and supersede all prior agreements and understandings between
the parties hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Illinois.
13. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall
be the addresses set forth in the attachment to Schedule 1.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above
written.
[NAME OF ASSIGNOR]
By:
------------------------------------
Title:
------------------------------------
------------------------------------
------------------------------------
[NAME OF ASSIGNEE]
By:
------------------------------------
Title:
------------------------------------
------------------------------------
------------------------------------
4
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement: Second Amended and Restated
Credit Agreement dated as of January 15, 1997 among Interim Services Inc.,
various Borrowing Subsidiaries thereof, the Lenders party thereto,
NationsBank, N.A., as Documentation Agent, and The First National Bank of
Chicago, as Administrative Agent
2. Date of Assignment Agreement: _____________, ___
3. Amounts (As of Date of Item 2 above):
FACILITY
--------
a. Total of Commitments
(Loans and participations
in Facility Letters of Credit
and Swing Line Loans)* under
Credit Agreement $________
b. Assignee's Percentage
of the Facility purchased
under the Assignment
Agreement** ________%
c. Amount of Assigned Share in
the Facility purchased under
the Assignment
Agreement $________
4. Assignee's aggregate Commitment
(Loans and participations in
Facility Letters of Credit and
Swing Line Loans)* purchased
under the Assignment Agreement: $________
5. Proposed Effective Date: ___________
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
----------------------- ----------------------
Title: Title:
-------------------- -------------------
* If a Commitment has been terminated, insert outstanding Loans and
participations in Facility Letters of Credit and Swing Line Loans in place
of Commitment.
** Percentage taken to 10 decimal places.
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address for the Assignor and the Assignee
ANNEX "I"
to Assignment Agreement
NOTICE
OF ASSIGNMENT
-----------------, -----
To: Interim Services Inc.*
__________________________________
__________________________________
The First National Bank of Chicago
__________________________________
__________________________________
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to the Credit Agreement (the "Credit Agreement") described
in Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized terms
used herein and not otherwise defined herein shall have the meanings
attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and delivered to
the Borrower and the Administrative Agent pursuant to Section 13.3.2 of the
Credit Agreement.
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of ___________, _____ (the "Assignment"), pursuant to
which, among other things, the Assignor has sold, assigned, delegated and
transferred to the Assignee, and the Assignee has purchased, accepted and
assumed from the Assignor, the percentage interest specified in Item 3 of
Schedule 1 of all outstandings, rights and obligations under the Credit
Agreement relating to the facilities listed in Item 3 of Schedule 1. The
Effective Date of the Assignment shall be the later of the date specified in
Item 5 of Schedule 1 or two Business Days (or such shorter period as agreed
to by the Administrative Agent) after this Notice of Assignment and any
consents and fees required by Sections 13.3.1 and 13.3.2 of the Credit
Agreement have been delivered to the Administrative Agent, provided that the
Effective Date shall not occur if any condition precedent agreed to by the
Assignor and the Assignee has not been satisfied.
4. The Assignor and the Assignee hereby give to the Borrower and the
Administrative Agent notice of the assignment and delegation referred to herein.
The Assignor will confer with the
- ----------------
* To be included only if consent must be obtained pursuant to Section 13.3.1
of the Credit Agreement.
Administrative Agent before the date specified in Item 5 of Schedule 1 to
determine if the Assignment Agreement will become effective on such date
pursuant to Section 3 hereof, and will confer with the Administrative Agent
to determine the Effective Date pursuant to Section 3 hereof if it occurs
thereafter. The Assignor shall notify the Administrative Agent if the
Assignment Agreement does not become effective on any proposed Effective Date
as a result of the failure to satisfy the conditions precedent agreed to by
the Assignor and the Assignee. At the request of the Administrative Agent,
the Assignor will give the Administrative Agent written confirmation of the
satisfaction of the conditions precedent.
5. The Assignor or the Assignee shall pay to the Administrative Agent on
or before the Effective Date the processing fee of $3,000 required by Section
13.3.2 of the Credit Agreement.
6. [The Assignor and the Assignee request and direct that the
Administrative Agent prepare and cause the Borrowing Entities to execute and
deliver new Notes to the Assignee]. [The Assignor agrees to deliver to the
Administrative Agent the Notes received by it from the Borrowing Entities.]
7. The Assignee advises the Administrative Agent that notice and
payment instructions are set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of the funds,
monies, assets or other consideration being used to make the purchase
pursuant to the Assignment are "plan assets" as defined under ERISA and that
its rights, benefits, and interests in and under the Loan Documents will not
be "plan assets" under ERISA.
9. The Assignee authorizes the Administrative Agent to act as its
agent under the Loan Documents in accordance with the terms thereof. The
Assignee acknowledges that the Administrative Agent has no duty to supply
information with respect to any Borrowing Entity or the Loan Documents to the
Assignee until the Assignee becomes a party to the Credit Agreement.*
NAME OF ASSIGNOR NAME OF ASSIGNEE
By: By:
------------------------- ----------------------------
Title: Title:
---------------------- -------------------------
ACKNOWLEDGED AND CONSENTED TO ACKNOWLEDGED AND CONSENTED TO
BY THE FIRST NATIONAL BANK BY INTERIM SERVICES INC.**
OF CHICAGO
By: By:
------------------------- ---------------------------
Title: Title:
---------------------- -------------------------
[Attach photocopy of Schedule 1 to Assignment]
*May be eliminated if Assignee is a party to the Credit Agreement prior to the
Effective Date.
- ------------------
* May be eliminated if Assignee is a party to the Credit Agreement prior
to the Effective Date.
** To be included only if consent must be obtained pursuant to Section
13.3.1 of the Credit Agreement.
8
EXHIBIT "F"
FORM OF AMENDMENT FOR AN INCREASED OR NEW COMMITMENT
This AMENDMENT is made as of the ___ day of ______________, ____ by and
among Interim Services Inc. (the "Borrower"), NationsBank, N.A., as
Documentation Agent, The First National Bank of Chicago, as Administrative
Agent under the "Credit Agreement" (as defined below) (the "Administrative
Agent") and ________________________ (the "Supplemental Lender").
The Borrower, the Administrative Agent and certain other Lenders, as
described therein, are parties to a Second Amended and Restated Credit
Agreement dated as of January 15, 1997 (the "Credit Agreement"). All terms
used herein and not otherwise defined shall have the same meaning given to
them in the Credit Agreement.
Pursuant to Section 2.6.2 of the Credit Agreement, the Borrower has the
right to increase the Aggregate Commitment by obtaining additional
Commitments upon satisfaction of certain conditions, and this Amendment
requires only the signature of the Borrower, the Administrative Agent and the
Supplemental Lender so long as the Aggregate Commitment is not increased
above $300,000,000.
The Supplemental Lender is either (a) an existing Lender which is
increasing its Commitment or (b) a new Lender which is a lending institution
whose identity the Administrative Agent will approve by its signature below.
In consideration of the foregoing, such Supplemental Lender, from and
after the date hereof shall have a Commitment of $________________, resulting
in a new Aggregate Commitment of $_________________ as of the date hereof,
and if it is a new Lender, the Supplemental Lender hereby assumes all of the
rights and obligations of a Lender under the Credit Agreement.
If the Supplemental Lender is a new Lender, the Borrowing Entities have
executed and delivered to the Supplemental Lender as of the date hereof new
Notes in the form attached to the Credit Agreement to evidence the Loans by
the Supplemental Lender.
IN WITNESS WHEREOF, the Administrative Agent, the Borrower and the
Supplemental Lender have executed this Amendment as of the date shown above.
INTERIM SERVICES INC.
By:_______________________________________
Its_______________________________________
[SUPPLEMENTAL LENDER]
By:_______________________________________
Its_______________________________________
THE FIRST NATIONAL BANK OF CHICAGO, as Administrative
Agent
By:_______________________________________
Its_______________________________________
2
EXHIBIT "G"
FORM OF
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement") dated as of __________________,
_____ is between Interim Services, Inc., a Delaware corporation (the
"Pledgor"), and THE FIRST NATIONAL BANK OF CHICAGO in its capacity as
administrative agent for the Lenders referred to below (in such capacity, the
"Administrative Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to a Credit Agreement dated January 15, 1997 (as
amended or otherwise modified from time, the "Credit Agreement") among the
Pledgor, various financial institutions (such financial institutions,
together with their respective successors and assigns, collectively the
"Lenders" and individually each a "Lender") and the Administrative Agent, the
Lenders have agreed to make loans to, and to issue letters of credit for the
account of, the Pledgor and certain of its subsidiaries from time to time;
WHEREAS, the Pledgor has unconditionally guaranteed the full and
punctual payment of all obligations of its subsidiaries under or in
connection with the Credit Agreement; and
WHEREAS, it is a condition precedent to the making of loans and the
issuance of letters of credit under the Credit Agreement that the Pledgor
execute and deliver this Agreement;
NOW, THEREFORE, for and in consideration of any loan, advance or other
financial accommodation heretofore or hereafter made to the Pledgor or any of
its subsidiaries under or in connection with the Credit Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. When used herein, the following terms have the
following meanings (such meanings to be applicable to both the singular and
plural forms of such terms):
COLLATERAL - see SECTION 2.
DEFAULT means the occurrence of any of the following events: (a) any
Unmatured Default (as defined in the Credit Agreement) under Section
8.2, 8.6 or 8.7 of the Credit Agreement; (b) any Default (as defined
in the Credit Agreement); or (c) any warranty of the Pledgor herein is
untrue or misleading in any material respect and, as a result thereof,
the Administrative Agent's security interest in any of the Collateral
is not perfected or any right or remedy of the Administrative Agent
with respect to any of the Collateral is materially impaired or
otherwise materially adversely affected.
HEDGING AGREEMENT means any Rate Hedging Agreement (as defined in the
Credit Agreement) entered into by the Pledgor with any Lender or any
affiliate of a Lender in connection with Loans (as defined in the
Credit Agreement) under the Credit Agreement.
ISSUER means the issuer of any of the shares of stock or other
securities representing all or any of the Collateral.
LENDER PARTIES means the Administrative Agent, each Lender and any
affiliate of a Lender which is a party to a Hedging Agreement.
LIABILITIES means all obligations (monetary or otherwise) of the
Pledgor or any Subsidiary Guarantor, howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent, now or
hereafter existing, or due or to become due, which arise out of or in
connection with the Credit Agreement, the Notes, this Agreement, any
other Loan Document, any Hedging Agreement or any document or
instrument executed in connection therewith, including, without
limitation, all reimbursement obligations in respect of the Facility
Letters of Credit (as defined in the Credit Agreement) and all
obligations arising under Article XV of the Credit Agreement.
LOAN DOCUMENT has the meaning assigned to such term in the Credit
Agreement.
SUBSIDIARY GUARANTOR has the meaning assigned to such term in the
Credit Agreement.
2. PLEDGE. As security for the payment of all Liabilities, the
Pledgor hereby pledges to the Administrative Agent for the benefit of the
Administrative Agent and the Lender Parties, and grants to the Administrative
Agent for the benefit of the Administrative Agent and the Lender Parties a
continuing security interest in, all of the following:
A. All of the shares of stock and other securities described in SCHEDULE
I hereto, all of the certificates and/or instruments representing such
shares of stock and other securities, and all cash, securities,
dividends, rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of such shares or other securities;
B. All additional shares of stock of any of the Issuers listed in
SCHEDULE I hereto at any time and from time to time acquired by the
Pledgor in any manner, all of the certificates representing such
additional shares, and all cash, securities, dividends, rights and
other property at any time and from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all
of such shares;
C. All other property hereafter delivered to the Administrative Agent in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such property,
and all cash, securities, interest, dividends, rights and other
property at any time and from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all
thereof; and
D. All products and proceeds of all of the foregoing.
All of the foregoing are herein collectively called the "Collateral".
The Pledgor agrees to deliver to the Administrative Agent, promptly upon
receipt and in due form for transfer (i.e., endorsed in blank or accompanied
by stock or bond powers executed in blank), any Collateral (other than
dividends which the Pledgor is entitled to receive and retain pursuant to
SECTION 5 hereof) which may at any time or from time to time come into the
possession or control of the Pledgor; and prior to the delivery thereof to
the Administrative Agent, such Collateral shall be held by the Pledgor
separate and apart from its other property and in express trust for the
Administrative Agent.
2
3. WARRANTIES; FURTHER ASSURANCES. The Pledgor warrants to the
Administrative Agent and each Lender Party that: (a) the Pledgor is (or at
the time of any future delivery, pledge, assignment or transfer thereof will
be) the legal and equitable owner of the Collateral free and clear of all
liens, security interests and encumbrances of every description whatsoever
other than the security interest created hereunder; (b) the pledge and
delivery of the Collateral pursuant to this Agreement will create a valid
perfected security interest in the Collateral in favor of the Administrative
Agent; (c) all shares of stock referred to in SCHEDULE I hereto are duly
authorized, validly issued, fully paid and non-assessable; (d) as to each
Issuer whose name appears in SCHEDULE I hereto, the Collateral represents on
the date hereof not less than the applicable percentage (as shown in SCHEDULE
I hereto) of the total shares of capital stock issued and outstanding of such
Issuer; and (e) the information contained in SCHEDULE I hereto is true and
accurate in all respects.
So long as any of the Liabilities shall be outstanding or any commitment
shall exist on the part of any Lender Party with respect to the creation of
any Liabilities, the Pledgor (i) shall not, without the express prior written
consent of the Administrative Agent, sell, assign, exchange, pledge or
otherwise transfer, encumber, or grant any option, warrant or other right to
purchase the stock of any Issuer which is pledged hereunder, or otherwise
diminish or impair any of its rights in, to or under any of the Collateral;
(ii) shall execute such Uniform Commercial Code financing statements and
other documents (and pay the costs of filing and recording or re-filing and
re-recording the same in all public offices reasonably deemed necessary or
appropriate by the Administrative Agent) and do such other acts and things,
all as the Administrative Agent may from time to time reasonably request, to
establish and maintain a valid, perfected security interest in the Collateral
(free of all other liens, claims and rights of third parties whatsoever) to
secure the performance and payment of the Liabilities; (iii) will execute and
deliver to the Administrative Agent such stock powers and similar documents
relating to the Collateral, satisfactory in form and substance to the
Administrative Agent, as the Administrative Agent may reasonably request; and
(iv) will furnish the Administrative Agent or any Lender Party such
information concerning the Collateral as the Administrative Agent or such
Lender Party may from time to time reasonably request, and will permit the
Administrative Agent or any Lender Party or any designee of the
Administrative Agent or any Lender Party, from time to time at reasonable
times and on reasonable notice (or at any time without notice during the
existence of a Default), to inspect, audit and make copies of and extracts
from all records and all other papers in the possession of the Pledgor which
pertain to the Collateral, and will, upon request of the Administrative Agent
at any time when a Default has occurred and is continuing, deliver to the
Administrative Agent all of such records and papers.
4. HOLDING IN NAME OF ADMINISTRATIVE AGENT, ETC. The Administrative
Agent may from time to time after the occurrence and during the continuance
of a Default, without notice to the Pledgor, take all or any of the following
actions: (a) transfer all or any part of the Collateral into the name of the
Administrative Agent or any nominee or sub-agent for the Administrative
Agent, with or without disclosing that such Collateral is subject to the lien
and security interest hereunder, (b) appoint one or more sub-agents or
nominees for the purpose of retaining physical possession of the Collateral,
(c) notify the parties obligated on any of the Collateral to make payment to
the Administrative Agent of any amounts due or to become due thereunder, (d)
endorse any checks, drafts or other writings in the name of the Pledgor to
allow collection of the Collateral, (e) enforce collection of any of the
Collateral by suit or otherwise, and surrender, release or exchange all or
any part thereof, or compromise or renew for any period (whether or not
longer than the original period) any obligations of any nature of any party
with respect thereto, and (f) take control of any proceeds of the Collateral.
3
5. VOTING RIGHTS, DIVIDENDS, ETC. (a) Notwithstanding certain
provisions of SECTION 4 hereof, so long as the Administrative Agent has not
given the notice referred to in PARAGRAPH (b) below:
A. The Pledgor shall be entitled to exercise any and all voting or
consensual rights and powers and stock purchase or subscription
rights (but any such exercise by the Pledgor of stock purchase or
subscription rights may be made only from funds of the Pledgor not
comprising part of the Collateral) relating or pertaining to the
Collateral or any part thereof for any purpose; PROVIDED, HOWEVER,
that the Pledgor agrees that it will not exercise any such right or
power in any manner which would have a material adverse effect on
the value of the Collateral or any part thereof.
B. The Pledgor shall be entitled to receive and retain any and all
lawful dividends payable in respect of the Collateral which are
paid in cash by any Issuer if such dividends are permitted by
the Credit Agreement, but all dividends and distributions in
respect of the Collateral or any part thereof made in shares of
stock or other property or representing any return of capital,
whether resulting from a subdivision, combination or
reclassification of Collateral or any part thereof or received in
exchange for Collateral or any part thereof or as a result of any
merger, consolidation, acquisition or other exchange of assets to
which any Issuer may be a party or otherwise or as a result of any
exercise of any stock purchase or subscription right, shall be and
become part of the Collateral hereunder and, if received by the
Pledgor, shall be forthwith delivered to the Administrative Agent
in due form for transfer (i.e., endorsed in blank or accompanied by
stock or bond powers executed in blank) to be held for the purposes
of this Agreement.
C. The Administrative Agent shall execute and deliver, or cause to be
executed and delivered, to the Pledgor all such proxies, powers of
attorney, dividend orders and other instruments as the Pledgor may
request for the purpose of enabling the Pledgor to exercise the
rights and powers which it is entitled to exercise pursuant to
CLAUSE (A) above and to receive the dividends which it is authorized
to retain pursuant to CLAUSE (B) above.
(b) Upon notice from the Administrative Agent during the existence of a
Default, and so long as the same shall be continuing, all rights and powers
which the Pledgor is entitled to exercise pursuant to SECTION 5(a)(A) hereof,
and all rights of the Pledgor to receive and retain dividends pursuant to
SECTION 5(a)(B) hereof, shall forthwith cease, and all such rights and powers
shall thereupon become vested in the Administrative Agent which shall have,
during the continuance of such Default, the sole and exclusive authority to
exercise such rights and powers and to receive such dividends. Any and all
money and other property paid over to or received by the Administrative Agent
pursuant to this PARAGRAPH (b) shall be retained by the Administrative Agent
as additional Collateral hereunder and applied in accordance with the
provisions hereof.
6. REMEDIES. Whenever a Default exists, the Administrative Agent may
exercise from time to time any rights and remedies available to it under the
Uniform Commercial Code as in effect in Illinois or otherwise available to
it. Without limiting the foregoing, whenever a Default exists the
Administrative Agent (a) may, to the fullest extent permitted by applicable
law, without notice, advertisement, hearing or process of law of any kind,
(i) sell any or all of the Collateral, free of all rights and claims of the
Pledgor therein and thereto, at any public or private sale or brokers' board
and (ii) bid for and purchase any or all of the Collateral at any such public
sale and (b) shall have the right, for and in the name, place and stead of
the Pledgor, to execute endorsements, assignments, stock powers and other
instruments of conveyance or
4
transfer with respect to all or any of the Collateral. The Pledgor hereby
expressly waives, to the fullest extent permitted by applicable law, any and
all notices, advertisements, hearings or process of law in connection with
the exercise by the Administrative Agent of any of its rights and remedies
during the continuance of a Default. Any notification of intended
disposition of any of the Collateral shall be deemed reasonably and properly
given if given at least ten (10) days before such disposition. Any proceeds
of any of the Collateral may be applied by the Administrative Agent to the
payment of expenses in connection with the Collateral, including, without
limitation, reasonable attorneys' fees and legal expenses, and any balance of
such proceeds may be applied by the Administrative Agent toward the payment
of such of the Liabilities, and in such order of application, as the
Administrative Agent may from time to time elect (and, after payment in full
of all Liabilities, any excess shall be delivered to the Pledgor or as a
court of competent jurisdiction shall direct).
The Administrative Agent is hereby authorized to comply with any
limitation or restriction in connection with any sale of Collateral as it may
be advised by counsel is necessary in order to (a) avoid any violation of
applicable law (including, without limitation, compliance with such
procedures as may restrict the number of prospective bidders or purchasers
and/or further restrict such prospective bidders or purchasers to persons or
entities who will represent and agree that they are purchasing for their own
account for investment and not with a view to the distribution or resale of
such Collateral) or (b) obtain any required approval of the sale or of the
purchase by any governmental regulatory authority or official, and the
Pledgor agrees that such compliance shall not result in such sale being
considered or deemed not to have been made in a commercially reasonable
manner and that the Administrative Agent shall not be liable or accountable
to the Pledgor for any discount allowed by reason of the fact that such
Collateral is sold in compliance with any such limitation or restriction.
7. GENERAL. The Administrative Agent shall be deemed to have
exercised reasonable care in the custody and preservation of the Collateral
if it takes such action for that purpose as the Pledgor shall request in
writing, but failure of the Administrative Agent to comply with any such
request shall not of itself be deemed a failure to exercise reasonable care,
and no failure of the Administrative Agent to preserve or protect any rights
with respect to the Collateral against prior parties, or to do any act with
respect to preservation of the Collateral not so requested by the Pledgor,
shall be deemed a failure to exercise reasonable care in the custody or
preservation of any Collateral.
No delay on the part of the Administrative Agent in exercising any
right, power or remedy shall operate as a waiver thereof, and no single or
partial exercise of any such right, power or remedy shall preclude any other
or further exercise thereof, or the exercise of any other right, power or
remedy. No amendment, modification or waiver of, or consent with respect to,
any provision of this Agreement shall be effective unless the same shall be
in writing and signed and delivered by the Administrative Agent, and then
such amendment, modification, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
All obligations of the Pledgor and all rights, powers and remedies of
the Administrative Agent and the Lender Parties expressed herein are in
addition to all other rights, powers and remedies possessed by them,
including, without limitation, those provided by applicable law or in any
other written instrument or agreement relating to any of the Liabilities or
any security therefor.
5
This Agreement has been delivered at Chicago, Illinois, and shall be
construed in accordance with and governed by the internal laws of the State
of Illinois. Wherever possible each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid
under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
This Agreement shall be binding upon the Pledgor and the Administrative
Agent and their respective successors and assigns, and shall inure to the
benefit of the Pledgor and the Administrative Agent and the successors and
assigns of the Administrative Agent.
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, and each such counterpart
shall be deemed an original but all such counterparts shall together
constitute but one and the same Agreement.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND
MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED,
HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER
PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS
OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND.
THE PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF
THE COURTS OF THE STATE OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION
AS SET FORTH ABOVE. THE PLEDGOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE
OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, TO THE ADDRESS OF THE PLEDGOR
SPECIFIED IN, OR PURSUANT TO, THE CREDIT AGREEMENT, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF ILLINOIS. THE PLEDGOR HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH OF THE PLEDGOR, THE ADMINISTRATIVE AGENT AND (BY ACCEPTING THE
BENEFITS HEREOF) EACH LENDER PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS
AGREEMENT, ANY NOTE, ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP
EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
6
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
as of the day and year first written above.
INTERIM SERVICES, INC.
Address:
By: __________________________
2050 Spectrum Boulevard Name: __________________________
Fort Lauderdale, FL 33309 Title: _______________________
Attention: Shannon Allen
Facsimile: (954) 489-6085
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
Address:
By: __________________________
One First National Plaza Name: __________________________
Chicago, Illinois 60670 Title: _______________________
Attention: __________
Facsimile: (312) 732-______
SCHEDULE I
TO PLEDGE AGREEMENT
STOCK
PLEDGED SHARES
NO. OF AS % OF TOTAL TOTAL SHARES
CERTIFICATE PLEDGED SHARES ISSUED OF ISSUER
ISSUER NO. SHARES AND OUTSTANDING OUTSTANDING
- ------ ----------- ------- --------------- ------------
8
EXHIBIT "H"
FORM OF
ASSUMPTION LETTER
[Date]
To the Administrative Agent and
the Lenders party to the Credit
Agreement referred to below
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Credit Agreement
dated as of January 15, 1997 among Interim Services Inc. (the "Borrower"),
the Borrowing Subsidiaries from time to time party thereto, the financial
institutions from time to time party thereto as Lenders, NationsBank, N.A.,
as Documentation Agent, and The First National Bank of Chicago, as
Administrative Agent (as amended, restated or otherwise modified from time to
time, the "Credit Agreement"). Terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The undersigned, ______________________ (the "Subsidiary"), a
_________________ corporation and a Subsidiary of the Borrower, proposes to
become a "Borrowing Subsidiary" under the Credit Agreement, and accordingly
hereby agrees that from the date hereof until the payment in full of the
principal of and interest on all Advances made to it under the Credit
Agreement and performance of all of its other obligations thereunder, and
termination of its status as a "Borrowing Subsidiary" as provided below, it
shall perform, comply with and be bound by each of the provisions of the
Credit Agreement which are stated to apply to a "Borrowing Subsidiary" or a
"Borrowing Entity". In addition, the Subsidiary hereby represents and
warrants that: (i) each of the representations and warranties set forth in
Article VI of the Credit Agreement is true and correct with respect to the
Subsidiary as of the date hereof and (ii) it has heretofore received a true
and correct copy of the Credit Agreement (including any amendments thereto,
modifications thereof or waivers thereunder) as in effect on the date hereof.
So long as the principal of and interest on all Advances made to the
Subsidiary under the Credit Agreement shall have been paid in full and all
other obligations of the Subsidiary under the Credit Agreement shall have
been fully performed, the Subsidiary may, by not less than five Business
Days' prior notice to the Administrative Agent, terminate its status as a
"Borrowing Subsidiary."
Without limiting the provisions of Section 10.14 of the Credit
Agreement, the Subsidiary irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any United States
federal or Illinois state court sitting in Chicago, Illinois, and any
appellate court from any thereof, in any action or proceeding arising out of
or relating to this Assumption Letter, the Credit Agreement or any other Loan
Document or for recognition or enforcement of any judgment relating thereto,
and the Subsidiary irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be
heard and determined in any such court. The Subsidiary agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Assumption Letter shall affect any
right that any Lender or the Administrative Agent may otherwise have to bring
any action or proceeding relating to this Assumption Letter, the Credit
Agreement or any other Loan Document in the courts of any jurisdiction.
This Assumption Letter shall be governed by, and construed in accordance
with, the internal laws (and not the law of conflicts) of the State of
Illinois, United States of America, but giving effect the federal laws of the
United States applicable to national banks.
IN WITNESS WHEREOF, the Subsidiary has duly executed and delivered this
Assumption Letter as of the date and year first above written.
[NAME OF BORROWING SUBSIDIARY]
By________________
Name:
Title:
Consented to:
INTERIM SERVICES INC.
By___________________
Name:
Title:
2
EXHIBIT "I"
FORM OF LETTER OF CREDIT REQUEST
The First National Bank of Chicago
One First National Plaza
Suite ______
Chicago, Illinois 60670
Attention:__________________________
____________________________________
Phone: (312)________________________
Fax: (312)________________________
The Undersigned, Interim Services Inc. (the "Borrower"), refers to the
Second Amended and Restated Credit Agreement dated as of January 15, 1997 (as
amended, modified, extended or restated from time to time, the "Credit
Agreement"), among the Borrower, various Borrowing Subsidiaries thereof, the
Lenders party thereto, NationsBank, N.A., as Documentation Agent, and The
First National Bank of Chicago, as Administrative Agent.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement.
The Borrower hereby gives you notice pursuant to Section 2.17.3(a) of
the Credit Agreement that it requests a Facility Letter of Credit, and in
that connection sets forth below the terms on which such Facility Letter of
Credit is to be issued:
(A) Stated Amount (not less than $500,000)___________________________________
(B) Issuance Date (must be a Business Day)___________________________________
(C) Expiration Date (see Section 2.17.2(d))__________________________________
(D) Purpose__________________________________________________________________
(E) Beneficiary______________________________________________________________
The delivery of this Letter of Credit Request is irrevocable and shall
be delivered to the Issuer and Agent no later than 2:00 p.m. (Chicago time)
at least five Business Days before the Issuance Date. This Letter of Credit
Request (whether given in writing or telephonically) shall also constitute a
representation and warranty as more fully described in Section 4.3 of the
Credit Agreement.
Very truly yours,
INTERIM SERVICES INC.
By:_____________________________________________
Title:__________________________________________
2
SCHEDULE "1"
COMMITMENTS AND PERCENTAGES
Lender Commitment Percentage
- ------ ----------- ----------
THE FIRST NATIONAL BANK OF CHICAGO $40,000,000 20.0%
NATIONSBANK, N.A. $35,000,000 17.5%
BANK OF AMERICA ILLINOIS $30,000,000 15.0%
THE FUJI BANK, LIMITED $30,000,000 15.0%
ABN AMRO BANK N.V. $25,000,000 12.5%
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK $25,000,000 12.5%
BARNETT BANK, N.A. $15,000,000 7.5%
- ------------------ ------------ ----------
TOTAL $200,000,000 100.0%
SCHEDULE "2"
SCHEDULE "3"
LIENS
(See Sections 5.14 and 7.15)
No liens, except as permitted by Section 7.15
SCHEDULE "4"
SCHEDULE "5"
ASSOCIATED COSTS RATE
1. For the purposes of this Agreement, the cost of compliance with existing
requirements of the Bank of England in respect of Advances denominated in
British pounds sterling will be calculated by the Administrative Agent in
relation to each Advance on the basis of rates existing on the first day of
the Interest Period in respect of such Advance and, if such Interest Period
exceeds three months, at three calendar monthly intervals from the first day
of such Interest Period during its duration in accordance with the following
formula:
AB + C(B - E) + D(B - F) = ___ PER CENT, PER ANNUM
100 - (A + D)
Where:
A is the percentage of eligible liabilities which the Administrative
Agent is from time to time required to maintain as an interest free
cash deposit with the Bank of England to comply with cash ratio
requirements.
B is the percentage rate per annum at which sterling deposits are
offered by the Administrative Agent, in accordance with its normal
practice, for a period equal to (i) the Interest Period (or, as the
case may be, remainder of such Interest Period) in respect of the
relevant Advance or (ii) three months, whichever is the shorter, to a
leading bank in the London Interbank Market at or about 11:00 a.m. in
a sum approximately equal to the amount of such Advance.
C is the percentage of eligible liabilities which the Administrative
Agent is from time to time required by the Bank of England to maintain
as secured money with members of the London Discount Market
Association ("LDMA") and/or as secured call money with money brokers
and gilt edged market makers.
D is the percentage of eligible liabilities which the Administrative
Agent is required from time to time to maintain as interest bearing
special deposits with the Bank of England.
E is the percentage rate per annum at which members of the LDMA are
offered sterling deposits in a sum approximately equal to the amount
of the relevant Advance as a callable fixture from the Administrative
Agent for such period as determined in accordance with B above at or
about 11:00 a.m.
F is the percentage rate per annum payable by the Bank of England to the
Administrative Agent on interest bearing special deposits.
2. For the purposes of this Schedule "eligible liabilities" and "special
deposits" shall bear the meanings ascribed to them from time to time by the
Bank of England.
3. The percentages used in A, C and D above shall be those required to be
maintained on the first day of the relevant period as determined in
accordance with B above.
4. In application of the above formula, A, B, C, D, E and F will be included
in the formula as figures and not as percentages e.g., if A is 0.5 per cent,
and B is 12 per cent, AB will be calculated as 0.5 x 12 and not as 0.5 per
cent. x 12 per cent.
5. Calculations will be made on the basis of a 365 day year (or, if market
practice differs, in accordance with market practice).
6. A negative result obtained by subtracting E from B or F from B shall be
taken as zero.
7. Additional amounts calculated in accordance with this Schedule are
payable on the last day of the Interest Period to which they relate.
8. The determination of the Associated Costs Rate in relation to any period
shall, in the absence of manifest error, be conclusive and binding on all of
the parties hereto.
9. The Administrative Agent may from time to time, after consultation with
the Borrower and the Lenders, determine and notify to all the parties hereto
any amendments or variations which are required to be made to the formula set
out above in order to comply with any requirements from time to time imposed
by the Bank of England in relation to Advances denominated in sterling
(including without limitation, any requirements relating to sterling primary
liquidity) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all of the parties hereto.
2