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EXHIBI 10.36
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FEDERAL-MOGUL CORPORATION
THE FOREIGN SUBSIDIARY BORROWERS
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$2,750,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF DECEMBER 18, 1997
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THE CHASE MANHATTAN BANK,
as Administrative Agent
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS......................................................................................... 2
SECTION 1.01. Defined Terms................................................................................ 2
SECTION 1.02. Other Definitional Provisions................................................................ 32
ARTICLE II. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS AND SWING LINE COMMITMENT......................... 33
SECTION 2.01. Revolving Credit Commitments................................................................. 33
SECTION 2.02. Repayment of Revolving Credit Loans; Evidence of Debt........................................ 33
SECTION 2.03. Procedure for Revolving Credit Borrowing..................................................... 34
SECTION 2.04. Termination or Reduction of Revolving Credit Commitments..................................... 34
SECTION 2.05. Borrowings of Revolving Credit Loans and Refunding of Loans.................................. 35
SECTION 2.06. Swing Line Commitments....................................................................... 36
SECTION 2.07. Procedure for Swing Line Borrowings; Interest Rate........................................... 37
SECTION 2.08. Repayment of Swing Line Loans; Evidence of Debt.............................................. 37
SECTION 2.09. Refunding of Swing Line Borrowings........................................................... 38
SECTION 2.10. Participating Interests...................................................................... 38
ARTICLE III. AMOUNT AND TERMS OF TERM LOAN COMMITMENTS......................................................... 39
SECTION 3.01. Term Loan Commitments........................................................................ 39
SECTION 3.02. Repayment of Term Loans; Evidence of Debt.................................................... 39
SECTION 3.03. Procedure for Term Loan Borrowing............................................................ 42
ARTICLE IV. AMOUNT AND TERMS OF MULTICURRENCY COMMITMENTS...................................................... 42
SECTION 4.01. Multicurrency Commitments.................................................................... 42
SECTION 4.02. Repayment of Multicurrency Loans; Evidence of Debt........................................... 42
SECTION 4.03. Procedure for Multicurrency Borrowing........................................................ 43
SECTION 4.04. Termination or Reduction of Multicurrency Commitments........................................ 43
ARTICLE V. LOCAL CURRENCY FACILITIES........................................................................... 44
SECTION 5.01. Terms of Local Currency Facilities........................................................... 44
SECTION 5.02. Reporting of Local Currency Outstandings..................................................... 45
ARTICLE VI. GENERAL PROVISIONS APPLICABLE TO THE LOANS ........................................................ 46
SECTION 6.01. Interest Rates and Payment Dates............................................................. 46
SECTION 6.02. Conversion and Continuation Options.......................................................... 46
SECTION 6.03. Minimum Amounts of Tranches.................................................................. 47
SECTION 6.04. Optional and Mandatory Prepayments........................................................... 47
SECTION 6.05. Facility Fees; Commitment Fee; Other Fees.................................................... 51
SECTION 6.06. Computation of Interest and Fees............................................................. 52
SECTION 6.07. Inability to Determine Interest Rate......................................................... 53
SECTION 6.08. Pro Rata Treatment and Payments.............................................................. 53
SECTION 6.09. Illegality................................................................................... 56
SECTION 6.10. Requirements of Law.......................................................................... 56
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SECTION 6.11. Taxes........................................................................................ 58
SECTION 6.12. Indemnity.................................................................................... 60
SECTION 6.13. Use of Proceeds.............................................................................. 61
SECTION 6.14. Change of Lending Office; Replacement of Lenders............................................. 61
ARTICLE VII. REPRESENTATIONS AND WARRANTIES.................................................................... 62
SECTION 7.01. Financial Condition.......................................................................... 62
SECTION 7.02. No Change.................................................................................... 63
SECTION 7.03. Corporate Existence; Compliance with Law..................................................... 63
SECTION 7.04. Corporate Power; Authorization; Enforceable Obligations...................................... 64
SECTION 7.05. No Legal Bar................................................................................. 64
SECTION 7.06. No Material Litigation....................................................................... 64
SECTION 7.07. No Default................................................................................... 65
SECTION 7.08. Ownership of Property; Liens................................................................. 65
SECTION 7.09. Intellectual Property........................................................................ 65
SECTION 7.10. No Burdensome Restrictions................................................................... 65
SECTION 7.11. Taxes........................................................................................ 65
SECTION 7.12. Federal Regulations.......................................................................... 65
SECTION 7.13. ERISA........................................................................................ 66
SECTION 7.14. Investment Company Act; Other Regulations.................................................... 66
SECTION 7.15. Subsidiaries................................................................................. 66
SECTION 7.16. Environmental Matters........................................................................ 66
SECTION 7.17. Accuracy and Completeness of Information..................................................... 67
SECTION 7.18. Other Unsecured Indebtedness................................................................. 68
SECTION 7.19. Foreign Subsidiary Borrowers................................................................. 68
SECTION 7.20. Security Documents........................................................................... 68
SECTION 7.21. Solvency..................................................................................... 68
ARTICLE VIII. CONDITIONS PRECEDENT............................................................................. 69
SECTION 8.01. Conditions to Effective Date................................................................. 69
SECTION 8.02. Conditions to Initial Revolving Credit Funding Date.......................................... 70
SECTION 8.03. Conditions to Initial Term Loan Funding Date................................................. 71
SECTION 8.04. Conditions to each Term Loan after Initial Term Loan Funding Date............................ 73
SECTION 8.05. Conditions to each Revolving Credit and Multicurrency Loan after Initial Revolving Credit
Funding Date................................................................................. 73
ARTICLE IX. AFFIRMATIVE COVENANTS.............................................................................. 75
SECTION 9.01. Financial Statements......................................................................... 75
SECTION 9.02. Certificates; Other Information.............................................................. 76
SECTION 9.03. Accrual of Liabilities; Payment of Obligations............................................... 76
SECTION 9.04. Maintenance of Corporate Existence; Maintenance of Properties................................ 77
SECTION 9.05. Insurance.................................................................................... 77
SECTION 9.06. Notices...................................................................................... 77
SECTION 9.07. Compliance with Contractual Obligations and Laws............................................. 77
SECTION 9.08. Access to Books and Inspection............................................................... 78
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SECTION 9.09. Use of Proceeds.............................................................................. 78
SECTION 9.10. Environmental Laws........................................................................... 78
SECTION 9.11. Additional Collateral and Guaranties......................................................... 79
SECTION 9.12. Interest Rate Protection..................................................................... 80
SECTION 9.13. Consummation of Compulsory Acquisition....................................................... 80
SECTION 9.14. Capital Markets Transaction.................................................................. 80
SECTION 9.15. U.K. Acquisition I Corporate Documents....................................................... 80
ARTICLE X. NEGATIVE COVENANTS.................................................................................. 81
SECTION 10.01. Cash Flow Coverage.......................................................................... 81
SECTION 10.02. Consolidated Leverage Ratio................................................................. 81
SECTION 10.03. Maintenance of Consolidated Net Worth....................................................... 82
SECTION 10.04. Limitation on Liens......................................................................... 82
SECTION 10.05. Limitation on Indebtedness.................................................................. 84
SECTION 10.06. Limitation on Guaranties.................................................................... 85
SECTION 10.07. Limitation on Fundamental Changes........................................................... 85
SECTION 10.08. Limitation on Sale of Assets................................................................ 86
SECTION 10.09. Limitation on Restricted Payments........................................................... 86
SECTION 10.10. Restrictions on Special Purpose Subsidiaries................................................ 87
SECTION 10.11. Limitation on Investments, Loans and Advances............................................... 88
SECTION 10.12. Limitation on Optional Payments and Modifications of Debt Instruments, etc. ................ 89
SECTION 10.13. Limitation on Sales and Leasebacks.......................................................... 89
SECTION 10.14. Limitation on Restrictions on Subsidiary Distributions...................................... 89
SECTION 10.15. Multiemployer Plans......................................................................... 90
SECTION 10.16. Limitation on More Restrictive Covenants.................................................... 90
SECTION 10.17. Affiliates.................................................................................. 90
ARTICLE XI. GUARANTEE.......................................................................................... 90
SECTION 11.01. Guarantee................................................................................... 90
SECTION 11.02. Right of Set-off............................................................................ 91
SECTION 11.03. No Subrogation.............................................................................. 91
SECTION 11.04. Amendments, etc. with respect to the Obligations; Waiver of Rights.......................... 92
SECTION 11.05. Guarantee Absolute and Unconditional........................................................ 92
SECTION 11.06. Reinstatement............................................................................... 93
SECTION 11.07. Payments.................................................................................... 94
ARTICLE XII. EVENTS OF DEFAULT................................................................................. 94
ARTICLE XIII. THE ADMINISTRATIVE AGENT......................................................................... 97
SECTION 13.01. Appointment................................................................................. 97
SECTION 13.02. Delegation of Duties........................................................................ 97
SECTION 13.03. Exculpatory Provisions...................................................................... 97
SECTION 13.04. Reliance by Administrative Agent............................................................ 97
SECTION 13.05. Notice of Default........................................................................... 98
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SECTION 13.06. Non-Reliance on Agents and Other Lenders.................................................... 98
SECTION 13.07. Indemnification............................................................................. 99
SECTION 13.08. Administrative Agent in Its Individual Capacity............................................. 99
SECTION 13.09. Successor Administrative Agent.............................................................. 99
SECTION 13.10. Authorization to Release Liens..............................................................100
ARTICLE XIV. MISCELLANEOUS.....................................................................................100
SECTION 14.01. Amendments and Waivers......................................................................100
SECTION 14.02. Notices.....................................................................................101
SECTION 14.03. No Waiver; Cumulative Remedies..............................................................103
SECTION 14.04. Survival of Representations and Warranties..................................................103
SECTION 14.05. Payment of Expenses and Taxes...............................................................103
SECTION 14.06. Successors and Assigns; Participations and Assignments......................................104
SECTION 14.07. Adjustments; Set-Off........................................................................106
SECTION 14.08. Loan Conversion/Participations..............................................................107
SECTION 14.09. Counterparts................................................................................108
SECTION 14.10. Severability................................................................................108
SECTION 14.11. Integration.................................................................................108
SECTION 14.12. GOVERNING LAW...............................................................................108
SECTION 14.13. Submission To Jurisdiction; Waivers.........................................................109
SECTION 14.14. Acknowledgements............................................................................110
SECTION 14.15. WAIVERS OF JURY TRIAL.......................................................................110
SECTION 14.16. Power of Attorney...........................................................................110
SECTION 14.17. Release of Collateral.......................................................................110
SECTION 14.18. Judgment....................................................................................111
SECTION 14.19. Confidentiality.............................................................................111
SECTION 14.20. Unification of Certain Currencies...........................................................111
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ANNEXES:
Annex A Pricing Grid
Annex B Alternative Covenants
SCHEDULES:
I Commitments; Addresses
II Subsidiaries; Foreign Subsidiary Borrowers
III Existing Liens
IV Existing Indebtedness and Existing Guaranties
V Information Concerning Local Currency Loans
6.13 Use of Proceeds
7.20 Perfection Actions
10.8 Excluded Assets
EXHIBITS:
A-1 Form of Revolving Credit Note
A-2 Form of Term Note
B Form of Domestic Subsidiary Guarantee
C Form of Security Agreement
D-1 Form of Domestic Pledge Agreement
D-2 Form of Trust Agreement
E Form of Joinder Agreement
F Form of Responsible Officer's Certificate
G Form of Assignment and Acceptance
H-1 Form of Opinion of Diane L. Kaye, Esq., General Counsel of the
Company (Effective Date)
H-2 Form of Opinion of Cleary Gottlieb Steen & Hamilton (Effective Date)
H-3 Form of Opinion of Diane L. Kaye, Esq., General Counsel of the
Company (Initial Revolving Credit Funding Date)
H-4 Form of Opinion of Cleary Gottlieb Steen & Hamilton (Initial
Revolving Credit Funding Date)
H-5 Form of Opinion of Local Counsel (Initial Revolving Credit Funding
Date)
I Matters to be Covered by Foreign Subsidiary Opinion
J Form of Local Currency Facility Addendum
K Form of Prepayment Option Notice
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CREDIT AGREEMENT, dated as of December 18, 1997, among
FEDERAL-MOGUL CORPORATION, a Michigan corporation (the "Company"), each FOREIGN
SUBSIDIARY BORROWER (as hereinafter defined) (together with the Company, the
"Borrowers"), the several banks and other financial institutions from time to
time parties hereto (the "Lenders") and THE CHASE MANHATTAN BANK, a New York
banking corporation (as hereinafter defined, the "Administrative Agent"), as
administrative agent for the Lenders hereunder.
W I T N E S S E T H:
WHEREAS, the Company is party to the Revolving Credit, Competitive
Advance and Multicurrency Facility Agreement, dated as of June 16, 1997 (the
"Existing Credit Agreement"), with the several banks and other financial
institutions party thereto and The Chase Manhattan Bank, as the administrative
agent;
WHEREAS, the Company, through an indirect, wholly owned Subsidiary
organized under the laws of England ("U.K. Acquisition II"), intends to acquire
(the "Acquisition") T & N PLC, a company organized under the laws of England
(the "Target");
WHEREAS, the Acquisition will be accomplished by means of a tender
offer (the "Tender Offer") to be made by U.K. Acquisition II for up to 100% (but
in any event not less than 90%) (the "Minimum Number of Shares") of the issued
and outstanding ordinary shares, pound 1 par value (the "Target Shares"), of
the Target, and/or Options related thereto followed by a compulsory acquisition
of any remaining such shares not acquired in the Tender Offer;
WHEREAS, in order to finance, in part, the Acquisition, to
refinance the Existing Credit Agreement and other existing indebtedness of the
Company and the Target, to pay fees and expenses in connection with the
Acquisition and the financing thereof, and to provide for the working capital
and general corporate needs of the Company and its Subsidiaries prior to and
following the Acquisition, the Company, The Chase Manhattan Bank, as Lender, and
the Administrative Agent have entered into the Credit Agreement, dated as of
September 26, 1997 (the "September 26, 1997 Credit Agreement"), which was
amended and restated by the Amended and Restated Credit Agreement, dated as of
October 15, 1997 (the "Amended and Restated Credit Agreement");
WHEREAS, the Acquisition will be financed, in part, with the
proceeds of senior subordinated loans in the aggregate principal amount of
$500,000,000 to be borrowed by the Company (the "Senior Subordinated Bridge
Loans");
WHEREAS, the Company, the Lenders and the Administrative Agent
desire to amend and restate the Amended and Restated Credit Agreement upon and
subject to the terms and conditions hereinafter set forth; and
WHEREAS, in order to effect the Acquisition, proceeds of Loans made
under this Agreement and proceeds of the Senior Subordinated Bridge Loans will
be invested indirectly
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through wholly owned Subsidiaries, in U.K. Acquisition II in the manner
described in Schedule 6.13;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree that on the Effective Date
the Amended and Restated Agreement shall be further amended and restated in its
entirety as follows:
ARTICLE I. DEFINITIONS
SECTION I.01. Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"Accumulated Funding Deficiency": any accumulated funding
deficiency within the meaning of Section 412 of the Code or Section 302 of
ERISA.
"Acquisition": as defined in the recitals hereto.
"Adjusted Aggregate Committed Outstandings": with respect to each
Revolving Credit Lender, the Aggregate Committed Outstandings of such
Lender, plus the amount of any participating interests purchased by such
Lender pursuant to Section 14.08, minus the amount of any participating
interests sold by such Lender pursuant to Section 14.08.
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agent": Chase, together with its affiliates, as
arranger of the Commitments and as administrative agent for the Lenders under
this Agreement or any successor thereto appointed pursuant to Section 13.09.
"Affiliate": of any Person, shall mean any Person that, directly or
indirectly, controls or is controlled by or is under common control with
such Person, or in the case of any Lender which is an investment fund, (i)
the investment advisor thereof and (ii) any other investment fund having the
same investment advisor. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
"Aggregate Available Multicurrency Commitments": as at any date of
determination with respect to all Multicurrency Lenders, an amount in U.S.
Dollars equal to the Available Multicurrency Commitments of all Multicurrency
Lenders on such date.
"Aggregate Available Revolving Credit Commitments": as at any date
of determination with respect to all Revolving Credit Lenders, an amount in U.S.
Dollars equal to the Available Revolving Credit Commitments of all Revolving
Credit Lenders on such date.
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"Aggregate Committed Outstandings": as at any date of determination
with respect to any Revolving Credit Lender, an amount in U.S. Dollars equal
to the sum of (a) the Aggregate Revolving Credit Outstandings of such
Revolving Credit Lender on such date, (b) the U.S. Dollar Equivalent of the
Aggregate Multicurrency Outstandings of such Revolving Credit Lender on such
date and (c) the U.S. Dollar Equivalent of the Aggregate Local Currency
Outstandings of such Revolving Credit Lender on such date.
"Aggregate Local Currency Outstandings": as at any date of
determination with respect to any Revolving Credit Lender, an amount in the
applicable Local Currencies equal to the aggregate unpaid principal amount of
such Revolving Credit Lender's Local Currency Loans.
"Aggregate Multicurrency Outstandings": as at any date of
determination with respect to any Revolving Credit Lender, an amount in the
applicable Available Foreign Currencies equal to the aggregate unpaid principal
amount of such Revolving Credit Lender's Multicurrency Loans.
"Aggregate Revolving Credit Commitments": the aggregate amount of
the Revolving Credit Commitments of all of the Revolving Credit Lenders.
"Aggregate Revolving Credit Outstandings": as at any date of
determination with respect to any Revolving Credit Lender, an amount equal
to the sum of (a) the aggregate unpaid principal amount of such Revolving
Credit Lender's Revolving Credit Loans on such date and (b) such Revolving
Credit Lender's Revolving Credit Commitment Percentage of the aggregate
unpaid principal amount of all Swing Line Loans on such date.
"Agreement": this Second Amended and Restated Credit Agreement, as
the same may be amended, supplemented or otherwise modified from time to time.
"Agreement Currency": as defined in Section 14.18(b).
"Amended and Restated Credit Agreement": as defined in the
recitals hereto.
"Applicable Margin": for each Type and Class of Loan, the rate per
annum set forth under the relevant column heading below:
Base Eurodollar Loans/
Rate Loans Multicurrency Loans
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Revolving Credit Loans .50% 1.50%
Multicurrency Loans N.A. 1.50%
Tranche A Term Loans 1.00% 2.00%
Tranche B Term Loans 1.25% 2.25%
Interim Term Loans 1.00% 2.00%
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;provided, that on and after the first Adjustment Date occurring after
the Interim Term Loans have been repaid in full, the Applicable Margin
with respect to Revolving Credit Loans, Multicurrency Loans, Tranche A
Term Loans and Tranche B Term Loans will be determined pursuant to the
Pricing Grid.
"Asset Sale": any Disposition of Property or series of related
Dispositions of Property (excluding any such Disposition permitted by
clauses (b), (c), (d) and (e) of Section 10.08 as in effect prior to
the Covenant Transition Date, and excluding any transfer of assets by
the Company or any Subsidiary to the Company or any Subsidiary) which
yields gross proceeds to the Company or any of its Subsidiaries (valued
at the initial principal amount thereof in the case of non-cash
proceeds consisting of notes or other debt securities and valued at
fair market value in the case of other non-cash proceeds) in excess of
$5,000,000.
"Asset Sale Prepayment Percentage": 100%; provided, that the
Asset Sale Prepayment Percentage shall be (a) 75% with respect to any
Asset Sale consummated when the Consolidated Leverage Ratio as of the
end of the most recently ended fiscal quarter was greater than or equal
to 3.50 to 1.00 but less than 4.00 to 1.00, (b) 50% with respect to any
Asset Sale consummated when the Consolidated Leverage Ratio as of the
end of the most recently completed fiscal quarter was greater than or
equal to 3.0 to 1.0 but less than 3.5 to 1.0 and (c) 0%, with respect
to any Asset Sale consummated when the Consolidated Leverage Ratio as
of the end of the most recently completed fiscal quarter was less than
3.0 to 1.0.
"Assignee": as defined in Section 14.06(c).
"Available Foreign Currencies": Deutsche Marks, Pounds
Sterling, French Francs, Italian Lira, Australian Dollars and any other
available and freely-convertible non-U.S. Dollar currency selected by
the Company and approved by the Administrative Agent and the Majority
Multicurrency Lenders.
"Available Multicurrency Commitment": as at any date of
determination with respect to any Multicurrency Lender (after giving
effect to the making and payment of any Revolving Credit Loans required
on such date pursuant to Section 2.05), an amount equal to the lesser
of (a) the excess, if any, of (i) such Multicurrency Lender's
Multicurrency Commitment in effect on such date over (ii) the U.S.
Dollar Equivalent of the Aggregate Multicurrency Outstandings of such
Multicurrency Lender on such date and (b) the excess, if any, of (i)
the amount of such Lender's Revolving Credit Commitment in effect on
such date over (ii) the Aggregate Committed Outstandings of such Lender
on such date.
"Available Revolving Credit Commitment": as at any date of
determination with respect to any Revolving Credit Lender (after giving
effect to the making and payment of any Revolving Credit Loans required
on such date pursuant to Section 2.05), an amount equal to the excess,
if any, of (a) the amount of such Revolving Credit Lender's Revolving
Credit Commitment in effect on such date over (b) the Aggregate
Committed
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Outstandings of such Revolving Credit Lender on such date.
"Base Rate": for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. If for any reason the
Administrative Agent shall have determined (which determination shall
be conclusive absent manifest error) that it is unable to ascertain the
Federal Funds Effective Rate for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient quotations in
accordance with the terms thereof, the Base Rate shall be determined
without regard to clause (b) of the first sentence of this definition
until the circumstances giving rise to such inability no longer exist.
Any change in the Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective on the effective day of
such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"Base Rate Loans": Loans the rate of interest applicable to
which is based upon the Base Rate.
"Benefitted Lender": as defined in Section 14.07.
"Board": the Board of Governors of the Federal Reserve System
(or any successor thereto).
"Borrowers": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in a notice
pursuant to Section 2.03, 2.07, 3.03 or 4.03 as a date on which a
Borrower requests the Lenders to make Loans hereunder or, with respect
to Local Currency Loans, the date on which a Local Currency Borrower
requests Local Currency Lenders to make Local Currency Loans to such
Local Currency Borrower pursuant to the Local Currency Facility to
which such Local Currency Borrower and Local Currency Lenders are
parties.
"Business": as defined in Section 7.16.
"Business Day": (a) when such term is used in respect of a day
on which a Loan denominated in an Available Foreign Currency or Local
Currency is to be made, a payment is to be made in respect of such
Loan, an interest rate or Exchange Rate is to be set in respect of such
Available Foreign Currency or Local Currency or any other dealing in
such Available Foreign Currency or Local Currency is to be carried out
pursuant to this Agreement, such term shall mean a London Banking Day
which is also a day on which banks are open for general banking
business in the city which is the principal financial center of the
country of issuance of such Available Foreign Currency or Local
Currency, (b) when such term is used in respect of a day on which a
Eurodollar Loan is to be made, an interest rate is to be set in respect
thereof or any payment is to be made in respect thereof, such term
shall mean a London Banking Day, and (c) when such term is used in any
context in this Agreement (including as described in the foregoing
clauses (a) and
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(b)), such term shall mean a day which, in addition to complying with
any applicable requirements set forth in the foregoing clauses (a) and
(b), is a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to
close.
"Capital Expenditures": all expenditures of the Company and
its Subsidiaries on a consolidated basis for any fixed assets or
improvements, or for replacements, substitutions or additions thereto,
which have a useful life of more than one year, including, but not
limited to, the direct or indirect acquisition of such assets by way of
increased product or service charges, offset items or otherwise,
including all expenditures under capital leases, all determined in
accordance with GAAP.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
other than a corporation and any and all warrants or options to
purchase any of the foregoing. For all purposes of this Agreement,
"Capital Stock" shall include the 10,000,000 7% Trust Convertible
Preferred Securities (Liquidation Amount $50 Per Convertible Preferred
Security) issued by Federal-Mogul Financing Trust and guaranteed by the
Company upon terms described in the Offering Memorandum issued November
24, 1997 and any other substantially equivalent securities hereafter
issued by a financing vehicle for the benefit of the Company, and such
Trust Convertible Securities and substantially equivalent securities
will be treated as preferred stock of the Company and the Company shall
not be deemed to have issued any Indebtedness or Guarantee in
connection therewith.
"Cash Equivalents": (a) securities with maturities of one year
or less from the date of acquisition issued or fully guaranteed or
insured by the United States Government or any agency thereof, (b)
certificates of deposit and eurodollar time deposits with maturities of
one year or less from the date of acquisition and overnight bank
deposits of any Lender or of any commercial bank having capital and
surplus in excess of $500,000,000, (c) repurchase obligations of any
Lender or of any commercial bank satisfying the requirements of clause
(b) of this definition, having a term of not more than 30 days with
respect to securities issued or fully guaranteed or insured by the
United States Government, (d) commercial paper of a domestic issuer
rated at least A-2 by S&P or P-2 by Moody's, (e) securities with
maturities of one year or less from the date of acquisition issued or
fully guaranteed by any state, commonwealth or territory of the United
States, by any political subdivision or taxing authority of any such
state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may
be) are rated at least A by S&P or A by Moody's (or an equivalent
rating for such foreign securities), (f) securities with maturities of
one year or less from the date of acquisition backed by standby letters
of credit issued by any Lender or any commercial bank satisfying the
requirements of clause (b) of this definition or (g) shares of money
market mutual or similar funds which invest exclusively in assets
satisfying the requirements of clauses (a) through (f) of this
definition, provided that, in the case of any investment by a Foreign
Subsidiary, "Cash Equivalents" shall also include: (i) direct
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obligations of the sovereign nation (or any agency thereof) in which
such Foreign Subsidiary is organized and is conducting business or in
obligations fully and unconditionally guaranteed by such sovereign
nation (or any agency thereof), (ii) investments of the type and
maturity described in clauses (a) through (f) above of foreign
obligors, which Investments or obligors (or the parents of such
obligors) have ratings described in such clauses or equivalent ratings
from comparable foreign rating agencies and (iii) shares of money
market mutual or similar funds which invest exclusively in assets
otherwise satisfying the requirements of this definition (including
this proviso).
"Cash Flow Coverage": for any period, the ratio of (a)
Consolidated EBITDA less Capital Expenditures, divided by (b) (i)
Interest Expenses plus (ii) dividends paid on any class of the
Company's Capital Stock in each case determined for such period.
"Change of Control": (a) any "person" or "group" within the
meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act
of 1934, as amended, shall become the "beneficial owner" (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of
more than 50% of the then outstanding voting stock of the Company other
than in a transaction having the approval of the board of directors of
the Company at least a majority of which members are Continuing
Directors or (b) Continuing Directors shall cease to constitute at
least a majority of the directors constituting the board of directors
of the Company.
"Chase": The Chase Manhattan Bank, a New York banking
corporation.
"City Code": the City Code on Take-overs and Mergers, as
published by the Panel and as amended from time to time.
"Class": the collective reference to Loans outstanding under a
single Facility.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral": all Property of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any
Security Document.
"Collateral Release Date": the date of receipt by the
Administrative Agent of a written request by the Company to release the
Collateral following either (i) the date on which there is in effect
either (A) an S&P Bond Rating of at least BBB- or equivalent or (B) a
Moody's Bond Rating of at least Baa3 or equivalent or (ii) the date on
which the Consolidated Leverage Ratio is less than or equal to 2.0 to
1.0.
"Commitment": as to any Lender, the sum of the Tranche A Term
Loan Commitment, the Tranche B Term Loan Commitment, the Interim Term
Loan Commitment and the Revolving Credit Commitment (and, without
duplication, the Multicurrency Commitment) of such Lender.
"Committed Outstandings Percentage": on any date with respect
to any Lender,
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the percentage which the Adjusted Aggregate Committed
Outstandings of such Lender constitutes of the Adjusted Aggregate
Committed Outstandings of all Lenders.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within the
meaning of Section 4001 of ERISA or is part of a group which includes
the Company and which is treated as a single employer under Section 414
of the Code.
"Company": as defined in the preamble hereto.
"Company Guaranty: the guarantee contained in Article 11.
"Compulsory Acquisition": the acquisition by U.K. Acquisition
II, pursuant to Sections 428 to 430F of the Companies Act 1985, of
England, of all of the issued and outstanding Target Shares not then
owned by U.K. Acquisition II.
"Consolidated Current Assets": at any date, all amounts (other
than cash and Cash Equivalents) which would, in conformity with GAAP,
be set forth opposite the caption "total current assets" (or any like
caption) on a consolidated balance sheet of the Company and its
Subsidiaries at such date.
"Consolidated Current Liabilities": at any date, all amounts
which would, in conformity with GAAP, be set forth opposite the caption
"total current liabilities" (or any like caption) on a consolidated
balance sheet of the Company and its Subsidiaries at such date, but
excluding (a) the current portion of any Funded Debt of the Company and
its Subsidiaries and (b) without duplication of clause (a) above, all
Indebtedness consisting of Revolving Credit Loans and Multicurrency
Loans to the extent otherwise included therein.
"Consolidated EBITDA": for any period, the sum of (a) the
consolidated net income (or loss) of the Company and its Subsidiaries
for such period before deduction of income and franchise taxes and
depreciation, determined in conformity with GAAP, but excluding the
income of any Person (other than Subsidiaries of the Company) in which
the Company or any of its Subsidiaries has an ownership interest, until
such income has been received by the Company or a Subsidiary in a cash
distribution, plus (b) any Interest Expenses reported during such
period, plus (c) amortization of Intangible Assets deducted in
determining net income for such period.
"Consolidated Leverage Ratio": as at the last day of any
period of four consecutive fiscal quarters, the ratio of (a)
Consolidated Total Debt on such day to (b) Consolidated EBITDA for such
period; provided, that for purposes of calculating Consolidated EBITDA
for any period of four consecutive fiscal quarters, the Consolidated
EBITDA of any Person acquired by the Company or its Subsidiaries during
such period shall be included on a pro forma basis for such period
(assuming the consummation of each such acquisition and the incurrence
or assumption of any Indebtedness in connection therewith occurred on
the first day of such period) if the
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consolidated balance sheet of such acquired Person and its
consolidated Subsidiaries as at the end of the period preceding the
acquisition of such Person and the related consolidated statements of
income and stockholders' equity and of cash flows for the period in
respect of which Consolidated EBITDA is to be calculated (i) have been
provided to the Administrative Agent and the Lenders and (ii) either
(A) have been reported on without a qualification arising out of the
scope of the audit (other than a "going concern" or like qualification
or exception) by independent certified public accountants of
nationally recognized standing or (B) have been found acceptable by
the Administrative Agent.
"Consolidated Net Income": for any period, the consolidated
net income (or loss) of the Company and its Subsidiaries for such
period, determined in conformity with GAAP, but excluding the income of
any Person (other than Subsidiaries of the Company) in which the
Company or any of its Subsidiaries has an ownership interest, until
such income has been received by the Company or a Subsidiary in a cash
distribution.
"Consolidated Net Worth": at any date, shareholders equity
(including, but not limited to, Capital Stock, additional paid-in
capital and retained earnings after deducting treasury stock and
unearned compensation) of the Company and its Subsidiaries on a
consolidated basis as at such date determined in accordance with GAAP;
provided, that Consolidated Net Worth shall not reflect any additions
or deductions resulting from foreign currency translation gains or
losses.
"Consolidated Total Debt": all Indebtedness of the Company and
its Subsidiaries, determined on a consolidated basis.
"Consolidated Working Capital": at any date, the excess of
Consolidated Current Assets on such date over Consolidated Current
Liabilities on such date.
"Continuing Directors": the collective reference to (a) all
members of the board of directors of the Company who have held office
continually since September 26, 1997, and (b) all members of the board
of directors of the Company who were elected as directors after
September 26, 1997 and whose nomination for election by the Company's
shareholders was approved by a vote of at least 50% of the Continuing
Directors.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any
of its property is bound.
"Conversion Date": any date on which either (a) an Event of
Default under paragraph (f) of Article XII has occurred or (b) the
Commitments shall have been terminated and/or the Loans shall have been
declared immediately due and payable pursuant to Article XII.
"Conversion Sharing Percentage": on any date with respect to
any Revolving Credit Lender and any Multicurrency Loans or Local
Currency Loans of such Revolving
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Credit Lender, the percentage of such Loans such that, after giving
effect to the conversion of such Loans to U.S. Dollars and the purchase
and sale by such Revolving Credit Lender of participating interests as
contemplated by Section 14.08, the Committed Outstandings Percentage of
such Revolving Credit Lender will equal such Revolving Credit Lender's
Revolving Credit Commitment Percentage on such date (calculated
immediately prior to giving effect to any termination or expiration of
the Revolving Credit Commitments on the Conversion Date).
"Converted Loans": as defined in Section 14.08(a).
"Covenant Transition Date": the date, on or after the
repayment in full of the Interim Term Loans, on which the
Administrative Agent receives a written notice signed by a Responsible
Officer (which notice the Administrative Agent will promptly transmit
to each Lender) to the effect that the Company has elected that the
covenants set forth in Article X will be replaced in their entirety by
the covenants set forth in Annex B.
"Default": any of the events specified in Article XII whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition has been satisfied.
"Disposition": with respect to any Property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other
disposition thereof; and the terms "Dispose" and "Disposed of" shall
have correlative meanings.
"Dollars": dollars in lawful currency of the United States of
America.
"$": dollars in lawful currency of the United States of
America.
"Domestic Pledge Agreement": the Domestic Pledge Agreement,
substantially in the form of Exhibit D-1, to be executed by the Company
and certain of its Domestic Subsidiaries (pledging 100% of the Capital
Stock owned by the Company and each of its Domestic Subsidiaries of
each Domestic Subsidiary of the Company, including, but not limited to,
100% of the Capital Stock of U.S. Finance Subsidiary I, U.S. Finance
Subsidiary II and U.S. Finance Subsidiary III), in favor of the
Trustee.
"Domestic Reference Lenders": Chase and two other Lenders
selected by Chase and the Company on the Syndication Date; provided,
that prior to the Syndication Date, all references to "Domestic
Reference Lenders" shall be deemed to be references to Chase.
"Domestic Subsidiary": any Subsidiary of the Company organized
under the laws of any jurisdiction within the United States, other than
any Subsidiary which is a Subsidiary of an Excluded Foreign Subsidiary.
"Domestic Subsidiary Guarantee": the Domestic Subsidiary
Guarantee, substantially in the form of Exhibit B, to be executed and
delivered by each Domestic
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Subsidiary, including, but not limited to, U.S. Finance Subsidiary I,
U.S. Finance Subsidiary II and U.S. Finance Subsidiary III, as the same
may from time to time be amended, supplemented or otherwise modified.
"Effective Date": as defined in Section 8.01.
"Environmental Laws": any and all foreign, Federal, state,
local or municipal, laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority
or other Requirements of Law (including common law) regulating,
relating to or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any
time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Base Rate": (a) with respect to each Interest
Period pertaining to a Multicurrency Loan denominated in any currency
other than Pounds Sterling, the rate per annum determined by the
Administrative Agent to be the offered rate for deposits in such
currency with a term comparable to such Interest Period that appears on
the applicable Telerate Page at approximately 11:00 A.M., London time,
two Business Days prior to the beginning of such Interest Period;
provided, however, that if at any time for any reason such offered rate
for any such currency does not appear on a Telerate Page, "Eurocurrency
Base Rate" shall mean, with respect to each day during each Interest
Period pertaining to a Multicurrency Loan denominated in such currency,
the rate per annum equal to the average (rounded upward to the nearest
1/16th of 1%) of the respective rates notified to the Administrative
Agent by each of the Multicurrency Reference Lenders as the rate at
which such Multicurrency Reference Lender is offered deposits in such
currency at or about 11:00 A.M., London time, two Business Days prior
to the beginning of such Interest Period in the London interbank market
for delivery on the first day of such Interest Period for the number of
days comprised therein; and (b) with respect to each day during each
Interest Period pertaining to a Multicurrency Loan denominated in
Pounds Sterling, the rate per annum equal to the average (rounded
upward to the nearest 1/16th of 1%) of the respective rates notified to
the Administrative Agent by each of the Multicurrency Reference Lenders
as the rate at which such Multicurrency Reference Lender is offered
deposits in Pounds Sterling at or about 11:00 A.M., London time, two
Business Days prior to the beginning of such Interest Period in the
Paris interbank market for delivery on the first day of such Interest
Period for the number of days comprised therein.
"Eurocurrency Rate": with respect to each day during each
Interest Period pertaining to a Multicurrency Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
Eurocurrency Base Rate
-----------------------------------------------------
1.00 - Eurocurrency Reserve Requirements
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"Eurocurrency Reserve Requirements": for any day as applied to
a Eurodollar Loan or a Multicurrency Loan, the aggregate (without
duplication) of the rates (expressed as a decimal fraction) of reserve
requirements in effect on such day (including, without limitation,
basic, supplemental, marginal and emergency reserves) under any
regulations of the Board of Governors of the Federal Reserve System or
other Governmental Authority having jurisdiction with respect thereto
dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of
such Board) maintained by a member bank of such System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
equal to the average (rounded upward to the nearest 1/16th of 1%) of
the respective rates notified to the Administrative Agent by each of
the Domestic Reference Lenders as the rate at which such Domestic
Reference Lender is offered Dollar deposits at or about 11:00 A.M.,
London time, two Business Days prior to the beginning of such Interest
Period in the London interbank market for delivery on the first day of
such Interest Period for the number of days comprised therein.
"Eurodollar Loans": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
--------------------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Article
XII, provided that all requirements for the giving of notice, the lapse
of time, or both, or any other condition, have been satisfied.
"Excess Cash Flow": for any fiscal year of the Company, the
excess, if any, of (a) the sum, without duplication, of (i)
Consolidated Net Income for such fiscal year, (ii) an amount equal to
the amount of all non-cash charges and/or losses (including
depreciation and amortization) deducted in arriving at such
Consolidated Net Income, (iii) decreases in Consolidated Working
Capital for such fiscal year, (iv) the net increase during such fiscal
year (if any) in deferred tax asset or liability accounts of the
Company, and (v) the net increase during such fiscal year (if any) in
the Company's accrued long-term liability account over (b) the sum,
without duplication, of (i) an amount equal to the amount of all
non-cash credits and/or gain included in arriving at such Consolidated
Net Income, (ii) the aggregate amount actually paid by the Company and
its Subsidiaries in cash during such fiscal year on account of Capital
Expenditures (excluding the principal amount of Indebtedness incurred
in connection with such expenditures and any such expenditures financed
with the proceeds of any Reinvestment Deferred Amount), (iii) the
aggregate amount of all prepayments of Revolving Credit Loans during
such fiscal year to the
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extent accompanying permanent optional reductions of the Revolving
Credit Commitments and all prepayments of the Term Loans during such
fiscal year (other than mandatory prepayments pursuant to Section
6.04(d), (e) or (f)), (iv) the aggregate amount of all regularly
scheduled principal payments of Funded Debt of the Company and its
Subsidiaries made during such fiscal year (other than payments in
respect of any revolving credit facility, including the Revolving
Credit Facility, to the extent there is not an equivalent permanent
reduction in commitments thereunder, and other than payments in respect
of the Interim Term Loans made with the proceeds of issuance or
incurrence of equity or debt securities), (v) increases in Consolidated
Working Capital for such fiscal year, (vi) the net decrease during such
fiscal year (if any) in deferred tax asset or liability accounts of the
Company, (vii) the net decrease during such fiscal year (if any) in the
Company's accrued long-term liability account, (viii) the amount of
cash dividends paid by the Company during such fiscal year as permitted
by this Agreement and (ix) the amount of cash used in connection with
acquisitions of all or part of the Capital Stock or assets of any
Person, including investments in joint ventures, made by the Company
and its Subsidiaries during such fiscal year as permitted by this
Agreement.
"Excess Cash Flow Application Date": as defined in Section
6.04(f).
"Excess Cash Flow Prepayment Percentage": 75%; provided, that
the Excess Cash Flow Prepayment Percentage shall be (a) 50% for any
fiscal year in respect of which the Consolidated Leverage Ratio on the
last day thereof was greater than or equal to 3.50 to 1.00 but less
than 4.00 to 1.00 and (b) 0% for any fiscal year in respect of which
the Consolidated Leverage Ratio on the last day thereof was less than
3.50 to 1.00.
"Exchange Notes": the "Exchange Notes" referred to in the
Senior Subordinated Loan Documentation issued in exchange for the
Senior Subordinated Bridge Loans.
"Exchange Rate": with respect to any non-U.S. Dollar currency
on any date, the rate at which such currency may be exchanged into U.S.
Dollars, as set forth on such date on the relevant Reuters currency
page at or about 11:00 A.M., London time, on such date. In the event
that such rate does not appear on any Reuters currency page, the
"Exchange Rate" with respect to such non-U.S. Dollar currency shall be
determined by reference to such other publicly available service for
displaying exchange rates as may be agreed upon by the Administrative
Agent and the Company or, in the absence of such agreement, such
"Exchange Rate" shall instead be the Administrative Agent's spot rate
of exchange in the interbank market where its foreign currency exchange
operations in respect of such non-U.S. Dollar currency are then being
conducted, at or about 10:00 A.M., local time, on such date for the
purchase of U.S. Dollars with such non-U.S. Dollar currency, for
delivery two Business Days later; provided, that if at the time of any
such determination, no such spot rate can reasonably be quoted, the
Administrative Agent may use any reasonable method as it deems
applicable to determine such rate, and such determination shall be
conclusive absent manifest error.
"Excluded Foreign Subsidiary": any Foreign Subsidiary (and any
Domestic Subsidiary which is a Subsidiary of an Excluded Foreign
Subsidiary) if the pledge of
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more than 65% of the Capital Stock of such Foreign Subsidiary (or
Domestic Subsidiary, as the case may be) or the execution by such
Foreign Subsidiary (or Domestic Subsidiary, as the case may be) of a
Subsidiary Guarantee would, in the good faith judgment of the Company,
result in adverse tax consequences to the Company or would be unlawful
for such Foreign Subsidiary (or Domestic Subsidiary, as the case may
be).
"Existing Accounts Receivable Financing Program": the
collective reference to (i) the Amended and Restated Pooling and
Servicing Agreement dated as of February 1, 1997, among the Receivables
Subsidiary, as Seller, the Company, as Servicer, and Chase, as Trustee,
(ii) the Series 1997-1 Supplement dated as of February 1, 1997, among
the Receivables Subsidiary, as Seller, the Company, as Servicer, and
Chase, as Trustee, (iii) the Amended and Restated Receivables Purchase
Agreement dated as of February 28, 1997, between the Receivables
Subsidiary, as Buyer, and the Company, as Seller, (iv) the Amended and
Restated Receivables Purchase Agreement dated as of February 28, 1997,
between the Receivables Subsidiary, as Buyer, and Carter Automotive
Company, Inc., a Delaware corporation, as Seller, (v) the Amended and
Restated Receivables Purchase Agreement dated as of February 28, 1997,
between the Receivables Subsidiary, as Buyer, and Mather Seal Company,
Inc., a Michigan corporation, as Seller, and (vi) all other documents
entered into in connection with any of the foregoing, as each of the
foregoing are amended, restated, supplemented or otherwise modified
from time to time.
"Existing Credit Agreement": as defined in the recitals
hereto.
"Existing Plan": any Plan existing on the date of this
Agreement without giving effect to any amendment thereof made after the
date of this Agreement.
"Existing Public Securities": the Company's Medium Term Notes
and 8.8% Notes outstanding under the Indenture.
"Facility": each of (a) the Tranche A Term Loan Commitments
and the Tranche A Term Loans made thereunder (the "Tranche A Term Loan
Facility"), (b) the Tranche B Term Loan Commitments and the Tranche B
Term Loans made thereunder (the "Tranche B Term Loan Facility"), (c)
the Interim Term Loan Commitments and the Interim Term Loans made
thereunder (the "Interim Term Loan Facility"), (d) the Revolving Credit
Commitments and the Revolving Credit Loans (including the Swing Line
Loans) made thereunder (the "Revolving Credit Facility") and (e) the
Multicurrency Commitments and the Multicurrency Loans made thereunder
(the "Multicurrency Facility").
"Facility Fee Rate": .50% per annum; provided, that on and
after the first Adjustment Date occurring after the date on which the
Interim Term Loans are repaid in full, the Facility Fee Rate will be
determined pursuant to the Pricing Grid.
"Federal Funds Effective Rate": for any day, the weighted
average of the rates per annum on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds
brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published
for
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any day which is a Business Day, the average of the quotations for the
day of such transactions received by the Administrative Agent from
three federal funds brokers of recognized standing selected by it, in
each case rounded up to the nearest 1/100th of 1%.
"Foreign Subsidiary": any Subsidiary of the Company other than
a Domestic Subsidiary.
"Foreign Subsidiary Borrower": each Foreign Subsidiary listed
as a Foreign Subsidiary Borrower in Schedule II as amended from time to
time in accordance with Section 14.01(b).
"Foreign Subsidiary Opinion": with respect to any Foreign
Subsidiary Borrower, a legal opinion of counsel to such Foreign
Subsidiary Borrower addressed to the Administrative Agent and the
Lenders concluding that such Foreign Subsidiary Borrower and the Loan
Documents to which it is a party substantially comply with the matters
listed on Exhibit I, with such assumptions, qualifications and
deviations therefrom as the Administrative Agent shall approve (such
approval not to be unreasonably withheld).
"Funded Debt": all Indebtedness of the Company and its
Subsidiaries on a consolidated basis maturing one year or more after
incurrence thereof or that matures within one year from the date on
which it was created, but is renewable or extendible under terms such
that under GAAP such Indebtedness would be treated as long-term
indebtedness.
"Funding Commitment Percentage": as at any date of
determination (after giving effect to the making and payment of any
Loans made on such date pursuant to Section 2.05), with respect to any
Revolving Credit Lender, that percentage which the Available Revolving
Credit Commitment of such Revolving Credit Lender then constitutes of
the Aggregate Available Revolving Credit Commitments.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time; provided, that if at any
time after the date hereof there shall occur any change in respect of
such generally accepted accounting principles from those used in the
preparation of the audited financial statements referred to in Section
7.01 in a manner which would have a material effect on any matter which
is material to Article X, the Company and the Administrative Agent
will, within five Business Days of a notice from the Administrative
Agent or the Company, as the case may be, to that effect, commence, and
continue in good faith, negotiations with a view towards making
appropriate amendments to the provisions hereof acceptable to the
Required Lenders, to reflect as nearly as possible the effect of the
provisions of Article X as in effect on the date hereof.
"Governmental Authority": any nation or government, any state,
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
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"Gross Cash Proceeds": in connection with any issuance or sale
of Capital Stock, the gross cash proceeds of such issuance before
deduction for investment banking fees, underwriting discounts and
commissions and other fees and expenses incurred in connection
therewith.
"Guaranty": any guaranty by any Person of Indebtedness or
other obligations of any other Person that is not a consolidated
subsidiary of such Person or any assurance with respect to the
financial condition of any other Person that is not a consolidated
subsidiary of such Person (including, without limitation, any purchase
or repurchase agreement, any indemnity or any keep-well, take-or-pay,
through-put or other arrangement having the effect of assuring or
holding harmless any third Person against loss with respect to any
Indebtedness or other obligation of such other Person) except
endorsements of negotiable instruments for collection in the ordinary
course of business.
"Indenture": the Indenture, dated as of August 12, 1994,
between the Company and First Trust National Association (as successor
to Continental Bank), as trustee.
"Indebtedness": with respect to any Person, (a) all
indebtedness of such Person which in accordance with GAAP would be
shown as a liability on the balance sheet of such Person and (b)
obligations under leases which, in accordance with GAAP, are to be
recorded as capital leases; provided, however, that the term
"Indebtedness" shall not include short-term obligations payable to
suppliers incurred in the ordinary course of business or indebtedness
incurred by a special purpose, Wholly Owned Subsidiary of the Company
that purchases accounts receivable from the Company and its other
Subsidiaries to the extent that such indebtedness is nonrecourse to the
Company and each such other Subsidiary and is not required under GAAP
to be reflected on the consolidated balance sheet of the Company.
"Initial Measurement Date": the last day of the first full
fiscal quarter commencing after the Initial Term Loan Funding Date.
"Initial Revolving Credit Funding Date": as defined in Section
8.02.
"Initial Term Loan Funding Date": as defined in Section 8.03.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intangible Assets": assets having no physical existence and
that, in conformity with GAAP, should be classified as intangible
assets, including, without limitation, patents, patent rights,
trademarks, trade names, copyrights, franchises, licenses, customer
lists, organizational expenses and goodwill.
"Intellectual Property": as defined in Section 7.09.
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"Interest Expenses": with respect to any period, the aggregate
of all interest expense reported by the Company and its Subsidiaries in
accordance with GAAP during such period. As used in this definition,
the term "interest" shall include, without limitation, all interest,
fees and costs payable with respect to the obligations under this
Agreement (other than fees and costs which may be capitalized as
transaction costs in accordance with GAAP), any discount in respect of
sales of accounts receivable and/or related contract rights and the
interest portion of capitalized lease payments during such period, all
as determined in accordance with GAAP.
"Interest Payment Date": (a) as to any Base Rate Loan, the
last day of each March, June, September and December to occur while
such Loan is outstanding, (b) as to any Eurodollar Loan or
Multicurrency Loan having an Interest Period of three months or less,
the last day of such Interest Period and (c) as to any Eurodollar Loan
or Multicurrency Loan having an Interest Period longer than three
months, (i) each day which is three months, or a whole multiple
thereof, after the first day of such Interest Period and (ii) the last
day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan or
Multicurrency Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan or Multicurrency Loan and ending one, two, three, or six or (if
available) twelve months thereafter, as selected by the relevant
Borrower in its notice of borrowing or notice of conversion, as the
case may be, given with respect thereto; and
(b) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan or
Multicurrency Loan and ending one, two, three, six or (if applicable)
twelve months thereafter, as selected by the relevant Borrower by
irrevocable notice to the Administrative Agent not less than three
Business Days prior to the last day of the then current Interest Period
with respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(i) if any Interest Period pertaining to a
Eurodollar Loan or Multicurrency Loan would otherwise end on a
day that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;
(ii) any Interest Period applicable to a
Eurodollar Loan or Multicurrency Loan that would otherwise
extend beyond the Revolving Credit Termination Date shall end
on the Revolving Credit Termination Date;
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(iii) any Interest Period pertaining to a
Eurodollar Loan or Multicurrency Loan that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month;
(iv) any Interest Period pertaining to a
Multicurrency Loan denominated in an Available Foreign
Currency being replaced by the "euro" upon the effectiveness
of European Monetary Union that would otherwise extend beyond
the date on which such replacement becomes effective shall end
on such date; and
(v) each Borrower shall select Interest Periods
so as not to require a payment or prepayment of any Eurodollar
Loan or Multicurrency Loan during an Interest Period for such
Eurodollar Loan or Multicurrency Loan.
"Interim Term Loan": as defined in Section 3.01.
"Interim Term Loan Commitment": as to each Interim Term Loan
Lender, the obligation of such Lender, if any, to make a Interim Term
Loan to the Company hereunder in a principal amount not to exceed the
amount set forth under the heading "Interim Term Loan Commitment"
opposite such Lender's name on Schedule I.
"Interim Term Loan Exposure": as to any Interim Term Loan
Lender at any time, the sum of (a) the aggregate outstanding principal
amount of the Interim Term Loans of such Interim Term Loan Lender and
(b) the undrawn amount of such Interim Term Loan Lender's Interim Term
Loan Commitment.
"Interim Term Loan Lender": each Lender which has a Interim
Term Loan Commitment or which has made a Interim Term Loan.
"Interim Term Loan Percentage": as to any Lender at any time,
the percentage which such Lender's Interim Term Loan Exposure then
constitutes of the aggregate Interim Term Loan Exposures.
"Investments": as defined in Section 10.11 (as in effect prior
to the Covenant Transition Date).
"Joinder Agreement": the Joinder Agreement to be entered into
by each Foreign Subsidiary Borrower subsequent to the date hereof
pursuant to Section 14.01(b)(i), substantially in the form of Exhibit
E.
"Judgment Currency": as defined in Section 14.18(b).
"Lenders": as defined in the preamble hereto.
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"Lien": (i) any judgment lien or execution, attachment, levy,
distraint or similar legal process and (ii) any mortgage, pledge,
hypothecation, assignment, lien, charge, encumbrance or other security
interest of any kind or nature whatsoever (including, without
limitation, the interest of the lessor under any capital lease and the
interest of the seller under any conditional sale or other title
retention agreement), which secures or purports to secure any
Indebtedness or other indebtedness or obligations.
"Loan Documents": this Agreement, any Notes, the Security
Documents, the Subsidiary Guarantees, the Trust Agreement, the
Syndication Letter Agreement and any document or instrument evidencing
or governing any Local Currency Facility.
"Loan Parties": the Company and each Subsidiary of the Company
which is a party to a Loan Document.
"Loans": the collective reference to the Revolving Credit
Loans, the Swing Line Loans, the Term Loans, the Multicurrency Loans
and the Local Currency Loans.
"Loans to be Converted": as defined in Section 14.08(a).
"Local Currency": any available and freely convertible
non-U.S. Dollar currency selected by a Local Currency Borrower and
approved by the Administrative Agent.
"Local Currency Borrower": each Foreign Subsidiary that the
Company designates as a "Local Currency Borrower" in a Local Currency
Facility Addendum.
"Local Currency Facility": any Qualified Credit Facility that
the Company designates as a "Local Currency Facility" pursuant to a
Local Currency Facility Addendum.
"Local Currency Facility Addendum": a Local Currency Facility
Addendum received by the Administrative Agent, substantially in the
form of Exhibit J, and conforming to the requirements of Article V.
"Local Currency Facility Agent": with respect to each Local
Currency Facility, the Local Currency Lender acting as agent for the
Local Currency Lenders parties thereto (and, in the case of any Local
Currency Facility to which only one Lender is a party, such Lender).
"Local Currency Facility Maximum Borrowing Amount": as defined
in Section 5.01(b).
"Local Currency Lender": any Lender (or, if applicable, any
affiliate, branch or agency thereof) party to a Local Currency
Facility.
"Local Currency Lender Maximum Borrowing Amount": as defined
in Section 5.01(b).
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"Local Currency Loan": any loan made pursuant to a Local
Currency Facility.
"London Banking Day": any day on which banks in London are
open for general banking business, including dealings in foreign
currency and exchange.
"Majority Facility Lenders": with respect to any Facility, the
holders of more than 50% of the aggregate unpaid principal amount of
the Term Loans or the Aggregate Committed Outstandings, as the case may
be, outstanding under such Facility (or, in the case of the Revolving
Credit Facility or Multicurrency Facility, prior to any termination of
the Commitments, the holders of more than 50% of the total Revolving
Credit Commitments or Multicurrency Commitments, respectively).
"Majority Multicurrency Lenders": the Majority Facility
Lenders in respect of the Multicurrency Facility.
"Majority Revolving Credit Facility Lenders": the Majority
Facility Lenders in respect of the Revolving Credit Facility.
"Material Adverse Effect": a material adverse effect on (a)
the business, operations, property, condition (financial or otherwise)
or prospects of the Company and its Subsidiaries taken as a whole, (b)
the ability of any Borrower to perform its obligations under this
Agreement or any of the Notes or any of the other Loan Documents to
which it is a party or (c) the validity or enforceability of this
Agreement or any of the Notes or any of the other Loan Documents or the
rights or remedies of the Administrative Agent or the Lenders hereunder
or thereunder.
"Material Environmental Amount": an amount payable by the
Company (net of the proceeds of any applicable insurance and amount
reasonably expected to be paid by Persons that are not Affiliates of
the Company and that are jointly liable with the Company in respect of
such amount) and/or its Subsidiaries in excess of $20,000,000 in any
year or $100,000,000 in the aggregate for remedial costs, compliance
costs, compensatory damages, punitive damages, fines, penalties or any
combination thereof.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Law,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Minority Interest": the minority interest of Persons other
than the Company and its Subsidiaries in the Company's Subsidiaries as
shown from time to time in the most recent consolidated balance sheet
of the Company and its Subsidiaries.
"Moody's Bond Rating": for any day, the rating of the
Company's senior long-term unsecured debt by Moody's Investor Service,
Inc. ("Moody's") in effect at 11:00
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A.M., New York City time, on such day.
"Multicurrency Commitment": as to any Multicurrency Lender at
any time, its obligation to make Multicurrency Loans to the Borrowers
in an aggregate amount in Dollars or in Available Foreign Currencies of
which the U.S. Dollar Equivalent does not exceed at any time
outstanding the amount set forth opposite such Multicurrency Lender's
name in Schedule I under the heading "Multicurrency Commitment", as
such amount may be reduced from time to time as provided in Section
4.04 and the other applicable provisions hereof.
"Multicurrency Commitment Percentage": as to any Multicurrency
Lender at any time, the percentage which such Multicurrency Lender's
Multicurrency Commitment then constitutes of the aggregate
Multicurrency Commitments.
"Multicurrency Lender": each Lender having an amount greater
than zero set forth opposite such Revolving Credit Lender's name in
Schedule I under the heading "Multicurrency Commitment"; provided that
any Revolving Credit Lender may cause an affiliate of such Revolving
Credit Lender to become a party to this Agreement as a Multicurrency
Lender, whereupon such affiliate shall, on behalf of such Revolving
Credit Lender, fulfill such Revolving Credit Lender's obligations and
enjoy such Revolving Credit Lender's rights, as a Multicurrency Lender,
and the term "Multicurrency Lender" shall, when the context requires,
be deemed to refer to such affiliate.
"Multicurrency Loans": as defined in Section 4.01.
"Multicurrency Reference Lenders": Chase and two Lenders
selected by Chase and the Company on the Syndication Date; provided,
that prior to the Syndication Date all references to "Multicurrency
Reference Lenders" shall be deemed to be references to Chase.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA or any successor statute.
"Net Cash Proceeds": (a) in connection with any Asset Sale or
any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such Asset Sale or Recovery Event, net of attorneys' fees,
accountants' fees, investment banking fees, amounts required to be
applied to the repayment of Indebtedness secured by a Lien expressly
permitted hereunder on any asset which is the subject of such Asset
Sale or Recovery Event (other than any Lien pursuant to a Security
Document) and other customary fees and expenses actually incurred in
connection therewith and net of taxes paid or reasonably estimated to
be payable as a result thereof (after taking into account any available
tax credits or deductions and any tax sharing arrangements), including
any taxes resulting from the transfer of the proceeds of such sale to
the Company and (b) in connection with any issuance or sale of equity
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securities or debt securities or instruments or the incurrence of
loans, the cash proceeds received from such issuance or incurrence, net
of attorneys' fees, investment banking fees, accountants' fees,
underwriting discounts and commissions and other customary fees and
expenses actually incurred in connection therewith.
"Netherlands BV I": a special purpose Netherlands corporation
to be formed as an indirect Subsidiary of the Company prior to the
Initial Revolving Credit Funding Date.
"Netherlands BV II": a special purpose Netherlands corporation
to be formed as an indirect Subsidiary of the Company prior to the
Initial Revolving Credit Funding Date.
"Netherlands BV III": a special purpose Netherlands
corporation to be formed as an indirect Subsidiary of the Company prior
to the Initial Revolving Credit Funding Date.
"Netherlands BV IV": a special purpose Netherlands corporation
to be formed as an indirect Subsidiary of the Company prior to the
Initial Revolving Credit Funding Date.
"Netherlands Pledge Agreements": the collective reference to
(i) the Netherlands Pledge Agreement, to be executed and delivered by
U.S. Finance Subsidiary I, in form and substance satisfactory to the
Administrative Agent, creating a security interest in 100% of the
Capital Stock of Netherlands BV I in favor of the Trustee to secure the
obligations of the Borrowers hereunder and, (ii) the Netherlands Pledge
Agreement, to be executed and delivered by U.S. Finance Subsidiary II,
in form and substance satisfactory to the Administrative Agent,
creating a security interest in 100% of the Capital Stock of
Netherlands BV III in favor of the Trustee to secure the obligations of
the Borrowers hereunder, each as amended, supplemented or otherwise
modified from time to time.
"Non-Excluded Taxes": as defined in Section 6.11(a).
"Non-Multicurrency Lender": each Revolving Credit Lender which
is not a Multicurrency Lender.
"Notes": the collective reference to the Revolving Credit
Notes and the Term Notes.
"Notice of Local Currency Outstandings": with respect to each
Local Currency Facility Agreement, a notice from the relevant Local
Currency Facility Agent containing the information, delivered to the
Person, in the manner and by the time, specified for a Notice of Local
Currency Outstandings in Schedule V.
"Obligations": collectively, the unpaid principal of and
interest on the Loans and all other obligations and liabilities of (a)
each Foreign Subsidiary Borrower under this Agreement and the other
Loan Documents and (b) each Local Currency Borrower under any Local
Currency Facility to which it is a party and under this Agreement and
the other Loan Documents (including, without limitation, interest
accruing at the then applicable rate provided in this Agreement or any
other applicable Loan Document after the
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maturity of the Loans and interest accruing at the then applicable rate
provided in this Agreement or any other applicable Loan Document after
the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the Company,
any Foreign Subsidiary Borrower or any Local Currency Borrower, as the
case may be, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), whether direct or indirect,
absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, the Notes, the other Loan Documents or any other
document made, delivered or given in connection therewith, in each case
whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Administrative
Agent or to the Lenders that are required to be paid by any Borrower or
Local Currency Borrower pursuant to the terms of this Agreement or any
other Loan Document).
"Offer Documents": the Press Release and the Tender Offer
documentation subsequently to be posted by U.K. Acquisition II setting
out the detailed terms of the Tender Offer.
"Optionholders": the holders of Options.
"Options": options to purchase up to 25,000,000 Target Shares.
"Panel": The Panel of Take-overs and Mergers in the City of
London.
"Participants": as defined in Section 14.06(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA or any successor
corporation.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Company or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Pledge Agreements": the collective reference to (i) the
Domestic Pledge Agreement, (ii) the U.K. Acquisition I Share Mortgage,
(iii) the U.K. Acquisition II Share Mortgage, (iii) the Netherlands
Pledge Agreements and (iv) other pledge agreements in form and
substance reasonably satisfactory to the Administrative Agent pursuant
to which shares of Foreign Subsidiaries (other than Excluded Foreign
Subsidiaries) and 65% (or such lesser percentage as owned by the
Company or such Domestic Subsidiary) of the shares of Excluded Foreign
Subsidiaries held directly by the Company or any Domestic
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Subsidiary are pledged, in each case, as the same may be amended,
supplemented or otherwise modified.
"Pledged Stock": the Capital Stock pledged pursuant to a
Pledge Agreement.
"Press Release": the press announcement released by or on
behalf of the U.K. Acquisition II on October 16, 1997 publicly
announcing a firm intention to make the Tender Offer.
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Pro Forma Balance Sheet": as defined in Section 7.01(b).
"Prime Rate": the rate of interest per annum publicly
announced from time to time by Chase as its prime rate in effect at its
principal office in New York City (each change in the Prime Rate to be
effective on the date such change is publicly announced). The Prime
Rate is not intended to be the lowest rate of interest charged by Chase
in connection with extensions of credit to debtors.
"Prohibited Transaction": any "prohibited transaction" as
defined in Section 406 of ERISA or Section 4975 of the Code.
"Properties": as defined in Section 7.16(a).
"Property": any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible
or intangible, including without limitation, Capital Stock.
"Qualified Credit Facility": a credit facility (a) providing
for one or more Local Currency Lenders to make loans denominated in a
Local Currency to a Local Currency Borrower, (b) providing for such
loans to bear interest at a rate or rates determined by the Company and
such Local Currency Lender or Local Currency Lenders and (c) otherwise
conforming to the requirements of Article V.
"Receivables Subsidiary": Federal-Mogul Funding Corporation, a
Michigan corporation.
"Recovery Event": any settlement of or payment in respect of
any property or casualty insurance claim or any condemnation proceeding
relating to any asset of the Company or any of its Subsidiaries.
"Reduction Period": the period from November 30, 1997 to the
date which is four months after the Initial Term Loan Funding Date.
"Reference Lenders": the collective reference to the Domestic
Reference Lenders and the Multicurrency Reference Lenders.
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"Register": as defined in Section 14.06(d).
"Reinvestment Deferred Amount": with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by the
Company or any of its Subsidiaries in connection therewith which are
not applied to prepay the Term Loans pursuant to Section 6.04(e) as a
result of the delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event in
respect of which the Company has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a
Responsible Officer stating that no Event of Default has occurred and
is continuing and that the Company (directly or indirectly through a
Subsidiary) intends and expects to use all or a specified portion of
the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire
assets useful in its business.
"Reinvestment Prepayment Amount": with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto
less any amount expended prior to the relevant Reinvestment Prepayment
Date to acquire assets useful in the Company's business.
"Reinvestment Prepayment Date": with respect to any
Reinvestment Event, the earlier of (a) the date occurring one year
after such Reinvestment Event (provided, that in the case of a Recovery
Event, a Reinvestment Prepayment Date shall not occur under this clause
(a) in respect of the portion of the proceeds of such Recovery Event
that will be applied to the repair or reconstruction of the affected
assets so long as within one year after the date of such Recovery Event
the Company has commenced repair or reconstruction in respect of the
affected assets) and (b) the date on which the Company shall have
determined not to acquire assets useful in the Company's business with
all or any portion of the relevant Reinvestment Deferred Amount.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Replacement Lender": a bank or financial institution (other
than a Subsidiary of the Company) acceptable to the Administrative
Agent and the Company.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA or the regulations thereunder.
"Requested Local Currency Loans": as defined in Section
2.05(b).
"Requested Multicurrency Loans": as defined in Section
2.05(a).
"Required Lenders": the holders of more than 50% of (a) until
the date on which
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all Commitments are terminated, the sum of (i) the aggregate undrawn
amount of the Commitments, (ii) the aggregate unpaid principal amount
of the Term Loans and (iii) the Aggregate Committed Outstandings and
(b) thereafter, the sum of (i) the aggregate unpaid principal amount
of the Term Loans and (ii) the Aggregate Committed Outstandings;
provided that for purposes of this definition the Aggregate Committed
Outstandings of each Lender shall be adjusted up or down so as to give
effect to any participations purchased or sold pursuant to Section
14.08.
"Required Prepayment Lenders": the Majority Facility Lenders
in respect of the Tranche A Term Loan Facility, the Tranche B Term Loan
Facility and the Interim Term Loan Facility.
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": (i) as to the Company, the chief
executive officer, the president, the chief financial officer, the
treasurer, any assistant treasurer or the controller of the Company and
(ii) as to any other Borrower, those of its officers or representatives
whose signatures and incumbency shall have been certified to the
Administrative Agent and the Lenders pursuant to Section 8.01(c) or
8.02(e).
"Revolving Credit Commitment": as to any Lender at any time,
its obligation to make Revolving Credit Loans to, and/or participate in
Swing Line Loans made to, the Company in an aggregate amount not to
exceed at any time outstanding the U.S. Dollar amount set forth
opposite such Lender's name in Schedule I under the heading "Revolving
Credit Commitment", as such amount may be reduced from time to time
pursuant to Section 2.04 and the other applicable provisions hereof.
"Revolving Credit Commitment Percentage": as to any Revolving
Credit Lender at any time, the percentage which such Revolving Credit
Lender's Revolving Credit Commitment then constitutes of the aggregate
Revolving Credit Commitments of all Revolving Credit Lenders.
"Revolving Credit Commitment Period": the period from and
including the Initial Revolving Credit Funding Date to but not
including the Revolving Credit Termination Date, or such earlier date
on which the Revolving Credit Loans shall terminate as provided herein.
"Revolving Credit Loan": as defined in Section 2.01.
"Revolving Credit Note": as defined in Section 2.02(e).
"Revolving Credit Termination Date": the date which is 6 years
after the Initial
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Revolving Credit Funding Date.
"Revolving Credit Lender": each Lender which has a Revolving
Credit Commitment or which has made Revolving Credit Loans.
"Secured Obligations": as defined in each Security Document,
as applicable.
"Secured Reimbursement Obligations": at any time, the
aggregate undrawn face amount of, plus the aggregate unreimbursed
amount of all drawings under, all letters of credit issued by any
Lender for the account of any Borrower, other than any such letter of
credit in respect of which the issuing Lender shall have delivered a
written acknowledgement to the Administrative Agent to the effect that
the obligations of the account party in respect of such letter of
credit shall not be secured pursuant to the Security Documents or
guaranteed pursuant to a Subsidiary Guarantee.
"Security Agreement": the Security Agreement, substantially in
the form of Exhibit C, to be executed and delivered by the Company and
its Domestic Subsidiaries, as the same may be amended, supplemented or
otherwise modified.
"Security Documents": the collective reference to the Security
Agreement, the Pledge Agreements, the Trust Agreement, and all other
security documents hereafter delivered to the Administrative Agent (or
the Trustee, as the case may be) granting a Lien on any Property of any
Person to secure the obligations and liabilities of any Loan Party
under any Loan Document.
"Senior Subordinated Bridge Loans": as defined in the recitals
hereto.
"Senior Subordinated Bridge Loan Commitments": the commitments
of the lenders under the Senior Subordinated Loan Documentation to make
Senior Subordinated Bridge Loans to the Company.
"Senior Subordinated Debt": the Senior Subordinated Bridge
Loans, the Exchange Notes and the Senior Subordinated Term Notes.
"Senior Subordinated Loan Documentation": collectively, (a)
the Amended and Restated Senior Subordinated Credit Agreement, dated as
of December 18, 1997, among the Company, the several lenders from time
to time parties thereto and Chase as administrative agent, (b) the
Notes (as defined in such Senior Subordinated Credit Agreement) issued
under such Senior Subordinated Credit Agreement, (c) the Senior
Subordinated Note Indenture (as defined in such Senior Subordinated
Credit Agreement) and (d) all other agreements, schedules, certificates
and other documents executed in connection therewith, including but not
limited to, any guarantees of the Senior Subordinated Debt, as the same
may be entered into, amended, supplemented or otherwise modified from
time to time in accordance with the terms hereof and thereof.
"Senior Subordinated Term Notes": the "Term Notes" issued
under (and as
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defined in) the Senior Subordinated Loan Documentation.
"September 26, 1997 Credit Agreement": as defined in the
recitals hereto.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means that,
as of any date of determination, (a) the amount of the "present fair
saleable value" of the assets of such Person will, as of such date,
exceed the amount of all "liabilities of such Person, contingent or
otherwise", as of such date, as such quoted terms are determined in
accordance with applicable federal and state laws governing
determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be
greater than the amount that will be required to pay the liability of
such Person on its debts as such debts become absolute and matured, (c)
such Person will not have, as of such date, an unreasonably small
amount of capital with which to conduct its business, and (d) such
Person will be able to pay its debts as they mature. For purposes of
this definition, (i) "debt" means liability on a "claim", and (ii)
"claim" means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured or (y) right to an equitable remedy for breach of performance
if such breach gives rise to a right to payment, whether or not such
right to an equitable remedy is reduced to judgment, fixed, contingent,
matured or unmatured, disputed, undisputed, secured or unsecured.
"Special Purpose Subsidiaries": the collective reference to
U.S. Finance Subsidiary I, U.S. Finance Subsidiary II, U.S. Finance
Subsidiary III, Netherlands BV I, Netherlands BV II, Netherlands BV
III, Netherlands BV IV, U.K. Acquisition I and U.K. Acquisition II.
"S&P Bond Rating": for any day, the rating of the Company's
senior long-term unsecured debt by Standard & Poor's Ratings Service
("S&P") in effect at 11:00 A.M., New York City time, on such day.
"Subordinated Debt": (a) the Senior Subordinated Debt and (b)
other unsecured Indebtedness of the Company having a final maturity
date at least 91 days after the final maturity date of the Tranche B
Term Loans and a weighted average life at least as long as the weighted
average life of the Tranche B Term Loans, and having subordination
terms acceptable to the Administrative Agent, acting reasonably.
"Subsidiary": at any particular time, any Person which could
be included as a consolidated subsidiary of the Company in the
financial statements prepared and filed with the Company's annual
reports on Form 10-K under the Securities Exchange Act of 1934, as
amended, if such financial statements were prepared at, and as of, such
time. Unless otherwise qualified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Company.
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"Subsidiary Guarantees": the collective reference to the
Domestic Subsidiary Guarantee and the U.K. Acquisition I Guarantee, and
any other guarantee by a Subsidiary of the Indebtedness and obligations
of the Borrowers hereunder that may be executed and delivered to the
Administrative Agent hereunder.
"Swing Line Commitment": as to the Swing Line Lender, in its
capacity as a Swing Line Lender, its obligation to make Swing Line
Loans to the Company in an aggregate principal amount not to exceed, at
any one time outstanding $25,000,000.
"Swing Line Lender": Chase, in its capacity as provider of the
Swing Line Loans.
"Swing Line Loan": as defined in Section 2.06.
"Swing Line Loans": as defined in Section 2.06.
"Syndication Date": the date on which Chase completes the
primary syndication of the Facilities and the entities selected in such
syndication process become parties to this Agreement.
"Syndication Letter Agreement": the letter agreement, dated as
of September 26, 1997, between the Company and Chase relating to the
syndication of the Facilities, as amended by the Amended and Restated
Fee Letter, dated as of October 15, 1997, between the Company and
Chase.
"Takeover Code": The City Code on Takeovers and Mergers in
effect in England.
"Target": as defined in the recitals hereto.
"Target Shareholders": the holders of the Target Shares.
"Target Shares": as defined in the recitals hereto.
"Target U.S. Subsidiary": the collective reference to the
Subsidiaries of Target organized under the laws of a State of the
United States.
"Tender Offer": as defined in the recitals hereto.
"Term Loan Commitment Period": the period commencing on the
Initial Term Loan Funding Date and ending on the earlier of (a) the day
immediately following the date on which the Tender Offer lapses or is
withdrawn by U.K. Acquisition II and (b) May 1, 1998.
"Term Loan Commitments": the collective reference to the
Tranche A Term Loan Commitments, the Tranche B Term Loan Commitments
and the Interim Term Loan Commitments.
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"Term Loan Lenders": the collective reference to the Tranche A
Term Loan Lenders, the Tranche B Term Loan Lenders and the Interim Term
Loan Lenders.
"Term Loans": the collective reference to the Tranche A Term
Loans, Tranche B Term Loans and Interim Term Loans.
"Tranche": the collective reference to Eurodollar Loans or
Multicurrency Loans of any Class the then current Interest Periods with
respect to all of which begin on the same date and end on the same
later date (whether or not such Loans shall originally have been made
on the same day).
"Tranche A Term Loan": as defined in Section 3.01
"Tranche A Term Loan Commitment": as to any Lender, the
obligation of such Lender, if any, to make a Tranche A Term Loan to the
Company hereunder in a principal amount not to exceed the amount set
forth under the heading "Tranche A Term Loan Commitment" opposite such
Lender's name on Schedule I.
"Tranche A Term Loan Exposure": as to any Tranche A Term Loan
Lender, the sum of (a) the aggregate outstanding principal amount of
the Tranche A Term Loans of such Tranche A Term Loan Lender and (b) the
undrawn amount of such Tranche A Term Loan Lender's Tranche A Term Loan
Commitment.
"Tranche A Term Loan Lender": each Lender which has a Tranche
A Term Loan Commitment or which has made a Tranche A Term Loan.
"Tranche A Term Loan Percentage": as to Tranche A Term Loan
Lender at any time, the percentage which such Lender's Tranche A Term
Loan Exposure then constitutes of the aggregate Tranche A Term Loan
Exposures.
"Tranche B Term Loan": as defined in Section 3.01.
"Tranche B Term Loan Commitment": as to Tranche B Term Loan
Lender, the obligation of such Lender, if any, to make a Tranche B Term
Loan to the Company hereunder in a principal amount not to exceed the
amount set forth under the heading "Tranche B Term Loan Commitment"
opposite such Lender's name on Schedule I.
"Tranche B Term Loan Exposure": as to any Tranche B Term Loan
Lender at any time, the sum of (a) the aggregate outstanding principal
amount of the Tranche B Term Loans of such Tranche B Term Loan Lender
and (b) the undrawn amount of such Tranche B Term Loan Lender's Tranche
B Term Loan Commitment.
"Tranche B Term Loan Lender": each Lender which has a Tranche
B Term Loan Commitment or which has made a Tranche B Term Loan.
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"Tranche B Term Loan Percentage": as to any Lender at any
time, the percentage which such Lender's Tranche B Term Loan Exposure
then constitutes of the aggregate Tranche B Term Loan Exposures.
"Transactions": the collective reference to the Tender Offer
and the Compulsory Acquisition.
"Transferee": as defined in Section 14.06(f).
"Trust Agreement": the Trust Agreement, substantially in the
form of Exhibit D-2, to be entered into by the Company, each other
grantor pursuant to the Security Agreement and each other pledgor
pursuant to a Pledge Agreement and a trustee acceptable to the
Administrative Agent, pursuant to which such trustee shall hold certain
of the Collateral to secure equally and ratably the obligations of the
Company in respect of the Facilities and in respect of certain other
indebtedness.
"Trustee": the trustee named in the Trust Agreement.
"Type": as to any Revolving Credit Loan or Term Loan, its
nature as a Base Rate Loan or a Eurodollar Loan.
"U.K. Acquisition I": a Wholly Owned Subsidiary of the Company
to be organized under the laws of England prior to the Initial
Revolving Credit Funding Date.
"U.K. Acquisition I Guarantee": the U.K. Acquisition I
Guarantee, in form and substance reasonably satisfactory to the
Administrative Agent, to be executed and delivered by U.K. Acquisition
I pursuant to Section 9.15, guaranteeing all of the obligations of the
Borrowers hereunder, as the same may from time to time be amended,
supplemented or otherwise modified.
"U.K. Acquisition I Share Mortgage": the Deed of Charge, in
form and substance reasonably satisfactory to the Administrative Agent,
to be executed and delivered by U.S. Finance Subsidiary III creating in
favor of the Trustee a security interest in 100% of the Capital Stock
of U.K. Acquisition I, as the same may from time to time be amended,
supplemented or otherwise modified.
"U.K. Acquisition II": as defined in the recitals hereto.
"U.K. Acquisition II Share Mortgage": the Deed of Charge, and
related documents, in form and substance reasonably satisfactory to the
Administrative Agent, to be executed and delivered by UK Acquisition I
pursuant to Section 9.15, creating in favor of the Trustee, a security
interest (i) in all of the Capital Stock of U.K. Acquisition II owned
by U.K. Acquisition I (but in any event not in excess of 65% of the
voting stock of U.K. Acquisition II) and (ii) any loans or advances
made by U.K. acquisition I to U.K. Acquisition II, in each case
securing the obligations of U.K. Acquisition I under the U.K.
Acquisition I Guarantee, as the same may from time to time be amended,
supplemented
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or otherwise modified.
"U.S. Dollar Equivalent": with respect to an amount
denominated in any currency other than U.S. Dollars, the equivalent in
U.S. Dollars of such amount determined at the Exchange Rate on the date
of determination of such equivalent. In making any determination of the
U.S. Dollar Equivalent for purposes of calculating the amount of Loans
to be borrowed from the respective Lenders on any Borrowing Date, the
Administrative Agent shall use the relevant Exchange Rate in effect on
the date on which the interest rate for such Loans is determined
pursuant to the provisions of this Agreement and the other Loan
Documents.
"U.S. Dollars": dollars in lawful currency of the United
States of America.
"U.S. Finance Subsidiary I": a special purpose corporation to
be organized as a direct or indirect Subsidiary of the Company under
the laws of a State of the United States prior to the Initial Revolving
Credit Funding Date.
"U.S. Finance Subsidiary II": a special purpose corporation to
be organized as a direct or indirect Subsidiary of the Company under
the laws of a State of the United States prior to the Initial Revolving
Credit Funding Date.
"U.S. Finance Subsidiary III": a special purpose corporation
to be organized as a direct or indirect Subsidiary of the Company under
the laws of a State of the United States prior to the Initial Revolving
Credit Funding Date.
"Wholly Owned Subsidiary": as to any Person, any other Person
all of the Capital Stock of which (other than directors' qualifying
shares required by law) is owned by such Person directly and/or through
other Wholly Owned Subsidiaries.
SECTION I.02. Other Definitional Provisions. (a) Unless
otherwise specified therein, all terms defined in this Agreement shall
have the defined meanings when used in the Notes, the other Loan
Documents or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in the Notes and any other Loan
Document, and any certificate or other document made or delivered pursuant
hereto or thereto, accounting terms relating to the Company and its Subsidiaries
not defined in Section 1.01 and accounting terms partly defined in Section 1.01,
to the extent not defined, shall have the respective meanings given to them
under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to
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both the singular and plural forms of such terms.
ARTICLE II. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS AND
SWING LINE COMMITMENT
SECTION II.01. Revolving Credit Commitments. (a) Subject to
the terms and conditions hereof, each Revolving Credit Lender severally agrees
to make revolving credit loans (each, a "Revolving Credit Loan") in U.S. Dollars
to the Company from time to time during the Revolving Credit Commitment Period
so long as after giving effect thereto and to any concurrent repayment or
prepayment of Loans (i) the Available Revolving Credit Commitment of each
Revolving Credit Lender is greater than or equal to zero and (ii) the Aggregate
Committed Outstandings of all Revolving Credit Lenders do not exceed the
Aggregate Revolving Credit Commitments. During the Revolving Credit Commitment
Period the Company may use the Revolving Credit Commitments by borrowing,
prepaying the Revolving Credit Loans in whole or in part, and reborrowing, all
in accordance with the terms and conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) Base Rate Loans or (iii) a combination thereof, as
determined by the Company and notified to the Administrative Agent in accordance
with Sections 2.03 and 6.02, provided that no Revolving Credit Loan shall be
made as a Eurodollar Loan after the day that is one month prior to the Revolving
Credit Termination Date.
SECTION II.02. Repayment of Revolving Credit Loans; Evidence
of Debt. (a) The Company hereby unconditionally promises to pay to the
Administrative Agent for the account of each Revolving Credit Lender the then
unpaid principal amount of each Revolving Credit Loan of such Revolving Credit
Lender on the Revolving Credit Termination Date and on such other dates and in
such other amounts as may be required from time to time pursuant to this
Agreement. The Company hereby further agrees to pay interest on the unpaid
principal amount of the Revolving Credit Loans from time to time outstanding
until payment thereof in full at the rates per annum, and on the dates, set
forth in Section 6.01.
(b) Each Revolving Credit Lender shall maintain in accordance
with its usual practice an account or accounts evidencing indebtedness of the
Company to such Revolving Credit Lender resulting from each Revolving Credit
Loan of such Revolving Credit Lender from time to time, including the amounts of
principal and interest payable thereon and paid to such Revolving Credit Lender
from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to Section 14.06(d), and a subaccount therein for each Revolving Credit
Lender, in which Register and subaccounts shall be recorded (i) the amount of
each Revolving Credit Loan made hereunder, the Type thereof and each Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Company to each Revolving Credit
Lender hereunder in respect of the Revolving Credit Loans and (iii) both the
amount of any sum received by the Administrative Agent hereunder from the
Company in respect of the Revolving Credit Loans and each Revolving Credit
Lender's share thereof.
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(d) The entries made in the Register and the accounts of each
Revolving Credit Lender maintained pursuant to Section 2.02(b) shall, to the
extent permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Company therein recorded; provided, however,
that the failure of any Revolving Credit Lender or the Administrative Agent to
maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligation of the Company to repay (with applicable
interest) the Revolving Credit Loans made to the Company by such Revolving
Credit Lender in accordance with the terms of this Agreement.
(e) The Company agrees that, upon the request to the
Administrative Agent by any Revolving Credit Lender, the Company will execute
and deliver to such Revolving Credit Lender a promissory note of the Company
evidencing the Revolving Credit Loans of such Revolving Credit Lender,
substantially in the form of Exhibit A-1 with appropriate insertions as to date
and principal amount (each, a "Revolving Credit Note"); provided, that the
delivery of such Revolving Credit Notes shall not be a condition precedent to
the Effective Date.
SECTION II.03. Procedure for Revolving Credit Borrowing. The
Company may borrow under the Revolving Credit Commitments during the Revolving
Credit Commitment Period on any Business Day, provided that the Company shall
give the Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to 10:00 A.M., New York City time, (a) three
Business Days prior to the requested Borrowing Date, if all or any part of the
requested Revolving Credit Loans are to be initially Eurodollar Loans, or (b) on
the requested Borrowing Date, otherwise), specifying in each case (i) the amount
to be borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing
is to be of Eurodollar Loans, Base Rate Loans or a combination thereof and (iv)
if the borrowing is to be entirely or partly of Eurodollar Loans, the amount of
such Type of Loan and the length of the initial Interest Periods therefor. Each
borrowing under the Revolving Credit Commitments (other than a borrowing under
Section 2.05) shall be in an amount equal to (A) in the case of Base Rate Loans,
$1,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if the then
Aggregate Available Revolving Credit Commitments are less than $1,000,000, such
lesser amount) and (B) in the case of Eurodollar Loans, $10,000,000 or a whole
multiple of $1,000,000 in excess thereof. Upon receipt of any such notice from
the Company, the Administrative Agent shall promptly notify each Revolving
Credit Lender thereof. Not later than 11:00 A.M., New York City time, on each
requested Borrowing Date each Revolving Credit Lender shall make an amount equal
to its Funding Commitment Percentage of the principal amount of the Revolving
Credit Loans requested to be made on such Borrowing Date available to the
Administrative Agent at its New York office specified in Section 14.02 in U.S.
Dollars and in immediately available funds. Except as otherwise provided in
Section 2.05, the Administrative Agent shall on such date credit the account of
the Company on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Revolving Credit Lenders and in
like funds as received by the Administrative Agent.
SECTION II.04. Termination or Reduction of Revolving Credit
Commitments. The Company shall have the right, upon not less than three Business
Days' notice to the Administrative Agent, to terminate the Revolving Credit
Commitments or, from time to time, to
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reduce the amount of the Revolving Credit Commitments; provided that no such
termination or reduction shall be permitted if, after giving effect thereto and
to any prepayments of the Loans made on the effective date thereof, either (a)
the Aggregate Available Revolving Credit Commitments would not be greater than
or equal to zero or (b) the Available Revolving Credit Commitments of any
Revolving Credit Lender would not be greater than or equal to zero. Any such
reduction shall be in an amount equal to $10,000,000 or a whole multiple of
$1,000,000 in excess thereof and shall reduce permanently the Revolving Credit
Commitments then in effect.
SECTION II.05. Borrowings of Revolving Credit Loans and
Refunding of Loans. (a) If on any Borrowing Date on which a Borrower has
requested the Multicurrency Lenders to make Multicurrency Loans (the "Requested
Multicurrency Loans"), (i) the aggregate principal amount of the Requested
Multicurrency Loans exceeds the Aggregate Available Multicurrency Commitments on
such Borrowing Date (before giving effect to the making and payment of any Loans
required to be made pursuant to this Section 2.05 on such Borrowing Date) and
(ii) the U.S. Dollar Equivalent of the amount of such excess is less than or
equal to the aggregate Available Revolving Credit Commitments of all
Non-Multicurrency Lenders (before giving effect to the making and payment of any
Loans pursuant to this Section 2.05 on such Borrowing Date), each
Non-Multicurrency Lender shall make a Revolving Credit Loan to the Company on
such Borrowing Date, and the proceeds of such Revolving Credit Loans shall be
simultaneously applied to repay outstanding Revolving Credit Loans and/or Local
Currency Loans of the Multicurrency Lenders (as directed by the Company), in
each case in amounts such that, after giving effect to (1) such borrowings and
repayments and (2) the borrowing from the Multicurrency Lenders of the Requested
Multicurrency Loans, the Committed Outstandings Percentage of each Revolving
Credit Lender will equal (as nearly as possible) its Revolving Credit Commitment
Percentage. To effect such borrowings and repayments, (x) not later than 11:00
A.M., New York City time, on such Borrowing Date, the proceeds of such Revolving
Credit Loans shall be made available by each Non-Multicurrency Lender to the
Administrative Agent at its office specified in Section 14.02 in U.S. Dollars
and in immediately available funds and the Administrative Agent shall apply the
proceeds of such Revolving Credit Loans toward repayment of outstanding
Revolving Credit Loans and/or Local Currency Loans of the Multicurrency Lenders
(as directed by the Company) and (y) concurrently with the repayment of such
Loans on such Borrowing Date, (I) the Multicurrency Lenders shall, in accordance
with the applicable provisions hereof, make the Requested Multicurrency Loans in
an aggregate amount equal to the amount so requested by such Borrower (but not
in any event greater than the Aggregate Available Multicurrency Commitments
after giving effect to the making of such repayment of any Loans on such
Borrowing Date) and (II) the relevant Borrower or Local Currency Borrower shall
pay to the Administrative Agent for the account of the Lenders whose Loans to
such Borrower or Local Currency Borrower are repaid on such Borrowing Date
pursuant to this Section 2.05 all interest accrued on the amounts repaid to the
date of repayment, together with any amounts payable pursuant to Section 6.12 in
connection with such repayment.
(b) If on any Borrowing Date on which a Local Currency
Borrower has requested Local Currency Lenders to make Local Currency Loans (the
"Requested Local Currency Loans") under a Local Currency Facility to which such
Local Currency Borrower and Local Currency Lenders are parties (i) the aggregate
principal amount of the Requested Local Currency Loans exceeds the aggregate
available amount of the commitments of such Local Currency Lenders
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under such Local Currency Facility on such Borrowing Date (before giving effect
to the making and payment of any Revolving Credit Loans required to be made
pursuant to this Section 2.05 on such Borrowing Date), (ii) after giving effect
to the Requested Local Currency Loans, the U.S. Dollar Equivalent of the
aggregate outstanding principal amount of Local Currency Loans of such Local
Currency Borrower will be less than or equal to the aggregate commitments of
such Local Currency Lenders under such Local Currency Facility and (iii) the
U.S. Dollar Equivalent of the amount of the excess described in clause (i) above
is less than or equal to the Aggregate Available Revolving Credit Commitments of
all Lenders other than such Local Currency Lenders (before giving effect to the
making and payment of any Revolving Credit Loans pursuant to this Section 2.05
on such Borrowing Date), each such other Lender shall make a Revolving Credit
Loan to the Company, on such Borrowing Date, and the proceeds of such Revolving
Credit Loans shall be simultaneously applied to repay outstanding Revolving
Credit Loans, Multicurrency Loans and/or Local Currency Loans of such Local
Currency Lenders (as directed by the Company) in each case in amounts such that,
after giving effect to (1) such borrowings and repayments and (2) the borrowing
from such Local Currency Lenders of the Requested Local Currency Loans, the
Committed Outstandings Percentage of each Revolving Credit Lender will equal (as
nearly as possible) its Revolving Credit Commitment Percentage. To effect such
borrowings and repayments, (x) not later than 12:00 Noon, New York City time, on
such Borrowing Date, the proceeds of such Revolving Credit Loans shall be made
available by each such other Lender to the Administrative Agent at its office
specified in Section 14.02 in U.S. Dollars and in immediately available funds
and the Administrative Agent shall apply the proceeds of such Revolving Credit
Loans toward the repayment of outstanding Revolving Credit Loans, Multicurrency
Loans and/or Local Currency Loans of such Local Currency Lenders (as directed by
the Company) and (y) concurrently with the repayment of such Loans on such
Borrowing Date, (I) such Local Currency Lenders shall, in accordance with the
applicable provisions hereof, make the Requested Local Currency Loans in an
aggregate amount equal to the amount so requested by such Local Currency
Borrower and (II) the relevant Borrower or Local Currency Borrower shall pay to
the Administrative Agent for the account of the Lenders whose Loans to such
Borrower or Local Currency Borrower are repaid on such Borrowing Date pursuant
to this Section 2.05 all interest accrued on the amounts repaid to the date of
repayment, together with any amounts payable pursuant to Section 6.12 in
connection with such repayment.
(c) If any borrowing of Revolving Credit Loans is required
pursuant to this Section 2.05, the Company shall notify the Administrative Agent
in the manner provided for Revolving Credit Loans in Section 2.03, except that
the minimum borrowing amounts set forth in Section 2.03 shall not be applicable
to the extent that such minimum borrowing amounts exceed the amounts of
Revolving Credit Loans required to be made pursuant to this Section 2.05.
SECTION II.06. Swing Line Commitments. Subject to the terms
and conditions hereof, the Swing Line Lender agrees to make swing line loans
(individually, a "Swing Line Loan"; collectively, the "Swing Line Loans") in
U.S. Dollars to the Company from time to time during the Revolving Credit
Commitment Period in an aggregate principal amount at any one time outstanding
not to exceed the amount of the Swing Line Commitment, so long as after giving
effect thereto (i) the Available Revolving Credit Commitment of each Revolving
Credit Lender is greater than or equal to zero and (ii) the Aggregate Revolving
Credit Outstandings of all Lenders do not exceed the Aggregate Revolving Credit
Commitments. Amounts borrowed by
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the Company under this Section 2.06 may be repaid and, during the Revolving
Credit Commitment Period, reborrowed.
SECTION II.07. Procedure for Swing Line Borrowings; Interest
Rate. (a) The Company shall give the Swing Line Lender irrevocable notice (which
notice must be received by the Swing Line Lender prior to 10:00 A.M., New York
City time on the requested Borrowing Date) specifying the amount of the
requested Swing Line Loan, which shall be in an aggregate principal amount of
not less than $5,000,000 or a whole multiple of $100,000 in excess thereof. The
proceeds of the requested Swing Line Loan will be made available by the Swing
Line Lender to the Company at the office of the Swing Line Lender by crediting
the account of the Company at such office with such proceeds in U.S. Dollars.
(b) All Swing Line Loans shall be either (i) Base Rate Loans
bearing interest at the same rate as Revolving Credit Loans which are Base Rate
Loans or (ii) bear interest at such rate as shall be agreed from time to time by
the Company and the Swing Line Lender. No Swing Line Loan may be converted into
a Eurodollar Loan.
SECTION II.08. Repayment of Swing Line Loans; Evidence of
Debt. (a) The Company hereby unconditionally promises to pay to the Swing Line
Lender the then unpaid principal amount of the Swing Line Loans on the Revolving
Credit Termination Date and on such other dates and in such other amounts as may
be required from time to time pursuant to this Agreement. The Company hereby
further agrees to pay interest on the unpaid principal amount of the Swing Line
Loans from time to time outstanding until payment thereof in full at the rates
per annum, and on the dates, set forth in Section 6.01.
(b) The Swing Line Lender shall maintain in accordance with
its usual practice an account or accounts evidencing indebtedness of the Company
resulting from each Swing Line Loan made by it from time to time, including the
amounts of principal and interest payable thereon and paid from time to time
under this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to Section 14.06(d), and a subaccount therein for the Swing Line
Lender, in which shall be recorded (i) the date and amount of each Swing Line
Loan made hereunder, (ii) the amount of each Revolving Credit Lender's
participating interest in such Swing Line Loans, (iii) the date and amount of
any principal or interest due and payable or to become due and payable from the
Company hereunder in respect of the Swing Line Loans and (iv) both the date and
amount of any sum received by the Administrative Agent hereunder from the
Company in respect of the Swing Line Loans, each Revolving Credit Lender's
participating interest therein (if any) and the amount thereof payable to the
Swing Line Lender.
(d) The entries made in the Register and the accounts of the
Swing Line Lender maintained pursuant to this Section 2.08 shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Company therein recorded; provided, however,
that the failure of the Swing Line Lender or the Administrative Agent to
maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligation of the Company to repay (with applicable
interest) the Swing Line Loans
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made to the Company by the Swing Line Lender in accordance with the terms of
this Agreement.
SECTION II.09. Refunding of Swing Line Borrowings. (a) The
Swing Line Lender, at any time in its sole and absolute discretion may, on
behalf of the Company (which hereby irrevocably directs and authorizes the Swing
Line Lender to act on its behalf), request each Revolving Credit Lender,
including Chase, to make a Revolving Credit Loan (which shall be a Base Rate
Loan) in an amount equal to such Revolving Credit Lender's Funding Commitment
Percentage of the principal amount of the Swing Line Loans (the "Refunded Swing
Line Loans") outstanding on the date such notice is given; provided that the
provisions of this Section shall not affect the Company's obligations to repay
Swing Line Loans in accordance with the provisions of Sections 2.08 and 6.04(c)
and (j). Unless the Revolving Credit Commitments shall have expired or
terminated (in which event the procedures of Section 2.10 shall apply), each
Revolving Credit Lender will make the proceeds of the Revolving Credit Loan made
by it pursuant to the immediately preceding sentence available to the
Administrative Agent at the office of the Administrative Agent specified in
Section 14.02 prior to 10:00 A.M., New York City time, in funds immediately
available on the Business Day next succeeding the date such notice is given. The
proceeds of such Revolving Credit Loans shall be immediately made available by
the Administrative Agent to the Swing Line Lender for application to the payment
in full of the Refunded Swing Line Loans. Upon any request by the Swing Line
Lender to the Revolving Credit Lenders pursuant to this Section 2.09, the
Administrative Agent shall promptly give notice to the Company of such request.
SECTION .10. Participating Interests. (a) If the Revolving
Credit Commitments shall expire or terminate at any time while Swing Line Loans
are outstanding, at the request of the Swing Line Lender in its sole discretion,
either (i) each Revolving Credit Lender (including Chase) shall, notwithstanding
the expiration or termination of the Revolving Credit Commitments, make a
Revolving Credit Loan (which shall be a Base Rate Loan) or (ii) each Revolving
Credit Lender (other than Chase) shall purchase an undivided participating
interest in the Swing Line Loans of the Swing Line Lender, in either case in an
amount equal to such Revolving Credit Lender's Funding Commitment Percentage
(determined on the date of, and immediately prior to, expiration or termination
of the Revolving Credit Commitments) of the aggregate principal amount of such
Swing Line Loans. Each Revolving Credit Lender will make the proceeds of any
Revolving Credit Loan made by it pursuant to the immediately preceding sentence
available to the Administrative Agent for the account of the Swing Line Lender
at the office of the Administrative Agent specified in Section 14.02 prior to
10:00 A.M., New York City time, in funds immediately available on the Business
Day next succeeding the date of the request by the Swing Line Lender. The
proceeds of such Revolving Credit Loans shall be immediately applied to repay
the Swing Line Loans outstanding on the date of termination or expiration of the
Revolving Credit Commitments. In the event that any of the Revolving Credit
Lenders purchase undivided participating interests pursuant to the first
sentence of this Section 2.10(a), each Revolving Credit Lender shall immediately
transfer to the Swing Line Lender, in immediately available funds, the amount of
its participation in the Swing Line Loans of the Swing Line Lender and upon
receipt thereof the Swing Line Lender will deliver to any such Revolving Credit
Lender that so requests a confirmation of such Revolving Credit Lender's
undivided participating interest in the Swing Line Loans of the Swing Line
Lender dated the date of receipt of such funds and in such amount.
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(b) Whenever, at any time after the Swing Line Lender has
received payment from any Revolving Credit Lender in respect of such Revolving
Credit Lender's participating interest in a Swing Line Loan of the Swing Line
Lender, the Swing Line Lender receives any payment on account thereof, the Swing
Line Lender will distribute to such Revolving Credit Lender its participating
interest in such amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Revolving Credit
Lender's participating interest was outstanding and funded); provided, however,
that in the event that any such payment received by the Swing Line Lender is
required to be returned, such Revolving Credit Lender will return to the Swing
Line Lender any portion thereof previously distributed by the Swing Line Lender
to it.
ARTICLE III. AMOUNT AND TERMS OF TERM LOAN COMMITMENTS
SECTION III.01. Term Loan Commitments. Subject to the terms
and conditions hereof, (a) each Tranche A Term Loan Lender severally agrees to
make term loans ("Tranche A Term Loans") to the Company in an aggregate
principal amount not to exceed the amount of the Tranche A Term Loan Commitment
of such Lender, (b) each Tranche B Term Loan Lender severally agrees to make
term loans ("Tranche B Term Loans") to the Company in an aggregate principal
amount not to exceed the amount of the Tranche B Term Loan Commitment of such
Lender and (c) each Interim Term Loan Lender severally agrees to make term loans
("Interim Term Loans") to the Company in an aggregate principal amount not to
exceed the amount of the Interim Term Loan Commitment of such Lender. The Term
Loans shall be made (i) on the Initial Term Loan Funding Date, in an amount
equal to the aggregate purchase price of Target Shares purchased on such date
and the amount applied to repay existing indebtedness of the Target on such date
and to pay fees and expenses in respect of the transactions contemplated hereby
and (ii) thereafter, until the last day of the Term Loan Commitment Period, on
up to ten Borrowing Dates, in a minimum aggregate principal amount of
$75,000,000 on each such Borrowing Date unless otherwise agreed by the
Administrative Agent and Borrower. Each borrowing of Term Loans shall utilize
ratably the Tranche A Term Loan Commitments, the Tranche B Term Loan Commitments
and the Interim Term Loan Commitments. The Term Loans may from time to time be
Eurodollar Loans or Base Rate Loans, as determined by the Company and notified
to the Administrative Agent in accordance with Sections 3.03 and 6.02.
SECTION III.02. Repayment of Term Loans; Evidence of Debt. (a)
The Tranche A Term Loan of each Tranche A Lender shall mature in 20 consecutive
quarterly installments, commencing on March 31, 1999, each of which shall be in
an amount equal to such Lender's Tranche A Term Loan Percentage multiplied by
the amount set forth below opposite such installment:
Installment Principal Amount
----------- ----------------
March 31, 1999 $19,000,000
June 30, 1999 $19,000,000
September 30, 1999 $19,000,000
December 31, 1999 $19,000,000
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March 31, 2000 $19,000,000
June 30, 2000 $19,000,000
September 30, 2000 $19,000,000
December 31, 2000 $19,000,000
March 31, 2001 $30,000,000
June 30, 2001 $30,000,000
September 30, 2001 $30,000,000
December 31, 2001 $30,000,000
March 31, 2002 $41,000,000
June 30, 2002 $41,000,000
September 30, 2002 $41,000,000
December 31, 2002 $41,000,000
March 31, 2003 $41,000,000
June 30, 2003 $41,000,000
September 30, 2003 $41,000,000
December 31, 2003 $41,000,000
(b) The Tranche B Term Loan of each Tranche B Lender shall
mature in 28 consecutive quarterly installments, commencing on March 31, 1999,
each of which shall be in an amount equal to such Lender's Tranche B Term Loan
Percentage multiplied by the amount set forth below opposite such installment:
Installment Principal Amount
----------- ----------------
March 31, 1999 $1,250,000
June 30, 1999 $1,250,000
September 30, 1999 $1,250,000
December 31, 1999 $1,250,000
March 31, 2000 $1,250,000
June 30, 2000 $1,250,000
September 30, 2000 $1,250,000
December 31, 2000 $1,250,000
March 31, 2001 $1,250,000
June 30, 2001 $1,250,000
September 30, 2001 $1,250,000
December 31, 2001 $1,250,000
March 31, 2002 $1,250,000
June 30, 2002 $1,250,000
September 30, 2002 $1,250,000
December 31, 2002 $1,250,000
March 31, 2003 $1,250,000
June 30, 2003 $1,250,000
September 30, 2003 $1,250,000
December 31, 2003 $1,250,000
March 31, 2004 $75,000,000
June 30, 2004 $75,000,000
September 30, 2004 $75,000,000
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December 31, 2004 $75,000,000
March 31, 2005 $106,250,000
June 30, 2005 $106,250,000
September 30, 2005 $106,250,000
December 31, 2005 $106,250,000
(c) The Interim Term Loan of each Interim Lender shall mature
on the date which is 18 months after the Initial Term Loan Funding Date.
(d) The Company hereby unconditionally promises to pay to the
Administrative Agent for the account of the appropriate Term Loan Lender the
principal amount of each Term Loan of such Term Loan Lender in installments
according to the amortization schedule set forth in paragraphs (a), (b) or (c)
above, as applicable (or on such earlier date on which the Loans become due and
payable pursuant to Article XII). The Company hereby further agrees to pay
interest on the unpaid principal amount of the Term Loans from time to time
outstanding from the date hereof until payment in full thereof at the rates per
annum, and on the dates, set forth in Section 6.01.
(e) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Company to such
Lender resulting from each Term Loan of such Lender from time to time, including
the amounts of principal and interest payable and paid to such Lender from time
to time in respect of such Term Loans under this Agreement.
(f) The Administrative Agent, on behalf of the Company, shall
maintain the Register pursuant to Section 14.06(d), and a subaccount therein for
each Lender, in which shall be recorded (i) the amount of each Term Loan made
hereunder and any Note evidencing such Term Loan, the Type thereof and each
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Company to each Lender
hereunder and (iii) both the amount of any sum received by the Administrative
Agent hereunder from the Company and each Lender's share thereof.
(g) The entries made in the Register and the accounts of each
Lender maintained pursuant to Section 3.02(e) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Company therein recorded; provided, however, that the failure
of any Lender or the Administrative Agent to maintain the Register or any such
account, or any error therein, shall not in any manner affect the obligation of
the Company to repay (with applicable interest) the Term Loans by such Lender in
accordance with the terms of this Agreement.
(h) The Company agrees that, upon the request to the
Administrative Agent by any Lender, the Company will execute and deliver to such
Lender a promissory note of the Company evidencing any Term Loans of such
Lender, substantially in the form of Exhibit A-2, with appropriate insertions as
to date and principal amount.
SECTION III.03. Procedure for Term Loan Borrowing. The Company
may borrow under the Term Loans during the Term Loan Commitment Period,
provided that the
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Company shall give the Administrative Agent irrevocable notice (which
notice must be received by the Administrative Agent prior to 10:00 A.M., New
York City time, (a) three Business Days prior to the requested Borrowing Date,
if all or any part of the requested Term Loans are to be initially Eurodollar
Loans, or (b) one Business Day prior to the requested Borrowing Date,
otherwise), specifying in each case (i) the amount to be borrowed, (ii) the
requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar
Loans, Base Rate Loans or a combination thereof and (iv) if the borrowing is to
be entirely or partly of Eurodollar Loans, the amount of such Type of Loan and
the length of the initial Interest Periods therefor. Upon receipt of any such
notice from the Company, the Administrative Agent shall promptly notify each
Term Loan Lender thereof. Not later than 11:00 A.M., New York City time, on each
requested Borrowing Date each Term Loan Lender shall make the amount of the Term
Loans to be made by it on such Borrowing Date available to the Administrative
Agent at its New York office specified in Section 14.02 in U.S. Dollars and in
immediately available funds. The Administrative Agent shall on such date credit
the account of the Company on the books of such office with the aggregate of the
amounts made available to the Administrative Agent by the Term Loan Lenders and
in like funds as received by the Administrative Agent.
ARTICLE IV. AMOUNT AND TERMS OF MULTICURRENCY COMMITMENTS
SECTION IV.01. Multicurrency Commitments. Subject to the terms
and conditions hereof, each Multicurrency Lender severally agrees to make
revolving credit loans (each, a "Multicurrency Loan") in U.S. Dollars or any
Available Foreign Currency to any Borrower from time to time during the
Revolving Credit Commitment Period so long as after giving effect thereto and to
any concurrent repayment or prepayment of Loans (a) the Available Multicurrency
Commitment of each Multicurrency Lender is greater than or equal to zero, (b)
the aggregate outstanding principal amount of Multicurrency Loans does not
exceed an amount of which the U.S. Dollar Equivalent is $120,000,000 and (c) the
Aggregate Committed Outstandings of all Revolving Credit Lenders do not exceed
the Aggregate Revolving Credit Commitments. During the Revolving Credit
Commitment Period, any Borrower may use the Multicurrency Commitments by
borrowing, repaying the Multicurrency Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
SECTION IV.02. Repayment of Multicurrency Loans; Evidence of
Debt. (a) Each Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Multicurrency Lender the then
unpaid principal amount of each Multicurrency Loan of such Multicurrency Lender
to such Borrower on the Revolving Credit Termination Date and on such other
date(s) and in such other amounts as may be required from time to time pursuant
to this Agreement. Each Borrower hereby further agrees to pay interest on the
unpaid principal amount of the Multicurrency Loans advanced to it and from time
to time outstanding until payment thereof in full at the rates per annum, and on
the dates, set forth in Section 6.01.
(b) Each Multicurrency Lender shall maintain in accordance
with its usual practice an account or accounts evidencing indebtedness of each
Borrower to such Multicurrency Lender resulting from each Multicurrency Loan of
such Multicurrency Lender from time to time, including the amounts of principal
and interest payable thereon and paid to such Multicurrency
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Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to Section 14.06(d), and a subaccount therein for each Multicurrency
Lender, in which shall be recorded (i) the amount of each Multicurrency Loan
made hereunder, (ii) the amount of any principal or interest due and payable or
to become due and payable from each Borrower to each Multicurrency Lender
hereunder in respect of the Multicurrency Loans and (iii) both the amount of any
sum received by the Administrative Agent hereunder from each Borrower in respect
of the Multicurrency Loans and each Multicurrency Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Multicurrency Lender maintained pursuant to Section 4.02(b) shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of each Borrower therein recorded; provided, however,
that the failure of any Multicurrency Lender or the Administrative Agent to
maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligation of such Borrower to repay (with applicable
interest) the Multicurrency Loans made to such Borrower by such Multicurrency
Lender in accordance with the terms of this Agreement.
SECTION IV.03. Procedure for Multicurrency Borrowing. Any
Borrower may request the Multicurrency Lenders to make Multicurrency Loans
during the Revolving Credit Commitment Period on any Business Day provided that
such Borrower shall give the Administrative Agent irrevocable notice (which
notice must be received by the Administrative Agent prior to 10:00 A.M., London
time, three Business Days prior to the requested Borrowing Date), specifying in
each case (i) the amount and currency to be borrowed, (ii) the requested
Borrowing Date and (iii) the length of the initial Interest Period therefor.
Each borrowing under the Multicurrency Commitments shall be in an amount in U.S.
Dollars equal to, or an amount in an Available Foreign Currency of which the
U.S. Dollar Equivalent is equal to, at least $5,000,000 (or, if the then
Aggregate Available Multicurrency Commitments are less than $5,000,000, such
lesser amount). Upon receipt of any such notice from any Borrower, the
Administrative Agent shall promptly notify each Multicurrency Lender thereof.
Not later than 12:00 P.M. Noon, London time, on the requested Borrowing Date,
each Multicurrency Lender shall make an amount equal to its Multicurrency
Commitment Percentage of the principal amount of Multicurrency Loans requested
to be made on such Borrowing Date available to the Administrative Agent at the
Administrative Agent's funding office for the applicable currency specified by
the Administrative Agent from time to time by notice to the Multicurrency
Lenders and in immediately available funds. The amounts made available by each
Multicurrency Lender will then be made available to the relevant Borrower at the
funding office for the relevant Available Foreign Currency specified from time
to time by the Administrative Agent by notice to the Multicurrency Lenders and
in like funds as received by the Administrative Agent.
SECTION IV.04. Termination or Reduction of Multicurrency
Commitments. The Company shall have the right, upon not less than three Business
Days' notice to the Administrative Agent, to terminate the Multicurrency
Commitments or, from time to time, to reduce the amount of the Multicurrency
Commitments; provided that no such termination or reduction shall be permitted
if, after giving effect thereto and to any prepayments of the Loans
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made on the effective date thereof, the Available Multicurrency Commitment of
any Multicurrency Lender would be less than zero. Any such reduction shall be in
an amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess
thereof and shall reduce permanently the Multicurrency Commitments then in
effect.
ARTICLE V. LOCAL CURRENCY FACILITIES
SECTION V.01. Terms of Local Currency Facilities. (a) Subject
to the provisions of this Article 5, the Company may in its discretion from time
to time designate any Subsidiary of the Company organized under the laws of any
jurisdiction outside the United States as a "Local Currency Borrower" and any
Qualified Credit Facility to which such Local Currency Borrower and any one or
more Lenders (or its affiliates, agencies or branches) is a party as a "Local
Currency Facility", with the consent of each such Lender in its sole discretion,
by delivering a Local Currency Facility Addendum to the Administrative Agent and
the Lenders (through the Administrative Agent) executed by the Company, each
such Local Currency Borrower and each such Lender, provided, that on the
effective date of such designation no Event of Default shall have occurred and
be continuing. Concurrently with the delivery of a Local Currency Facility
Addendum, the Company or the relevant Local Currency Borrower shall furnish to
the Administrative Agent copies of all documentation executed and delivered by
such Local Currency Borrower in connection therewith, together with, if
applicable, an English translation thereof. Except as otherwise provided in this
Article V or in the definition of "Qualified Credit Facility" in Section 1.01,
the terms and conditions of each Local Currency Facility shall be determined by
mutual agreement of the relevant Local Currency Borrower(s) and Local Currency
Lender(s). The documentation governing each Local Currency Facility shall (i)
contain an express acknowledgement that such Local Currency Facility shall be
subject to the provisions of this Article V and (ii) if more than one Lender is
a party thereto, designate a Local Currency Facility Agent for such Local
Currency Facility. Each of the Company and, by agreeing to any Local Currency
Facility designation as contemplated hereby, each relevant Local Currency Lender
(if any) party thereto which is an affiliate, branch or agency of a Lender,
acknowledges and agrees that each reference in this Agreement to any Lender
shall, to the extent applicable, be deemed to be a reference to such Local
Currency Lender. In the event of any inconsistency between the terms of this
Agreement and the terms of any Local Currency Facility, the terms of this
Agreement shall prevail.
(b) The documentation governing each Local Currency Facility
shall set forth (i) the maximum amount (expressed in U.S. Dollars) available to
be borrowed from all Local Currency Lenders under such Local Currency Facility
(as the same may be reduced from time to time, a "Local Currency Facility
Maximum Borrowing Amount") and (ii) with respect to each Local Currency Lender
party to such Local Currency Facility, the maximum amount (expressed in U.S.
Dollars) available to be borrowed from such Local Currency Lender thereunder (as
the same may be reduced from time to time, a "Local Currency Lender Maximum
Borrowing Amount").
(c) Except as otherwise required by applicable law, in no
event shall the Local Currency Lenders party to a Local
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Currency Facility have the right to accelerate the Local Currency Loans
outstanding thereunder, or to terminate their commitments (if any) to make such
Local Currency Loans prior to the earlier of the stated termination date in
respect thereof or the Revolving Credit Termination Date, except, in each case,
in connection with an acceleration of the Loans or a termination of the
Commitments pursuant to Article XII hereof, provided, that nothing in this
paragraph (c) shall be deemed to require any Local Currency Lender to make a
Local Currency Loan if the applicable conditions precedent to the making of such
Local Currency Loan set forth in the documentation governing the relevant Local
Currency Facility have not been satisfied. No Local Currency Loan may be made
under a Local Currency Facility if (i) after giving effect thereto, the
conditions precedent in Section 8.02 hereof would not be satisfied or (ii) after
giving effect to the making of such Local Currency Loan and the simultaneous
application of the proceeds thereof, the Aggregate Committed Outstandings of all
Lenders at any time exceed the Aggregate Revolving Credit Commitments.
(d) The relevant Local Currency Borrower shall furnish to the
Administrative Agent copies of any amendment, supplement or other modification
(including any change in commitment amounts or in the Local Currency Lenders
participating in any Local Currency Facility) to the terms of any Local Currency
Facility promptly after the effectiveness thereof (together with, if applicable,
an English translation thereof). If any such amendment, supplement or other
modification to a Local Currency Facility shall (i) add a Local Currency Lender
as a Local Currency Lender thereunder or (ii) change the Local Currency Facility
Maximum Borrowing Amount or any Local Currency Lender Maximum Borrowing Amount
with respect thereto, the Company shall promptly furnish an appropriately
revised Local Currency Facility Addendum, executed by the Company, the relevant
Local Currency Borrower and the affected Local Currency Lenders (or any agent
acting on their behalf), to the Administrative Agent and the Lenders (through
the Administrative Agent).
(e) The Company may terminate its designation of a facility as
a Local Currency Facility, with the consent of each Local Currency Lender party
thereto in its sole discretion, by written notice to the Administrative Agent,
which notice shall be executed by the Company, the relevant Local Currency
Borrower and each Local Currency Lender party to such Local Currency Facility
(or any agent acting on their behalf). Once notice of such termination is
received by the Administrative Agent, such Local Currency Facility and the loans
and other obligations outstanding thereunder shall immediately cease to be
subject to the terms of this Agreement.
SECTION V.02. Reporting of Local Currency Outstandings. (a) On
the date of the making of any Local Currency Loan having a maturity of 30 or
more days to a Local Currency Borrower and on the last Business Day of each
month on which a Local Currency Borrower has any outstanding Local Currency
Loans, the Local Currency Facility Agent for such Local Currency Borrower shall
deliver to the Administrative Agent a Notice of Local Currency Outstandings. The
Administrative Agent will, at the request of any Local Currency Facility Agent,
advise such Local Currency Facility Agent of the Exchange Rate used by the
Administrative Agent in calculating the U.S. Dollar Equivalent of Local Currency
Loans under the related Local Currency Facility on any date.
(b) For purposes of any calculation under this Agreement in
which the amount of the Aggregate Local Currency Outstandings of any Lender is a
component, the Administrative
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Agent shall make such calculation on the basis of the Notices of Local Currency
Outstandings received by it at least two Business Days prior to the date of such
calculation.
ARTICLE VI. GENERAL PROVISIONS APPLICABLE TO THE LOANS
SECTION VI.01. Interest Rates and Payment Dates. (a) Each
Eurodollar Loan of each Class shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the Eurodollar
Rate determined for such Interest Period plus the Applicable Margin for such
Class of Loans in effect for such day.
(b) Each Base Rate Loan of each Class shall bear interest for
each day that it is outstanding at a rate per annum equal to the Base Rate for
such day plus the Applicable Margin for such Class of Loans in effect for such
day.
(c) Each Multicurrency Loan shall bear interest for each day
during each Interest Period with respect thereto at a rate per annum equal to
the applicable Eurocurrency Rate determined for such Interest Period plus the
Applicable Margin for such Class of Loans in effect for such day.
(d) If all or a portion of (i) the principal amount of any
Loan, (ii) any interest payable thereon or (iii) any fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum equal to the rate that would otherwise be applicable thereto pursuant
to the foregoing provisions of this Section plus 2% or, if higher, in the case
of amounts required to be paid in U.S. Dollars, the rate described in paragraph
(b) of this Section plus 2%.
(e) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (d) of this
Section shall be payable from time to time on demand.
SECTION VI.02. Conversion and Continuation Options. (a) The
Company may elect from time to time to convert outstanding Eurodollar Loans of
any Class (in whole or in part) to Base Rate Loans of the same Class by giving
the Administrative Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Company may
elect from time to time to convert outstanding Base Rate Loans (other than Swing
Line Loans) of any Class (in whole or in part) to Eurodollar Loans of the same
Class by giving the Administrative Agent at least three Business Days' prior
irrevocable notice of such election. Any such notice of conversion to Eurodollar
Loans shall specify the length of the initial Interest Period or Interest
Periods therefor. Upon receipt of any such notice the Administrative Agent shall
promptly notify each Lender thereof. All or any part of outstanding Eurodollar
Loans and Base Rate Loans may be converted as provided herein, provided that (i)
no Base Rate Loan may be converted into a Eurodollar Loan when any Default or
Event of Default has occurred and is continuing and the Administrative Agent or
the Required Lenders have determined that such conversion is not appropriate,
(ii) any such conversion may only be made
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if, after giving effect thereto, Section 6.03 shall not have been violated,
(iii) no Base Rate Loan of any Class may be converted into a Eurodollar Loan
after the date that is one month prior to the Revolving Credit Termination Date
(in the case of Revolving Credit Loans) or the date of final maturity of the
Loans of such Class (in the case of Term Loans) and (iv) Swing Line Loans may
not be converted to Eurodollar Loans.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Company giving notice to the Administrative Agent of the length of the next
Interest Period to be applicable to such Loans in accordance with the applicable
provisions of the term "Interest Period" set forth in Section 1.01, provided
that no Eurodollar Loan may be continued as such (i) when any Default or Event
of Default has occurred and is continuing and the Administrative Agent or the
Required Lenders have determined that such continuation is not appropriate, (ii)
if, after giving effect thereto, Section 6.03 would be contravened or (iii)
after the date that is one month prior to the Revolving Credit Termination Date,
and provided, further, that if the Company shall fail to give such notice or if
such continuation is not permitted pursuant to the preceding proviso such
Eurodollar Loans shall be automatically converted to Base Rate Loans on the last
day of such then expiring Interest Period.
(c) Any Multicurrency Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
relevant Borrower giving the Administrative Agent at least two Business Days'
prior irrevocable notice of such election, provided, that if the relevant
Borrower shall fail to give such notice or if any Default or Event of Default
has occurred and is continuing and the Administrative Agent or the Required
Lenders have determined that such continuation would not be appropriate, such
Multicurrency Loans shall automatically be continued for an Interest Period of
one month.
SECTION VI.03. Minimum Amounts of Tranches. All borrowings,
conversions and continuations of Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, immediately after giving effect thereto, (a) the aggregate
principal amount of the Eurodollar Loans comprising each Tranche shall be equal
to $10,000,000 or a whole multiple of $1,000,000 in excess thereof, (b) the
aggregate principal amount of the Multicurrency Loans comprising each Tranche
shall be in an amount which is, or of which the U.S. Dollar Equivalent is, at
least $5,000,000 and (c) there shall not be more than 25 Tranches at any one
time outstanding.
SECTION VI.04. Optional and Mandatory Prepayments. (a) The
Company may at any time and from time to time prepay Revolving Credit Loans,
Swing Line Loans and/or Term Loans, in whole or in part, upon at least three
Business Days' irrevocable notice to the Administrative Agent (in the case of
Eurodollar Loans) and at least one Business Day's irrevocable notice to the
Administrative Agent (in the case of Base Rate Loans), specifying the date and
amount of prepayment, which Class of Loans will be prepaid, and whether the
prepayment is of Eurodollar Loans, Base Rate Loans or a combination thereof,
and, if a combination thereof, the amount allocable to each; provided, the Swing
Line Loans may be prepaid without prior notice. Upon the receipt of any such
notice the Administrative Agent shall promptly notify each Lender thereof. If
any such notice is given, the amount specified in such
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notice shall be due and payable on the date specified therein, together with any
amounts payable pursuant to Section 6.12. Partial prepayments of Loans of any
Class shall be in an aggregate principal amount of $10,000,000 or a whole
multiple of $1,000,000 in excess thereof. Partial prepayments of the Swing Line
Loans shall be in aggregate principal amount of $1,000,000 or a whole multiple
of $100,000 in excess thereof.
(b) The Borrowers may at any time and from time to time
prepay, without premium or penalty, the Multicurrency Loans, in whole or in
part, upon at least three Business Days' irrevocable notice to the
Administrative Agent specifying the date and amount of prepayment. Upon the
receipt of any such notice, the Administrative Agent shall promptly notify each
Multicurrency Lender thereof. If any such notice is given, the amount specified
in such notice shall be due and payable on the date specified therein. Partial
prepayments of Multicurrency Loans shall be in an aggregate principal amount of
which the U.S. Dollar Equivalent is at least $5,000,000.
(c) (i) If, at any time during the Revolving Credit Commitment
Period, for any reason the Aggregate Committed Outstandings of all Revolving
Credit Lenders exceed the Aggregate Revolving Credit Commitments then in effect,
(A) the Company shall, without notice or demand, immediately prepay the Swing
Line Loans and the Revolving Credit Loans and/or (B) the Borrowers shall,
without notice or demand, immediately prepay the Multicurrency Loans such that
the sum of (I) the aggregate principal amount of the Swing Line Loans and the
Revolving Credit Loans so prepaid and (II) the U.S. Dollar Equivalent of the
aggregate principal amount of the Multicurrency Loans so prepaid, equals or
exceeds the amount of such excess.
(ii) If, at any time during the Revolving Credit Commitment
Period, for any reason either (A) the Aggregate Committed Outstandings of all
Multicurrency Lenders exceed the aggregate Revolving Credit Commitments of the
Multicurrency Lenders or (B) the Aggregate Multicurrency Outstandings exceed the
aggregate Multicurrency Commitments, (I) the Company shall, without notice or
demand, immediately prepay the Revolving Credit Loans and/or, as applicable,
(II) the Borrowers shall, without notice or demand, immediately prepay
Multicurrency Loans in amounts such that the sum of (x) the aggregate principal
amount of the Revolving Credit Loans so prepaid and (y) the U.S. Dollar
Equivalent of the Multicurrency Loans so prepaid, equals or exceeds the amount
of such excess.
(d) Unless the Required Prepayment Lenders and the Required
Lenders shall otherwise agree, if any Capital Stock or Indebtedness (other than
Indebtedness permitted by paragraphs (a) through (c), paragraphs (e) through (g)
and paragraph (i) of Section 10.05 as in effect prior to the Covenant Transition
Date) shall be issued or incurred by the Company or any of its Subsidiaries at
any time after November 30, 1997, an amount equal to 100% of the Net Cash
Proceeds thereof shall be applied on the date of such issuance or Incurrence
toward the prepayment of the Term Loans as set forth in Section 6.08(b);
provided, that, notwithstanding the foregoing:
(i) on the Business Day immediately preceding the
Initial Revolving Credit Funding Date (or on such earlier date
as the Company shall elect), the Company shall reduce the Term
Loan Commitments (in the same order as
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prepayments of the Term Loans are to be applied pursuant to
Section 6.08(b)) by an amount equal to (A) the Net Cash
Proceeds received by the Company from the issuance on December
1, 1997 of the $500,000,000 aggregate liquidation amount of 7%
Trust Convertible Preferred Securities and (B) the Net Cash
Proceeds of any subsequent issuance prior to the Initial
Revolving Credit Funding Date of Capital Stock yielding Gross
Cash Proceeds in an amount which, together with the Gross Cash
Proceeds of all prior such issuances during the Reduction
Period, aggregates less than $875,000,000;
(ii) if subsequent to December 1, 1997 and prior to
the Initial Term Loan Funding Date the Company receives Gross
Cash Proceeds from the issuance of its Capital Stock in an
amount which, together with the amount of Gross Cash Proceeds
received in all prior Capital Stock issuance transactions
consummated during the Reduction Period, aggregates
$875,000,000 or more, the Company may, on the Business Day
immediately preceding the Initial Revolving Credit Funding
Date (or on such earlier date as the Company shall elect),
reduce the Senior Subordinated Bridge Loan Commitments by an
aggregate amount up to the amount of the Net Cash Proceeds of
such subsequent issuance, and the Term Loan Commitments shall
be reduced, in the same order as prepayments of the Term Loans
are to be applied pursuant to Section 6.08(b), by an amount
equal to the excess of such Net Cash Proceeds over the amount
by which the Company has reduced the Senior Subordinated
Bridge Loan Commitments pursuant to this clause) (such
reduction of the Term Loan Commitments to occur simultaneously
with any reduction of the Senior Subordinated Bridge Loan
Commitments and in any event not later than the Business Day
immediately preceding the Initial Revolving Credit Funding
Date);
(iii) if on or after the Initial Term Loan Funding
Date the Company receives Gross Cash Proceeds from the
issuance of its Capital Stock in an amount which, together
with the amount of Gross Cash Proceeds received in the prior
Capital Stock issuance transactions consummated during the
Reduction Period, aggregates $875,000,000 or more, the Company
may apply the Net Cash Proceeds of such issuance to prepay the
Senior Subordinated Debt, and the remainder of such Net Cash
Proceeds not so applied shall be applied on the date of
receipt thereof to prepay the Term Loans as set forth in
Section 6.08(b);
(iv) Net Cash Proceeds of Subordinated Debt (other
than Senior Subordinated Debt) issued prior to the date of
repayment in full of the Interim Term Loans and the Senior
Subordinated Debt shall be applied on the date of receipt
thereof toward the prepayment of the Interim Term Loans or, at
the Company's option (if no Default or Event of Default is in
existence), the Senior Subordinated Debt, and after the
repayment in full of the Interim Term Loans, the Company shall
not be required to apply proceeds of Subordinated Debt toward
prepayment of the Loans;
(v) the Company shall not be required to make
mandatory prepayments
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with the proceeds of Capital Stock issued to employees
pursuant to stock option plans or similar arrangements, or
Capital Stock issued as consideration for acquisitions made
by the Company and its Subsidiaries;
(vi) after the Interim Term Loans have been repaid in
full, the Company shall not be required to make mandatory
prepayments with proceeds of issuances by the Company of
Capital Stock or Subordinated Debt, and the Company may use
such Net Cash Proceeds to prepay the Senior Subordinated Debt
or for other corporate purposes to the extent not prohibited
hereunder; and
(vii) after the Collateral Release Date, the Company
shall not be required to make mandatory prepayments with the
proceeds of Indebtedness.
(e) Unless the Required Prepayment Lenders and the Required
Lenders shall otherwise agree, if on any date the Company or any of its
Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery
Event then, unless a Reinvestment Notice shall be delivered in respect thereof,
the Asset Sale Prepayment Percentage of such Net Cash Proceeds shall be applied
on such date toward the prepayment of the Term Loans as set forth in Section
6.08(b); provided, that, notwithstanding the foregoing, (i) the aggregate Net
Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement
pursuant to a Reinvestment Notice shall not exceed $35,000,000 in any fiscal
year of the Company and (ii) on each Reinvestment Prepayment Date, an amount
equal to the Reinvestment Prepayment Amount with respect to the relevant
Reinvestment Event shall be applied toward the prepayment of the Term Loans as
set forth in Section 6.08(b); and provided, further that Net Cash Proceeds of
any Asset Sale made by the Target or its Subsidiaries in order to comply with
antitrust requirements shall not be required to be applied toward prepayment of
the Term Loans until the date which is six months after the date of such Asset
Sale.
(f) Unless the Required Prepayment Lenders and the Required
Lenders shall otherwise agree, if, for any fiscal year of the Company commencing
with the fiscal year ending December 31, 1998, there shall be Excess Cash Flow,
the Company shall, on the relevant Excess Cash Flow Application Date, apply the
Excess Cash Flow Prepayment Percentage of such Excess Cash Flow toward the
prepayment of the Term Loans as set forth in Section 6.08(b). Each such
prepayment shall be made on a date (an "Excess Cash Flow Application Date") no
later than five days after the earlier of (i) the date on which the financial
statements of the Company referred to in Section 9.01(a), for the fiscal year
with respect to which such prepayment is made, are required to be delivered to
the Lenders and (ii) the date such financial statements are actually delivered.
(g) Each prepayment of Loans pursuant to this Section 6.04
shall be accompanied by accrued and unpaid interest on the amount prepaid to the
date of prepayment and any amounts payable under Section 6.12 in connection with
such prepayment.
(h) Notwithstanding the foregoing, mandatory prepayments of
Revolving Credit Loans or Multicurrency Loans that would otherwise be required
pursuant to this Section 6.04 solely as a result of fluctuations in Exchange
Rates from time to time shall only be required to be
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made pursuant to this Section 6.04 on the last Business Day of each month on the
basis of the Exchange Rate in effect on such Business Day.
(i) Prepayments of any Class of Loans pursuant to this Section
6.04 shall be applied as follows: (i) in the case of prepayments made by the
Company, first, to prepay Base Rate Loans of such Class then outstanding and
second, to prepay Eurodollar Loans of such Class then outstanding and (ii) in
case of prepayments of Multicurrency Loans made by a Borrower, to prepay
Multicurrency Loans borrowed by such Borrower. Optional prepayments of the
Tranche A Term Loans or the Tranche B Term Loans shall be applied to the
installments thereof in the direct order of scheduled maturity. Mandatory
prepayments of the Tranche A Term Loans or the Tranche B Term Loans shall be
applied to the installments thereof ratably in accordance with the then
outstanding amounts thereof.
(j) The Company shall prepay all Swing Line Loans then
outstanding simultaneously with each borrowing of Revolving Credit Loans.
SECTION VI.05. Facility Fees; Commitment Fee; Other Fees. (a)
The Company agrees to pay to the Administrative Agent for the account of each
Revolving Credit Lender, a facility fee for the period from and including
September 26, 1997 to but excluding October 15, 1997, computed at the Facility
Fee Rate on the daily average amount of such Lender's Revolving Credit
Commitment under the September 26, 1997 Credit Agreement (drawn and undrawn).
The Company agrees to pay to the Administrative Agent for the account of each
Revolving Credit Lender, a facility fee for the period from and including
October 15, 1997 to but excluding the Revolving Credit Termination Date (or such
earlier date on which the Revolving Credit Commitments shall terminate as
provided herein), computed at the Facility Fee Rate on the daily average amount
of such Lender's Revolving Credit Commitment (drawn and undrawn). Such facility
fees shall be payable quarterly in arrears on the last day of each March, June,
September and December and on the Revolving Credit Termination Date or such
earlier date on which the Revolving Credit Commitments shall terminate as
provided herein, commencing on the first of such dates to occur after the date
hereof.
(b) The Company agrees to pay to the Administrative Agent for
the account of each Term Loan Lender, a commitment fee for the period from and
including September 26, 1997 to but excluding October 15, 1997, computed at the
rate of .50% per annum on the daily average undrawn amount of such Term Loan
Lender's Term Loan Commitments under the September 26, 1997 Credit Agreement.
The Company agrees to pay to the Administrative Agent for the account of each
Term Loan Lender, a commitment fee for the period from and including October 15,
1997 to but excluding the earlier of the last day of the Term Loan Commitment
Period or the date on which the Term Loan Commitments are fully utilized or
terminated, computed at the rate of .50% per annum on the daily average undrawn
amount of such Term Loan Lender's Term Loan Commitments. Such commitment fees
shall be payable quarterly in arrears on the last day of each March, June,
September and December and on the date on which the Term Loan Commitments are
fully utilized or terminated, commencing on the first of such dates to occur
after the date hereof.
(c) The Company shall pay (without duplication of any other
fee payable under
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this Section 6.05) to Chase, for its own account, fees in the amounts and on
the dates separately agreed to by the Company and Chase.
(d) The Company shall (without duplication of any other fee
payable under this Section 6.05) pay to the Administrative Agent, for its own
amount, fees in the amounts and on the dates separately agreed to by the Company
and the Administrative Agent.
SECTION VI.06. Computation of Interest and Fees. (a) Interest
based on the Eurodollar Rate, the Eurocurrency Rate or (when it is based on the
Federal Funds Effective Rate) the Base Rate shall be calculated on the basis of
a 360-day year for the actual days elapsed; and facility fees and interest
(other than as specified above) shall be calculated on the basis of a 365- (or
366-, as the case may be) day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Company and the
Lenders of each determination of a Eurodollar Rate or a Eurocurrency Rate. Any
change in the interest rate on a Loan resulting from a change in the Base Rate
or a change in the Prime Rate shall become effective as of the opening of
business on the day on which such change becomes effective provided that such
change becomes effective prior to 5:00 p.m., New York City time, on such day.
The Administrative Agent shall as soon as practicable notify the Company and the
Lenders of the effective date and the amount of each such change in the Base
Rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrowers and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of a Borrower or
any Lender, deliver to such Borrower or such Lender a statement showing in
reasonable detail the quotations and calculations used by the Administrative
Agent in determining any interest rate pursuant to Section 6.01(a) or (c).
(c) (i) If any Domestic Reference Lender shall for any reason
no longer have a Revolving Credit Commitment or any Revolving Credit Loans, such
Domestic Reference Lender shall thereupon cease to be a Domestic Reference
Lender, and if, as a result, there shall only be one Domestic Reference Lender
remaining (at any time after the Syndication Date), the Administrative Agent
(after consultation with the Company and the Lenders) shall, by notice to the
Company and the Lenders, designate another Lender as a Domestic Reference Lender
so that there shall at all times be at least two Domestic Reference Lenders.
(ii) If any Multicurrency Reference Lender shall for any
reason no longer have a Multicurrency Commitment or any Multicurrency Loans,
such Multicurrency Reference Lender shall thereupon cease to be a Multicurrency
Reference Lender, and if, as a result, there shall only be one Multicurrency
Reference Lender remaining (at any time after the Syndication Date), the
Administrative Agent (after consultation with the Company and the Lenders)
shall, by notice to the Company and the Lenders, designate another Multicurrency
Lender as a Multicurrency Reference Lender so that there shall at all times be
at least two Multicurrency Reference Lenders.
(d) Each Reference Lender shall use its best efforts to
furnish quotations of rates to the Administrative Agent as contemplated hereby.
If any of the Reference Lenders shall be unable or shall otherwise fail to
supply such rates to the Administrative Agent upon its request,
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the rate of interest shall, subject to the provisions of Section 6.07, be
determined on the basis of the quotations of the remaining applicable Reference
Lenders or Reference Lender, as applicable.
SECTION VI.07. Inability to Determine Interest Rate. If prior
to the first day of any Interest Period:
(a) the Administrative Agent shall have determined
(which determination shall be conclusive and binding upon the
Borrowers) that, by reason of circumstances affecting the relevant
market generally, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate or the Eurocurrency Rate with respect
to the currency in which a Loan or a requested Loan is denominated (the
"Affected Currency"), as the case may be, for such Interest Period, or
(b) the Administrative Agent has received notice from
the Required Lenders or the Majority Multicurrency Lenders, as the case
may be, that the Eurodollar Rate or Eurocurrency Rate, as the case may
be, determined or to be determined with respect to the Affected
Currency for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as certified by such Lenders) of
making or maintaining their Eurodollar Loans or Multicurrency Loans, as
the case may be, during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Company and the Lenders as soon as practicable thereafter. If such notice is
given (i) any Eurodollar Loans or Multicurrency Loans, as the case may be,
requested to be made on the first day of such Interest Period shall be made as
Base Rate Loans in U.S. Dollars, (ii) any Revolving Credit Loans that were to
have been converted on the first day of such Interest Period to or continued as
Eurodollar Loans shall be converted to or continued as Base Rate Loans, (iii)
any outstanding Eurodollar Loans shall be converted on the first day of such
Interest Period to Base Rate Loans and (iv) any Multicurrency Loans to which
such Interest Period relates shall be repaid on the first day of such Interest
Period. Until such notice has been withdrawn by the Administrative Agent, no
further Eurodollar Loans or Multicurrency Loans shall be made or continued as
such, nor shall the Company have the right to convert Base Rate Loans to
Eurodollar Loans, as the case may be, provided that Loans may continue to be
made, converted or continued, as the case may be, in U.S. Dollars or Available
Foreign Currencies other than the Affected Currency.
SECTION VI.08. Pro Rata Treatment and Payments. (a) (i) Except
as provided in Section 2.05, each borrowing of Revolving Credit Loans by the
Company from the Lenders hereunder shall be made pro rata according to the
Funding Commitment Percentages of the Lenders in effect on the date of such
borrowing. Each payment by the Company on account of any facility fee hereunder
shall be allocated by the Administrative Agent among the Lenders in accordance
with the respective amounts which such Lenders are entitled to receive pursuant
to Section 6.05(a). Any reduction of the Revolving Credit Commitments of the
Lenders shall be allocated by the Administrative Agent among the Lenders pro
rata according to the Revolving Credit Commitment Percentages of the Lenders.
Except as provided in Section 2.05, each payment (other than any optional
prepayment) by the Company on account of principal of the Revolving Credit Loans
shall be allocated by the Administrative Agent pro rata according to the
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respective principal amounts thereof then due and owing to each Revolving Credit
Lender. Each optional prepayment by the Company on account of principal of or
interest on the Revolving Credit Loans shall be allocated by the Administrative
Agent pro rata according to the respective outstanding principal amounts
thereof.
(ii) Each borrowing by the Company of Term Loans hereunder,
each payment by the Company on account of any commitment fee and any reduction
of the Term Loan Commitments of the Lenders shall be made pro rata according to
the respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages
or Interim Term Loan Percentages, as the case may be, of the relevant Lenders.
Each payment (including each prepayment) by the Company on account of principal
of and interest on the Term Loans shall be made pro rata according to the
respective outstanding principal amounts of the Term Loans then held by the Term
Loan Lenders (except as otherwise provided in Section 6.08(b)). The amount of
each principal prepayment of the Tranche A Term Loans, Tranche B Term Loans and
Interim Term Loans, as the case may be, shall be applied to reduce the
installments thereof pro rata based upon the then remaining principal amount
thereof. Amounts prepaid on account of the Term Loans may not be reborrowed.
(iii) All payments (including prepayments) to be made by the
Company hereunder in respect of amounts denominated in Dollars, whether on
account of principal, interest, fees or otherwise, shall be made without set-off
or counterclaim and shall be made prior to 12:00 Noon, New York City time, on
the due date thereof to the Administrative Agent, for the account of the
Lenders, at the Administrative Agent's office specified in Section 14.02, in
Dollars and in immediately available funds. The Administrative Agent shall
distribute such payments to the Lenders entitled to receive the same promptly
upon receipt in like funds as received.
(iv) Each borrowing of Multicurrency Loans by any Borrower
shall be made, and any reduction of the Multicurrency Commitments shall be
allocated by the Administrative Agent, pro rata according to the Multicurrency
Commitment Percentages of the Multicurrency Lenders in effect on the date of
such Loans or reductions. Each payment (including each prepayment) by a Borrower
on account of principal of and interest on Multicurrency Loans shall be
allocated by the Administrative Agent pro rata according to the respective
principal amounts of the Multicurrency Loans then due and owing by such Borrower
to each Multicurrency Lender.
(v) All payments (including prepayments) to be made by a
Borrower on account of Multicurrency Loans hereunder, whether on account of
principal, interest, fees or otherwise, shall be made without set-off or
counterclaim and shall be made prior to 12:00 Noon, London time, on the due date
thereof to the Administrative Agent, for the account of the Multicurrency
Lenders, at the payment office for the currency of such Multicurrency Loans
specified from time to time by the Administrative Agent by notice to the
Multicurrency Lenders, in the currency of such Multicurrency Loans and in
immediately available funds. The Administrative Agent shall distribute such
payments to the Multicurrency Lenders entitled to receive the same promptly upon
receipt in like funds as received.
(vi) If any payment hereunder (other than payments on the
Eurodollar Loans or the Multicurrency Loans) becomes due and payable on a day
other than a Business Day, the
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maturity of such payment shall be extended to the next succeeding Business Day,
and, with respect to payments of principal, interest thereon shall be payable at
the then applicable rate during such extension. If any payment on a Eurodollar
Loan or a Multicurrency Loan becomes due and payable on a day other than a
Business Day, the maturity of such payment shall be extended to the next
succeeding Business Day (and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension)
unless the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding Business Day.
(b) Notwithstanding anything to the contrary in Sections 6.04
or 6.08, (i) all optional prepayments and mandatory prepayments of the Term
Loans shall be applied first to the Interim Term Loans, and after repayment in
full of the Interim Term Loans, to prepay the Tranche A Term Loans and Tranche B
Term Loans ratably and (ii) so long as any Tranche A Term Loans are outstanding,
each Tranche B Term Loan Lender may, at its option, decline any optional
prepayment or mandatory payment applicable to the Tranche B Term Loans of such
Lender; accordingly, with respect to the amount of any optional prepayment or
mandatory prepayment described in Section 6.04 that is allocated to Tranche B
Term Loans (such amounts, the "Tranche B Prepayment Amount"), at any time when
Tranche A Term Loans remain outstanding, the Company will, (i) in the case of
any optional prepayment which the Company wishes to make, not later than 10
Business Days prior to the date on which the Company wishes to make such
optional prepayment, and (ii) in the case of any mandatory prepayment required
to be made pursuant to Section 6.04, in lieu of applying such amount to the
prepayment of Tranche B Term Loans, as provided in paragraph Section 6.04, on
the date specified in Section 6.04 for such prepayment, give the Administrative
Agent telephonic notice (promptly confirmed in writing) requesting that the
Administrative Agent prepare and provide to each Tranche B Lender a notice
(each, a "Prepayment Option Notice") as described below. As promptly as
practicable after receiving such notice from the Company, the Administrative
Agent will send to each Tranche B Lender a Prepayment Option Notice, which shall
be in the form of Exhibit K, and shall include an offer by the Company to prepay
on the date (each a "Prepayment Date") that is 5 Business Days after the date of
the Prepayment Option Notice, the Tranche B Term Loans of such Lender by an
amount equal to the portion of the Prepayment Amount indicated in such Lender's
Prepayment Option Notice as being applicable to such Lender's Tranche B Term
Loans. On the Prepayment Date, (i) the Company shall pay to the Administrative
Agent the aggregate amount necessary to prepay that portion of the outstanding
Tranche B Term Loans in respect of which Tranche B Lenders have accepted
prepayment as described above (such Lenders, the "Accepting Lenders"), and such
amount shall be applied to prepay the Tranche B Term Loans of each Accepting
Lender and (ii) the Company shall pay to the Administrative Agent an amount
equal to the portion of the Tranche B Prepayment Amount not accepted by the
Accepting Lenders, and such amount shall be applied to the prepayment of the
Tranche A Term Loans.
(c) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a Borrowing Date that such Lender will not
make the amount that would constitute its share of such borrowing available to
the Administrative Agent, the Administrative Agent may assume that such Lender
is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the applicable Borrower a corresponding amount. If such amount is not made
available to the
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Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate per annum equal to (i) the daily average Federal
Funds Effective Rate (in the case of a borrowing of Revolving Credit Loans or
Term Loans) and (ii) the Administrative Agent's reasonable estimate of its
average daily cost of funds (in the case of a borrowing of Multicurrency Loans),
in each case for the period until such Lender makes such amount immediately
available to the Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this Section
shall be conclusive in the absence of manifest error. If such Lender's share of
such borrowing is not made available to the Administrative Agent by such Lender
within three Business Days of such Borrowing Date, the applicable Borrower shall
repay such Lender's share of such borrowing (together with interest thereon from
the date such amount was made available to such Borrower (i) at the rate per
annum applicable to Base Rate Loans hereunder (in the case of a borrowing of
Revolving Credit Loans or Term Loans) or (ii) the Administrative Agent's
reasonable estimate of its average daily cost of funds plus the Applicable
Margin applicable to Multicurrency Loans (in the case of a borrowing of
Multicurrency Loans)) to the Administrative Agent not later than three Business
Days after receipt of written notice from the Administrative Agent specifying
such Lender's share of such borrowing that was not made available to the
Administrative Agent.
SECTION VI.09. Illegality. Notwithstanding any other provision
herein, if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans or Multicurrency Loans, as the case may be, as
contemplated by this Agreement, (a) such Lender shall immediately notify the
Company and the Agent, (b) the commitment of such Lender hereunder to make
Eurodollar Loans or Multicurrency Loans, as the case may be, continue Eurodollar
Loans or Multicurrency Loans, as the case may be, as such and convert Base Rate
Loans to Eurodollar Loans shall forthwith be suspended until such time as it
shall no longer be unlawful for such Lender to make or maintain the affected
Loans, (c) as applicable, such Lender's Loans then outstanding as Eurodollar
Loans, if any, shall be converted automatically to Base Rate Loans on the
respective last days of the then current Interest Periods with respect to such
Eurodollar Loans or within such earlier period as may be required by law and (d)
as applicable, such Lender's Multicurrency Loans shall be prepaid on the last
day of the then current Interest Period with respect thereto. If any such
conversion of a Eurodollar Loan or a Multicurrency Loan, as the case may be,
occurs on a day which is not the last day of the then current Interest Period
with respect thereto, the Company shall pay to such Lender such amounts, if any,
as may be required pursuant to Section 6.12.
SECTION .10. Requirements of Law. (a) If the adoption of or
any change in any Requirement of Law or in the interpretation or application
thereof or compliance by any Lender with any request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority, made subsequent to the date hereof:
(i) shall subject such Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note, any Eurodollar
Loan made by it or any Multicurrency Loan made by it or its obligation
to make any Eurodollar Loan or Multicurrency Loan or change the basis
of taxation of payments to such Lender in respect
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thereof (except for taxes covered by Section 6.11 and changes in rate
of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate or the
Eurocurrency Rate hereunder, including, without limitation, the
imposition of any reserves with respect to Eurocurrency Liabilities
under Regulation D of the Board; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or Multicurrency Loans or to reduce
any amount receivable hereunder in respect thereof, then, in any such case, the
applicable Borrower shall promptly pay such Lender, upon its demand, any
additional amount or amounts as will compensate such Lender for such increased
cost or reduced amount receivable. If any Lender becomes entitled to claim any
additional amounts pursuant to this Section, it shall promptly notify the
Company (with a copy to the Administrative Agent) of the event by reason of
which it becomes so entitled. A certificate as to any additional amounts payable
pursuant to this Section submitted by such Lender to the Company (with a copy to
the Administrative Agent) shall be conclusive in the absence of manifest error.
This covenant shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, after submission by such Lender to the
Company (with a copy to the Administrative Agent) of a prompt written request
therefor, the Company shall promptly pay to such Lender such additional amount
or amounts as will compensate such Lender for such reduction.
(c) No Lender shall be entitled to compensation under this
Section 6.10 for any costs incurred or reductions suffered with respect to any
date that it has such costs unless it shall have notified the Company that it
will demand compensation for such costs or reductions under paragraph (a) or (b)
above, not more than 120 days after the later of (i) such date and (ii) the date
on which it shall have become aware of such costs or reductions; provided that
the foregoing shall in no way operate in derogation of the undertaking contained
in the penultimate sentence of
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this paragraph (c). Notwithstanding any other provision of this Section 6.10, no
Lender shall demand compensation for any increased cost or reduction referred to
above if it shall not at the time be the general policy or practice of such
Lender to demand such compensation in similar circumstances under comparable
provisions of other credit agreements. In the event that any Lender determines
that any event or circumstances that will lead to a claim under this Section
6.10 has occurred or will occur, such Lender will use its best efforts to so
notify the Company; provided, that any failure to provide such notice shall in
no way impair the rights of any Lender to demand and receive compensation under
this Section 6.10, but without prejudice to any claims of the Company for
compensation for actual damages sustained as a result of any failure to observe
this undertaking. The agreements of this Section shall survive the termination
of this Agreement and the payment of the Loans and all other amounts payable
hereunder.
SECTION .11. Taxes. (a) All payments of principal and interest
made by the Borrowers under this Agreement and any Note shall be made free and
clear of, and without deduction or withholding for or on account of, any present
or future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding income taxes and
franchise taxes (imposed in lieu of income taxes) imposed on the Administrative
Agent or any Lender as a result of a present or former connection between the
Administrative Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from the
Administrative Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement, any Note
or any other Loan Document). If any such non-excluded taxes, levies, imposts,
duties, charges, fees, deductions or withholdings ("Non-Excluded Taxes") are
required to be withheld from any amounts payable to the Administrative Agent or
any Lender hereunder or under any Note, the amounts so payable to the
Administrative Agent or such Lender shall be increased to the extent necessary
to yield to the Administrative Agent or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable hereunder at the
rates and in the amounts specified in this Agreement, provided, however, that
(i) the Company shall not be required to increase any such amounts payable to
any Lender that is not organized under the laws of the United States of America
or a state thereof if such Lender fails to comply with the requirements of
paragraph (b) of this Section, and (ii) a Foreign Subsidiary Borrower shall not
be required to increase any such amounts payable to any Lender if such Lender
fails to comply with the requirements of paragraph (c) of this Section. Whenever
any Non-Excluded Taxes are payable by a Borrower, as promptly as possible
thereafter such Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by such Borrower showing payment
thereof. If a Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, such Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this Section shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
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(b) Each Lender that is not incorporated or organized under
the laws of the United States of America or a state thereof shall:
(i) at least five Business Days before the date of the
initial payment to be made by the Company under this Agreement to such
Lender, deliver to the Company and the Administrative Agent (A) two
duly completed copies of United States Internal Revenue Service Form
1001 or 4224, or successor applicable form, as the case may be,
certifying that it is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income
taxes and (B) an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be, certifying that it is entitled to
an exemption from United States backup withholding tax;
(ii) deliver to the Company and the Administrative Agent
two further copies of any such form or certification at least five
Business Days before the date that any such form or certification
expires or becomes obsolete and after the occurrence of any event
requiring a change in the most recent form previously delivered by it
to the Administrative Agent and the Company;
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Company or the Administrative Agent; and
(iv) file amendments to such forms as and when required;
and each Lender (or Transferee) that is incorporated or organized under the laws
of the United States of America or a State thereof shall provide two properly
completed and duly executed copies of Form W-9, or successor applicable form, at
the times specified for delivery of forms under paragraph (b)(i) of this
Section, in each case unless an event (including, without limitation, any change
in treaty, law or regulation) has occurred after the date such Person becomes a
Lender hereunder which renders all such forms inapplicable or which would
prevent such Lender from duly completing and delivering any such form with
respect to it and such Lender so advises the Company and the Administrative
Agent; provided, however, that the Company may rely upon such forms provided to
the Company for all periods prior to the occurrence of such event. Each Person
that shall become a Lender or a Participant pursuant to Section 14.06 shall,
upon the effectiveness of the related transfer, be required to provide all of
the forms, certifications and statements required pursuant to this Section,
provided that in the case of such Participant, the obligations of such
Participant pursuant to this Section 6.11(b) shall be determined as if such
Participant were a Lender, except that such Participant shall furnish all such
required forms, certifications and statements to the Lender from which the
related participation shall have been purchased.
(c) Each Lender that is not incorporated or organized under
the laws of the jurisdiction under which a Foreign Subsidiary Borrower is
incorporated or organized shall, upon request by such Foreign Subsidiary
Borrower, within a reasonable period of time after such request, deliver to such
Foreign Subsidiary Borrower or the applicable governmental or taxing authority,
as the case may be, any form or certificate required in order that any payment
by such
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Foreign Subsidiary Borrower under this Agreement or any Notes to such Lender may
be made free and clear of, and without deduction or withholding for or on
account of any Non-Excluded Tax (or to allow any such deduction or withholding
to be at a reduced rate) imposed on such payment under the laws of the
jurisdiction under which such Foreign Subsidiary Borrower is incorporated or
organized, provided that such Lender is legally entitled to complete, execute
and deliver such form or certificate and such completion, execution or
submission would not materially prejudice the legal position of such Lender.
(d) No Lender shall be entitled to payment under this Section
6.11 unless it shall have notified the applicable Borrower that it will demand
such payment not more than 120 days after the date on which it shall become
aware that it was entitled to such payment provided that such notice requirement
shall in no way operate in derogation of the undertaking contained in the second
following sentence of this Section 6.11(d). Notwithstanding any other provision
of this Section 6.11, no Lender shall demand any payment under this Section 6.11
if it shall not at the time be the general policy or practice of such Lender to
demand such compensation in similar circumstances under comparable provisions of
other credit agreements. In the event that any Lender determines that any event
or circumstance that will lead to a claim by it under this Section 6.11 has
occurred or will occur, such Lender will use its best efforts to so notify the
Company provided that any failure to provide such notice shall in no way impair
the rights of any Lender to demand and receive compensation under this Section
6.11, but without prejudice to any claims of the Company for failure to observe
this undertaking.
SECTION .12. Indemnity. Each Borrower agrees to indemnify each
Lender and to hold each Lender harmless from any loss or expense which such
Lender may sustain or incur as a consequence of (a) default by such Borrower in
payment when due of the principal amount of or interest on any Eurodollar Loan
or Multicurrency Loan, (b) default by such Borrower in making a borrowing of,
conversion into or continuation of Eurodollar Loans or Multicurrency Loans after
such Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (c) default by such Borrower in making any
prepayment after such Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (d) the making by such Borrower of a prepayment
of Eurodollar Loans or Multicurrency Loans on a day which is not the last day of
an Interest Period with respect thereto, including, without limitation, in each
case, any such loss or expense arising from the reemployment of funds obtained
by it or from fees payable to terminate the deposits from which such funds were
obtained. Such indemnification may include an amount equal to the excess, if
any, of (i) the amount of interest which would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to borrow, convert or continue to the
last day of such Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have commenced on the date
of such failure) in each case at the applicable rate of interest for such Loans
provided for herein (excluding, however, the Applicable Margin included therein,
if any) over (ii) the amount of interest (as reasonably determined by such
Lender) which would have accrued to such Lender on such amount by placing such
amount on deposit for a comparable period with leading banks in the interbank
eurodollar market. All payments required to be made by any Borrower to any
Lender under this Section 6.12 shall be made no later than 30 days after receipt
by such Borrower of a written notice from such Lender setting forth in
reasonable detail the basis upon
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which such Lender is entitled to receive such payments. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
SECTION .13. Use of Proceeds. The proceeds of the Revolving
Credit Loans and Multicurrency Loans shall be used (a) to refinance the Existing
Credit Agreement, (b) to pay fees and expenses incurred by the Borrowers in
connection with this Agreement and (c) for working capital and other general
corporate purposes of the Borrowers and their Subsidiaries, including
investments and acquisitions. The proceeds of the Term Loans shall be used in
accordance with Schedule 6.13 (a) to finance the acquisition of the Target
Shares, (b) to refinance existing indebtedness of the Target and (c) to pay fees
and expenses incurred in connection with the Tender Offer and this Agreement.
SECTION .14. Change of Lending Office; Replacement of Lenders.
(a) Each Lender agrees that if it makes any demand for payment under Section
6.10 or 6.11, or if any adoption or change of the type described in Section 6.09
shall occur with respect to it, it shall use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions and so long as such
efforts would not be disadvantageous to it, as determined in its sole
discretion) to designate a different lending office if the making of such a
designation would reduce or obviate the need for the Borrowers to make payments
under Section 6.10 or 6.11, or would eliminate or reduce the effect of any
adoption or change described in Section 6.09.
(b) If at any time Lender makes any demand for payment under
Section 6.10 or 6.11 as a result of any condition described in any such Section,
then the Borrowers may, if such condition continues to exist after such Lender
shall have used reasonable efforts pursuant to paragraph (a) of this Section
6.14 and on 10 Business Days' prior written notice to the Administrative Agent
and such Lender, replace such Lender by causing such Lender to (and such Lender
shall) assign pursuant to Section 14.06(c) all of its rights and obligations
under this Agreement to another Lender or other bank or financial institution
selected by the Company and acceptable to the Administrative Agent for a
purchase price equal to the outstanding principal amount of all Loans, accrued
interest, fees and other amounts owing to such Lender; provided that (i) the
Borrowers shall have no right to replace the Administrative Agent, (ii) neither
the Administrative Agent nor any Lender shall have any obligation to the
Borrowers to find a replacement Lender or other bank or financial institution,
(iii) such replacement must take place no later than 180 days after such Lender
shall have made any such demand for payment, (iv) in no event shall any Lender
hereby replaced be required to pay or surrender to such replacement Lender or
other bank or financial institution any of the fees received by such Lender
pursuant to this Agreement, (v) the Borrowers shall pay such amounts demanded
under Section 6.10 or 6.11 to such Lender, together with any amounts as may be
required pursuant to Section 6.12, prior to such Lender being replaced and the
payment of such amounts shall be a condition to the replacement of such Lender
and (vi) such Lender shall not be required to pay any fees required by Section
14.06(e) in connection with such replacement, which fees shall be paid by the
Company.
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ARTICLE VII. REPRESENTATIONS AND WARRANTIES
Each of the Company and the Foreign Subsidiary Borrowers
(insofar as the representations and warranties set forth below relate
respectively to such Foreign Subsidiary Borrower) represents and warrants to the
Administrative Agent and each Lender that:
SECTION VII.01. Financial Condition. (a) The consolidated
balance sheets of the Company and its consolidated Subsidiaries as at December
31, 1995 and December 31, 1996, respectively, and the related consolidated
statements of earnings, cash flows and shareholders' equity for the fiscal years
ended on such dates, reported on by Ernst & Young LLP, copies of which have
heretofore been furnished to each Lender, are complete and correct in all
material respects and present fairly the consolidated financial condition of the
Company and its consolidated Subsidiaries as at such dates, and the consolidated
results of their operations and their consolidated cash flows for the fiscal
years then ended. The unaudited consolidated balance sheet of the Company and
its consolidated Subsidiaries as at June 30, 1997 and the related unaudited
consolidated statements of earnings and of cash flows for the six-month period
ended on such date, certified by a Responsible Officer, copies of which have
heretofore been furnished to each Lender, are complete and correct and present
fairly the consolidated financial condition of the Company and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the six-month period then ended (subject
to normal year-end audit adjustments). All such financial statements, including
the related schedules and notes thereto, have been prepared in accordance with
GAAP applied consistently throughout the periods involved (except as approved by
such accountants or Responsible Officer, as the case may be, and as disclosed
therein). Neither the Company nor any of its consolidated Subsidiaries (taken as
a whole) had, at the date of the most recent balance sheet referred to above,
any material Guaranty, contingent liability or liability for taxes, or any
long-term lease or unusual forward or long-term commitment, including, without
limitation, any interest rate or foreign currency swap or exchange transaction,
which is not reflected in the foregoing statements or in the notes thereto.
During the period from December 31, 1996 to and including the date hereof there
has been no sale, transfer or other disposition by the Company or any of its
consolidated Subsidiaries of any material part of its business or property and
no purchase or other acquisition of any business or property (including any
capital stock of any other Person) material in relation to the consolidated
financial condition of the Company and its consolidated Subsidiaries at December
31, 1996, other than any such sale, transfer or other disposition or purchase or
acquisition that would have been permitted by this Agreement if this Agreement
had been in effect at all times during such period.
(b) The unaudited pro forma consolidated balance sheet of the
Company and its consolidated Subsidiaries as at June 30, 1997 (including the
notes thereto) (the "Pro Forma Balance Sheet"), copies of which have heretofore
been furnished to each Lender, has been prepared giving effect (as if such
events had occurred on such date) to (i) the consummation of the Acquisition,
(ii) the Loans to be made hereunder and the use of proceeds thereof and (iii)
the payment of fees and expenses in connection with the foregoing. The Pro Forma
Balance Sheet has been prepared based on the best information available to the
Company as of the date of delivery thereof, and presents fairly on a pro forma
basis the estimated financial position of the Company and its consolidated
Subsidiaries as at June 30, 1997, assuming that the events
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specified in the preceding sentence had actually occurred at such date.
(c) The consolidated balance sheets of the Target and its
consolidated Subsidiaries as at December 31, 1995 and December 31, 1996,
respectively, and the related consolidated statements of earnings, cash flows
and shareholders' equity for the fiscal years ended on such dates, reported on
by KPMG Audit plc, copies of which have heretofore been furnished to each
Lender, are, to the best of the Company's knowledge, complete and correct in all
material respects and, to the best of the Company's knowledge, present fairly
the consolidated financial condition of the Target and its consolidated
Subsidiaries as at such dates, and the consolidated results of their operations
and their consolidated cash flows for the fiscal years then ended. The unaudited
consolidated balance sheet of the Target and its consolidated Subsidiaries as at
June 30, 1997 and the related unaudited consolidated statements of earnings and
of cash flows for the six-month period ended on such date, copies of which have
heretofore been furnished to each Lender, are, to the best of the Company's
knowledge, complete and correct and, to the best of the company's knowledge,
present fairly the consolidated financial condition of the Target and its
consolidated Subsidiaries as at such date, and the consolidated results of their
operations and their consolidated cash flows for the six-month period then ended
(subject to normal year-end audit adjustments).
SECTION VII.02. No Change. Since December 31, 1996, (a) there
has been no development or event which has had or could reasonably be expected
to have a Material Adverse Effect, except as disclosed in the Company's Annual
Report on Form 10-K/A for fiscal year 1996 and (b) to the best of the Company's
knowledge, there has been no development or event which has had or could
reasonably be expected to have a material adverse effect on the business,
operations, property, condition (material or otherwise) or prospects of the
Target and its Subsidiaries taken as a whole.
SECTION VII.03. Corporate Existence; Compliance with Law. Each
of the Company and its Subsidiaries (a) is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization except
to the extent that, with respect to those Subsidiaries that are not Borrowers
hereunder, the lack of such organization, existence or good standing could not,
in the aggregate, reasonably be expected to have a Material Adverse Effect, (b)
has the corporate or other power and authority, and the legal right, to own and
operate its property, to lease the property it operates as lessee and to conduct
the business in which it is currently engaged except to the extent that, with
respect to those Subsidiaries that are not Borrowers hereunder, the lack of such
power, authority or legal right could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect, (c) is duly qualified as a foreign
corporation or other entity and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification except to the extent that the
failure to qualify or be in good standing could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect and (d) is in
compliance with all Requirements of Law except to the extent that the failure to
comply therewith could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
SECTION VII.04. Corporate Power; Authorization; Enforceable
Obligations. Each Loan Party has the corporate or other power and authority;
and the legal right, to execute,
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deliver and perform the Loan Documents to which it is a party and, in
the case of each Borrower, to borrow hereunder and has taken all necessary
corporate or other action to authorize the borrowings on the terms and
conditions of this Agreement and the Notes to which it is a party and to
authorize the execution, delivery and performance of the Loan Documents to
which it is a party. Each of the Company and U.K. Acquisition II has the
corporate power and authority, and the legal right, to consummate the
Transactions. No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required with respect to the Company or any of its Subsidiaries in connection
with the borrowings hereunder of the consummation of the Transactions or, with
the execution, delivery, performance, validity or enforceability of the Loan
Documents to which it is a party, except for consents, filings, authorizations
or approvals which have been obtained and are in full force and effect, and
except for (i) any such approvals which will be set forth in the Offer
Documents as conditions to the Tender Offer and (ii) other approvals the
failure to obtain which could not reasonably be expected to have a Material
Adverse Effect. This Agreement has been, and each other Loan Document has been
or when executed pursuant hereto will be, duly executed and delivered on behalf
of each of the applicable Loan Parties. This Agreement and each other Loan
Document to which a Loan Party is a party constitutes a legal, valid and
binding obligation of such Person enforceable against such Person in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at law)
and by an implied covenant of good faith and fair dealing.
SECTION VII.05. No Legal Bar. The execution, delivery and
performance of the Loan Documents, the borrowings hereunder, the use of the
proceeds thereof and the consummation of the Transactions will not violate any
Requirement of Law or Contractual Obligation of the Company or of any of its
Subsidiaries, other than any such violation which could not reasonably be
expected to have a Material Adverse Effect, and will not result in, or require,
the creation or imposition of any Lien on any of its or their respective
properties or revenues pursuant to any such Requirement of Law or Contractual
Obligation, except Liens created pursuant to the Loan Documents and any Lien
which could not reasonably be expected to have a Material Adverse Effect.
SECTION VII.06. No Material Litigation. No litigation,
investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of the Company, threatened by or
against the Company or any of its Subsidiaries or against any of its or their
respective properties or revenues (a) with respect to any of the Loan Documents,
the Transactions or any of the transactions contemplated hereby, or (b) which
could reasonably be expected to have a Material Adverse Effect.
SECTION VII.07. No Default. Neither the Company nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
SECTION VII.08. Ownership of Property; Liens. Each of the
Company and its
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Subsidiaries has good record and marketable title in fee simple to, or
a valid leasehold interest in, all its material real property, and good title
to, or a valid leasehold interest in, all its other material property, and none
of such property is subject to any Lien except as permitted by Section 10.04.
SECTION VII.09. Intellectual Property. Each of the Company its
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted except for those the failure to own or license
which could not reasonably be expected to have a Material Adverse Effect (the
"Intellectual Property"). No claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property, nor does the
Company know of any valid basis for any such claim which, in the aggregate,
could reasonably be expected to have a Material Adverse Effect. The use of such
Intellectual Property by the Company and its Subsidiaries does not infringe on
the rights of any Person, except for such claims and infringements that, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
SECTION .10. No Burdensome Restrictions. No Requirement of Law
or Contractual Obligation of the Company or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
SECTION .11. Taxes. Each of the Company and its Subsidiaries
has filed or caused to be filed all U.S. tax returns and all other material tax
returns which, to the knowledge of the Borrowers, are required to be filed and
has paid all taxes shown to be due and payable on said returns or on any
assessments made against it or any of its property and all other taxes, fees or
other charges imposed on it or any of its property by any Governmental Authority
(other than any (i) with respect to which the failure to pay, in the aggregate,
would not reasonably be expected to have a Material Adverse Effect or (ii) the
amount or validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the Company or its Subsidiaries, as the
case may be); no tax Lien has been filed, and, to the knowledge of the Company,
no claim is being asserted, with respect to any such tax, fee or other charge.
SECTION .12. Federal Regulations. No part of the proceeds of
any Loans will be used for "purchasing" or "carrying" any "margin stock" within
the respective meanings of each of the quoted terms under Regulation G and
Regulation U of the Board of Governors of the United States Federal Reserve
System as now and from time to time hereafter in effect or for any purpose which
violates the provisions of the Regulations of such Board of Governors (including
but not limited to the provisions of Regulation G, Regulation U and Regulation
X) or any similar rule of any other Governmental Authority. If any Borrower is
requested by any Lender or the Administrative Agent, such Borrower will furnish
to the Administrative Agent and each Lender a statement to the foregoing effect
in conformity with the requirements of Form FR U-1 or FR G-3 referred to in said
Regulation U and Regulation G, respectively.
SECTION .13. ERISA. Neither a Reportable Event nor an
Accumulated Funding Deficiency has occurred during the five-year period prior
to the date on which this
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representation is made or deemed made with respect to any Plan, and
each Plan has complied in all material respects with the applicable provisions
of ERISA and the Code. No termination of a Single Employer Plan has occurred,
and no Lien in favor of PBGC or a Plan has arisen, during such five-year
period. The present value of all accrued benefits under each Single Employer
Plan (based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits by an amount which could reasonably be expected to have a
Material Adverse Effect, either individually or in the aggregate with all other
Single Employer Plans under which such accrued benefits exceed such assets.
Neither the Company nor any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan during the five-year period
prior to the date on which this representation is made or deemed made which
could, in the aggregate with other such withdrawals during such period,
reasonably be expected to have a Material Adverse Effect, and neither the
Company nor any Commonly Controlled Entity would become subject to any
liability under ERISA if the Company or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which this representation is made or
deemed made. No such Multiemployer Plan is in Reorganization or is Insolvent.
SECTION .14. Investment Company Act; Other Regulations. No
Borrower is an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
No Borrower is subject to any law or regulation which limits its ability to
incur the Indebtedness to be incurred by it under the Loan Documents.
SECTION .15. Subsidiaries. As of the date hereof, the Company
has no Subsidiaries except those Subsidiaries identified on Schedule II to this
Agreement.
SECTION .16. Environmental Matters. (a) The facilities and
properties owned, leased or operated by the Company and/or any of its
Subsidiaries (the "Properties") do not contain, and have not previously
contained, any Materials of Environmental Concern in amounts or concentrations
which (i) constitute or constituted a violation of, or (ii) could reasonably be
expected to give rise to liability under, any Environmental Law except in either
case insofar as such violation or liability, or any aggregation thereof, is not
reasonably likely to result in the payment of a Material Environmental Amount.
(b) The Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, in all material
respects with all applicable Environmental Laws, and there is no contamination
at, under or about the Properties or violation of any Environmental Law with
respect to the Properties or the business operated by the Company or any of its
Subsidiaries (the "Business") which could materially interfere with the
continued operation of the Properties or materially impair the aggregate fair
saleable value of the Properties.
(c) Neither the Company nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-compliance, liability
or potential liability regarding
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environmental matters or compliance with Environmental Laws with regard to any
of the Properties or the Business, nor does the Company or any of its
Subsidiaries have knowledge or reason to believe that any such notice will be
received or is being threatened except insofar as such notice or threatened
notice, or any aggregation thereof, does not involve a matter or matters that is
or are reasonably likely to result in the payment of a Material Environmental
Amount.
(d) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of, or in a manner
or to a location which could reasonably be expected to give rise to liability
under, any Environmental Law, nor have any Materials of Environmental Concern
been generated, treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that could reasonably be expected to
give rise to liability on the part of the Company or any Subsidiary under, any
applicable Environmental Law except insofar as any such violation or liability
referred to in this paragraph, or any aggregation thereof, is not reasonably
likely to result in the payment of a Material Environmental Amount.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Company, threatened, under any
Environmental Law to which the Company or any Subsidiary is or will be named as
a party with respect to the Properties or the Business, nor are there any
consent decrees or other decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties or the Business except insofar
as such proceeding, action, decree, order or other requirement, or any
aggregation thereof, is not reasonably likely to result in the payment of a
Material Environmental Amount.
(f) There has been no release or threat of release of
Materials of Environmental Concern at or from the Properties, or arising from or
related to the operations of the Company or any Subsidiary in connection with
the Properties or otherwise in connection with the Business, in violation of or
in amounts or in a manner that could reasonably give rise to liability under
Environmental Laws except insofar as any such violation or liability referred to
in this paragraph, or any aggregation thereof, is not reasonably likely to
result in the payment of a Material Environmental Amount.
SECTION .17. Accuracy and Completeness of Information. All
information heretofore furnished by each Loan Party to the Lenders for purposes
of or in connection with this Agreement does not, and all such information
hereafter furnished by such Loan Party to any Lender for purposes of this
Agreement will not, contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements made or to be
made, in the light of the circumstances under which they were or will be made,
not misleading. Prior to the date hereof, the Company has disclosed to the
Lenders in writing any and all facts which materially and adversely affect (to
the extent the Company can as of the date hereof reasonably foresee), the
business, operations or financial condition of the Company and its Subsidiaries,
taken as a whole, or the ability of any Loan Party to perform its obligations
under the Loan Documents. It is understood that no representation or warranty is
made concerning the forecasts, estimates, pro forma information, projections
and statements as to anticipated future performance or conditions, and the
assumptions on which they were based, contained in any such information,
reports, financial statements, exhibits or schedules, except that as of the
date such forecasts,
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estimates, pro forma information, projections and statements were
generated, (a) such forecasts, estimates, pro forma information, projections
and statements were based on the good faith assumptions of the management of
the Company and (b) such assumptions were believed by such management to be
reasonable. It is further understood that the foregoing statements in this
Section 7.17, to the extent they refer to information in respect of the Target,
are made to the best of the Company's knowledge.
SECTION .18. Other Unsecured Indebtedness. The obligations of
each of the Borrowers under this Agreement and the Notes and the other Loan
Documents rank at least pari passu in right of payment with all other
unsubordinated Indebtedness of such Borrowers.
SECTION .19. Foreign Subsidiary Borrowers. (a) Each Foreign
Subsidiary Borrower will be a direct or indirect, Wholly Owned Subsidiary of the
Company (or, with the consent of the Majority Multicurrency Lenders, which
consent shall not be unreasonably withheld, a direct or indirect, majority-owned
Subsidiary of the Company); and
(b) Each Foreign Subsidiary Borrower will have, upon becoming
a party hereto, full right and authority to enter into this Agreement and each
other Loan Document to which it is a party, and to perform all of its
obligations under this and each other Loan Document to which it is a party; all
of the foregoing actions will have been, prior to any request for Loans by such
Borrower, duly authorized by all necessary action on the part of such Borrower;
and when such Foreign Subsidiary Borrower becomes a party hereto, this Agreement
and each other Loan Document to which it is a party will constitute valid and
binding obligations of such Borrower enforceable in accordance with their
respective terms except as such terms may be limited by the application of
bankruptcy, moratorium, insolvency and similar laws affecting the rights of
creditors generally and by equitable principles affecting the availability of
specific performance and other remedies.
SECTION .20. Security Documents. Each Security Document, when
executed and delivered by the Loan Party which is a party thereto, will be
effective to create in favor of the Administrative Agent (or the Trustee, as the
case may be), for the benefit of the Lenders (and, as the case may be, the
holders of the Existing Public Securities), a legal, valid and enforceable
security interest in the Collateral described therein and proceeds thereof. When
the actions described in Schedule 7.20 in respect of each Security Document have
been taken, the Security Documents shall constitute fully perfected Liens on,
and security interests in, all right, title and interest of the Loan Parties in
such Collateral and the proceeds thereof, as security for the Secured
Obligations, in each case prior and superior in right to any other Person.
SECTION .21. Solvency. Each Loan Party is, and after giving
effect to the Acquisition and the incurrence of all Indebtedness and obligations
being incurred in connection herewith and therewith will be and will continue to
be, Solvent.
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ARTICLE VIII. CONDITIONS PRECEDENT
SECTION VIII.01. Conditions to Effective Date. The Agreement
shall become effective on the date of the satisfaction of the conditions
precedent set forth in this Section 8.01 (the date on which such conditions are
satisfied, the "Effective Date"):
(a) Credit Agreement. The Administrative Agent shall have
received this Agreement, executed and delivered by a duly authorized
officer (or a duly authorized representative) of the Company and each
Foreign Subsidiary Borrower that is a party hereto on the Effective
Date, with a counterpart or copy for each Lender.
(b) Corporate Proceedings. The Administrative Agent shall have
received, with a counterpart or copy for each Lender, a copy of the
resolutions, in form and substance satisfactory to the Administrative
Agent, of the Board of Directors of the Company and each other Borrower
that is a party hereto on the Effective Date, authorizing (i) the
execution, delivery and performance by it of this Agreement and the
Loan Documents to which it is a party and (ii) the borrowings by it
contemplated hereunder, certified by the Secretary or an Assistant
Secretary of the Company or such other Borrower, as the case may be, as
of the Effective Date, which certificate shall be in form and substance
satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked
or rescinded.
(c) Incumbency Certificate. The Administrative Agent shall
have received, with a counterpart or copy for each Lender, a
certificate of the Company, dated the Effective Date, as to the
incumbency and signature of the officers or representatives of each
Borrower executing any Loan Document on the Effective Date,
satisfactory in form and substance to the Administrative Agent,
executed by any of the Chief Executive Officer, the President, the
Chief Financial Officer, the Treasurer or the Controller of the Company
and the Secretary or any Assistant Secretary (or a duly authorized
representative, if such representative is also a duly authorized
officer of the Company or otherwise authorized by the Company) of the
Company.
(d) Corporate Documents. The Administrative Agent shall have
received, with a counterpart or copy for each Lender, true and complete
copies of the certificate of incorporation and by-laws of the Company
and each other Borrower that is a party hereto on the Effective Date,
certified as of the Effective Date as complete and correct copies
thereof by the Secretary or an Assistant Secretary or a duly authorized
representative of the Company or such other Borrower, as the case may
be.
(e) Approvals. All governmental and third party approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained and be in full force and effect (other than (i) any
such approvals which will be set forth in the Offer Documents as
conditions to the Tender Offer and (ii) other approvals the failure to
obtain which could not reasonably be expected to have a Material
Adverse Effect). The Administrative Agent shall have received a
certificate of a Responsible Officer of the Company to the foregoing
effect, to which shall be attached copies of any such approvals
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theretofore obtained.
(f) Related Agreements. The Administrative Agent shall have
received, with a copy for each Lender, true and correct copies,
certified as to authenticity by the Company, of the Indenture.
(g) Fees. The Administrative Agent shall have received all
fees to be received by the Administrative Agent or Chase on or prior to
the Effective Date in connection with this Agreement.
(h) Legal Opinions. The Administrative Agent shall have
received the executed legal opinions of (i) Diane L. Kaye, Esq.,
General Counsel of the Company and (ii) Cleary Gottlieb Steen &
Hamilton, counsel to the Company, each given upon the express
instructions of the Company, substantially in the forms of Exhibits H-1
and H-2, respectively.
After the document delivery conditions set forth above in this Section have been
satisfied, the Administrative Agent will, at the request of the Company, provide
to the Company written confirmation that such conditions have been satisfied.
SECTION VIII.02. Conditions to Initial Revolving Credit
Funding Date. The obligation of each Lender to make its initial Revolving Credit
Loan and/or Multicurrency Loan is subject to the satisfaction of the following
conditions precedent on the date of such Loans, which date shall in any event be
on or after the Effective Date and on or prior to the last day of the Term Loan
Commitment Period (the date on which such conditions are satisfied, the "Initial
Revolving Credit Funding Date"):
(a) Existing Credit Agreement. All loans, accrued interest,
fees and any other amounts owing to the respective lenders and agents
under the Existing Credit Agreement shall have been paid in full, and
the commitments to make loans thereunder shall have been cancelled.
(b) Security Documents and Subsidiary Guarantee. The
Administrative Agent shall have received (i) the Domestic Subsidiary
Guarantee, executed and delivered by a duly authorized officer of each
guarantor party thereto and (ii) each of the Security Documents (other
than the U.K. Acquisition II Share Mortgage), executed and delivered by
a duly authorized officer of each party thereto.
(c) Perfection Actions. The perfection actions specified in
Schedule 7.20 in respect of each of the Security Documents (other than
the UK Acquisition II Share Mortgage) shall have been completed (other
than any such action which can not be taken until the applicable
Collateral exists or until the initial Revolving Credit Loans are made,
as the case may be).
(d) Legal Opinions. The Administrative Agent shall have
received the executed legal opinions of (i) Diane L. Kaye, Esq.,
General Counsel of the Company and (ii)
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Cleary Gottlieb Steen & Hamilton, counsel to the Company, substantially
in the forms of Exhibits H-3 and H-4 respectively, and (iii) the legal
opinion of local counsel in such jurisdictions as the Administrative
Agent shall reasonably request, substantially in the form of Exhibit
H-5, in each case given upon the express instructions of the Company.
(e) Representations and Warranties. The representations and
warranties contained in Sections 7.03, 7.04, 7.05, 7.12, 7.14 and 7.20
shall be true and correct in all material respects as if made on and as
of such date.
(f) No Default. No Default or Event of Default shall have
occurred and be continuing under (i) paragraph (a) of Article XII or
(ii) paragraph (f) of Article XII (only to extent such paragraph (f)
relates to the Company or U.K. Acquisition II).
(g) Illegality. (i) The borrowings hereunder and the use of
the proceeds thereof shall not violate any Requirement of Law of the
United States or the United Kingdom applicable to the Borrowers and
(ii) the making of such Loans shall not violate any Requirement of Law
of the United States or the United Kingdom applicable to the Lenders.
(h) Certificate. The Administrative Agent shall have received
a certificate of a Responsible Officer to the effect set forth in
paragraphs (e), (f) and (g)(i) above.
After the document delivery conditions set forth above in this Section have been
satisfied, the Administrative Agent will, at the request of the Company, provide
to the Company written confirmation that such conditions have been satisfied.
It is understood that the Initial Revolving Credit Funding Date may occur prior
to, or contemporaneously with, the Initial Term Loan Funding Date.
SECTION VIII.03. Conditions to Initial Term Loan Funding Date.
The obligation of each Lender to make its Initial Term Loan is subject to the
satisfaction of the following conditions precedent on the date of such Term
Loans, which date shall in any event be on or after the Initial Revolving Credit
Funding Date and on or prior to the last day of the Term Loan Commitment Period
(the date on which such conditions are satisfied, the "Initial Term Loan Funding
Date"):
(a) Offer Documents; Terms of Tender Offer. The terms of the
Tender Offer as set forth in the Press Release shall have been approved
by the Administrative Agent prior to the public announcement thereof by
U.K. Acquisition II. The Administrative Agent shall have received
copies of the Offer Documents, and of all other documents and materials
filed or released publicly by the Company or U.K. Acquisition II in
connection with the Tender Offer, certified as true and correct copies
thereof as of the Initial Term Loan Funding Date by a Responsible
Officer of the Company, and the conditions set forth in such documents
shall conform to the conditions set forth in the Press Release as
approved by the Administrative Agent prior to the release thereof.
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(b) The Tender Offer. The Tender Offer shall have been
declared fully unconditional on behalf of U.K. Acquisition II, without
any amendment, supplement, modification or waiver of the terms thereof
contained in the Press Release not consented to by the Required
Lenders, other than (i) any amendments, supplements, modifications or
waivers which in the aggregate are not material and (ii) any waiver of
the conditions contained in the Press Release, relating to matters
other than aggregate purchase price and minimum acceptance conditions,
that is required by the Panel.
(c) Legal Opinion. The Administrative Agent shall have
received:
(i) the executed legal opinion of Clifford Chance,
special English counsel to the Administrative Agent, in
respect of the U.K. Acquisition I Share Mortgage and matters
related thereto;
(ii) the executed legal opinion of Clifford Chance,
special Netherlands counsel to the Administrative Agent, in
respect of the Netherlands Pledge Agreements and matters
related thereto.
(d) Representations and Warranties. The representations and
warranties contained in Sections 7.03, 7.04, 7.05, 7.12, 7.14 and 7.20
shall be true and correct in all material respects as if made on and as
of such date.
(e) No Default. No Default or Event of Default shall have
occurred and be continuing under (i) paragraph (a) of Article XII or
(ii) paragraph (f) of Article XII (only to extent such paragraph (f)
relates to the Company or U.K. Acquisition II).
(f) Illegality. (i) The borrowings hereunder and the use of
the proceeds thereof shall not violate any Requirement of Law of the
United States or the United Kingdom applicable to the Borrowers and
(ii) the making of such Loans shall not violate any Requirement of Law
of the United States or the United Kingdom applicable to the Lenders.
(g) No Injunction, etc. There shall not be in effect any
injunction or restraining order of any Governmental Authority having
jurisdiction to issue such injunction or restraining order prohibiting
the making of the Term Loans made on such date, the use of the proceeds
thereof or the consummation of the Tender Offer or the Acquisition.
(h) Certificate. The Administrative Agent shall have received
a certificate of a Responsible Officer to the effect set forth in
paragraphs (d), (e), (f)(i) and (g) above.
(i) Senior Subordinated Bridge Loans. Except to the extent
that the Company terminates or reduces the Senior Subordinated Bridge
Loan Commitments as provided in clauses (i) and (ii) of the proviso to
Section 6.04(d), the Company shall have received at least $500,000,000
in cash proceeds from the issuance of the Senior Subordinated Bridge
Loans pursuant to the Senior Subordinated Loan Documentation.
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(j) Related Agreements. The Administrative Agent shall have
received, in form and substance reasonably satisfactory to it, with a
copy for each Lender, true and correct copies, certified as to
authenticity by the Company, of the Senior Subordinated Loan
Documentation.
It is understood that the Initial Term Loan Funding Date may occur
contemporaneously with, or subsequent to, the Initial Revolving Credit Funding
Date.
SECTION VIII.04. Conditions to each Term Loan after Initial
Term Loan Funding Date. The obligation of each Lender to make each Term Loan to
be made by it after the Initial Term Loans is subject to the satisfaction of the
following conditions precedent on the date of such Term Loans:
(a) Representations and Warranties. The representations and
warranties contained in Sections 7.03, 7.04, 7.05, 7.12, 7.14 and 7.20
shall be true and correct in all material respects as if made on and as
of such date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing under (i) paragraph (a) of Article XII or
(ii) paragraph (f) of Article XII (only to extent such paragraph (f)
relates to the Company or U.K. Acquisition II).
(c) Illegality. (i) The borrowings hereunder and the use of
the proceeds thereof shall not violate any Requirement of Law of the
United States or the United Kingdom applicable to the Borrowers and
(ii) the making of such Loans shall not violate any Requirement of Law
of the United States or the United Kingdom applicable to the Lenders.
(d) No Injunction, etc. There shall not be in effect any
injunction or restraining order of any Governmental Authority having
jurisdiction to issue such injunction or restraining order prohibiting
the making of the Term Loans made on such date, the use of the proceeds
thereof or the consummation of the Tender Offer or the Acquisition.
Each borrowing of Term Loans shall constitute a representation and warranty by
the Company as of the date of such Term Loans that the conditions contained in
this Section 8.04 (other than paragraph (c)(ii)) have been satisfied.
SECTION VIII.05. Conditions to each Revolving Credit and
Multicurrency Loan after Initial Revolving Credit Funding Date. The obligation
of each Lender to make any Revolving Credit Loan and Multicurrency Loan
requested to be made by it on any date (other than the Revolving Credit Loans
and Multicurrency Loans made on the Initial Revolving Credit Funding Date in an
amount sufficient to repay all amounts outstanding under the Existing Credit
Agreement) is subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Company and other Borrowers
in or pursuant to the Loan Documents shall be true and correct in all
material respects on and as of such date as if made on and as of
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such date, except if such representation or warranty relates to an
earlier date or refers to Schedules, in which case such representation
and warranty shall be true and correct in all material respects on
such earlier date and after giving effect to any amendments of such
Schedules.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Loans requested to be made on such date.
(c) Foreign Subsidiary Opinion. If such Loan is the initial
Loan to a Foreign Subsidiary Borrower, the Administrative Agent shall
have received a Foreign Subsidiary Opinion in respect of such Foreign
Subsidiary Borrower.
(d) Corporate Proceedings. If such Loan is the initial Loan to
a Foreign Subsidiary Borrower, the Administrative Agent shall have
received, with a counterpart for each Lender, if applicable, a copy of
the resolutions, in form and substance satisfactory to the
Administrative Agent, of the Board of Directors of such Borrower
authorizing (i) the execution, delivery and performance by it of this
Agreement and the Loan Documents to which it is a party and (ii) the
borrowings by it contemplated hereunder, certified by the Secretary or
an Assistant Secretary of such Borrower as of the date on which such
Loan is requested to be made, which certificate shall be in form and
substance satisfactory to the Administrative Agent and shall state that
the resolutions thereby certified have not been amended, modified,
revoked or rescinded.
(e) Incumbency Certificate. If such Loan is the initial Loan
to a Foreign Subsidiary Borrower, the Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of such
Borrower, dated the date on which such Loan is requested to be made, as
to the incumbency and signature of the officers or representatives of
such Borrower executing any Loan Document, satisfactory in form and
substance to the Administrative Agent, executed by any Responsible
Officer of such Borrower and the Secretary or any Assistant Secretary
(or a duly authorized representative, if such representative is also a
duty authorized officer of such Borrower or otherwise authorized by
such Borrower).
(f) Corporate Documents. If such Loan is the initial Loan to a
Foreign Subsidiary Borrower, the Administrative Agent shall have
received, with a counterpart for each Lender, true and complete copies
of the organic documents of such Borrower, certified as of the date on
which such Loan is required to be made as complete and correct copies
thereof by the Secretary or an Assistant Secretary or a duly authorized
representative of such Borrower.
(g) Additional Matters. All corporate and other proceedings,
and all documents, instruments and other legal matters in connection
with the transactions contemplated by this Agreement and the other Loan
Documents shall be satisfactory in form and substance to the
Administrative Agent, and the Administrative Agent shall have received
such other documents and legal opinions in respect of any aspect or
consequence of the transactions
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contemplated hereby or thereby as it shall reasonably request.
Each borrowing of Revolving Credit Loans or Multicurrency Loans (other than any
such Loans made on the Initial Revolving Credit Funding Date, to the extent the
proceeds thereof are used solely to repay amounts outstanding under the Existing
Credit Agreement) by a Borrower hereunder shall constitute a representation and
warranty by the Company and such Borrower as of the date of such Loan that the
conditions contained in this Section 8.05 have been satisfied.
ARTICLE IX. AFFIRMATIVE COVENANTS
From and after the Initial Revolving Credit Funding Date, each
of the Company and, to the extent the covenants set forth below relate thereto,
each Foreign Subsidiary Borrower, hereby covenants and agrees that so long as
any of the Commitments remain in effect, any Note remains outstanding and unpaid
or any other amount is owing to any Lender or the Administrative Agent
hereunder, the Company or such Foreign Subsidiary Borrower, as applicable, will
comply with the covenants set forth below in this Article IX:
SECTION IX.01. Financial Statements. The Company will furnish
to each Lender:
(a) as soon as available, but in any event within 120 days
after the end of each fiscal year of the Company, a copy of the consolidated
balance sheet of the Company and its Subsidiaries as at the end of such year and
the related consolidated statements of income and cash flows for such year,
setting forth in each case in comparative form the figures for the previous
year, certified without qualification or exception by independent public
accountants of nationally recognized standing selected by the Company, it being
understood and agreed that the delivery of the Company's Annual Report on Form
10-K for such fiscal year signed by a Responsible Officer will satisfy the
requirement set forth in this clause; and
(b) as soon as available, but in any event within 60 days
after the end of each of the first three quarterly periods of each fiscal year
of the Company, a copy of the unaudited consolidated condensed balance sheet of
the Company and its Subsidiaries as at the end of each such quarter and the
related unaudited consolidated condensed statements of income and cash flows of
the Company and its Subsidiaries for the portion of the fiscal year through such
date, setting forth in each case in comparative form such figures for the
previous year, certified by a Responsible Officer, it being understood and
agreed that the delivery of the Company's Quarterly Report on Form 10-Q for the
relevant fiscal quarter signed by a Responsible Officer will satisfy the
requirement set forth in this clause;
all such financial statements to be complete and correct in all material
respects and prepared in reasonable detail and in accordance with GAAP applied
consistently throughout the periods reflected therein (except for such changes
in accounting principles as may be approved by such Responsible Officer and
concurred in by the Company's independent public accountants and disclosed
therein).
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SECTION IX.02. Certificates; Other Information. The Company
will furnish to each Lender:
(a) concurrently with each delivery of the financial
statements referred to in Sections 9.01(a) and (b), a certificate of a
Responsible Officer in the form of Exhibit F (i) stating that such officer has
no knowledge of any Default or Event of Default except as specified in such
certificate and (ii) showing in reasonable detail the calculations supporting
such statement in respect of Sections 10.01, 10.02 and 10.03;
(b) on or prior to February 28 of each year, a copy of the
projections by the Company of the operating budget and cash flow budget of the
Company and its Subsidiaries for the succeeding fiscal year, such projections to
be accompanied by a certificate of a Responsible Officer to the effect that such
projections have been prepared on a reasonable basis and in good faith, it being
understood that no representation or warranty shall be deemed to be made
concerning the projections and budgets and the assumptions on which they were
based, except that as of the date on which such projections and budgets were
generated, (a) they were based on the good faith assumptions of the management
of the Company and (b) such assumptions were believed by such management to be
reasonable;
(c) promptly after the same are sent, copies of all financial
statements and reports which the Company sends to its common or preferred
stockholders as a class, and promptly after the same are filed, copies of all
regular, periodic and special reports which the Company may file with the
Securities and Exchange Commission or any successor or analogous Governmental
Authority;
(d) if requested by the Administrative Agent or by any Lender
through the Administrative Agent, promptly after the same is furnished to PBGC,
copies of all information furnished by the Company, any Subsidiary or any
Commonly Controlled Entity to PBGC, except, in each case, information furnished
as to ordinary operational aspects of the business of the Company or any
Subsidiary and not relating to any deviation by the Company or any Subsidiary
from rules and regulations of PBGC; and
(e) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
SECTION IX.03. Accrual of Liabilities; Payment of Obligations.
The Company will maintain, and cause each of its Subsidiaries to maintain, in
accordance with GAAP, appropriate reserves for the accrual of taxes and all
other obligations, liabilities and claims and pay, discharge or otherwise
satisfy, and cause each of its Subsidiaries to pay, discharge or otherwise
satisfy, at or before their maturity or before they become delinquent, as the
case may be, all obligations except (a) where the same are being contested in
good faith by appropriate proceedings diligently pursued or (b) where the
failure so to pay, discharge or otherwise satisfy obligations would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
SECTION IX.04. Maintenance of Corporate Existence; Maintenance
of
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Properties. The Company will (a) maintain its corporate existence, rights and
franchises necessary to continue its business and the corporate existence,
rights and franchises necessary to continue the business of each of its
Subsidiaries, provided that the foregoing shall not be a limitation (i) on the
right of the Company to discontinue any operations if in the opinion of the
Company such discontinuance is in the best interest of the Company and would not
materially affect the ability of the Company to pay its debts as they become
due, (ii) on asset sales permitted under Section 10.08 and (iii) on the right of
any Subsidiary of the Company to merge with or be liquidated into the Company or
another Subsidiary of the Company if a Default does not then exist and would not
result therefrom; and (b) maintain, and cause each Subsidiary to maintain, the
properties which are used or useful in its respective operations in good working
order and condition.
SECTION IX.05. Insurance. The Company will maintain, and cause
each of its Subsidiaries to maintain, insurance with financially sound and
reputable companies in such form and upon such terms and in such amounts and
against such risks (including liability for bodily injury and property damage)
and subject to such deductibles or retentions as in the reasonable opinion of
the Company is available on commercially reasonable terms and will provide sound
and reasonable protection for the Company's or such Subsidiary's assets and
operations. At the Administrative Agent's request, the Company will furnish to
the Administrative Agent (with copies for each Lender) certificates of insurance
or other evidence that such insurance is being maintained.
SECTION IX.06. Notices. The Company will (a) promptly give
notice in writing to the Administrative Agent (which shall promptly notify each
Lender) of the occurrence of any Default or Event of Default under this
Agreement, or of the commencement of (i) any material litigation or proceedings
affecting the Company or any Subsidiary or (ii) any dispute between the Company
or any Subsidiary and any Governmental Authority or any other party if such
litigation, proceedings or dispute could reasonably be expected to result in a
Material Adverse Effect; and (b) as soon as possible and in any event within 45
days after the Company knows or has reason to know that any Reportable Event
(other than a Reportable Event not subject to the provision for 30-day notice to
PBGC pursuant to the regulations issued under ERISA) has occurred with respect
to any Single Employer Plan or that PBGC or any Borrower or any Commonly
Controlled Entity has instituted or will institute proceedings under Title IV of
ERISA to terminate any Single Employer Plan, deliver to the Administrative Agent
(which shall promptly notify each Lender) a certificate of a Responsible Officer
of the Company setting forth details as to such Reportable Event and the action
that the Company proposes to take with respect thereto, together with a copy of
any notice of such Reportable Event that may be required to be filed with PBGC,
or any notice delivered by PBGC evidencing its intent to institute such
proceedings or any notice to PBGC that such Plan is to be terminated, as the
case may be. For all purposes of clause (b) of this Section 9.06, the Company
shall be deemed to have all knowledge or knowledge of all facts attributable to
the administrator of a Single Employer Plan.
SECTION IX.07. Compliance with Contractual Obligations and
Laws. The Company will, and will cause each of its Subsidiaries to, comply with
all provisions of any Contractual Obligation, applicable law, rule, regulation,
order, writ, judgment, injunction, decree, award or ordinance to which it is
subject, except to the extent that the failure to comply therewith
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could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
SECTION IX.08. Access to Books and Inspection. The Company
shall keep proper books of record and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and give
the Administrative Agent and any reasonable number of representatives of the
Lenders access, at the Company's principal office, upon reasonable notice during
normal business hours to, and permit any such representatives to examine, copy
or make excerpts from, any and all books, records and documents in the
possession of the Company relating to its affairs and the affairs of the
Subsidiaries, and to inspect any of the properties of the Company or the
Subsidiaries. Notwithstanding any provision in this Section, the Company (i)
shall be given a reasonable opportunity upon reasonable notice to have an
officer or officers of the Company accompany any such representative during any
such visit, and (ii) shall not be responsible for any expenses incurred by any
such representative.
SECTION IX.09. Use of Proceeds. The Borrowers shall use the
proceeds of the Loans for the purposes specified in Section 6.13.
SECTION .10. Environmental Laws. The Company will, and will
cause each Subsidiary to, (a) comply with, and ensure compliance by all tenants
and subtenants, if any, with, all applicable Environmental Laws and obtain and
comply in all material respects with and maintain, and ensure that all tenants
and subtenants obtain and comply in all material respects with and maintain, any
and all licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws except to the extent that the failure to do so, or
any aggregation thereof, is not reasonably likely to result in the payment of a
Material Environmental Amount, (b) conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and other actions
required under Environmental Laws and promptly comply in all material respects
with all lawful orders and directives of all Governmental Authorities regarding
Environmental Laws except to the extent that the same are being contested in
good faith by appropriate proceedings and the pendency of such proceedings is
not reasonably likely to result in the payment of a Material Environmental
Amount and (c) defend, indemnify and hold harmless the Administrative Agent and
the Lenders, and their respective employees, agents, officers and directors,
from and against any and all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature known or
unknown, contingent or otherwise, arising out of, or in any way relating to the
violation of, noncompliance with or liability under, any Environmental Law
applicable to the operations of the Company, any of its Subsidiaries or the
Properties, or any orders, requirements or demands of Governmental Authorities
related thereto, including, without limitation, investigation and laboratory
fees, response costs, court costs, litigation expenses and reasonable attorneys'
and consultants' fees, except to the extent that any of the foregoing arise out
of the gross negligence or willful misconduct of the party seeking
indemnification therefor. The agreements in clause (c) of this Section shall
survive repayment of the Notes and all other amounts payable hereunder.
SECTION .11. Additional Collateral and Guaranties.
(a) With respect to any new Subsidiary (other than an Excluded
Foreign
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Subsidiary) created or acquired after the Initial Revolving Credit Funding Date
by the Company or any Domestic Subsidiary (which new Subsidiary, for the
purposes of this paragraph (a), shall include any existing Subsidiary that
ceases to be an Excluded Foreign Subsidiary and, at the request of the
Administrative Agent, shall also include any Foreign Subsidiary (other than any
Excluded Foreign Subsidiary) of the Company or any Domestic Subsidiary which is
in existence on the Initial Revolving Credit Funding Date but does not execute
a Subsidiary Guarantee on the Initial Revolving Credit Funding Date), the
Company or its Subsidiaries, as applicable, shall promptly (i) execute and
deliver to the Trustee such amendments to the applicable Pledge Agreement, or
such additional Pledge Agreement, as the Administrative Agent deems necessary
or advisable in order to grant to the Trustee, as security for the Secured
Obligations secured under such Pledge Agreement, a perfected first priority
security interest in the Capital Stock of such new Subsidiary which is owned by
the Company or any of its Subsidiaries (other than an Excluded Foreign
Subsidiary), (ii) deliver to the Trustee the certificates representing such
Capital Stock, together with undated stock powers, in blank, executed and
delivered by a duly authorized officer of the Company or such pledgor
Subsidiary, as the case may be, or take such other perfection actions in
respect of such Capital Stock as shall be reasonably requested by the
Administrative Agent to perfect its security interest therein, (iii) cause such
new Subsidiary (A) to become a party to the Security Agreement (if such
Subsidiary is a Domestic Subsidiary) and a Subsidiary Guarantee and (B) to take
such actions as shall be necessary or advisable to grant to the Trustee, as
security for the Secured Obligations secured under the Security Agreement, a
perfected first priority security interest in the Collateral described in the
Security Agreement with respect to such new Subsidiary, including, without
limitation, the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Security Agreement or by law or as may
be reasonably requested by the Administrative Agent, and (iv) if reasonably
requested by the Administrative Agent, deliver to the Administrative Agent
legal opinions relating to the matters described above, which opinions shall be
in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
(b) With respect to any new Excluded Foreign Subsidiary
created or acquired after the Initial Revolving Credit Funding Date by the
Company or any of its Domestic Subsidiaries, the Company or such Domestic
Subsidiary, as applicable, shall promptly (i) execute and deliver to the
Administrative Agent such amendments or supplements to the Pledge Agreement, or
such other security documents, as the Administrative Agent deems necessary or
advisable in order to grant to the Trustee, as security for the Secured
Obligations secured under the Pledge Agreement, a perfected first priority
security interest in the Capital Stock of such new Subsidiary which is owned by
the Company or any of its Domestic Subsidiaries (provided that in no event shall
more than 65% of the total outstanding Capital Stock of any such new Excluded
Foreign Subsidiary be required to be so pledged), (ii) deliver to the Trustee
the certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of the
Company or such Subsidiary, as the case may be and (iii) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
(c) Notwithstanding anything in this Section 9.11 to the
contrary, (i) shares of the Capital Stock of Netherlands BV II and Netherlands
BV IV shall not be required to be pledged
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hereunder, and shares of Capital Stock of any other Foreign Subsidiary shall not
be required to be pledged hereunder to the extent that, in the good faith
judgment of the Company, the pledging of such Capital Stock would result in
adverse tax consequences to the Company or would be unlawful and (ii) so long as
the Existing Accounts Receivable Financing Program is in effect, the Receivables
Subsidiary shall not be required to become a party to a Subsidiary Guarantee or
to create a security interest in any of its assets.
SECTION .12. Interest Rate Protection. The Company shall,
within six months after the Initial Term Loan Funding Date, obtain interest rate
protection in respect of the amount, if any, of the floating rate indebtedness
of the Company and it Subsidiaries in excess of $1,000,000,000, for periods and
pursuant to terms and conditions reasonably acceptable to the Administrative
Agent.
SECTION .13. Consummation of Compulsory Acquisition. As
promptly as reasonably practicable after the Initial Term Loan Funding Date, the
Company shall cause U.K. Acquisition II to consummate the Compulsory Acquisition
in respect of the Target Shares, and related Options, not already owned by U.K.
Acquisition II.
SECTION .14. Capital Markets Transaction. The Company shall
use its best efforts to consummate as promptly as practicable after the
Effective Date one or more public offerings or private placements of debt or
equity securities yielding net proceeds in an aggregate amount sufficient to
prepay in full the Interim Term Loans.
SECTION .15. U.K. Acquisition I Corporate Documents. (a) As
soon as practicable after the Initial Revolving Credit Funding Date, the Company
shall deliver to the Administrative Agent, with a counterpart or copy for each
Lender, the following documents, certified as complete and correct copies
thereof by the Secretary or an Assistant Secretary or a duly authorized
representative of U.K Acquisition I, in each case in form and substance
satisfactory to the Administrative Agent:
(i) the statutory declaration of each member of the
Board of Directors of U.K. Acquisition I;
(ii) the auditor's report in respect of U.K.
Acquisition I;
(iii) the resolutions of the Board of Directors of
U.K. Acquisition I authorizing the execution, delivery and
performance of the Loan Documents to which it is or is
required to be a party (including a U.K. Acquisition I
Guarantee in respect of all obligations of the Borrowers
hereunder without limitation as to amount), certified by the
Secretary or an Assistant Secretary of U.K. Acquisition I,
which certificate shall state that the resolutions thereby
certified have not been amended, modified, revoked or
rescinded; and
(iv) such other documents as shall be required to
effect and evidence an exemption from the financial assistance
requirements of Section 151 of the Companies Act.
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(b) Promptly upon the completion of steps set forth in
paragraph (a) above, the Company shall cause U.K. Acquisition I to (i) execute
and deliver to the Administrative Agent the U.K. Acquisition I Guarantee and the
U.K. Acquisition II Share Mortgage, (ii) deliver to the Trustee the certificates
representing shares of Capital Stock of U.K. Acquisition II charged pursuant to
the U.K. Acquisition II Share Mortgage, together with undated stock transfer
forms in blank, executed and delivered by a duly authorized officer of U.K.
Acquisition I, or take such other perfection actions in respect of such Capital
Stock as shall be reasonably requested by the Administrative Agent to perfect
its security interest therein and (iii) deliver to the Administrative Agent
legal opinions relating to the matters described above, which opinions shall be
in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
ARTICLE X. NEGATIVE COVENANTS
From and after the Initial Revolving Credit Funding Date, the
Company hereby covenants and agrees that so long as any of the Commitments
remain in effect, any Loan remains outstanding and unpaid or any other amount is
owing to any Lender or the Administrative Agent hereunder, the Company will
comply with the covenants set forth below in this Article X (provided, that from
and after the Covenant Transition Date, the covenants set forth below in this
Article X will be deemed replaced by the covenants set forth in Annex B and
cross references to Article X of the Credit Agreement contained in the Loan
Documents will be modified accordingly):
SECTION X.01. Cash Flow Coverage. The Company will not permit
the Cash Flow Coverage for any period of four consecutive fiscal quarters ending
during any period set forth below to be less than the ratio set forth below for
such period:
Period Cash Flow Coverage
------ ------------------
Initial Measurement Date -
December 30, 1998 1.2 to 1.0
December 31, 1998 and 1.50 to 1.0
thereafter
SECTION X.02. Consolidated Leverage Ratio. The Company will
not permit the Consolidated Leverage Ratio at the last day of any fiscal quarter
ending during any period set forth below to be greater than the ratio set forth
below for such period:
Period Consolidated Leverage Ratio
------ ---------------------------
Initial Measurement Date - 5.25 to 1.0
December 30, 1998
December 31, 1998 - 4.50 to 1.0
December 30, 1999
December 31, 1999 - 4.00 to 1.0
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December 30, 2000
December 31, 2000 and 3.50 to 1.0
thereafter
SECTION X.03. Maintenance of Consolidated Net Worth. The
Company will not permit Consolidated Net Worth at any time to be less than
$270,000,000.
SECTION X.04. Limitation on Liens. The Company will not, nor
will it permit any of its Subsidiaries to, create, assume or incur or suffer to
be created, assumed or incurred or to exist any Lien on any of its properties or
assets, whether now owned or hereafter acquired, provided, however, that the
foregoing restriction shall not apply to the following:
(a) Liens existing on the date of this Agreement and described
on Schedule III, and Liens on assets of the Target and its Subsidiaries
existing on the date of consummation of the Acquisition;
(b) Liens on property or assets of any corporation existing at
the time such corporation becomes a Subsidiary and not created in
contemplation thereof;
(c) Liens in favor of the Company or any Wholly Owned
Subsidiary;
(d) Liens in favor of any Governmental Authority to secure
progress, advance or other payments pursuant to any contract or
provision of any statute;
(e) Liens (including, without limitation, the interest of the
lessor under any capital lease) on property or assets existing at the
time of the acquisition thereof (including acquisition through merger
or consolidation) or to secure the payment of all or any part of the
purchase price or construction cost thereof or to secure any
Indebtedness incurred prior to, at the time of, or within six months
after, the acquisition or completion of such property or assets for the
purpose of financing all or any part of the purchase price or
construction cost thereof;
(f) any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any
Lien referred to in the foregoing clauses (a) through (e), inclusive;
provided that (i) no such extension, renewal or replacement shall
result in an increase in the liabilities secured thereby and (ii) such
extension, renewal or replacement Lien shall be limited to all or a
part of the same property that secured the Lien so extended, renewed or
replaced (plus additions, accessions, replacements and improvements to
such property);
(g) Liens for taxes not yet due or which are being contested
in good faith and by appropriate proceedings diligently pursued if
adequate reserves with respect thereto are maintained on the books of
the Company or such Subsidiary, as the case may be, in accordance with
GAAP or in the case of a Subsidiary located outside the United States,
general accounting principles in effect from time to time in their
respective jurisdictions
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of incorporation;
(h) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business (A) which are not overdue for a period of more than
60 days or (B) which are being contested in good faith and by
appropriate proceedings diligently pursued if adequate reserves with
respect thereto are maintained on the books of the Company or such
Subsidiary, as the case may be, in accordance with GAAP;
(i) easements, rights-of-way, zoning and similar restrictions
and other similar encumbrances or title defects incurred in the
ordinary course of business which, in the aggregate, are not greater
than $15,000,000 (to the extent the dollar values of such encumbrances
are calculable) and which do not in any case materially detract from
the value of the property subject thereto or interfere with the
ordinary conduct of the business of the Company or its Subsidiaries;
(j) any attachment or judgment lien, unless the judgment it
secures shall not, within 30 days after the entry thereof, have been
discharged or execution thereof stayed pending appeal, or shall not
have been discharged within 30 days after the expiration of any such
stay;
(k) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social legislation and
deposits securing liability to insurance carriers under insurance or
self-insurance arrangements;
(l) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(m) liens created pursuant to the Security Documents;
(n) other Liens incidental to the conduct of the Company's or
any Subsidiary's business or the ownership of its property and assets
that were incurred in connection with the borrowing of money or the
obtaining of advances or credit or capital leases; provided, however,
that the indebtedness secured thereby does not exceed in the aggregate
for the Company and all Subsidiaries of the Company an amount equal to
$50,000,000; and provided, further, that at no time shall the sum of
(i) the Indebtedness secured by the Liens permitted under this Section
10.04(n) plus (ii) all other Indebtedness of the Company's Subsidiaries
(other than Subsidiaries which are parties to a Subsidiary Guarantee)
plus (iii) the aggregate amount of Secured Reimbursement Obligations be
equal to or greater than forty percent (40%) of Consolidated Net Worth
(determined as of the most recent fiscal quarter of the Company); and
(o) Liens granted by a special-purpose, Wholly Owned
Subsidiary of the Company that purchases accounts receivable from the
Company and its Subsidiaries to the extent such Liens are granted on
such accounts receivable to secure the payment of
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indebtedness of such Wholly Owned Subsidiary.
SECTION X.05. Limitation on Indebtedness. The Company will
not, and will not permit any of its Subsidiaries to, create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan
Document;
(b) Indebtedness of the Company to any Subsidiary and of any
Subsidiary which is a party to a Subsidiary Guarantee to the Company or
any other Subsidiary;
(c) (i) Indebtedness of the Special Purpose Subsidiaries
described in Schedule 6.13, (ii) additional Indebtedness of Excluded
Foreign Subsidiaries to the Company or any Subsidiary which is a party
to a Subsidiary Guarantee in an aggregate principal amount not
exceeding $100,000,000 at any time outstanding, (iii) Indebtedness of
any Subsidiary which is not a party to a Subsidiary Guarantee owing to
any other Subsidiary which is not a party to a Subsidiary Guarantee and
(iv) Indebtedness in the form of any investment permitted by Section
10.11;
(d) Indebtedness of the Company having a weighted average life
longer than the combined weighted average life of the Tranche A Term
Loans and the Tranche B Term Loans and a final maturity after the final
maturity of the Tranche B Term Loans, the proceeds of which are used to
prepay the Term Loans;
(e) Subordinated Debt (i) incurred after the prepayment in
full of the Interim Term Loans or (ii) the proceeds of which are used
to prepay (A) the Interim Term Loans or, (B) so long as no Default or
Event of Default is in existence, the Senior Subordinated Debt;
(f) Indebtedness secured by Liens permitted by Section
10.04(e), including capital lease obligations, in an aggregate
principal amount not to exceed $50,000,000 at any one time outstanding
and any refinancings, refundings, renewals or extensions thereof
(without any increase in the principal amount thereof);
(g) Indebtedness outstanding on the date hereof and listed on
Schedule IV and any refinancings, refundings, renewals or extensions
thereof (without any increase in the principal amount thereof), and
Indebtedness of the Target and its Subsidiaries outstanding on the date
of consummation of the Acquisition, but not any refinancings,
refundings, renewals or extensions thereof;
(h) additional Indebtedness of the Company or any of its
Subsidiaries in an aggregate principal amount (for the Company and all
Subsidiaries) at any one time outstanding not to exceed forty percent
(40%) of Consolidated Net Worth (determined as of the end of the most
recent fiscal quarter of the Company); and
(i) the Senior Subordinated Debt.
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SECTION X.06. Limitation on Guaranties. The Company will not,
and will not permit any of its Subsidiaries to, create, incur, assume or suffer
to exist any Guaranty except:
(a) Guaranties in existence on the date hereof and listed on
Schedule IV and Guaranties of any refinancings, refundings, renewals or
extensions of the Indebtedness or obligations guaranteed thereby,
provided that the amount of such Indebtedness or obligations are not
increased, and Guaranties of the Target and its Subsidiaries in
existence on the date of consummation of the Acquisition;
(b) the Subsidiary Guarantees;
(c) Guaranties of Indebtedness permitted under clauses (a)
through (f) and clause (h) of Section 10.05;
(d) additional Guaranties in respect of Indebtedness and other
obligations not exceeding $10,000,000 at any time outstanding;
(e) Guaranties of the Loan Parties in respect of the Senior
Subordinated Debt in accordance with the Senior Subordinated Loan
Documentation; and
(f) Guaranties of the Loan Parties in respect of Subordinated
Debt which Guaranties shall have subordination terms acceptable to the
Administrative Agent, acting reasonably.
SECTION X.07. Limitation on Fundamental Changes. The Company
will not, and will not permit any of its Subsidiaries to, enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or Dispose of all or substantially all
of its Property or business, or make any material change in its present method
of conducting business, except:
(a) any Subsidiary of the Company may be merged or
consolidated with or into the Company (provided that the Company shall
be the continuing or surviving corporation) or with or into any
Subsidiary which is a party to a Subsidiary Guarantee (provided that
such Subsidiary which is a party to a Subsidiary Guarantee shall be the
continuing or surviving corporation) and any Subsidiary of the Company
which is not a party to a Subsidiary Guarantee may be merged or
consolidated with or into any other Subsidiary which is not a party to
a Subsidiary Guarantee;
(b) any Subsidiary of the Company may Dispose of any or all of
its assets (upon voluntary liquidation or otherwise) to the Company or
any Subsidiary which is a party to a Subsidiary Guarantee, and any
Subsidiary of the Company which is not a party to a Subsidiary
Guarantee may Dispose of assets to any other Subsidiary which is not a
party to a Subsidiary Guarantee; and
(c) Dispositions permitted by Section 10.08(a), (d), (e), (f),
(g), (i) and (j).
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SECTION X.08. Limitation on Sale of Assets. The Company will
not, and will not permit any of its Subsidiaries to, Dispose of any of its
Property or business (including, without limitation, receivables and leasehold
interests), whether now owned or hereafter acquired, or, in the case of any
Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any
Person, except:
(a) the Disposition of obsolete or worn out property in the
ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 10.07(a) and (b) or
Section 10.11;
(d) the sale or issuance of the Capital Stock of any
Subsidiary which is a party to a Subsidiary Guarantee to the Company or
any Subsidiary, or the sale or issuance of Capital Stock of any Foreign
Subsidiary to any other Foreign Subsidiary;
(e) sales of receivables under the Company's existing accounts
receivable financing program as in effect on September 26, 1997;
(f) Dispositions of assets required to comply with anti-trust
laws;
(g) Dispositions of assets listed in Schedule 10.8;
(h) Dispositions pursuant to sale and leaseback transactions
permitted pursuant to Section 10.13;
(i) the Transactions described in Section 10.10 (prior to the
Covenant Transition Date) or Section 10.13 (after the Covenant
Transition Date) may be consummated; and
(j) the sale of other assets having a fair market value not to
exceed $80,000,000 in the aggregate for any fiscal year of the Company.
SECTION X.09. Limitation on Restricted Payments. The Company
will not, and will not permit any of its Subsidiaries to, declare or pay any
dividend (other than dividends payable solely in common stock of the Person
making such dividend) on, or make any payment on account of, or set apart assets
for a sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any shares of any class of Capital Stock of
the Company or any Subsidiary or any warrants or options to purchase any such
Capital Stock, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of the Company or any Subsidiary (collectively,
"Restricted Payments"), except that:
(a) any Subsidiary may make Restricted Payments to the Company
or any Subsidiary which is a party to a Subsidiary Guarantee, and any
Foreign Subsidiary may
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make Restricted Payments to any Foreign Subsidiary;
(b) so long as no Default or Event of Default shall have
occurred and be continuing, the Company may pay dividends in respect of
its preferred stock at the stated rate, and dividends in respect of its
common stock at a rate not exceeding $.48 per share per year, as
adjusted for stock splits and similar events; and
(c) the Company may issue common stock upon conversion of any
of its convertible preferred stock, or the preferred stock of an
Affiliate described in the second sentence of the definition of
"Capital Stock".
SECTION .10. Restrictions on Special Purpose Subsidiaries. The
Company will not permit any Special Purpose Subsidiary to (a) create, assume,
incur or suffer to exist any Lien, any Indebtedness, any Guaranty or any other
liabilities, direct or contingent, (b) make or suffer to exist any Investment,
(c) conduct, transact or otherwise engage in any business or other operations or
(d) own or lease any Property, except that, notwithstanding the foregoing
prohibitions:
(i) a Special Purpose Subsidiary may make an Investment in the
form of a loan or an equity contribution to, or hold the Capital Stock
of, another Special Purpose Subsidiary (x) as described on Schedule
6.13 or (y) which does not have an adverse impact on the Collateral;
(ii) U.K. Acquisition II may consummate the Acquisition;
(iii) following consummation of the Acquisition, U.K.
Acquisition I may acquire directly from the Target or indirectly
through U.K. Acquisition II, for fair market value, up to 100% of the
Capital Stock of Target U.S.
Subsidiary;
(iv) the Special Purpose Subsidiaries may execute and deliver
the Loan Documents to which they are parties, incur and perform their
obligations thereunder and create and suffer to exist the Liens created
thereby; and
(v) the Special Purpose Subsidiaries may perform obligations
under the Investments permitted above and under their respective
organic documents and other Requirements of Law, may incur obligations
to Governmental Authorities in the ordinary course of business, such as
income and franchise tax liabilities and other incidental liabilities,
and may incur other immaterial liabilities directly related and
incidental to the permitted activities enumerated above.
To the extent permitted by applicable law, the certificate of
incorporation or other charter or other organizational documents of each Special
Purpose Subsidiary shall contain the restrictions on the actions of such Special
Purpose Subsidiary substantially equivalent to those set forth above.
SECTION .11. Limitation on Investments, Loans and Advances.
The Company
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will not, and will not permit any of its Subsidiaries to, make any advance,
loan, extension of credit (by way of guaranty of obligations of such Person or
otherwise) or capital contribution to, or purchase any stock, bonds, notes,
debentures or other securities of or any assets constituting all or a material
part of a business unit of, or make any other investment in, any Person
("Investments"), except:
(a) extensions of trade credit in the ordinary course of
business;
(b) Investments in Cash Equivalents;
(c) Guaranties permitted by Section 10.06;
(d) loans and advances to employees of the Company or its
Subsidiaries in the ordinary course of business (including, without
limitation, for travel, entertainment and relocation expenses);
(e) the Acquisition;
(f) Investments made by the Company or any of its Subsidiaries
with the proceeds of any Reinvestment Deferred Amount (provided that if
such investment is the acquisition of, in a single transaction or in a
series of related transactions, all or substantially all of the equity
interests of any Person, such acquisition is approved by the board of
directors or analogous governing body of such Person);
(g) Investments (x) by any Subsidiary in the Company or (y) by
the Company or any of its Subsidiaries in any Person that, prior to
such investment, is a Subsidiary which is a party to a Subsidiary
Guarantee;
(h) the Investments described in Section 10.10 or otherwise
indicated on Schedule 6.13;
(i) Investments (x) by the Company or any of its Subsidiaries
in any entity which at the time of such Investment is an Excluded
Foreign Subsidiary and which was not acquired or created in
anticipation of the making of such Investment in an aggregate amount
outstanding not exceeding $100,000,000 for all Excluded Foreign
Subsidiaries, and (y) investments by a Subsidiary which is not a party
to a Subsidiary Guarantee in any other Subsidiary which is not a party
to a Subsidiary Guarantee;
(j) Investments for which the consideration paid by the
Company and its Subsidiaries is Capital Stock of the Company (provided
that if such Investment is the acquisition of, in a single transaction
or in a series of related transactions, all or substantially all of the
equity interests of any Person, such acquisition is approved by the
board of directors or analogous governing body of such Person); and
(k) in addition to Investments otherwise expressly permitted
by this Section 10.11, Investments by the Company or any of its
Subsidiaries in an aggregate amount
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(valued at cost) not to exceed at any time outstanding $150,000,000
while this Agreement is outstanding (provided that if such Investment
is the acquisition of, in a single transaction or in a series of
related transactions, all or substantially all of the equity interests
of any Person, such acquisition is approved by the board of directors
or analogous governing body of such Person).
SECTION .12. Limitation on Optional Payments and Modifications
of Debt Instruments, etc. (a) Except as provided in Section 6.04(d) and
10.05(e), the Company will not, and will not permit any of its Subsidiaries to,
make or offer to make any payment, prepayment, repurchase or redemption of or
otherwise defease or segregate funds with respect to the Subordinated Debt
(other than scheduled interest payments required to be made in cash) or (b)
amend, modify, waive or otherwise change, or consent or agree to any amendment,
modification, waiver or other change to, any of the terms of the Subordinated
Debt (other than any such amendment, modification, waiver or other change which
would extend the maturity or reduce the amount of any payment of principal
thereof or which would reduce the rate or extend the date for payment of
interest thereon).
Notwithstanding the foregoing, the Senior Subordinated Bridge
Loans may be refinanced and replaced by the Exchange Notes and the Senior
Subordinated Term Notes.
SECTION .13. Limitation on Sales and Leasebacks. Enter into
any arrangement with any Person providing for the leasing by the Company or any
Subsidiary of real or personal property which has been or is to be sold or
transferred by the Company or such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Company or such
Subsidiary; provided, that (i) the Company may consummate sale and leaseback
transactions in respect of assets having a book value in the aggregate not
exceeding $50,000,000 and (ii) the Company and its Subsidiaries may consummate
sale and leaseback transactions in which the transferee is the Company or a
Subsidiary which is a party to a Subsidiary Guarantee and any Subsidiary which
is not a party to a Subsidiary Guarantee may consummate sale and leaseback
transactions in which the transferor is another Subsidiary which is not a party
to a Subsidiary Guarantee.
SECTION .14. Limitation on Restrictions on Subsidiary
Distributions. The Company will not, and will not permit any Subsidiary to,
enter into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary of the Company to (a) pay dividends
or make any other distributions in respect of any Capital Stock of such
Subsidiary held by, or pay any Indebtedness owed to, the Company or any other
Subsidiary of the Company, (b) make loans or advances to the Company or any
other Subsidiary of the Company or (c) transfer any of its assets to the Company
or any other Subsidiary of the Company, except for such encumbrances or
restrictions existing under or by reason of (i) any restrictions existing under
the Loan Documents, (ii) any restrictions with respect to a Subsidiary imposed
pursuant to an agreement which has been entered into in connection with the
Disposition of all or substantially all of the Capital Stock or assets of such
Subsidiary and (iii) any restrictions with respect to assets encumbered by a
Lien permitted by Section 10.04 so long as such restriction applies only to the
asset encumbered by such permitted Lien.
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SECTION .15. Multiemployer Plans. The Company will not, as of
any date, permit any liability to occur to which the Company or any Commonly
Controlled Entity would become subject under ERISA if the Company or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding such date.
SECTION .16. Limitation on More Restrictive Covenants. The
Company shall not enter into any new debt agreement that would contain, nor
enter into any amendment, supplement or other modification to any indenture,
instrument or other agreement concerning the Funded Debt or any refinancing
thereof, if such indenture, instrument or other agreement at the time entered
into or after giving effect to any such amendment, supplement or other
modification thereto, would contain (a) any covenant or event of default that is
more restrictive on any Borrower than those set forth in this Agreement, (b)
with respect to the Company, any covenant with respect to financial performance
the scope of which is materially different from the covenants respecting such
matters set forth in Sections 10.01, 10.02 or 10.03, (c) any covenant which
would prohibit the granting of liens on its assets by any Borrower or its
Subsidiaries in favor of the Lenders, other than, in the case of this clause
(c), Indebtedness incurred pursuant to Section 10.05(f), and in the case of
clauses (a) and (c), Indebtedness incurred pursuant to Section 10.05(g)
constituting a refinancing, refunding, extension or renewal of existing
Indebtedness and having terms no more restrictive than the Indebtedness
refinanced, refunded, extended or renewed thereby.
SECTION .17. Affiliates. The Company, will not, nor will it
permit any of its Subsidiaries 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 except in the ordinary course of
business and pursuant to the reasonable requirements of the Company's or such
Subsidiary's business and upon fair and reasonable terms no less favorable to
the Company or such Subsidiary than the Company or such Subsidiary would obtain
in a comparable arms-length transaction.
ARTICLE XI. GUARANTEE
SECTION XI.01. Guarantee. (a) The Company hereby
unconditionally and irrevocably guarantees to the Administrative Agent, for the
ratable benefit of the Administrative Agent and the Lenders and their respective
successors, indorsees, transferees and assigns, the prompt and complete payment
and performance by the Foreign Subsidiary Borrowers and the Local Currency
Borrowers when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations.
(b) The Company further agrees to pay any and all expenses
(including, without limitation, all reasonable fees and disbursements of
counsel) which may be paid or incurred by the Administrative Agent, or any
Lender in enforcing, or obtaining advice of counsel in respect of, any rights
with respect to, or collecting, any or all of the Obligations and/or enforcing
any rights with respect to, or collecting against, the Company under this
Section. This Section shall remain in full force and effect until the
Obligations are paid in full and the Commitments are
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terminated, notwithstanding that from time to time prior thereto the Borrowers
and the Local Currency Borrower may be free from any Obligations.
(c) No payment or payments made by any Borrower or Local
Currency Borrower or any other Person or received or collected by the
Administrative Agent or any Lender from any Borrower or Local Currency Borrower
or any other Person by virtue of any action or proceeding or any set-off or
appropriation or application, at any time or from time to time, in reduction of
or in payment of the Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of the Company hereunder which shall,
notwithstanding any such payment or payments, remain liable hereunder for the
Obligations until the Obligations are paid in full and the Commitments are
terminated.
(d) The Company agrees that whenever, at any time, or from
time to time, it shall make any payment to the Administrative Agent or any
Lender on account of its liability under this Section, it will notify the
Administrative Agent and such Lender in writing that such payment is made under
this Section for such purpose.
SECTION XI.02. Right of Set-off. The Administrative Agent and
each Lender is hereby irrevocably authorized at any time and from time to time
without notice to the Company, any such notice being expressly waived by the
Company, to set off and appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Administrative Agent or such Lender (or any Affiliate of such
Lender) to or for the credit or the account of the Company, or any part thereof
in such amounts as the Administrative Agent or such Lender may elect, against or
on account of the obligations and liabilities of the Company to the
Administrative Agent or such Lender hereunder which are then due and payable and
claims of every nature and description of the Administrative Agent or such
Lender against the Company, in any currency, whether arising hereunder, under
any other Loan Document or otherwise in connection therewith, as the
Administrative Agent or such Lender may elect, whether or not the Administrative
Agent or such Lender has made any demand for payment. The Administrative Agent
and each Lender shall notify the Company promptly of any such set-off and the
application made by the Administrative Agent or such Lender, as the case may be,
of the proceeds thereof; provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of the
Administrative Agent and each Lender under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
which the Administrative Agent or such Lender may have.
SECTION XI.03. No Subrogation. Notwithstanding any payment or
payments made by the Company hereunder, or any set-off or application of funds
of the Company by the Administrative Agent or any Lender, the Company shall not
be entitled to be subrogated to any of the rights of the Administrative Agent or
any Lender against the Foreign Subsidiary Borrowers or Local Currency Borrowers
or against any collateral security or guarantee or right of offset held by the
Administrative Agent or any Lender for the payment of the Obligations, nor shall
the Company seek or be entitled to seek any contribution or reimbursement from
such Borrowers in respect of payments made by the Company hereunder, until all
amounts owing to
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the Administrative Agent and the Lenders by such Borrowers on account of the
Obligations are paid in full and the Commitments are terminated. If any amount
shall be paid to the Company on account of such subrogation rights at any time
when all of the Obligations shall not have been paid in full, such amount shall
be held by the Company in trust for the Administrative Agent and the Lenders,
segregated from other funds of the Company, and shall, forthwith upon receipt by
the Company, be turned over to the Administrative Agent in the exact form
received by the Company (duly indorsed by the Company to the Administrative
Agent, if required), to be applied against the Obligations, whether matured or
unmatured, in such order as Administrative Agent may determine. The provisions
of this Section shall survive the termination of this Agreement and the payment
in full of the Obligations and the termination of the Commitments.
SECTION XI.04. Amendments, etc. with respect to the
Obligations; Waiver of Rights. The Company shall remain obligated hereunder
notwithstanding that, without any reservation of rights against the Company, and
without notice to or further assent by the Company, any demand for payment of
any of the Obligations made by the Administrative Agent or any Lender may be
rescinded by the Administrative Agent or such Lender, and any of the Obligations
continued, and the Obligations, or the liability of any other party upon or for
any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Administrative Agent or any Lender, and any Loan
Documents and any other documents executed and delivered in connection therewith
may be amended, modified, supplemented or terminated, in whole or in part, in
accordance with the provisions thereof as the Administrative Agent (or the
requisite Lenders, as the case may be) may deem advisable from time to time, and
any collateral security, guarantee or right of offset at any time held by the
Administrative Agent or any Lender for the payment of the Obligations may be
sold, exchanged, waived, surrendered or released. None of the Administrative
Agent or any Lender shall have any obligation to protect, secure, perfect or
insure any Lien at any time held by it as security for the Obligations or for
this Agreement or any property subject thereto. When making any demand hereunder
against the Company, the Administrative Agent or any Lender may, but shall be
under no obligation to, make a similar demand on any Borrower or any other
guarantor, and any failure by the Administrative Agent or any Lender to make any
such demand or to collect any payments from any Foreign Subsidiary Borrower or
Local Currency Borrower or any such other guarantor or any release of any
Foreign Subsidiary Borrower or Local Currency Borrower or such other guarantor
shall not relieve the Company of its obligations or liabilities hereunder, and
shall not impair or affect the rights and remedies, express or implied, or as a
matter of law, of the Administrative Agent or any Lender against the Company.
For the purposes hereof "demand" shall include the commencement and continuance
of any legal proceedings.
SECTION XI.05. Guarantee Absolute and Unconditional. The
Company waives any and all notice of the creation, renewal, extension or accrual
of any of the Obligations and notice of or proof of reliance by the
Administrative Agent or any Lender upon this Agreement or acceptance of this
Agreement; the Obligations, and any of them, shall conclusively be deemed to
have been created, contracted or incurred, or renewed, extended, amended or
waived, in reliance upon this Agreement; and all dealings between the Foreign
Subsidiary Borrower and the Local Currency Borrowers and the Company, on the one
hand, and the Administrative Agent and the
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Lenders, on the other, shall likewise be conclusively presumed to have been had
or consummated in reliance upon this Agreement. The Company waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Foreign Subsidiary Borrowers and the Local Currency Borrowers and
the Company with respect to the Obligations. This Article XI shall be construed
as a continuing, absolute and unconditional guarantee of payment without regard
to (a) the validity, regularity or enforceability of this Agreement, any other
Loan Document, any of the Obligations or any other collateral security therefor
or guarantee or right of offset with respect thereto at any time or from time to
time held by the Administrative Agent or any Lender, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance) which may at any
time be available to or be asserted by the Foreign Subsidiary Borrowers or the
Local Currency Borrowers against the Administrative Agent or any Lender, or (c)
any other circumstance whatsoever (with or without notice to or knowledge of the
Foreign Subsidiary Borrowers or the Local Currency Borrowers or the Company)
which constitutes, or might be construed to constitute, an equitable or legal
discharge of the Foreign Subsidiary Borrowers or the Local Currency Borrowers
for the Obligations, or of the Company under this Article XI, in bankruptcy or
in any other instance. When pursuing its rights and remedies hereunder against
the Company, the Administrative Agent and any Lender may, but shall be under no
obligation to, pursue such rights and remedies as it may have against the
Foreign Subsidiary Borrowers or the Local Currency Borrowers or any other Person
or against any collateral security or guarantee for the Obligations or any right
of offset with respect thereto, and any failure by the Administrative Agent or
any Lender to pursue such other rights or remedies or to collect any payments
from the Foreign Subsidiary Borrowers or the Local Currency Borrowers or any
such other Person or to realize upon any such collateral security or guarantee
or to exercise any such right of offset, or any release of the Foreign
Subsidiary Borrowers or the Local Currency Borrowers or any such other Person or
of any such collateral security, guarantee or right of offset, shall not relieve
the Company of any liability hereunder, and shall not impair or affect the
rights and remedies, whether express, implied or available as a matter of law,
of the Administrative Agent or any Lender against the Company. This Article XI
shall remain in full force and effect and be binding in accordance with and to
the extent of its terms upon the Company and its successors and assigns, and
shall inure to the benefit of the Administrative Agent and the Lenders, and
their respective successors, indorsees, transferees and assigns, until all the
Obligations and the obligations of the Company under this Agreement shall have
been satisfied by payment in full and the Commitments shall be terminated,
notwithstanding that from time to time during the term of this Agreement the
Foreign Subsidiary Borrowers or the Local Currency Borrowers may be free from
any Obligations.
SECTION XI.06. Reinstatement. This Article XI shall continue
to be effective, or be reinstated, as the case may be, if at any time payment,
or any part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by the Administrative Agent or any Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Foreign Subsidiary Borrower or the Local Currency Borrower or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, any Foreign Subsidiary Borrower or the Local
Currency Borrower or any substantial part of its property, or otherwise, all as
though such payments had not been made.
SECTION XI.07. Payments. The Company hereby agrees that all
payments
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required to be made by it hereunder will be made to the Administrative
Agent without set-off or counterclaim in accordance with the terms of the
Obligations, including, without limitation, in the currency in which payment is
due.
ARTICLE XII. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Loan
made to it when due in accordance with the terms hereof; or any
Borrower shall fail to pay any interest, or any other amount payable by
it hereunder, within five days after any such interest or other amount
becomes due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by any
Borrower herein or which is contained in any certificate, document or
financial or other statement furnished at any time under or in
connection with this Agreement or under or in connection with the
Senior Subordinated Loan Documentation shall prove to have been
incorrect in any material respect on or as of the date made or deemed
made; or
(c) Any Borrower shall default in the observance or
performance of any agreement contained in Sections 9.04(a) or 9.06 or
Article X; or
(d) Any Borrower shall default in the observance or
performance of any other agreement contained in this Agreement (other
than as provided in paragraphs (a) through (c) of this Article), and
such default shall continue unremedied for a period of 30 days after
receipt by such Borrower of notice of such default from the
Administrative Agent or any Lender; or
(e) The Company or any of its Subsidiaries shall (i) default
in any payment or payments of principal or interest in an aggregate
amount for the Company and its Subsidiaries of more than $10,000,000
(or its equivalent in another currency) at any one time on any
Indebtedness (other than the Loans) or in the payment of more than
$10,000,000 in the aggregate under any Guaranties (other than the
Company Guaranty), beyond the period of grace (not to exceed 30 days),
if any, provided in the instrument or agreement under which such
Indebtedness or Guaranty was created; or (ii) default in the observance
or performance of any other agreement or condition relating to any
Indebtedness (other than the Loans) the principal amount of which
exceeds $10,000,000 in the aggregate for the Company and its
Subsidiaries or any Guaranty (other than the Company Guaranty)
guaranteeing Indebtedness the principal amount of which exceeds
$10,000,000 in the aggregate for the Company and its Subsidiaries or
contained in any instrument or agreement evidencing, securing or
relating to any such Indebtedness or Guaranty, beyond any applicable
period of grace (not to exceed 30 days), or any other event shall occur
or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guaranty (or a
trustee or agent on behalf of such holder or holders
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or beneficiary or beneficiaries) to cause, with the giving of notice
if required, such Indebtedness to become due prior to its stated
maturity or such Guaranty to become payable; or
(f) (i) Any Borrower or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for
it or for all or any substantial part of its assets, or any Borrower or
any of its Subsidiaries shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against any Borrower
or any of its Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry
of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days;
or (iii) there shall be commenced against any Borrower or any of its
material Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results
in the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days
from the entry thereof; or (iv) any Borrower or any of its Subsidiaries
shall take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) any Borrower or any of its
Subsidiaries shall generally not, or shall be unable to, or shall admit
in writing its inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any Prohibited Transaction
involving any Plan, (ii) any Accumulated Funding Deficiency, whether or
not waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of any Borrower or any
Commonly Controlled Entity, (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee appointed,
or a trustee shall be appointed, to administer or to terminate, any
Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion
of the Required Lenders, likely to result in the termination of such
Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, (v) any Borrower or
any Commonly Controlled Entity shall, or in the reasonable opinion of
the Required Lenders is likely to, incur any liability in connection
with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against
the Company or any of its Subsidiaries involving in the aggregate a
liability (not paid or fully covered by
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insurance as to which the insurance carrier has admitted liability) of
$30,000,000 or more, and all such judgments or decrees shall not have
been vacated, discharged, stayed or bonded pending appeal within 30
days from the entry thereof; or
(i) The validity or enforceability of this Agreement, any Loan
Document or any of the other documents required to be delivered in
connection herewith shall be challenged by the Company or any of its
Subsidiaries or shall fail to remain in full force and effect for any
reason other than in accordance with its express terms; or
(j) A Change of Control shall occur; or
(k) The subordination provisions of any Subordinated Debt
shall cease, for any reason, to be valid or any Loan Party shall so
assert in writing;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Company,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the Notes shall immediately become due and payable, and (B) if
such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Company declare the Commitments to
be terminated forthwith, whereupon the Commitments shall immediately terminate;
and (ii) with the consent of the Required Lenders, the Administrative Agent may,
or upon the request of the Required Lenders, the Administrative Agent shall, by
notice to the Company, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and the Notes to be
due and payable forthwith, whereupon the same shall immediately become due and
payable, provided, that, notwithstanding the foregoing, during the Term Loan
Commitment Period (x) if the applicable conditions precedent to any Term Loan
set forth in Article VIII are satisfied, no such declaration under clause (B)(i)
or (B)(ii) above shall relieve the Lenders of their obligations to make such
Term Loan, (y) no acceleration of the Loans under clause (B)(i) or (B)(ii) above
shall apply to any outstanding Term Loans until the end of the Term Loan
Commitment Period and, in any event, no acceleration of the Loans under clause
(B)(i) or (B)(ii) above shall apply to any amount of outstanding Term Loans
(whether such Term Loans were made before or after such acceleration) to the
extent that the proceeds thereof have not been disbursed to pay Target
Shareholders or Optionholders for the purchase of Target Shares or Options
pursuant to the Tender Offer (such undisbursed proceeds, "Acquisition Funds")
and (z) neither the Administrative Agent nor any Lender will take any
enforcement action against any Acquisition Funds or otherwise seek to prevent
the disbursement of any Acquisition Funds to pay Target Shareholders or
Optionholders for the purchase of Target Shares or Options pursuant to the
Tender Offer.
Except as expressly provided above in this Article, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
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ARTICLE XIII. THE ADMINISTRATIVE AGENT
SECTION XIII.01. Appointment. Each Lender hereby irrevocably
designates and appoints Chase as the Administrative Agent of such Lender under
this Agreement and the other Loan Documents, and each Lender irrevocably
authorizes Chase to act as the Administrative Agent of such Lender, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
SECTION XIII.02. Delegation of Duties. The Administrative
Agent may execute any of its duties under this Agreement and the other Loan
Documents by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care.
SECTION XIII.03. Exculpatory Provisions. Neither the
Administrative Agent nor any of its respective officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Loan Document (except for its or
such Person's gross negligence or willful misconduct) or (ii) responsible in any
manner to any of the Lenders for any recitals, statements, representations or
warranties made by any Borrower or any officer thereof contained in this
Agreement or any other Loan Document or in any certificate, report, statement or
other document referred to or provided for in, or received by the Administrative
Agent under or in connection with, this Agreement or any other Loan Document or
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document or for any failure of a
Borrower to perform its obligations hereunder or thereunder. The Administrative
Agent shall not be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document or to inspect the
properties, books or records of the Borrowers.
SECTION XIII.04. Reliance by Administrative Agent. The
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any Note, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Borrowers or any of them), independent accountants and other experts selected by
the Administrative Agent. The Administrative Agent may deem and treat the payee
of any Note as the owner thereof for all purposes unless a written notice of
assignment or transfer thereof shall have been filed with the
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Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
SECTION XIII.05. Notice of Default. The Administrative Agent
shall not be deemed to have knowledge or notice of the occurrence of any Default
or Event of Default hereunder unless the Administrative Agent has received
notice from a Lender or a Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders;
provided that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
SECTION XIII.06. Non-Reliance on Agents and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or affiliates
have made any representations or warranties to it and that no act by the
Administrative Agent hereafter taken, including any review of the affairs of a
Loan Party or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents 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 analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall have no duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any affiliate of
a Loan Party which may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
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SECTION XIII.07. Indemnification. The Lenders agree to
indemnify the Administrative Agent in its capacity as such (to the extent not
reimbursed by the Borrowers and without limiting the obligation of the Borrowers
to do so), ratably according to their respective Revolving Credit Percentages,
Tranche A Term Loan Percentages, Tranche B Term Loan Percentages and Interim
Term Loan Percentages in effect on the date on which indemnification is sought
under this Section 13.07 (or, if indemnification is sought after the date upon
which the Commitments shall have terminated and the Loans shall have been paid
in full, ratably in accordance with such Percentages immediately prior to such
date), from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Loans) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements which resulted from the Administrative Agent's
gross negligence or willful misconduct. The agreements in this Section 13.07
shall survive the payment of the Loans and all other amounts payable hereunder.
SECTION XIII.08. Administrative Agent in Its Individual
Capacity. The Administrative Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with any Loan Party
as though the Administrative Agent were not the Administrative Agent. With
respect to its Loans made or renewed by it the Administrative Agent shall have
the same rights and powers under this Agreement and the other Loan Documents as
any Lender and may exercise the same as though it were not the Administrative
Agent, and the terms "Lender" and "Lenders" shall include the Administrative
Agent in its individual capacity.
SECTION XIII.09. Successor Administrative Agent. The
Administrative Agent may resign as Administrative Agent upon 30 days' notice to
the Lenders and the Company. If the Administrative Agent shall resign as
Administrative Agent under this Agreement and the other Loan Documents, then the
Required Lenders shall appoint from among the Lenders a successors agent for the
Lenders, which successor agent shall (unless an Event of Default under paragraph
(a) or (f) of Article XII with respect to the Company shall have occurred and be
continuing) be approved by the Company (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent
has accepted appointment as Administrative Agent by the date that is 30 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall assume and perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided
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for above. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Article XIII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.
SECTION .10. Authorization to Release Liens. The
Administrative Agent is hereby irrevocably authorized by each of the Lenders to
release, or direct the Trustee to release, any Lien created by any Security
Document covering any Property of the Company or any of its Subsidiaries that is
the subject of a Disposition which is permitted by this Agreement or which has
been consented to in accordance with Section 14.01. In addition, the
Administrative Agent is hereby authorized by each of the Lenders to release, and
to direct the Trustee to release, the Liens on the Collateral on the Collateral
Release Date.
ARTICLE XIV. MISCELLANEOUS
SECTION XIV.01. Amendments and Waivers. (a) Neither this
Agreement or any other Loan Document, nor any terms hereof or thereof may be
amended, supplemented, waived or modified except in accordance with the
provisions of this Section 14.01. The Required Lenders may, or, with the written
consent of the Required Lenders, the Administrative Agent may, from time to
time, (i) enter into with the relevant Loan Parties written amendments,
supplements or modifications hereto and to the other Loan Documents for the
purpose of adding any provisions to this Agreement or the other Loan Documents
or changing in any manner the rights or obligations of the Lenders or of the
Loans Parties hereunder or thereunder or (ii) waive at the Loan Parties'
request, on such terms and conditions as the Required Lenders or the
Administrative Agent, as the case may be, may specify in such instrument, any of
the requirements of this Agreement or the other Loan Documents or any Default or
Event of Default and its consequences; provided, however, that no such waiver
and no such amendment, supplement or modification shall:
(_)(_)(A) reduce the amount or extend the scheduled date of
maturity of any Loan or any scheduled installment thereof, or reduce
the stated rate of any interest or fee payable hereunder or extend the
scheduled date of any payment thereof or increase the amount or extend
the expiration date of any Lender's Commitment, in each case without
the consent of each Lender affected thereby;
(B) amend, supplement, modify or waive any provision of
this Section 14.01 or reduce the percentages specified in the
definition of "Required Lenders", "Required Prepayment Lenders" or
"Majority Facility Lenders" or consent to the assignment or transfer by
any Borrower of any of its rights and obligations under this Agreement
and the other Loan Documents or release the Company from its
obligations under the Company Guaranty, in each case without the
consent of all the Lenders;
(C) release all or substantially all of the Collateral
(except as provided in Sections 13.10 and 14.17) or all or
substantially all of the guarantors under the Subsidiary Guarantees, in
each case without the consent of all the Lenders; or
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(D) amend, supplement, modify or waive any provision of
Section 2.06, 2.07, 2.08, 2.09 or 2.10 or any other provision of this
Agreement governing the rights and obligations of the Swing Line
Lender, or the definitions used therein, without the consent of the
Swing Line Lender.
Any such waiver and any amendment, supplement or modification pursuant to this
Section 14.01 shall apply to each of the Lenders and shall be binding upon the
Loan Parties, the Lenders, the Administrative Agent, and all future holders of
the Loans. In the case of any waiver, the Loan Parties, the Lenders and the
Administrative Agent shall be restored to their former positions and rights
hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
(b) In addition to amendments effected pursuant to the
foregoing paragraph (a), Schedule II may be amended as follows:
(i) Schedule II will be amended to add Subsidiaries of the
Company as additional Foreign Subsidiary Borrowers upon (A) execution
and delivery by the Company, any such Foreign Subsidiary Borrower and
the Administrative Agent, of a Joinder Agreement providing for any such
Subsidiary to become a Foreign Subsidiary Borrower, and (B) delivery to
the Administrative Agent of (I) a Foreign Subsidiary Opinion in respect
of such additional Foreign Subsidiary Borrower and the documents
required pursuant to Sections 8.02(d), (e) and (f) and (II) such other
documents with respect thereto as the Administrative Agent shall
reasonably request.
(ii) Schedule II will be amended to remove any Subsidiary
as a Foreign Subsidiary Borrower upon (A) written notice by the Company
to the Administrative Agent to such effect and (B) repayment in full of
all outstanding Loans of such Foreign Subsidiary Borrower.
(c) The Administrative Agent shall give prompt notice to each
Lender of any amendment effected pursuant to Section 14.01(b).
(d) Notwithstanding the provisions of this Section 14.01, any
Local Currency Facility may be amended, supplemented or otherwise modified in
accordance with its terms so long as after giving effect thereto either (i) such
Local Currency Facility ceases to be a "Local Currency Facility" and the Company
so notifies the Administrative Agent or (ii) the Local Currency Facility
continues to meet the requirements of a Local Currency Facility set forth
herein.
SECTION XIV.02. Notices. All notices, requests and demands to
or upon the respective parties hereto to be effective shall be in writing
(including by facsimile transmission) and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered by hand,
or three days after being deposited in the mail, postage prepaid (or, if later,
the first Business Day after being so deposited), or, in the case of telecopy
notice,
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when received (or if received on a day that is not a Business Day or if received
after 5:00 p.m. local time at the place of reception on a Business Day, on the
next succeeding Business Day), addressed as follows in the case of the Borrowers
and the Administrative Agent, and as set forth in Schedule I in the case of the
other parties hereto, or to such other address as may be hereafter notified by
the respective parties hereto and any future holders of the Notes:
The Company: Federal-Mogul Corporation
World Headquarters
26555 Northwestern Highway
Southfield, Michigan 48034
Attention: Sandra W. Galac
Telephone: 248-354-2653
Telecopy: 248-354-8103
The Foreign
Subsidiary Borrowers: c/o Federal-Mogul Corporation
World Headquarters
26555 Northwestern Highway
Southfield, Michigan 48034
Attention: Sandra W. Galac
Telephone: 248-354-2653
Telecopy: 248-354-8103
The Administrative Agent
(New York Office): The Chase Manhattan Bank
One Chase Manhattan Plaza
8th Floor
New York, New York 10081
Attention: James Tabois
Telephone: 212-552-7952
Telecopy: 212-552-5650
The Administrative Agent
(London Office): Chase Manhattan International Ltd.
9 Thomas Moore Street
London, E1 (YT)
Attention: Steven Hurford
Telephone: 011-44-171-777-2347
Telecopy: 011-44-171-777-2367
provided that any notice, request or demand to or upon (i) the Administrative
Agent or the Lenders pursuant to Section 2.03, 2.05, 3.03, 4.03, 6.02, 6.04,
6.07 or 6.11 or (ii) the Swing Line Lender pursuant to Sections 2.06, 2.07,
2.08, 2.09, or 2.10, shall not be effective until received. All notices to the
Administrative Agent in respect of Multicurrency Loans shall be delivered to the
Administrative Agent's London Office specified above.
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SECTION XIV.03. No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of any Borrower, the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder or under the other Loan Documents shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
SECTION XIV.04. Survival of Representations and Warranties.
All representations and warranties made hereunder, in the other Loan Documents
and in any certificate delivered pursuant hereto or in connection herewith shall
survive the execution and delivery of this Agreement and the Notes and the
making of the Loans hereunder.
SECTION XIV.05. Payment of Expenses and Taxes. The Company
agrees (a) to pay or reimburse the Administrative Agent for all of its
reasonable out-of-pocket costs and expenses incurred in connection with the
development, preparation, execution and delivery of, and any amendment,
supplement or modification to, this Agreement and the other Loan Documents and
any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby,
including, without limitation, the reasonable fees and disbursements of counsel
(and any special or local counsel retained by such counsel to assist it) to the
Administrative Agent, (b) to pay or reimburse each Lender and the Administrative
Agent for all its costs and expenses incurred in connection with the enforcement
or preservation of any rights under this Agreement, the other Loan Documents and
any such other documents, (c) to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other similar taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender and the
Administrative Agent (and their respective directors, officers, employees,
agents, affiliates and successors) harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, any of the foregoing relating to the use of proceeds of the
Loans or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Company, any of its
Subsidiaries or any of the Properties (regardless of whether the Administrative
Agent or any Lender is a party to the litigation or other proceeding giving rise
thereto), (all the foregoing in this clause (d), collectively, the "indemnified
liabilities"), provided, that the Company shall have no obligation hereunder to
the Administrative Agent or any Lender with respect to (i) indemnified
liabilities arising from the gross negligence or willful misconduct of the party
seeking indemnification or (ii) expenses incurred by the Administrative Agent or
any Lender in connection with the assignment of Loans to an assignee (except
pursuant to Section 6.14(b)(vi)) or the sale of any Loan to a Participant. The
agreements in this Section shall survive repayment of the Loans and
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all other amounts payable hereunder.
SECTION XIV.06. Successors and Assigns; Participations and
Assignments. (a) This Agreement shall be binding upon and inure to the benefit
of the Borrowers, the Lenders, the Administrative Agent, all future holders of
the Loans and their respective successors and assigns, except that no Borrower
may assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each Lender.
(b) Any Lender may, in accordance with applicable law, at any
time sell to one or more banks or other entities ("Participants") participating
interests in any Loan owing to such Lender, any Commitment of such Lender or any
other interest of such Lender hereunder and under the other Loan Documents. In
the event of any such sale by a Lender of a participating interest to a
Participant, such Lender's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of
any such Loan for all purposes under this Agreement and the other Loan
Documents, and the Borrowers and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. No Lender shall
be entitled to create in favor of any Participant, in the participation
agreement pursuant to which the Participant's participating interest shall be
created or otherwise, any right to vote on, consent to or approve any matter
relating to this Agreement or any other Loan Document except for those specified
in clauses (A) and (B) of the proviso to Section 14.01(a). Each Borrower agrees
that if amounts outstanding under this Agreement are due or unpaid, or shall
have been declared or shall have become due and payable upon the occurrence of
an Event of Default, each Participant shall be deemed to have, to the maximum
extent permitted by law, the right of setoff in respect of its participating
interest in amounts owing under this Agreement to the same extent as if the
amount of its participating interest were owing directly to it as a Lender under
this Agreement; provided that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in Section 14.07(a) as fully as if it were a Lender
hereunder. Each Borrower agrees that each Participant shall be entitled to the
benefits of Sections 6.09, 6.10, 6.11 and 6.12 with respect to its participation
in the Commitments and the Loans outstanding from time to time hereunder as if
it was a Lender; provided that, in the case of Section 6.11. such Participant
shall have complied with the requirements of said Section and provided, further,
that no Participant shall be entitled to receive any greater amount pursuant to
any such Section than the transferor Lender would have been entitled to receive
in respect of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in accordance with applicable law, at any
time and from time to time assign to any Lender or any Affiliate thereof or,
with the prior written consent of the Administrative Agent (such consent not to
be unreasonably withheld) and, prior to the occurrence and continuance of an
Event of Default, the Company (such consent not to be unreasonably withheld), to
an additional bank or financial institution or other entity that is regularly
engaged in making or purchasing loans (an "Assignee") all or any part of its
rights and obligations under this Agreement and the other Loan Documents
including, without limitation, its Commitments and Loans, pursuant to an
Assignment and Acceptance, substantially in the
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form of Exhibit G, executed by such Assignee, such assigning Lender (and, in the
case of an Assignee that is not then a Lender or an Affiliate thereof, by the
Administrative Agent and, prior to the occurrence and continuance of an Event of
Default, the Company) and delivered to the Administrative Agent for their
acceptance and recording in the Register; provided that (i) if any Lender
assigns a part of its rights and obligations in respect of Loans of a Class
and/or Commitment to make Loans of such Class under this Agreement to an
Assignee, such Lender shall assign proportionate interests in its respective
Loans of such Class and Commitment to make Loans of such Class and other related
rights and obligations hereunder to such Assignee, (ii) if any Lender assigns a
part of its rights and obligations under this Agreement in respect of its
Revolving Credit Loans and/or Revolving Credit Commitments to an Assignee, such
Lender shall assign proportionate interests in (A) its participations in the
Swing Line Loans and other rights and obligations hereunder in respect of the
Swing Line Loans to such Assignee and (B) its Multicurrency Loans and
Multicurrency Commitments, (iii) in the case of any such assignment to an
additional bank, financial institution or other entity, the aggregate amount of
any Commitment (or, if the Commitments have terminated or expired, the aggregate
principal amount of any Loans) being assigned shall not be less than $5,000,000
(or (x) if less, the then outstanding amount of such Commitments and/or Loans or
(y) such lesser amount as may be agreed by the Company and the Administrative
Agent). Upon such execution, delivery, acceptance and recording, from and after
the effective date determined pursuant to such Assignment and Acceptance, (I)
the Assignee thereunder shall be a party hereto and, to the extent provided in
such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with Commitments and rights in respect of Loans as set forth therein,
and (II) the assigning Lender thereunder shall be released from its obligations
under this Agreement to the extent that such obligations shall have been
expressly assumed by the Assignee pursuant to such Assignment and Acceptance
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such assigning Lender shall cease to be a party hereto).
(d) The Administrative Agent, on behalf of the Borrowers,
shall maintain at its address referred to in Section 14.02 a copy of each
Assignment and Acceptance delivered to it and a register (the "Register") for
the recordation of (i) the names and addresses of the Lenders and the
Commitments of, and principal amounts of the Loans owing to, each Lender from
time to time and (ii) the other information required from time to time pursuant
to Section 2.06 in respect of Swing Line Loans. The entries in the Register
shall constitute prima facie evidence of the information recorded therein, and
the Borrowers, the Administrative Agent and the Lenders may (and, in the case of
any Loan or other obligation hereunder not evidenced by a Note, shall) treat
each Person whose name is recorded in the Register as the owner of a Loan or
other obligation hereunder as the owner thereof for all purposes of this
Agreement and the other Loan Documents, notwithstanding any notice to the
contrary. Any assignment of any Loan or other obligation hereunder not evidenced
by a Note shall be effective only upon appropriate entries with respect thereto
being made in the Register. The Register shall be available for inspection by
the Borrowers or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or an Affiliate
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thereof, executed by the Company and the Administrative Agent), together with
payment to the Administrative Agent by the Lender or the Assignee of a
registration and processing fee of $2,500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give prompt notice of such acceptance and recordation to the
Lenders and the Borrowers.
(f) Each Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
any and all financial information in such Lender's possession concerning such
Borrower and its Affiliates which has been delivered to such Lender by or on
behalf of such Borrower pursuant to this Agreement or which has been delivered
to such Lender by or on behalf of such Borrower in connection with such Lender's
credit evaluation of such Borrower and its Affiliates prior to becoming a party
to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section concerning assignments of Loans
and Notes relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including, without limitation,
any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve
Bank in accordance with applicable law.
(h) If, pursuant to this Section, any interest in this
Agreement or any Loan is transferred to any Transferee (which is not a Lender)
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 agree (for the benefit
of the transferor Lender, the Administrative Agent and the Company) to provide
the transferor Lender (and, in the case of any Transferee registered in the
Register, the Administrative Agent and the Company) the tax forms and other
documents required to be delivered pursuant to Section 6.11(b) and to comply
from time to time with all applicable U.S. laws and regulations with regard to
such withholding tax exemption.
(i) If, pursuant to this Section, any interest in this
Agreement or any Loan is transferred to any Transferee, the transferor Lender
shall cause such Transferee, concurrently with the effectiveness of such
transfer, to agree (for the benefit of the transferor Lender, the Administrative
Agent and the Foreign Subsidiary Borrowers) to provide the transferor Lender,
the Administrative Agent and the Foreign Subsidiary Borrowers the tax forms and
other documents required to be delivered pursuant to Section 6.11(c) and to
comply from time to time with all applicable laws and regulations with regard to
such withholding tax exemption.
SECTION XIV.07. Adjustments; Set-Off. (a) If any Lender (a
"Benefitted Lender") shall at any time receive any payment of all or part of its
Loans then due and owing to it by any Borrower, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in
paragraph (f) of Article XII, or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Loans then due and owing to it by such Borrower, or
interest thereon, such Benefitted Lender shall purchase for
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cash from the other Lenders a participating interest in such portion of each
such other Lender's Loans owing to it by such Borrower, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such Benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to any
Borrower, any such notice being expressly waived by the Borrowers to the extent
permitted by applicable law, upon any amount becoming due and payable hereunder
(whether at the stated maturity thereof, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch, agency or Affiliate thereof to or
for the credit or the account of any Borrower. Each Lender agrees promptly to
notify the Borrowers and the Administrative Agent after any such set-off and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
SECTION XIV.08. Loan Conversion/Participations. (a) (i) On any
Conversion Date, to the extent not otherwise prohibited by a Requirement of Law
or otherwise, all Loans outstanding in any currency other than U.S. Dollars
("Loans to be Converted") shall be converted into U.S. Dollars (calculated on
the basis of the relevant Exchange Rates as of the Business Day immediately
preceding the Conversion Date) ("Converted Loans") and (ii) on the Conversion
Date (with respect to Loans described in the foregoing clause (i)) (A) each
Lender severally, unconditionally and irrevocably agrees that it shall purchase
in U.S. Dollars a participating interest in such Converted Loans in an amount
equal to its Conversion Sharing Percentage of the outstanding principal amount
of the Converted Loans and (B) to the extent necessary to cause the Committed
Outstandings Percentage of each Revolving Credit Lender to equal its Revolving
Credit Commitment Percentage (calculated immediately prior to the termination or
expiration of the Revolving Credit Loans), each Revolving Credit Lender
severally, unconditionally and irrevocably agrees that it shall purchase or sell
a participating interest in Revolving Credit Loans then outstanding. Each
Revolving Credit Lender will immediately transfer to the Administrative Agent,
in immediately available funds, the amounts of its participation(s), and the
proceeds of such participation(s) shall be distributed by the Administrative
Agent to each Revolving Credit Lender from which a participating interest is
being purchased in the amount(s) provided for in the preceding sentence. All
Converted Loans shall bear interest at the rate which would otherwise be
applicable to Base Rate Loans.
(b) If, for any reason, the Loans to be Converted may not be
converted into U.S. Dollars in the manner contemplated by paragraph (a) of this
Section 14.08, (i) effective on such Conversion Date, each Revolving Credit
Lender severally, unconditionally and irrevocably agrees that it shall purchase
a participating interest in such Loans to be Converted, in an amount equal to
its Conversion Sharing Percentage of such Loans to be Converted, and (ii) each
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Revolving Credit Lender shall purchase or sell participating interests as
provided in paragraph (a)(ii)(B) of this Section 14.08. Each Revolving Credit
Lender will immediately transfer to the appropriate Administrative Agent, in
immediately available funds, the amount(s) of its participation(s), and the
proceeds of such participation(s) shall be distributed by the Administrative
Agent to each relevant Revolving Credit Lender in the amount(s) provided for in
the preceding sentence.
(c) To the extent any Non-Excluded Taxes are required to be
withheld from any amounts payable by a Lender to another Lender in connection
with its participating interest in any Converted Loan, each Borrower, with
respect to the relevant Loans made to it, and the Company with respect to Local
Currency Loans, shall be required to pay increased amounts to the Lender
receiving such payments to the same extent they would be required under Section
6.11 if such Borrower were making payments directly to such Lender.
(d) At any time after the actions contemplated by paragraphs
(a) or (b) of this Section 14.08 have been taken, upon the notice of any Lender
to the Borrowers the following shall occur: (i) the Company (through the
guarantee contained in Article XI) shall automatically be deemed to have assumed
the Converted Loans in which such Lender holds a participation, and (ii) such
Loans shall be assigned by the relevant Lender holding such Loans or obligations
to the Lender who gave the notice requesting such assumption by the Company.
SECTION XIV.09. Counterparts. This Agreement may be executed
by one or more of the parties to this Agreement on any number of separate
counterparts (including by facsimile transmission), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A set
of the copies of this Agreement signed by all the parties shall be delivered to
the Borrowers and the Administrative Agent.
SECTION .10. Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION .11. Integration. This Agreement and the other Loan
Documents represent the agreement of the Borrowers, the Administrative Agent and
the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Borrowers, the
Administrative Agent or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
SECTION .12. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION .13. Submission To Jurisdiction; Waivers. (a) The
Company and each Foreign Subsidiary Borrower hereby irrevocably and
unconditionally:
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(i) submits for itself and its property in any legal
action or proceeding relating to this Agreement and the other Loan
Documents to which it is a party, or for recognition and enforcement of
any judgment in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of New York, the courts of the
United States of America for the Southern District of New York, and
appellate courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Company or such Foreign Subsidiary Borrower, as the
case may be, at the address specified in Section 14.02, or at such
other address of which the Administrative Agent shall have been
notified pursuant thereto;
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
(v) waives, to the maximum extent not prohibited by law,
any right it may have to claim or recover in any legal action or
proceeding referred to in this Section any special, exemplary, punitive
or consequential damages.
(b) Each Foreign Subsidiary Borrower hereby irrevocably
appoints the Company as its agent for service of process in any proceeding
referred to in Section 14.13(a) and agrees that service of process in any such
proceeding may be made by mailing or delivering a copy thereof to it care of
Company at its address for notices set forth in Section 14.02.
SECTION .14. Acknowledgements. Each Borrower hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) none of the Administrative Agent or any Lender has any
fiduciary relationship with or duty to such Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between the Administrative Agents and the Lenders,
on the one hand, and the Borrowers, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrowers and the
Lenders.
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SECTION .15. WAIVERS OF JURY TRIAL. THE BORROWERS, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
SECTION .16. Power of Attorney. Each Foreign Subsidiary
Borrower hereby grants to the Company an irrevocable power of attorney to act as
its attorney-in-fact with regard to matters relating to this Agreement and each
other Loan Document, including, without limitation, execution and delivery of
any amendments, supplements, waivers or other modifications hereto or thereto,
receipt of any notices hereunder or thereunder and receipt of service of process
in connection herewith or therewith. Each Foreign Subsidiary Borrower hereby
explicitly acknowledges that each of the Administrative Agent and each Lender
has executed and delivered this Agreement and each other Loan Document to which
it is a party, and has performed its obligations under this Agreement and each
other Loan Document to which it is a party, in reliance upon the irrevocable
grant of such power of attorney pursuant to this Section. The power of attorney
granted by each Foreign Subsidiary Borrower hereunder is coupled with an
interest.
SECTION .17. Release of Collateral. As promptly as practicable
after the Collateral Release Date, the Administrative Agent shall, and shall
instruct the Trustee to, take all necessary action to release the Liens created
by the Security Documents in all Collateral.
SECTION .18. Judgment. (a) If for the purpose of obtaining
judgment in any court it is necessary to convert a sum due hereunder in one
currency into another currency, the parties hereto agree, to the fullest extent
that they may effectively do so, that the rate of exchange used shall be that at
which in accordance with normal banking procedures the Administrative Agent
could purchase the first currency with such other currency in the city in which
it normally conducts its foreign exchange operation for the first currency on
the Business Day preceding the day on which final judgment is given.
(b) The obligation of each Borrower in respect of any sum due
from it to any Lender hereunder shall, notwithstanding any judgment in a
currency (the "Judgment Currency") other than that in which such sum is
denominated in accordance with the applicable provisions of this Agreement (the
"Agreement Currency"), be discharged only to the extent that on the Business Day
following receipt by such Lender of any sum adjudged to be so due in the
Judgment Currency such Lender may in accordance with normal banking procedures
purchase the Agreement Currency with the Judgment Currency; if the amount of
Agreement Currency so purchased is less than the sum originally due to such
Lender in the Agreement Currency, such Borrower agrees notwithstanding any such
judgment to indemnify such Lender against such loss, and if the amount of the
Agreement Currency so purchased exceeds the sum originally due to any Lender,
such Lender agrees to remit to such Borrower such excess.
SECTION .19. Confidentiality. Each Lender agrees to keep
confidential any written information (a) provided to it by or on behalf of the
Company or any of its Subsidiaries
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pursuant to or in connection with this Agreement or (b) obtained by such Lender
based on a review of the books and records of the Company or any of its
Subsidiaries; provided that nothing herein shall prevent any Lender from
disclosing any such information (i) to the Administrative Agent or any other
Lender, (ii) to any Transferee or prospective Transferee which agrees to comply
with the provisions of this Section, (iii) to its employees, directors, agents,
attorneys, accountants and other professional advisors, or to any direct or
indirect contractual counterparties in swap agreements or such contractual
counterparties' professional advisors provided that such contractual
counterparty or professional advisor to such contractual agrees in writing to
keep such information confidential to the same extent required of the Lenders
hereunder, (iv) upon the request or demand of any Governmental Authority (or
the National Association of Insurance Commissioners) having jurisdiction over
such Lender or as shall be required pursuant to any Requirement of Law, (v) in
response to any order of any court or other Governmental Authority (or the
National Association of Insurance Commissioners) or as may otherwise be
required pursuant to any Requirement of Law, (vi) in connection with any
litigation to which such Lender is a party, (vii) which has been publicly
disclosed other than in breach of this Agreement, or (viii) to the extent
reasonably necessary, in connection with the exercise of any remedy hereunder.
SECTION .20. Unification of Certain Currencies. If the "Euro"
(or some other similar unit of account) becomes a currency in its own right in
connection with European monetary union contemplated by the Maastricht Treaty,
then each of the Borrowers, the Lenders and the Administrative Agent agrees to
negotiate in good faith an amendment to this Agreement satisfactory in form and
substance to the Borrowers, the Lenders and the Administrative Agent to account
therefor.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written. FEDERAL-MOGUL CORPORATION
By:
--------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent and a Lender
By:
--------------------------------------
Name:
Title:
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ANNEX A
PRICING GRID(1)
Applicable Margin
for Multicurrency Applicable Margin for Applicable Margin for Applicable Margin for
Consolidated Loans and Revolving Revolving Credit Loans Tranche A Term Loans Tranche A Term Loans
Leverage Credit Loans which which are which are which are
Ratio are Eurodollar Loans ABR Loans Eurodollar Loans ABR Loans
------------ -------------------- ---------------------- --------------------- ------------------
greater than or
equal to 4.5 to 1 150 50 200 100
less than 4.5 to 1 137.5 37.5 175 75
less than 4.0 to 1 117.5 17.5 150 50
less that 3.5 to 1 95 0 125 25
less than 3.0 to 1 75 0 100 0
Applicable Margin for Applicable Margin
Consolidated Tranche B Term Loans for Tranche B Term
Leverage which are Loans which are Facility
Ratio Eurodollar Loans ABR Loans Fee Rate
------------ --------------------- ------------------ --------
greater than or
equal to 4.5 to 1 225 125 50
less than 4.5 to 1 200 100 37.5
less than 4.0 to 1 175 75 32.5
less that 3.5 to 1 150 50 30.0
less than 3.0 to 1 150 50 25.0
Changes in the Applicable Margin and Facility Fee Rate resulting from changes in
the Consolidated Leverage Ratio shall become effective on the date (the
"Adjustment Date") on which financial statements are delivered to the Lenders
pursuant to Section 9.01 (but in any event not later than the 60th day after the
end of each of the first three quarterly periods of each fiscal year or the
120th day after the end of each fiscal year, as the case may be) and shall
remain in effect until the next change to be effected pursuant to this
paragraph. Each determination of the Consolidated Leverage Ratio pursuant to
this definition shall be made with respect to the period of four consecutive
fiscal quarters of the Company ending at the end of the period covered by the
relevant financial statements.
- --------------------
(1) Applicable Margins and Facility Fee expressed in basis points.
120
ANNEX B
From and after the Covenant Transition Date, the following
Article X will be deemed to replace Article X set forth in the Agreement to
which this Annex B is attached and cross references to Article X of the Credit
Agreement contained in the Loan Documents will be modified accordingly.
ARTICLE X. NEGATIVE COVENANTS
The Company hereby covenants and agrees that so long as the
Commitments remain in effect, any Loan remains outstanding and unpaid or any
other amount is owing to any Lender or the Administrative Agent hereunder the
Company will comply with the covenants set forth below in this Article X:
SECTION X.01. Cash Flow Coverage. The Company will not permit
the Cash Flow Coverage to be less than a ratio of 1.50 to 1.00 for any period of
four consecutive fiscal quarters.
SECTION X.02. Consolidated Leverage Ratio. The Company will
not permit the Consolidated Leverage Ratio at the last day of any fiscal quarter
to be greater than 3.00 to 1.00
SECTION X.03. Maintenance of Net Worth. The Company will not
permit Consolidated Net Worth at any time to be less than $270,000,000.
SECTION X.04. Limitation on Liens. The Company will not, nor
will it permit any of its Subsidiaries to, create, assume or incur or suffer to
be created, assumed or incurred or to exist any Lien on any of its properties or
assets, whether now owned or hereafter acquired, provided, however, that the
foregoing restriction shall not apply to the following:
(a) Liens existing on the date of this Agreement and described
on Schedule III, and Liens on assets of the Target and its Subsidiaries
existing on the date of consummation of the Acquisition;
(b) Liens on property or assets of any corporation existing at
the time such corporation becomes a Subsidiary and not created in
contemplation thereof;
(c) Liens in favor of the Company or any Wholly Owned
Subsidiary;
(d) Liens in favor of any Governmental Authority to secure
progress, advance or other payments pursuant to any contract or
provision of any statute;
(e) Liens (including, without limitation, the interest of the
lessor under any capital lease) on property or assets existing at the
time of the acquisition thereof (including acquisition through merger
or consolidation) or to secure the payment of all or any part of the
purchase price or construction cost thereof or to secure any
Indebtedness
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incurred prior to, at the time of, or within six months after, the
acquisition or completion of such property or assets for the purpose of
financing all or any part of the purchase price or construction cost
thereof;
(f) any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any
Lien referred to in the foregoing clauses (a) through (e), inclusive;
provided that (i) no such extension, renewal or replacement shall
result in an increase in the liabilities secured thereby and (ii) such
extension, renewal or replacement Lien shall be limited to all or a
part of the same property that secured the Lien so extended, renewed or
replaced (plus additions, accessions, replacements and improvements to
such property);
(g) Liens for taxes not yet due or which are being contested
in good faith and by appropriate proceedings diligently pursued if
adequate reserves with respect thereto are maintained on the books of
the Company or such Subsidiary, as the case may be, in accordance with
GAAP or in the case of a Subsidiary located outside the United States,
general accounting principles in effect from time to time in their
respective jurisdictions of incorporation;
(h) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business (A) which are not overdue for a period of more than
60 days or (B) which are being contested in good faith and by
appropriate proceedings diligently pursued if adequate reserves with
respect thereto are maintained on the books of the Company or such
Subsidiary, as the case may be, in accordance with GAAP;
(i) easements, rights-of-way, zoning and similar restrictions
and other similar encumbrances or title defects incurred in the
ordinary course of business which, in the aggregate, are not greater
than $15,000,000 (to the extent the dollar values of such encumbrances
are calculable) and which do not in any case materially detract from
the value of the property subject thereto or interfere with the
ordinary conduct of the business of the Company or its Subsidiaries;
(j) any attachment or judgment lien, unless the judgment it
secures shall not, within 30 days after the entry thereof, have been
discharged or execution thereof stayed pending appeal, or shall not
have been discharged within 30 days after the expiration of any such
stay;
(k) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social legislation and
deposits securing liability to insurance carriers under insurance or
self-insurance arrangements;
(l) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(m) liens ratably securing the obligations of the Borrowers to
the Lenders hereunder or under the Notes;
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(n) other Liens incidental to the conduct of the Company's or
any Subsidiary's business or the ownership of its property and assets
that were incurred in connection with the borrowing of money or the
obtaining of advances or credit or capital leases; provided, however,
that the indebtedness secured thereby does not exceed in the aggregate
for the Company and all Subsidiaries of the Company an amount equal to
$50,000,000; and provided, further, that at no time shall the sum of
(i) the Indebtedness secured by the Liens permitted under this Section
10.04(n) plus (ii) all other Indebtedness of the Company's Subsidiaries
(other than Subsidiaries which are parties to a Subsidiary Guarantee)
plus (iii) the aggregate amount of Secured Reimbursement Obligations be
equal to or greater than forty percent (40%) of Consolidated Net Worth
(determined as of the end of the most recent fiscal quarter of the
Company); and
(o) Liens granted by a special-purpose, Wholly Owned
Subsidiary of the Company that purchases accounts receivable from the
Company and its Subsidiaries to the extent such Liens are granted on
such accounts receivable to secure the payment of indebtedness of such
Wholly Owned Subsidiary.
SECTION X.05. Subsidiary Indebtedness. The Company will not
permit any Subsidiary other than a Subsidiary which is a party to a Subsidiary
Guarantee to create, incur or suffer to exist any Indebtedness to any Person
other than the Company or a Subsidiary, except (i) Indebtedness of the Company
and its Subsidiaries and the Target and its Subsidiaries existing on the
Covenant Transition Date and refinancings, refundings, renewals or extensions
thereof, (ii) Indebtedness of any Loan Party pursuant to any Loan Document,
(iii) Indebtedness of the Special Purpose Subsidiaries described in Schedule
6.13, (iv) additional Indebtedness of Excluded Foreign Subsidiaries to the
Company or any Subsidiary which is a party to a Subsidiary Guarantee in an
aggregate principal amount not exceeding $100,000,000 at any time outstanding,
(v) Indebtedness of any Subsidiary which is not a party to a Subsidiary
Guarantee owing to any other Subsidiary which is not a party to a Subsidiary
Guarantee, (vi) Indebtedness in the form of any investment permitted by Section
10.11 as in effect on the Covenant Transition Date, (vii) Indebtedness secured
by Liens permitted by Section 10.04(e), including capital lease obligations, in
an aggregate principal amount not to exceed $50,000,000 at any one time
outstanding and any refinancings, refundings, renewals or extensions thereof
(without any increase in the principal amount thereof) and (viii) Indebtedness
which, together with the secured Indebtedness allowed under Section 10.04(n),
shall not exceed forty percent (40%) of Consolidated Net Worth (determined as of
the end of the most recent fiscal quarter of the Company).
SECTION X.06. Limitation on Mergers. The Company will not, nor
will it permit any of its Subsidiaries to, merge or consolidate with or into any
other corporation except that any Subsidiary may merge or consolidate (i) with
or into the Company (provided that the Company shall be the continuing or
surviving corporation), (ii) with or into any one or more wholly-owned
Subsidiaries or (iii) with or into any Person to be acquired pursuant to Section
10.12.
SECTION X.07. Multiemployer Plans. The Company will not, as of
any date, permit any liability to occur to which the Company or any Commonly
Controlled Entity would become subject under ERISA if the Company or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding such date.
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SECTION X.08. Asset Sales. The Company will not, nor will it
permit any Subsidiary to, lease, sell or otherwise dispose of all or any portion
of its property, assets or business to any Person other than the Company or a
Subsidiary except for (a) sales of assets in the ordinary course of business,
(b) sales of accounts receivable or related contract rights, (c) dispositions of
assets required to comply with anti-trust laws, (d) dispositions of assets
listed in Schedule 10.8, (e) dispositions in connection with sale and leaseback
transactions in respect of assets having a book value in the aggregate not
exceeding $50,000,000 and (f) any other sales of assets, other than the assets
set forth on Schedule 10.8 and sales of assets occurring prior to the Covenant
Transition Date, having a book value which, when added to the book value of all
other assets sold pursuant to this clause (g) during such fiscal year, does not
exceed 5% of the gross book value of the assets of the Company and its
consolidated Subsidiaries, determined in accordance with GAAP, as of the last
day of the fiscal year ended immediately prior to the date of such sale.
SECTION X.09. Limitation on More Restrictive Covenants. The
Company shall not enter into any new debt agreement that would contain, nor
enter into any amendment, supplement or other modification to any indenture,
instrument or other agreement concerning the Funded Debt or any refinancing
thereof, if such indenture, instrument or other agreement at the time entered
into or after giving effect to any such amendment, supplement or other
modification thereto, would contain (a) any covenant or event of default that is
more restrictive on any Borrower than those set forth in this Agreement, (b)
with respect to the Company, any covenant with respect to financial performance
the scope of which is materially different from the covenants respecting such
matters set forth in Sections 10.01, 10.02 or 10.03, (c) any covenant which
would prohibit the granting of liens on its assets by any Borrower or its
Subsidiaries in favor of the Lenders, other than in the case of this clause (c),
Indebtedness incurred pursuant to Section 10.05(f) as in effect on the Covenant
Transition Date and in the case of clauses (a) and (c), Indebtedness incurred
pursuant to Section 10.05(g) as in effect on the Covenant Transition Date
constituting a refinancing, refunding extension or renewal of existing
Indebtedness and having terms no more restrictive than the Indebtedness
refinanced, refunded, extended or renewed thereby.
SECTION .10. Subsidiary Guaranties. The Company will not, and
will not allow any Subsidiary to, make or suffer to exist any Guaranty except
(a) any Guaranty existing on the Covenant Transition Date and any replacement in
whole or in part of such Guaranty in connection with any extension, refinancing
or refunding of the Indebtedness guarantied thereby, (b) Guaranties of any
Indebtedness permitted to exist hereunder other than Indebtedness outstanding on
the Covenant Transition Date or any extension, renewals or refinancings thereof
and (c) additional Guaranties with respect to Indebtedness or other obligations
not exceeding $10,000,000 in the aggregate at any one time.
SECTION .11. Affiliates. The Company, will not, nor will it
permit any of its Subsidiaries 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 except in the ordinary course of
business and pursuant to the reasonable requirements of the Company's or such
Subsidiary's business and upon fair and reasonable terms no less favorable to
the Company or such Subsidiary than the Company or such Subsidiary would obtain
in a comparable arms-length transaction.
SECTION .12. Acquisitions. The Company will not, nor will it
permit any of its
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Subsidiaries to, acquire, in a single transaction or in a series of related
transactions, all or substantially all of the equity interests in, or assets
of, any other Person, or all or substantially all of the assets constituting a
division or business segment of any other Person, except that the Company or
any of its Subsidiaries may make any such acquisition if:
(a) after giving effect thereto, no Default or Event of
Default shall be in existence; and
(b) if such acquisition is the acquisition of equity interests
of any Person, such acquisition is approved by the board of directors
or analogous governing body of such Person.
SECTION .13. Restrictions on Special Purpose Subsidiaries. The
Company will not permit any Special Purpose Subsidiary to (a) create, assume,
incur or suffer to exist any Lien, any Indebtedness, any Guaranty or any other
liabilities, direct or contingent, (b) make or suffer to exist any Investment,
(c) conduct, transact or otherwise engage in any business or other operations or
(d) own or lease any Property, except that, notwithstanding the foregoing
prohibitions:
(i) a Special Purpose Subsidiary may make an Investment in the
form of a loan or an equity contribution to, or hold the Capital Stock
of, another Special Purpose Subsidiary (x) as described on Schedule
6.13 or (y) which does not have an adverse impact on the Collateral;
(ii) U.K. Acquisition II may consummate the Acquisition;
(iii) following consummation of the Acquisition, U.K.
Acquisition I may acquire directly from the Target or indirectly
through U.K. Acquisition II, for fair market value, up to 100% of the
Capital Stock of Target U.S. Subsidiary;
(iv) the Special Purpose Subsidiaries may execute and deliver
the Loan Documents to which they are parties, incur and perform their
obligations thereunder and create and suffer to exist the Liens created
thereby; and
(v) the Special Purpose Subsidiaries may perform obligations
under the Investments permitted above and under their respective
organic documents and other Requirements of Law, may incur obligations
to Governmental Authorities in the ordinary course of business, such as
income and franchise tax liabilities and other incidental liabilities,
and may incur other immaterial liabilities directly related and
incidental to the permitted activities enumerated above.
125
SCHEDULE I
COMMITMENTS; ADDRESSES
Part A. Revolving Credit Commitment and Multicurrency Commitment Amounts
(U.S. Dollars)
Lender Revolving Credit Commitment Multicurrency Commitment
------ --------------------------- ------------------------
The Chase Manhattan Bank $ $
TOTAL $400,000,000 $120,000,000
Part B. Term Loan Commitments
Lender Tranche A Tranche B Interim
------ --------- --------- -------
The Chase Manhattan Bank $ $ $
TOTAL $600,000,000 $750,000,000 $1,000,000,000
126
SCHEDULE V
INFORMATION CONCERNING LOCAL CURRENCY LOANS
NOTICE OF LOCAL CURRENCY OUTSTANDINGS
1. Deliver to: Loan & Agency Services Group
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention: Sandra Miklave
Fax: 212-552-5658
Telephone No.: 212-552-7953
2. Delivery time: By close of business in New York on
the date of making of each Local
Currency Loan and on the last
Business Day of each month on which
the applicable Foreign Subsidiary
Borrower has outstanding any Local
Currency Loans.
3. Information Required: Name of Foreign Subsidiary Borrower,
amount and currency of outstanding
Local Currency Loans.
127
SCHEDULE 6.13
USE OF PROCEEDS
The Company will own all of the Capital Stock of one or more
special purpose Domestic Subsidiaries (either directly or through one or more
special purpose Domestic Subsidiaries). One or more of such wholly owned special
purpose Domestic Subsidiaries will own all of the Capital Stock of U.K.
Acquisition I. The Capital Stock of U.K. Acquisition II will be owned by U.K.
Acquisition I and one or more other wholly owned Special Purpose Subsidiaries.
The proceeds of the Term Loans will be used to provide debt
and equity financing to the Special Purpose Subsidiaries which shall, directly
or indirectly through other Special Purpose Subsidiaries, invest such funds in
U.K. Acquisition II for use by it to finance the Acquisition, to repay existing
Indebtedness, of the Target and its Subsidiaries and to pay related fees and
expenses or to make loans directly to Target US Subsidiary.
128
SCHEDULE 7.20
PERFECTION ACTIONS
1. Capital Stock of Domestic Subsidiaries:
The certificates representing the shares of Capital Stock of
issuers organized under the laws of a State of the United States shall be
delivered to the Administrative Agent along with an undated stock power for each
such certificate executed in blank by a duly authorized officer of the pledgor
thereof.
2. Capital Stock of Foreign Subsidiaries:
The customary steps for perfection of a pledge of stock of an
issuer organized under the laws of a jurisdiction outside the United States, as
advised by counsel qualified in such jurisdiction, shall be taken.
3. Pledged Notes:
The promissory notes shall be delivered to the Administrative
Agent along with an undated note allonge for each such note executed in blank by
a duly authorized officer of the pledgor thereof.
4. Inventory and Accounts Receivable:
UCC-1 Financing Statements describing the collateral shall be
filed in the appropriate filing offices.