Registration Statement of a Foreign Private Issuer for Securities Issued in a Business-Combination Transaction — Form F-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: F-4 Registration Statement of a Foreign Private Issuer 251 1.21M
for Securities Issued in a
Business-Combination Transaction
2: EX-2.1 Plan of Acquisition, Reorganization, Arrangement, 41 134K
Liquidation or Succession
11: EX-2.10 Plan of Acquisition, Reorganization, Arrangement, 6 19K
Liquidation or Succession
12: EX-2.11 Plan of Acquisition, Reorganization, Arrangement, 148 423K
Liquidation or Succession
13: EX-2.12 Plan of Acquisition, Reorganization, Arrangement, 71 176K
Liquidation or Succession
3: EX-2.2 Plan of Acquisition, Reorganization, Arrangement, 50 127K
Liquidation or Succession
4: EX-2.3 Plan of Acquisition, Reorganization, Arrangement, 66 158K
Liquidation or Succession
5: EX-2.4 Plan of Acquisition, Reorganization, Arrangement, 66 161K
Liquidation or Succession
6: EX-2.5 Plan of Acquisition, Reorganization, Arrangement, 35 60K
Liquidation or Succession
7: EX-2.6 Plan of Acquisition, Reorganization, Arrangement, 12 25K
Liquidation or Succession
8: EX-2.7 Plan of Acquisition, Reorganization, Arrangement, 9 25K
Liquidation or Succession
9: EX-2.8 Plan of Acquisition, Reorganization, Arrangement, 10 23K
Liquidation or Succession
10: EX-2.9 Plan of Acquisition, Reorganization, Arrangement, 9 25K
Liquidation or Succession
14: EX-3.1 Articles of Incorporation/Organization or By-Laws 39 106K
15: EX-3.2 Articles of Incorporation/Organization or By-Laws 26 85K
16: EX-3.3 Articles of Incorporation/Organization or By-Laws 14 56K
17: EX-3.4 Articles of Incorporation/Organization or By-Laws 26 70K
18: EX-4.1 Instrument Defining the Rights of Security Holders 129 533K
19: EX-4.3 Instrument Defining the Rights of Security Holders 20 91K
20: EX-5.1 Opinion re: Legality 4 21K
21: EX-10.1 Material Contract 28 123K
30: EX-10.10 Material Contract 1 15K
31: EX-10.11 Material Contract 1 15K
32: EX-10.12 Material Contract 8 33K
22: EX-10.2 Material Contract 107 523K
23: EX-10.3 Material Contract 34 120K
24: EX-10.4 Material Contract 23 62K
25: EX-10.5 Material Contract 54 144K
26: EX-10.6 Material Contract 29 56K
27: EX-10.7 Material Contract 28 54K
28: EX-10.8 Material Contract 10 46K
29: EX-10.9 Material Contract 1 15K
33: EX-12.1 Statement re: Computation of Ratios 3± 24K
34: EX-21.1 Subsidiaries of the Registrant 14 47K
35: EX-23.2 Consent of Experts or Counsel 1 14K
36: EX-24.1 Power of Attorney 9 45K
37: EX-25.1 Form T-1 5 29K
38: EX-99.1 Miscellaneous Exhibit 15 78K
39: EX-99.2 Miscellaneous Exhibit 3 21K
Exhibit 10.2
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CREDIT AGREEMENT
AMONG
WILLIS CORROON CORPORATION,
AS BORROWER,
WILLIS CORROON GROUP LIMITED,
AS A GUARANTOR,
TRINITY ACQUISITION PLC,
AS A GUARANTOR,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO
AND
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT
AND COLLATERAL AGENT
DATED AS OF JULY 22, 1998,
AS AMENDED AND RESTATED
AS OF FEBRUARY 19, 1999
CHASE SECURITIES INC.,
AS LEAD ARRANGER
AND BOOK MANAGER,
MORGAN STANLEY DEAN WITTER,
AS SYNDICATION AGENT,
AND
BANK OF AMERICA,
AS DOCUMENTATION AGENT
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Table of Contents
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Page
SECTION 1. Definitions.................................................................................2
1.1 Defined Terms...............................................................................2
1.2 Exchange Rates.............................................................................40
SECTION 2. Amount and Terms of Credit.................................................................40
2.1 Commitments................................................................................40
2.2 Minimum Amount of Each Borrowing; Maximum Number of Borrowings.............................44
2.3 Notice of Borrowing........................................................................44
2.4 Disbursement of Funds......................................................................45
2.5 Repayment of Loans; Evidence of Debt.......................................................46
2.6 Conversions and Continuations..............................................................49
2.7 Pro Rata Borrowings........................................................................51
2.8 Interest...................................................................................51
2.9 Interest Periods...........................................................................52
2.10 Increased Costs, Illegality, etc...........................................................53
2.11 Compensation...............................................................................55
2.12 Change of Lending Office...................................................................55
2.13 Notice of Certain Costs....................................................................55
2.14 Redesignation of $75,000,000 of Tranche B Term Loans and
Tranche C Term Loans..................................................................55
SECTION 3. Letters of Credit..........................................................................56
3.1 Letters of Credit..........................................................................56
3.2 Letter of Credit Requests..................................................................56
3.3 Letter of Credit Participations............................................................56
3.4 Agreement to Repay Letter of Credit Drawings...............................................58
3.5 Increased Costs............................................................................59
3.6 Successor Letter of Credit Issuer..........................................................60
3.7 Sterling-Denominated Letters of Credit.....................................................61
SECTION 4. Fees; Commitments..........................................................................61
4.1 Fees.......................................................................................61
4.2 Voluntary Reduction of Revolving Credit Commitments........................................62
4.3 Mandatory Termination of Commitments.......................................................63
SECTION 5. Payments...................................................................................63
5.1 Voluntary Prepayments......................................................................63
5.2 Mandatory Prepayments......................................................................64
5.3 Method and Place of Payment................................................................67
5.4 Net Payments...............................................................................68
5.5 Computations of Interest and Fees..........................................................70
SECTION 6. [Intentionally Omitted]....................................................................70
SECTION 7A. [Intentionally Omitted]....................................................................70
SECTION 7B. [Intentionally Omitted]....................................................................70
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SECTION 7C. Conditions Precedent to All Credit Events..................................................70
7C.1 No Default; Representations and Warranties.................................................71
7C.2 Notice of Borrowing; Letter of Credit Request..............................................71
SECTION 8. Representations, Warranties and Agreements.................................................71
8.1 Corporate Status...........................................................................71
8.2 Corporate Power and Authority..............................................................71
8.3 No Violation...............................................................................72
8.4 Litigation.................................................................................72
8.5 Margin Regulations.........................................................................72
8.6 Governmental Approvals.....................................................................72
8.7 Investment Company Act.....................................................................72
8.8 True and Complete Disclosure...............................................................72
8.9 Financial Condition; Financial Statements..................................................73
8.10 Tax Returns and Payments...................................................................73
8.11 Compliance with ERISA......................................................................73
8.12 Subsidiaries...............................................................................74
8.13 Patents, etc...............................................................................74
8.14 Environmental Laws.........................................................................74
8.15 Properties.................................................................................74
8.16 Year 2000..................................................................................74
SECTION 9. Affirmative Covenants......................................................................75
9.1 Information Covenants......................................................................75
9.2 Books, Record and Inspections..............................................................77
9.3 Maintenance of Insurance...................................................................77
9.4 Payment of Taxes...........................................................................77
9.5 Consolidated Corporate Franchises..........................................................78
9.6 Compliance with Statutes, Obligations, etc.................................................78
9.7 ERISA......................................................................................78
9.8 Good Repair................................................................................78
9.9 Transactions with Affiliates...............................................................79
9.10 End of Fiscal Years; Fiscal Quarters.......................................................79
9.11 Additional Guarantors......................................................................79
9.12 Pledges of Additional Stock and Evidence of Indebtedness...................................80
9.13 Use of Proceeds............................................................................80
9.14 Changes in Business........................................................................80
9.15 Ownership of Assets........................................................................80
SECTION 10. Negative Covenants.........................................................................81
10.1 Limitation on Indebtedness.................................................................81
10.2 Limitation on Liens........................................................................84
10.3 Limitation on Fundamental Changes..........................................................85
10.4 Limitation on Sale of Assets...............................................................86
10.5 Limitation on Investments..................................................................87
10.6 Limitation on Dividends....................................................................88
10.7 Limitations on Debt Payments and Amendments................................................90
10.8 Limitations on Sale Leasebacks.............................................................90
10.9 Consolidated Total Debt to Consolidated EBITDA Ratio.......................................91
10.10 Consolidated EBITDA to Consolidated Interest Expense Ratio.................................91
10.11 Capital Expenditures.......................................................................91
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SECTION 11. Events of Default..........................................................................92
11.1 Payments...................................................................................92
11.2 Representations, etc.......................................................................92
11.3 Covenants..................................................................................92
11.4 Default Under Other Agreements.............................................................93
11.5 Bankruptcy, etc............................................................................93
11.6 ERISA......................................................................................94
11.7 Guarantee..................................................................................94
11.8 U.S. Pledge Agreement; U.K. Security Agreement.............................................94
11.9 Judgments..................................................................................94
11.10 Change of Control..........................................................................94
11.11 Newco 2 Securities.........................................................................94
SECTION 12. The Administrative Agent...................................................................95
12.1 Appointment................................................................................95
12.2 Delegation of Duties.......................................................................95
12.3 Exculpatory Provisions.....................................................................95
12.4 Reliance by Administrative Agent...........................................................96
12.5 Notice of Default..........................................................................96
12.6 Non-Reliance on Administrative Agent and Other Lenders.....................................96
12.7 Indemnification............................................................................97
12.8 Administrative Agent in Its Individual Capacity............................................97
12.9 Successor Agent............................................................................97
SECTION 13. Miscellaneous..............................................................................98
13.1 Amendments and Waivers.....................................................................98
13.2 Notices....................................................................................99
13.3 No Waiver; Cumulative Remedies............................................................100
13.4 Survival of Representations and Warranties................................................100
13.5 Payment of Expenses and Taxes.............................................................101
13.6 Successors and Assigns; Participations and Assignments....................................101
13.7 Replacements of Lenders under Certain Circumstances.......................................104
13.8 Adjustments; Set-off......................................................................104
13.9 Counterparts..............................................................................105
13.10 Severability..............................................................................105
13.11 Integration...............................................................................105
13.12 GOVERNING LAW.............................................................................105
13.13 Submission to Jurisdiction; Waivers.......................................................105
13.14 Acknowledgments...........................................................................106
13.15 WAIVERS OF JURY TRIAL.....................................................................106
13.16 Confidentiality...........................................................................106
13.17 Conversion of Currencies..................................................................106
13.18 European Economic and Monetary Union......................................................107
13.19 Margin Regulations........................................................................107
SCHEDULES
Schedule 1.1 Commitments and Addresses of Lenders
Schedule 1.1(a) Calculation of Additional Cost
Schedule 2.1(a) Euro Revolving Credit Commitments
Schedule 2.1(b) Yen Revolving Credit Commitments
Schedule 8.12(a) Subsidiaries
Schedule 8.12(b) Closing Date Excused Subsidiaries
Schedule 10.1(a) Guarantee Obligations
Schedule 10.1(b) Other Indebtedness
Schedule 10.5 Investments
EXHIBITS
Exhibit A Form of Guarantee
Exhibit B Form of U.S. Pledge Agreement
Exhibit C-1 Form of Promissory Note (Term Loans)
Exhibit C-2 Form of Promissory Note (Revolving Credit and
Swingline Loans)
Exhibit D Form of Letter of Credit Request
Exhibit F Form of Assignment and Acceptance
Exhibit H Form of Confidentiality Agreement
Exhibit I Form of U.K. Security Agreement
Exhibit J-1 Form of Tranche B Prepayment Option Notice
Exhibit J-2 Form of Tranche C Prepayment Option Notice
Exhibit J-3 Form of Tranche D Prepayment Option Notice
CREDIT AGREEMENT dated as of July 22, 1998, as amended and
restated as of February 19, 1999, among WILLIS CORROON CORPORATION, a Delaware
corporation (the "BORROWER"), WILLIS CORROON GROUP LIMITED, a private limited
company organized under the laws of England and Wales, as a guarantor
("PARENT"), TRINITY ACQUISITION plc, a public limited company organized under
the laws of England and Wales, as a guarantor ("NEWCO 4"), the lending
institutions from time to time parties hereto (each a "LENDER" and,
collectively, the "LENDERS") and THE CHASE MANHATTAN BANK, as Administrative
Agent (such term and each other capitalized term used but not defined in this
introductory statement having the meaning provided in Section 1) and as
Collateral Agent.
Pursuant to an offer (the "OFFER") made by Warburg Dillon
Read, Chase Manhattan plc and HSBC Investment Bank plc on behalf of Newco 4
on the terms and subject to the conditions referred to in the Press Release,
Newco 4 acquired (the "ACQUISITION") all the outstanding ordinary shares
(including ordinary shares represented by American Depositary Shares) (the
"SHARES") of Parent. In connection with the financing of the Acquisition, (a)
affiliates of Kohlberg Kravis Roberts & Co., L.P. ("SPONSOR") invested in
newly issued ordinary shares of a newly formed private limited company
organized under the laws of England and Wales ("NEWCO 1") that owns directly
100% of the issued share capital (other than the Preferred Stock) of a second
newly formed private limited company organized under the laws of England and
Wales ("NEWCO 2"), for consideration paid to Newco 1 of approximately
(pound)183,600,000 (or the Dollar Equivalent amount) in cash (THE "SPONSOR
EQUITY CONTRIBUTION"), (b) certain insurance carriers or their affiliates
subscribed for and purchased newly issued ordinary shares of Newco 1, for
consideration paid to Newco 1 of approximately (pound)40,700,000 in cash (the
"CARRIER COMMON EQUITY CONTRIBUTION"), (c) members of the existing management
of Parent and certain of its Subsidiaries and certain other investors
contributed, directly or indirectly, approximately an additional
(pound)13,500,000 (or the Dollar Equivalent amount) to Newco 1 as equity (the
"Management Equity Contribution"), (d) Newco 2 issued preferred stock (the
"PREFERRED STOCK") with an aggregate liquidation preference of approximately
$267,300,000, for aggregate consideration paid to Newco 2 of approximately
(pound)162,700,000 in cash (collectively with the Sponsor Equity
Contribution, the Carrier Common Equity Contribution and the Management
Equity Contribution, the "Equity Financings"), (e) Newco 1 and Newco 2
contributed the net cash proceeds of the Equity Financings indirectly to
Newco 4 as common equity, (f) Newco 4 borrowed (i) an aggregate principal
amount of $475,000,000 under the Senior Bridge Facility (including by way of
issuing Guaranteed Loan Notes) and (ii) an aggregate principal amount of
$426,000,000 under the Subordinated Bridge Facility (together with the Senior
Bridge Facility, the "BRIDGE FACILITIES") and (g) fees and expenses incurred
in connection with the Transactions (as defined below) were paid. The Offer,
the Acquisition and the other transactions described in this introductory
statement are referred to collectively as the "TRANSACTIONS".
Following the consummation of the Acquisition, the proceeds of
(a) Tranche A Term Loans in an aggregate principal amount of $50,000,000,
(b) Tranche B Term Loans in an aggregate principal amount of $150,000,000,
(c) Tranche C Term Loans in an aggregate principal amount of $150,000,000 and
(d) Tranche D Term Loans in an aggregate principal amount of $100,000,000 made
under this Agreement were used by the Borrower, together with the proceeds of
the borrowing by the Borrower of the Subordinated Loans, (i) to make the
Intercompany Loan, (ii) to prepay certain amounts of Revolving Credit Loans that
were outstanding on the Term Loan Funding Date and (iii) to refinance all of the
Newco 4 Indebtedness. Revolving Credit Loans made under this Agreement and
Swingline Loans made under this Agreement will be used by the Borrower for
general corporate purposes. Letters of Credit issued under this Agreement will
be used by the Borrower for general corporate purposes.
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The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS. As used herein, the following terms
shall have the meanings specified in this Section 1 unless the context otherwise
requires (it being understood that defined terms in this Agreement shall include
in the singular number the plural and in the plural the singular):
1.1 DEFINED TERMS.
"ABR" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. Any change in the ABR due to a
change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate shall be effective as of the opening of
business on the effective day of such change in the Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate,
respectively.
"ABR LOAN" shall mean each Loan bearing interest at the rate
provided in Section 2.8(a) and, in any event, shall include all
Swingline Loans.
"ABR REVOLVING CREDIT LOAN" shall mean any Revolving Credit
Loan bearing interest at a rate determined by reference to the ABR.
"ACQUIRED EBITDA" shall mean, with respect to any Acquired
Entity or Business, any Converted Restricted Subsidiary, any Sold
Entity or Business or any Converted Unrestricted Subsidiary (any of the
foregoing, a "PRO FORMA ENTITY") for any period, the sum of the amounts
for such period of (a) Consolidated Earnings, (b) Consolidated Interest
Expense, (c) depreciation expense, (d) amortization expense, including
amortization of deferred financing fees, (e) exceptional losses and
non-recurring charges, (f) non-cash charges (including the non-cash
portion of pension expense), (g) losses on asset sales and (h)
restructuring charges or provisions LESS the sum of the amounts for
such period of (i) non-recurring profits, (j) non-cash profits and (k)
profits on asset sales, all as determined on a consolidated basis for
such Pro Forma Entity in accordance with GAAP.
"ACQUIRED ENTITY OR BUSINESS" shall have the meaning provided
in the definition of the term "Consolidated EBITDA".
"ACQUISITION" shall have the meaning provided in the preamble
to this Agreement.
"ACQUISITION SUBSIDIARY" shall mean (a) any Subsidiary of
Newco 4 that is formed or acquired after the Closing Date in connection
with Permitted Acquisitions, PROVIDED that at such time (or promptly
thereafter) the Borrower designates such Subsidiary an Acquisition
Subsidiary in a written notice to the Administrative Agent, (b) any
Restricted Subsidiary on the Closing Date subsequently re-designated as
an Acquisition Subsidiary by the Borrower in a written notice to the
Administrative Agent, PROVIDED that such re-designation shall be deemed
to be an investment on the date of such re-designation in an
Acquisition Subsidiary in an amount equal to the sum of (i) the net
worth of such re-designated Restricted Subsidiary immediately prior to
such re-designation (such net worth to be calculated without regard to
any Guarantee provided by such re-designated Restricted Subsidiary) and
(ii) the aggregate principal amount of any Indebtedness owed by such
re-designated Restricted Subsidiary to Newco 4 or any other Restricted
Subsidiary immediately prior to such re-designation (to the extent not
repaid on the date
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of such re-designation), all calculated, except as set forth in the
parenthetical to clause (i), on a consolidated basis in accordance with
GAAP, and (c) each Subsidiary of an Acquisition Subsidiary; PROVIDED,
HOWEVER, that (i) at the time of any written re-designation by the
Borrower to the Administrative Agent of any Acquisition Subsidiary as a
Restricted Subsidiary, the Acquisition Subsidiary so re-designated
shall no longer constitute an Acquisition Subsidiary, (ii) no
Acquisition Subsidiary may be re-designated as a Restricted Subsidiary
if a Default or Event of Default would result from such re-designation,
(iii) the Borrower shall not be re-designated as an Acquisition
Subsidiary and (iv) no Restricted Subsidiary may be re-designated as an
Acquisition Subsidiary if a Default or Event of Default would result
from such re-designation. On or promptly after the date of its
formation, acquisition or re-designation, as applicable, each
Acquisition Subsidiary (other than an Acquisition Subsidiary that is a
Foreign Subsidiary) shall have entered into a tax sharing agreement
containing terms that, in the reasonable judgment of the Administrative
Agent, provide for an appropriate allocation of tax liabilities and
benefits.
"ADDITIONAL COST" shall mean, in relation to any Sterling
Borrowing for any Interest Period, the cost as calculated by the
Administrative Agent in accordance with Schedule 1.1(a) imputed to each
Lender participating in such Sterling Borrowing of compliance with the
mandatory liquid assets requirements of the Bank of England during that
Interest Period, expressed as a percentage.
"ADJUSTED TOTAL REVOLVING CREDIT COMMITMENT" shall mean at any
time the Total Revolving Credit Commitment less the aggregate Revolving
Credit Commitments of all Defaulting Lenders.
"ADJUSTED TOTAL TERM LOAN COMMITMENT" shall mean at any time
the Total Term Loan Commitment less the Term Loan Commitments of all
Defaulting Lenders.
"ADMINISTRATIVE AGENT" shall mean Chase, together with its
affiliates, as the arranger of the Commitments and as the
administrative agent for the Lenders under this Agreement and the other
Credit Documents.
"ADMINISTRATIVE AGENT'S OFFICE" shall mean the office of the
Administrative Agent located at 270 Park Avenue, New York, New York
10017, or such other office in New York City as the Administrative
Agent may hereafter designate in writing as such to the other parties
hereto.
"AFFILIATE" shall mean, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under
direct or indirect common control with such Person. A Person shall be
deemed to control a corporation if such Person possesses, directly or
indirectly, the power (a) to vote 10% or more of the securities having
ordinary voting power for the election of directors of such corporation
or (b) to direct or cause the direction of the management and policies
of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
"AGGREGATE REVOLVING CREDIT OUTSTANDINGS" shall have the
meaning provided in Section 5.2(b).
"AGREEMENT" shall mean this Credit Agreement, as the same may
be amended, supplemented or otherwise modified from time to time.
"APPLICABLE ABR MARGIN" shall mean, with respect to each ABR
Loan at any date, the applicable percentage per annum set forth below
based upon (a) whether such
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loan is a Revolving Credit Loan, a Swingline Loan, a Tranche A Term
Loan, a Tranche B Term Loan, a Tranche C Term Loan or a Tranche D Term
Loan and (b) the Status in effect on such date:
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Applicable ABR
Loan Status Margin
---- ------ --------------
Revolving Credit Loans, Level I Status 1.000%
Swingline Loans and Tranche A Terms Level II Status 0.750%
Loans Level III Status 0.375%
Level IV Status 0.125%
Level V Status 0.000%
Level VI Status 0.000%
Tranche B Term Loans Level I Status 1.250%
Level II Status 1.000%
Level III Status 0.750%
Level IV Status 0.500%
Level V Status 0.500%
Level VI Status 0.500%
Tranche C Term Loans Level I Status 1.500%
Level II Status 1.250%
Level III Status 1.000%
Level IV Status 0.750%
Level V Status 0.750%
Level VI Status 0.750%
Tranche D Term Loans Level I Status 1.750%
Level II Status 1.500%
Level III Status 1.250%
Level IV Status 1.000%
Level V Status 1.000%
Level VI Status 1.000%
"APPLICABLE EURODOLLAR MARGIN" shall mean, with respect to
each Eurodollar Term Loan and Eurodollar Revolving Credit Loan at any
date, the applicable percentage per annum set forth below based upon
(a) whether such loan is a Revolving Credit Loan, a Tranche A Term
Loan, a Tranche B Term Loan, a Tranche C Term Loan or a Tranche D Term
Loan and (b) the Status in effect on such date:
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Applicable Eurodollar
Loan Status Margin
---- ------ ----------------------
Revolving Credit Loans and Tranche A Level I Status 2.250%
Term Loans Level II Status 2.000%
Level III Status 1.625%
Level IV Status 1.375%
Level V Status 1.125%
Level VI Status 0.875%
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[Download Table]
Applicable Eurodollar
Loan Status Margin
---- ------ ---------------------
Tranche B Term Loans Level I Status 2.500%
Level II Status 2.250%
Level III Status 2.000%
Level IV Status 1.750%
Level V Status 1.750%
Level VI Status 1.750%
Tranche C Terms Loans Level I Status 2.750%
Level II Status 2.500%
Level III Status 2.250%
Level IV Status 2.000%
Level V Status 2.000%
Level VI Status 2.000%
Tranche D Terms Loans Level I Status 3.000%
Level II Status 2.750%
Level III Status 2.500%
Level IV Status 2.250%
Level V Status 2.250%
Level VI Status 2.250%
"APPROVED FUND" shall mean, with respect to any Lender that is
an investment fund that invests in bank loans, any other investment
fund that invests in bank loans and is managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
"ASSET SALE PREPAYMENT EVENT" shall mean any sale, transfer or
other disposition of any business units, assets or other properties of
Newco 4 or any of the Restricted Subsidiaries not in the ordinary
course of business. Notwithstanding the foregoing, the term "Asset Sale
Prepayment Event" shall not include any transaction permitted by
Section 10.3, 10.4 (other than Section 10.4(b)) or 10.5.
"ASSOCIATED UNDERTAKING" shall mean an associated undertaking
(as such term is used in the audited financial statements referred to
in Section 9.1(a)) in respect of Newco 4 or a Restricted Subsidiary
that is not a Subsidiary thereof.
"ASSOCIATED UNDERTAKING NOTE" shall mean, with respect to any
Associated Undertaking, any promissory note required to be issued by
such Associated Undertaking pursuant to Section 10.5(n) and pledged to
the Collateral Agent pursuant to Section 9.12.
"AUTHORIZED OFFICER" shall mean the Chairman of the Board, the
President, the Chief Financial Officer, the Treasurer or any other
senior officer of Parent and the Borrower, respectively, designated as
such in writing to the Administrative Agent by Parent or the Borrower,
as applicable.
"AVAILABLE AMOUNT" shall mean, on any date (the "REFERENCE
DATE"), an amount equal to (a) the sum of (i) for the purposes of
Sections 10.5(i) and 10.5(k), $100,000,000, (ii) the aggregate amount
of Net Cash Proceeds from Prepayment Events refused by Term Loan
Lenders and retained by the Borrower in accordance with Section
5.2(c)(ii) on or prior to the Reference Date, (iii) an amount equal to
(x) the cumulative amount of Excess Cash Flow for all fiscal years
completed prior to the Reference Date MINUS (y) the portion
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of such Excess Cash Flow that has been on or prior to the Reference
Date (or will be) applied to the prepayment of Loans in accordance with
Section 5.2(a)(ii), (iv) the amount of any capital contributions (other
than any equity contribution made on or prior to the Closing Date or
made in accordance with Section 10.5(c)(i)) made in cash to Newco 4
from and including the Business Day immediately following the Closing
Date through and including the Reference Date, (v) an amount equal to
the Net Cash Proceeds received by Newco 4 on or prior to the Reference
Date from any issuance of equity securities by Newco 4, (vi) the
aggregate amount of all cash dividends and other cash distributions
received by Newco 4, Parent, the Borrower or any other Guarantor from
any Acquisition Subsidiaries, Minority Investments or Unrestricted
Subsidiaries on or prior to the Reference Date (other than the portion
of any such dividends and other distributions that is used by Newco 4,
Parent, the Borrower or any other Guarantor to pay taxes), (vii) the
aggregate amount of all cash repayments of principal received by Newco
4, Parent, the Borrower or any other Guarantor from any Acquisition
Subsidiaries, Minority Investments or Unrestricted Subsidiaries on or
prior to the Reference Date in respect of loans made by Newco 4,
Parent, the Borrower or any other Guarantor to such Acquisition
Subsidiaries, Minority Investments or Unrestricted Subsidiaries, (viii)
the aggregate amount of all net cash proceeds received by Newco 4,
Parent, the Borrower or any other Guarantor in connection with the
sale, transfer or other disposition of its ownership interest in any
Acquisition Subsidiary, Minority Investment or Unrestricted Subsidiary
on or prior to the Reference Date and (ix) the amount, in respect of
any Unrestricted Subsidiary redesignated on or prior to the Reference
Date, of the investment therein determined as of such date of
redesignation as set forth in the second proviso to the definition of
the term "Unrestricted Subsidiary" MINUS (b) the sum of (i) the
aggregate amount of any investments (including loans) made by Newco 4,
Parent or any Restricted Subsidiary (other than any Acquisition
Subsidiary) in or to Acquisition Subsidiaries pursuant to Section
10.5(i) on or prior to the Reference Date, (ii) the aggregate amount of
any investments (including loans) made by Newco 4, Parent or any
Restricted Subsidiary (other than any Acquisition Subsidiary) pursuant
to Section 10.5(k) on or prior to the Reference Date, (iii) the
aggregate price paid by the Borrower in connection with (x) any
prepayment of the Subordinated Loans (other than with the Net Cash
Proceeds of the Loans or the Subordinated Notes) or (y) any prepayment,
repurchase or redemption of Subordinated Notes, in each case pursuant
to Section 10.7(a) on or prior to the Reference Date and (iv) the
aggregate price paid by Newco 2 in connection with any prepayment,
repurchase or redemption of the Preferred Stock or the Replacement
Preferred Stock, in each case pursuant to Section 10.6 on or prior to
the Reference Date.
"AVAILABLE COMMITMENT" shall mean at any time an amount equal
to the excess, if any, of (a) the amount of the Total Revolving Credit
Commitment over (b) the sum of (i) the aggregate principal amount
(calculated by using the Dollar Equivalent at such time of the
principal amount of any Foreign Currency Revolving Credit Loan) of all
Revolving Credit Loans (but not Swingline Loans) then outstanding and
(ii) the aggregate Letter of Credit Outstanding at such time.
"AVAILABLE NON-CREDIT-PARTY INVESTMENT AMOUNT" shall mean, on
any date (the "INVESTMENT DATE"), an amount equal to (a) the sum of (i)
$100,000,000, (ii) the aggregate amount of all cash dividends and other
cash distributions received by Newco 4, Parent, the Borrower or any
other Guarantor from any Restricted Non-Credit-Party Subsidiaries on or
prior to the Investment Date (other than the portion of any such
dividends and other distributions that is used by Newco 4, Parent, the
Borrower or any other Guarantor to pay taxes), (iii) the aggregate
amount of all cash repayments of principal received by Newco 4, Parent,
the Borrower or any other Guarantor from any Restricted
Non-Credit-Party Subsidiaries on or prior to the Investment Date in
respect of loans made by Newco 4, Parent, the Borrower or any other
Guarantor to such Restricted Non-Credit-
7
Party Subsidiaries and (iv) the aggregate amount of all net cash
proceeds received by Newco 4, Parent, the Borrower or any other
Guarantor in connection with the sale, transfer or other disposition of
its ownership interest in any Restricted Non-Credit-Party Subsidiary on
or prior to the Investment Date MINUS (b) the aggregate amount of any
investments (including loans) made by Newco 4, Parent or any Restricted
Subsidiary (other than any Restricted Non-Credit-Party Subsidiary) in
or to Restricted Non-Credit-Party Subsidiaries pursuant to Section
10.5(j) or 10.5(k) on or prior to the Investment Date.
"AVAILABLE REVOLVING CREDIT COMMITMENT" shall mean, with
respect to any Lender, an amount equal to the excess, if any, of
(a) the amount of such Lender's Revolving Credit Commitment over
(b) the sum of (i) the aggregate principal amount of all Dollar
Revolving Credit Loans (but not Swingline Loans) of such Lender then
outstanding, (ii) the aggregate amount of the Dollar Equivalents of
the principal amounts of all Foreign Currency Revolving Credit Loans
(but not Swingline Loans) of such Lender then outstanding, (iii) that
portion of such Lender's LC Exposure attributable to Unpaid Drawings
in respect of which such Lender has made (or is required to have made)
payments to the Letter of Credit Issuer pursuant to Section 3.4(a) and
(iv) that portion of such Lender's Swingline Exposure attributable to
Swingline Loans in respect of which such Lender has made (or is
required to have made) payments to Chase pursuant to Section 2.1(f).
"BANKRUPTCY CODE" shall have the meaning provided in Section
11.5.
"BASE CD RATE" shall mean the sum of (a) the product of
(i) the Three-Month Secondary CD Rate and (ii) a fraction, the
numerator of which is one and the denominator of which is one minus
the C/D Reserve Percentage and (b) the C/D Assessment Rate.
"BOARD" shall mean the Board of Governors of the Federal
Reserve System of the United States (or any successor).
"BORROWER" shall have the meaning provided in the preamble to
this Agreement.
"BORROWING" shall mean and include (a) the incurrence of
Swingline Loans from Chase on a given date, (b) the incurrence of one
Type of Term Loan on the Term Loan Funding Date (or resulting from
conversions on a given date after the Term Loan Funding Date) having,
in the case of Eurodollar Term Loans, the same Interest Period
(PROVIDED that ABR Loans incurred pursuant to Section 2.10(b) shall be
considered part of any related Borrowing of Eurodollar Term Loans) and
(c) the incurrence of one Type of Revolving Credit Loan on a given date
(or resulting from conversions on a given date) denominated in the same
currency and having, in the case of Eurodollar Revolving Credit Loans,
the same Interest Period (PROVIDED that ABR Loans incurred pursuant to
Section 2.10(b) shall be considered part of any related Borrowing of
Eurodollar Revolving Credit Loans).
"BRIDGE FACILITIES" shall have the meaning provided in the
preamble to this Agreement.
"BUSINESS DAY" shall mean (a) for all purposes other than as
covered by clause (b) below, any day excluding Saturday, Sunday and any
day that shall be in The City of New York or London (or, with respect
to any Yen Revolving Credit Loan, Tokyo) a legal holiday or a day on
which banking institutions are authorized by law or other governmental
actions to close, and (b) with respect to all notices and
determinations in
8
connection with, and payments of principal and interest on, Eurodollar
Loans, any day that is a Business Day described in clause (a) and which
is also a day on which (i) in relation to any Eurodollar Loans
denominated in a currency other than euro, banks are generally open for
the types of business contemplated by this Agreement in the principal
financial center of the country of such currency or (ii) in relation to
any Eurodollar Loans denominated in the euro, the TARGET payment system
is open for the settlement of payments in euro.
"CALCULATION DATE" shall mean (a) the last Business Day of
each calendar month, (b) if at any time the Aggregate Revolving Credit
Outstandings exceed 75% of the Total Revolving Credit Commitment, the
last Business Day of each week and (c) if a Default or an Event of
Default shall have occurred and be continuing, such additional dates as
the Administrative Agent or the Required Lenders shall specify.
"CAPITAL EXPENDITURES" shall mean, for any period, the
aggregate of all expenditures (whether paid in cash or accrued as
liabilities and including in all events all amounts expended or
capitalized under Capital Leases, but excluding any amount representing
capitalized interest) by Newco 4 and the Restricted Subsidiaries during
such period that, in conformity with GAAP, are or are required to be
included as additions during such period to tangible fixed assets and
other capital expenditures reflected in the consolidated balance sheet
of Newco 4 and its Subsidiaries, PROVIDED that the term "Capital
Expenditures" shall not include (a) expenditures made in connection
with the replacement, substitution or restoration of assets (i) to the
extent financed from insurance proceeds paid on account of the loss of
or damage to the assets being replaced or restored or (ii) with awards
of compensation arising from the taking by eminent domain or
condemnation of the assets being replaced, (b) the purchase price of
equipment that is purchased simultaneously with the trade-in of
existing equipment to the extent that the gross amount of such purchase
price is reduced by the credit granted by the seller of such equipment
for the equipment being traded in at such time, (c) the purchase of
tangible fixed assets and other capital expenditures made within one
year of the sale of any asset to the extent purchased with the proceeds
of such sale or (d) expenditures that constitute any part of rental
expenses under operating leases for real or personal property.
"CAPITAL LEASE", as applied to any Person, shall mean any
lease of any property (whether real, personal or mixed) by that Person
as lessee that, in conformity with GAAP, is, or is required to be,
accounted for as a finance lease obligation on the balance sheet of
that Person.
"CAPITALIZED LEASE OBLIGATIONS" shall mean, as applied to any
Person, all obligations under Capital Leases of such Person or any of
its Subsidiaries, in each case taken at the amount thereof accounted
for as liabilities in accordance with GAAP.
"CARRIER COMMON EQUITY CONTRIBUTION" shall have the meaning
provided in the preamble to this Agreement.
"C/D ASSESSMENT RATE" shall mean for any day as applied to any
ABR Loan, the annual assessment rate in effect on such day that is
payable by a member of the Bank Insurance Fund maintained by the United
States Federal Deposit Insurance Corporation or any successor thereto
(the "FDIC") classified as well-capitalized and within supervisory
subgroup "B" (or a comparable successor assessment risk classification)
within the meaning of 12 C.F.R. ss. 327.4(a) (or any successor
provision) to the FDIC for the FDIC's insuring time deposits at offices
of such institution in the United States.
9
"C/D RESERVE PERCENTAGE" shall mean for any day as applied to
any ABR Loan, the percentage (expressed as a decimal) that is in effect
on such day, as prescribed by the Board, for determining the reserve
requirement for a Depositary Institution (as defined in Regulation D of
the Board) in respect of new non-personal time deposits in Dollars
having a maturity that is 30 days or more.
"CHANGE OF CONTROL" shall mean and be deemed to have occurred
if (a) (i) Sponsor, its Affiliates and the Management Group shall at
any time not own, in the aggregate, directly or indirectly,
beneficially and of record, at least 35% of the outstanding Voting
Stock of Newco 4 (other than as the result of one or more widely
distributed offerings of Newco 4 Common Stock, in each case whether by
Newco 4 or by Sponsor, its Affiliates or the Management Group) and/or
(ii) any person, entity or "group" (within the meaning of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934, as amended) or group
of Persons "acting in concert" (as defined in the Takeover Code) shall
at any time have acquired direct or indirect beneficial ownership of a
percentage of the issued Voting Stock of Newco 4 that exceeds the
percentage of such Voting Stock then beneficially owned, in the
aggregate, by Sponsor, its Affiliates and the Management Group, unless,
in the case of either clause (i) or (ii) above, Sponsor, its Affiliates
and the Management Group have, at such time, the right or the ability
by voting power, contract or otherwise to elect or designate for
election a majority of the Board of Directors of Newco 4; (b) Newco 4
shall at any time cease to own, beneficially and of record, all the
issued capital stock of Parent; and/or (c) at any time Continuing
Directors shall not constitute a majority of the Board of Directors of
Newco 4.
"CHASE" shall mean The Chase Manhattan Bank, a New York
banking corporation, and any successor thereto by merger, consolidation
or otherwise.
"CLOSING DATE" shall mean October 30, 1998.
"CLOSING DATE EXCUSED SUBSIDIARIES" shall mean any Required
Guarantor Subsidiaries that would not be required to become Guarantors
by virtue of the proviso to Section 9.11 or that are dormant or
otherwise have immaterial assets or revenues.
"CODE" shall mean the United States Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to the Code are to the
Code, as in effect at the date of this Agreement, and any subsequent
provisions of the Code, amendatory thereof, supplemental thereto or
substituted therefor.
"COLLATERAL" shall have the meaning provided in the U.S.
Pledge Agreement and the U.K. Security Agreement.
"COLLATERAL AGENT" shall mean Chase, together with its
affiliates, as the collateral agent for the Lenders under this
Agreement and the other Credit Documents.
"COMMITMENT FEE RATE" shall mean, for any Lender for any day,
the rate per annum equal to (a) in the case of such Lender's Tranche A
Commitment, Tranche B Commitment, Tranche C Commitment and Tranche D
Commitment, 0.500% and (b) in
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the case of such Lender's Revolving Credit Commitment, the rate per
annum set forth below opposite the Status in effect on such day:
[Download Table]
Commitment
Status Fee Rate
------ ----------
Level I Status 0.500%
Level II Status 0.425%
Level III Status 0.375%
Level IV Status 0.300%
Level V Status 0.300%
Level VI Status 0.250%
"COMMITMENTS" shall mean, with respect to each Lender, such
Lender's Term Loan Commitments, Revolving Credit Commitment, Euro
Revolving Credit Commitment, if any, and Yen Revolving Credit
Commitment, if any.
"COMPANIES ACT 1985" shall mean the Companies Act 1985, as
amended.
"CONFIDENTIAL INFORMATION" shall have the meaning provided in
Section 13.16.
"CONFIDENTIAL INFORMATION MEMORANDUM" shall mean the
Confidential Information Memorandum of the Borrower and the Addendum
thereto delivered to the Lenders in connection with this Agreement
(including all supplements thereto).
"CONSOLIDATED CASH AVAILABLE FOR FIXED CHARGES" shall mean,
for any period, Consolidated EBITDA for such period MINUS Capital
Expenditures for such period, each such component determined on a
consolidated basis for Newco 4 and the Restricted Subsidiaries in
accordance with GAAP.
"CONSOLIDATED CASH AVAILABLE FOR FIXED CHARGES TO CONSOLIDATED
FIXED CHARGES RATIO" shall mean, as of any date of determination, the
ratio of (a) Consolidated Cash Available for Fixed Charges for the
relevant Test Period to (b) Consolidated Fixed Charges for such Test
Period.
"CONSOLIDATED EARNINGS" shall mean, for any period, profit on
ordinary activities before taxation of Newco 4 and the Restricted
Subsidiaries, excluding any currency translation gains and losses, for
such period, determined in a manner consistent with the manner in which
such amount was determined in accordance with the audited financial
statements referred to in Section 9.1(a).
"CONSOLIDATED EBITDA" shall mean, for any period, the sum,
without duplication, of the amounts for such period of (a) Consolidated
Earnings, (b) Consolidated Interest Expense, (c) depreciation expense,
(d) amortization expense, including amortization of deferred financing
fees, (e) exceptional losses and non-recurring charges, (f) non-cash
charges (including the non-cash portion of pension expense), (g) losses
on asset sales, (h) restructuring charges or provisions, (i) in the
case of any period that includes a period ending during the fiscal year
ending December 31, 1998, Transaction Expenses, (j) any expenses or
charges incurred in connection with any issuance of debt or equity
securities, (k) any fees and expenses related to Permitted Acquisitions
and, to the extent otherwise deducted in arriving at Consolidated
Earnings, other amounts paid at the time of consummation of any
Permitted Broker Acquisition and consistent with customary practice in
the industry to consummate such Permitted Broker Acquisition and (l)
any deduction for minority interest expense LESS the sum of the amounts
for such period of
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(m) exceptional gains and non-recurring gains, (n) non-cash gains and
(o) gains on asset sales, all as determined on a consolidated basis for
Newco 4 (or Parent, for periods prior to the first full fiscal quarter
for which financial results of Parent are consolidated with those of
Newco 4 in the financial statements delivered hereunder, to the extent
applicable) and the Restricted Subsidiaries in accordance with GAAP,
PROVIDED that (i) except as provided in clause (ii) below, there shall
be excluded from Consolidated Earnings for any period the income from
continuing operations before corporate taxes and exceptional items of
all Unrestricted Subsidiaries for such period to the extent otherwise
included in Consolidated Earnings, except to the extent actually
received in cash by Newco 4 or its Restricted Subsidiaries during such
period through dividends or other distributions, and (ii)(x) there
shall be included in determining Consolidated EBITDA for any period
(A) the Acquired EBITDA of any Person, property, business or asset
(other than an Unrestricted Subsidiary) acquired to the extent not
subsequently sold, transferred or otherwise disposed of (but not
including the Acquired EBITDA of any related Person, property, business
or assets to the extent not so acquired) by Newco 4 or any Restricted
Subsidiary during such period (each such Person, property, business or
asset acquired and not subsequently so disposed of, an "ACQUIRED ENTITY
OR BUSINESS"), and the Acquired EBITDA of any Unrestricted Subsidiary
that is converted into a Restricted Subsidiary during such period
(each, a "CONVERTED RESTRICTED SUBSIDIARY"), in each case based on the
actual Acquired EBITDA of such Acquired Entity or Business or Converted
Restricted Subsidiary for such period (including the portion thereof
occurring prior to such acquisition or conversion) and (B) for purposes
of the definition of the term "Permitted Acquisition" and Sections
10.3, 10.9 and 10.10, an adjustment in respect of each Acquired Entity
or Business equal to the amount of the Pro Forma Adjustment with
respect to such Acquired Entity or Business for such period (including
the portion thereof occurring prior to such acquisition or conversion)
as specified in the Pro Forma Adjustment Certificate delivered to the
Lenders and the Administrative Agent and (y) for purposes of
determining the Consolidated Total Debt to Consolidated EBITDA Ratio
only, there shall be excluded in determining Consolidated EBITDA for
any period the Acquired EBITDA of any Person, property, business or
asset (other than an Unrestricted Subsidiary) sold, transferred or
otherwise disposed of by Newco 4 or any Restricted Subsidiary during
such period (each such Person, property, business or asset so sold or
disposed of, a "SOLD ENTITY OR BUSINESS"), and the Acquired EBITDA of
any Restricted Subsidiary that is converted into an Unrestricted
Subsidiary during such period (each, a "CONVERTED UNRESTRICTED
SUBSIDIARY"), in each case based on the actual Acquired EBITDA of such
Sold Entity or Business or Converted Unrestricted Subsidiary for such
period (including the portion thereof occurring prior to such sale,
transfer, disposition or conversion).
"CONSOLIDATED EBITDA TO CONSOLIDATED INTEREST EXPENSE RATIO"
shall mean, as of any date of determination, the ratio of (a)
Consolidated EBITDA for the relevant Test Period to (b) Consolidated
Interest Expense for such Test Period.
"CONSOLIDATED FIXED CHARGES" shall mean, for any period, the
sum of (a) Consolidated Interest Expense for such period, (b) scheduled
principal payments (other than in respect of final maturities and
mandatory prepayments and giving effect, in any Test Period, to
prepayments of such scheduled principal payments made prior to such
Test Period) of Indebtedness made by Newco 4 or any Restricted
Subsidiary to any person other than Newco 4 or any wholly owned
Restricted Subsidiary of Newco 4 during such period and (c) Dividends
made as permitted by Section 10.6(e); PROVIDED, HOWEVER, that
Consolidated Fixed Charges for the Test Periods ending on the last day
of the first, second and third full fiscal quarters of Newco 4
following the Statutory Declaration Date shall be determined by (i) in
the case of the Test Period ending on the last day of the first full
fiscal quarter of Newco 4 following the Statutory Declaration Date,
multiplying
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Consolidated Fixed Charges for such quarter by 4, (ii) in the case of
the Test Period ending on the last day of the second full fiscal
quarter of Newco 4 following the Statutory Declaration Date,
multiplying Consolidated Fixed Charges for the two-fiscal-quarter
period ending on such day by 2, and (iii) in the case of the Test
Period ending on the last day of the third full fiscal quarter of Newco
4 following the Statutory Declaration Date, multiplying Consolidated
Fixed Charges for the three-fiscal-quarter period ending on such day by
4/3.
"CONSOLIDATED GROSS REVENUES" shall mean, for any fiscal year,
the amount for such fiscal year of gross revenues from ordinary
activities (including interest income earned on fiduciary balances)
determined on a consolidated basis for Newco 4 and the Restricted
Subsidiaries in accordance with GAAP, PROVIDED that for purposes of
calculating such gross revenues, (i) the gross revenues of any business
acquired during such fiscal year or in the succeeding fiscal year in a
Permitted Acquisition shall be determined on a pro forma basis (based
on assumptions believed by Parent in good faith to be reasonable) as if
such Permitted Acquisition had been consummated on the first day of
such first fiscal year and (ii) the gross revenues of any business sold
or otherwise disposed of by Parent or any of its Subsidiaries during
such fiscal year or in the succeeding fiscal year shall be excluded in
their entirety.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period,
cash interest expense (including that attributable to Capital Leases in
accordance with GAAP), net of cash interest income (excluding any
investment income related to Insurance Broking Account Assets), of
Newco 4 and the Restricted Subsidiaries on a consolidated basis with
respect to all outstanding Indebtedness of Newco 4 and the Restricted
Subsidiaries, including, without limitation, all commissions, discounts
and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing and net costs under Hedge Agreements
(other than currency swap agreements, currency future or option
contracts and other similar agreements), but excluding, however,
amortization of deferred financing costs and any other amounts of
non-cash interest, all as calculated on a consolidated basis in
accordance with GAAP, PROVIDED that (a) except as provided in clause
(b) below, there shall be excluded from Consolidated Interest Expense
for any period the cash interest expense (or income) of all
Unrestricted Subsidiaries for such period to the extent otherwise
included in Consolidated Interest Expense and (b) for purposes of the
definition of the term "Permitted Acquisition" and Sections 10.3, 10.10
and 10.11, there shall be included in determining Consolidated Interest
Expense for any period the cash interest expense (or income) of any
Acquired Entity or Business acquired during such period and of any
Converted Restricted Subsidiary converted during such period, in each
case based on the cash interest expense (or income) of such Acquired
Entity or Business or Converted Restricted Subsidiary for such period
(including the portion thereof occurring prior to such acquisition or
conversion) assuming any Indebtedness incurred or repaid in connection
with any such acquisition or conversion had been incurred or prepaid on
the first day of such period; PROVIDED FURTHER, HOWEVER, that
Consolidated Interest Expense for the Test Periods ending on the last
day of the first, second and third full fiscal quarters of Newco 4
following the Statutory Declaration Date shall be determined by (i) in
the case of the Test Period ending on the last day of the first full
fiscal quarter of Newco 4 following the Statutory Declaration Date,
multiplying Consolidated Interest Expense for such quarter by 4, (ii)
in the case of the Test Period ending on the last day of the second
full fiscal quarter of Newco 4 following the Statutory Declaration
Date, multiplying Consolidated Interest Expense for the
two-fiscal-quarter period ending on such day by 2, and (iii) in the
case of the Test Period ending on the last day of the third full fiscal
quarter of Newco 4 following the Statutory Declaration Date,
multiplying Consolidated Interest Expense for the three-fiscal-quarter
period ending on such day by 4/3.
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"CONSOLIDATED NET INCOME" shall mean, for any period, the
consolidated profit (or loss) on ordinary activities after taxation of
Newco 4 and the Restricted Subsidiaries, determined on a consolidated
basis in accordance with GAAP.
"CONSOLIDATED TOTAL DEBT" shall mean, as of any date of
determination, (a) the sum of (i) all Indebtedness of Newco 4 and the
Restricted Subsidiaries for borrowed money outstanding on such date and
(ii) all Capitalized Lease Obligations of Newco 4 and the Restricted
Subsidiaries outstanding on such date, all calculated on a consolidated
basis in accordance with GAAP, MINUS (b) the aggregate amount of cash
(excluding cash related to Insurance Broking Account Assets) included
in the cash accounts listed on the consolidated balance sheet of Newco
4 and the Restricted Subsidiaries and deposited with the Administrative
Agent or Lenders domiciled in the United States or the United Kingdom
as at such date to the extent the use thereof for application to
payment of Indebtedness of Newco 4 and the Restricted Subsidiaries is
not prohibited by law or any contract to which Newco 4 or any of the
Restricted Subsidiaries is a party.
"CONSOLIDATED TOTAL DEBT TO CONSOLIDATED EBITDA RATIO" shall
mean, as of any date of determination, the ratio of (a) Consolidated
Total Debt as of the last day of the relevant Test Period to (b)
Consolidated EBITDA for such Test Period.
"CONSOLIDATED WORKING CAPITAL" shall mean, at any date, the
excess of (a) the sum of all amounts (other than cash, cash equivalents
and bank overdrafts and Insurance Broking Account Assets) that would,
in conformity with GAAP, be included in total current assets (or any
like caption) on a consolidated balance sheet of Newco 4 and the
Restricted Subsidiaries at such date over (b) the sum of all amounts
that would, in conformity with GAAP, be included in total current
liabilities (or any like caption) (other than Insurance Broking Account
Liabilities) on a consolidated balance sheet of Newco 4 and the
Restricted Subsidiaries on such date, but excluding (i) the current
portion of any Funded Debt, and (ii) without duplication of clause (i)
above, all Indebtedness consisting of Loans and Letter of Credit
Exposure to the extent otherwise included therein.
"CONTINUING DIRECTOR" shall mean, at any date, an individual
(a) who is a member of the Board of Directors of Newco 4 on the date
hereof, (b) who, as at such date, has been a member of such Board of
Directors for at least the 12 preceding months, (c) who has been
nominated to be a member of such Board of Directors, directly or
indirectly, by Sponsor or one of its Affiliates or Persons nominated by
Sponsor or one of its Affiliates or (d) who has been nominated to be a
member of such Board of Directors by a majority of the other Continuing
Directors then in office.
"CONTROL DATE" shall mean the date on which Newco 4 acquired
more than 50% of the Shares.
"CONVERTED RESTRICTED SUBSIDIARY" shall have the meaning
provided in the definition of the term "Consolidated EBITDA".
"CONVERTED UNRESTRICTED SUBSIDIARY" shall have the meaning
provided in the definition of the term "Consolidated EBITDA".
"CREDIT DOCUMENTS" shall mean this Agreement, the Guarantee,
the U.S. Pledge Agreement, the U.K. Security Agreement and any
promissory notes issued by the Borrower hereunder.
"CREDIT EVENT" shall mean and include the making (but not the
conversion or continuation) of a Loan and the issuance of a Letter of
Credit.
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"CREDIT PARTY" shall mean each of Newco 4, Parent, the
Borrower and the other Guarantors.
"CUMULATIVE CONSOLIDATED NET INCOME AVAILABLE TO STOCKHOLDERS"
shall mean, as of any date of determination, Consolidated Net Income
less cash dividends paid with respect to capital stock for the period
(taken as one accounting period) commencing on the Closing Date and
ending on the last day of the most recent fiscal quarter for which
Section 9.1 Financials have been delivered to the Lenders under Section
9.1.
"DEBT INCURRENCE PREPAYMENT EVENT" shall mean any issuance or
incurrence by Newco 4 or any of the Restricted Subsidiaries of any
Indebtedness (excluding (a) the Subordinated Notes to the extent that
the Net Cash Proceeds therefrom are applied to repay the principal of,
and accrued interest on, the Subordinated Loans or the loans under the
Subordinated Bridge Facility and (b) any other Indebtedness permitted
to be issued or incurred under Section 10.1).
"DEFAULT" shall mean any event, act or condition that with
notice or lapse of time, or both, would constitute an Event of Default.
"DEFAULTING LENDER" shall mean any Lender with respect to
which a Lender Default is in effect.
"DENOMINATION DATE" shall mean, in relation to any Foreign
Currency Borrowing, the date that is three Business Days before the
date of such Borrowing.
"DEPOSITARY SHARES" shall mean each of the American Depositary
Shares, evidenced by American Depositary Receipts, representing five
Shares.
"DIVIDENDS" shall have the meaning provided in Section 10.6.
"DOCUMENTATION AGENT" shall mean Bank of America, as the
documentation agent for the Lenders under this Agreement and the other
Credit Documents.
"DOLLAR BORROWING" shall mean a Borrowing comprised of Dollar
Loans.
"DOLLAR EQUIVALENT" shall mean, on any date of determination,
with respect to any amount denominated in any currency other than
Dollars, the equivalent in Dollars of such amount, determined by the
Administrative Agent pursuant to Section 1.2(a) using the applicable
Exchange Rate with respect to such currency at the time in effect.
"DOLLAR LOANS" shall mean Loans denominated in Dollars.
"DOLLAR REVOLVING CREDIT LOAN" shall mean a Revolving Credit
Loan denominated in Dollars and made pursuant to Section 2.1(b).
"DOLLARS" and "$" shall mean lawful currency of the United
States.
"DOLLAR SWINGLINE LOAN" shall have the meaning provided in
Section 2.1(e).
"DOMESTIC BORROWER SUBSIDIARY" shall mean each Subsidiary of
the Borrower that is organized under the laws of the United States, any
state or territory thereof, or the District of Columbia.
15
"DOMESTIC NEWCO 4 SUBSIDIARY" shall mean each Subsidiary of
Newco 4 that is organized under the laws of England and Wales.
"DRAWING" shall have the meaning provided in Section 3.4(b).
"EMU" shall mean the Economic and Monetary Union as
contemplated in the Treaty on European Union.
"EMU LEGISLATION" shall mean the legislative measures of the
European Union for the introduction of, changeover to or operation of
the euro in one or more member states of the European Union.
"ENVIRONMENTAL CLAIMS" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigations (other
than internal reports prepared by Parent or any of its Subsidiaries (a)
in the ordinary course of such Person's business or (b) as required in
connection with a financing transaction or an acquisition or
disposition of real estate) or proceedings relating in any way to any
Environmental Law or any permit issued, or any approval given, under
any such Environmental Law (hereinafter, "CLAIMS"), including, without
limitation, (i) any and all Claims by governmental or regulatory
authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law
and (ii) any and all Claims by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment.
"ENVIRONMENTAL LAW" shall mean any applicable United States
Federal, state, foreign or local statute, law, rule, regulation,
ordinance, code and rule of common law now or hereafter in effect and
in each case as amended, and any binding judicial or administrative
interpretation thereof, including any binding judicial or
administrative order, consent decree or judgment, relating to the
environment, human health or safety or Hazardous Materials.
"ERISA" shall mean the United States Employee Retirement
Income Security Act of 1974, as amended from time to time. Section
references to ERISA are to ERISA as in effect at the date of this
Agreement and any subsequent provisions of ERISA amendatory thereof,
supplemental thereto or substituted therefor.
"ERISA AFFILIATE" shall mean each person (as defined in
Section 3(9) of ERISA) that together with Newco 4 or a Subsidiary of
Newco 4 would be deemed to be a "single employer" within the meaning of
Section 414(b) or (c) of the Code or, solely for purposes of Section
302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"EURO" or "EURO" shall mean the single currency of the
European Union as constituted by the Treaty on European Union and as
referred to in EMU Legislation.
"EURO BORROWING" shall mean a Borrowing comprised of Euro
Revolving Credit Loans.
"EURO EQUIVALENT" shall mean, on any date of determination,
with respect to any amount denominated in any currency other than Euro,
the equivalent in Euro of such amount, determined by the Administrative
Agent pursuant to Section 1.2(a) using the applicable Exchange Rate
then in effect.
16
"EURO LENDERS" shall mean the Persons listed on Schedule
2.1(a) as Euro Lenders and any other Person that shall accept an
assignment of a Euro Revolving Credit Commitment pursuant to an
Assignment and Acceptance, other than any such Person that ceases to
have a Euro Revolving Credit Commitment pursuant to an Assignment and
Acceptance.
"EURO REVOLVING CREDIT COMMITMENT" shall mean, (a) with
respect to each Euro Lender that is a Euro Lender on the Restatement
Date, the amount set forth opposite such Euro Lender's name on Schedule
2.1(a) as such Euro Lender's "Euro Revolving Credit Commitment" and (b)
in the case of any Euro Lender that becomes a Euro Lender after the
Restatement Date, the amount specified as such Euro Lender's "Euro
Revolving Credit Commitment" in the Assignment and Acceptance pursuant
to which such Euro Lender assumed its Euro Revolving Credit Commitment,
in each case as the same may be changed from time to time pursuant to
the terms hereof.
"EURO REVOLVING CREDIT LOAN" shall mean a Revolving Credit
Loan denominated in Euro and made pursuant to Section 2.1(c).
"EURODOLLAR LOAN" shall mean any Eurodollar Term Loan or
Eurodollar Revolving Credit Loan.
"EURODOLLAR RATE" shall mean, in the case of any Eurodollar
Term Loan or Eurodollar Revolving Credit Loan (other than a Foreign
Currency Revolving Credit Loan), with respect to each day during each
Interest Period pertaining to such Eurodollar Loan, the rate of
interest determined on the basis of the rate for deposits in Dollars
for a period equal to such Interest Period commencing on the first day
of such Interest Period appearing on Page 3750 of the Telerate screen
as of 11:00 A.M., London time, two Business Days prior to the beginning
of such Interest Period. In the event that such rate does not appear on
Page 3750 of the Telerate screen (or otherwise on such service), and
with respect to any Foreign Currency Revolving Credit Loan, the
"Eurodollar Rate" for the purposes of this paragraph shall be
determined by reference to such other publicly available service for
displaying eurodollar rates as may be agreed upon by the Administrative
Agent and the Borrower or, in the absence of such agreement, the
"Eurodollar Rate" for the purposes of this paragraph shall instead be
the rate per annum notified to the Administrative Agent by the
Reference Lender as the rate at which the Reference Lender is offered
Dollar, Euro, Yen or Sterling, as applicable, deposits at or about
10:00 A.M., New York time, or 11:00 A.M., London time, as applicable,
two Business Days prior to the beginning of such Interest Period, in
the interbank eurodollar market where the eurodollar and foreign
currency and exchange operations in respect of its Eurodollar Loans are
then being conducted for delivery on the first day of such Interest
Period for the number of days comprised therein and in an amount
comparable to the amount of its Eurodollar Term Loan or Eurodollar
Revolving Credit Loan, as the case may be, to be outstanding during
such Interest Period. If, in relation to the currency of any Subsequent
Participant, the basis of accrual of interest or commitment commission
expressed in this Agreement in respect of that currency shall be
inconsistent with any convention or practice in the London interbank
market for the basis of accrual of interest or commitment commission in
respect of the euro, such expressed basis shall be replaced by such
convention or practice with effect from the date on which such
Subsequent Participant becomes a Participating Member State, PROVIDED
that, if any Eurodollar Loan in the currency of such Subsequent
Participant is outstanding immediately prior to such date, such
replacement convention or practice shall take effect, with respect to
such Eurodollar Loan, at the end of the then current Interest Period
for such Eurodollar Loan.
17
"EURODOLLAR REVOLVING CREDIT LOAN" shall mean any Revolving
Credit Loan bearing interest at a rate determined by reference to the
Eurodollar Rate.
"EURODOLLAR TERM LOAN" shall mean any Term Loan bearing
interest at a rate determined by reference to the Eurodollar Rate.
"EURO UNIT" shall mean the currency unit of the euro as
defined in EMU Legislation.
"EVENT OF DEFAULT" shall have the meaning provided in
Section 11.
"EXCESS CASH FLOW" shall mean, for any period, an amount equal
to the excess of (a) the sum, without duplication, of (i) Consolidated
Net Income for such period, (ii) an amount equal to the amount of all
non-cash charges (including share of loss of associated undertakings)
to the extent deducted in arriving at such Consolidated Net Income,
(iii) decreases in Consolidated Working Capital for such period,
(iv) an amount equal to the aggregate net non-cash loss on the sale,
lease, transfer or other disposition of assets by Newco 4 and the
Restricted Subsidiaries during such period (other than sales in the
ordinary course of business) to the extent deducted in arriving at such
Consolidated Net Income, and (v) the aggregate amount of dividends
received from associated undertakings during such period OVER (b) the
sum, without duplication, of (i) an amount equal to the amount of all
non-cash credits included in arriving at such Consolidated Net Income
(including share of profit of associated undertakings), (ii) the
aggregate amount actually paid by Newco 4 and the Restricted
Subsidiaries in cash during such period on account of Capital
Expenditures (excluding the principal amount of Indebtedness incurred
in connection with such Capital Expenditures, whether incurred in such
period or in a subsequent period), (iii) the aggregate amount of all
scheduled or mandatory prepayments of Revolving Credit Loans and
Swingline Loans made during such period to the extent accompanying
reductions of the Total Revolving Credit Commitment, (iv) the aggregate
amount of all principal payments of Indebtedness of Newco 4 or the
Restricted Subsidiaries (including, without limitation, any scheduled
prepayments of Term Loans and the principal component of payments in
respect of Capitalized Lease Obligations but excluding Revolving Credit
Loans, Swingline Loans and mandatory (other than scheduled) and
voluntary prepayments of Term Loans) made during such period (other
than in respect of any revolving credit facility to the extent there is
not an equivalent permanent reduction in commitments thereunder),
(v) the aggregate amount of all mandatory prepayments made during such
period with respect to any Asset Sale Prepayment Events (other than any
portion of such prepayments that was not included in Consolidated Net
Income, (vi) an amount equal to the aggregate net non-cash gain on the
sale, lease, transfer or other disposition of assets by Newco 4 and the
Restricted Subsidiaries during such period (other than sales in the
ordinary course of business) to the extent included in arriving at such
Consolidated Net Income, (vii) increases in Consolidated Working
Capital for such period, (viii) payments by Newco 4 and the Restricted
Subsidiaries during such period in respect of provisions for
liabilities and charges and other long-term liabilities of Newco 4 and
the Restricted Subsidiaries other than Indebtedness, (ix) the amount of
investments made during such period pursuant to Section 10.5 to the
extent that such investments were financed with internally generated
cash flow of Newco 4 and the Restricted Subsidiaries, (x) the amount of
dividends paid during such period pursuant to clause (b), (c), (d), (e)
or (g) of the proviso to Section 10.6, (xi) the aggregate amount of
expenditures actually made by Newco 4 and the Restricted Subsidiaries
in cash during such period (including, without limitation, expenditures
for the payment of financing fees) to the extent that such expenditures
are not expensed during such period and (xii) the aggregate amount of
any premium, make-whole or penalty payments actually paid in cash by
Newco 4 and the Restricted
18
Subsidiaries during such period that are required to be made in
connection with any prepayment of Indebtedness and that are accounted
for as extraordinary items.
"EXCHANGE RATE" shall mean, on any day, with respect to any
currency other than Dollars (for purposes of determining the Dollar
Equivalent), Sterling (for purposes of determining the Sterling
Equivalent), Euro (for purposes of determining the Euro Equivalent) or
Yen (for purposes of determining the Yen Equivalent), the rate at which
such currency may be exchanged into Dollars, Sterling, Euro or Yen, as
the case may be, as set forth at approximately 11:00 a.m., London time,
on such date on the applicable Reuters World Currency Page. In the
event that any such rate does not appear on any Reuters World Currency
Page, the Exchange Rate 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 Borrower, or, in the
absence of such agreement, such Exchange Rate shall instead be the
arithmetic average of the spot rates of exchange of the Administrative
Agent in the market where its foreign currency exchange operations in
respect of such currency are then being conducted, at or about 10:00
A.M., local time, on such date for the purchase of Dollars, Sterling,
Euro or Yen, as the case may be, for delivery two Business Days later,
PROVIDED that, if at the time of any such determination, for any
reason, no such spot rate is being quoted, the Administrative Agent may
use any reasonable method it deems appropriate to determine such rate,
and such determination shall be presumed correct absent manifest error.
"EXCHANGE RATE PROTECTION AGREEMENT" shall mean any Hedging
Agreement that is designed to protect the Borrower against fluctuations
in currency exchange rates and not for speculation.
"EXISTING PARENT INDEBTEDNESS" shall mean all accrued interest
with respect to and principal and any other amounts owing under the
existing indebtedness for borrowed money of Parent and its Subsidiaries
on the Closing Date (other than a portion thereof in an aggregate
amount not to exceed $5,000,000).
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the
weighted average of the per annum rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published on the next succeeding Business Day
by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that 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.
"FEES" shall mean all amounts payable pursuant to, or referred
to in, Section 4.1.
"FINAL DATE" shall mean the date on which the Revolving Credit
Commitments, Euro Revolving Credit Commitments and Yen Revolving Credit
Commitments shall have terminated, no Revolving Credit Loans shall be
outstanding and the Letter of Credit Outstandings shall have been
reduced to zero.
"FOREIGN CURRENCY" shall mean a currency other than Dollars.
"FOREIGN CURRENCY BORROWING" shall mean a Borrowing comprised
of Foreign Currency Revolving Credit Loans.
"FOREIGN CURRENCY REVOLVING CREDIT LOAN" shall mean a
Revolving Credit Loan denominated in a Foreign Currency.
19
"FOREIGN BORROWER SUBSIDIARY" shall mean each Subsidiary of
the Borrower that is not a Domestic Borrower Subsidiary.
"FOREIGN NEWCO 4 SUBSIDIARY" shall mean each Subsidiary of
Newco 4 that is not a Domestic Newco 4 Subsidiary.
"FOREIGN SUBSIDIARY" shall mean any Foreign Newco 4 Subsidiary
or any Foreign Borrower Subsidiary.
"FRONTING FEE" shall have the meaning provided in
Section 4.1 (c).
"FUNDED DEBT" shall mean all Indebtedness of Newco 4 and the
Restricted Subsidiaries for borrowed money that matures more than one
year from the date of its creation or matures within one year from such
date that is renewable or extendable, at the option of Newco 4 or one
of the Restricted Subsidiaries, to a date more than one year from such
date or arises under a revolving credit or similar agreement that
obligates the lender or lenders to extend credit during a period of
more than one year from such date, including, without limitation, all
amounts of Funded Debt required to be paid or prepaid within one year
from the date of its creation and, in the case of the Borrower,
Indebtedness in respect of the Loans.
"GAAP" shall mean generally accepted accounting principles in
the United Kingdom as in effect from time to time; PROVIDED, HOWEVER,
that if there occurs after the date hereof any change in GAAP that
affects in any respect the calculation of any covenant contained in
Section 10, the Lenders, Newco 4 and the Borrower shall negotiate in
good faith amendments to the provisions of this Agreement that relate
to the calculation of such covenant with the intent of having the
respective positions of the Lenders, Newco 4 and the Borrower after
such change in GAAP conform as nearly as possible to their respective
positions as of the date of this Agreement and, until any such
amendments have been agreed upon, the covenants in Section 10 shall be
calculated as if no such change in GAAP has occurred.
"GOVERNMENTAL AUTHORITY" shall mean 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.
"GUARANTEE" shall mean and include the Guarantee, made by the
Required Guarantor Subsidiaries and any other Guarantors in favor of
the Administrative Agent for the benefit of the Lenders, substantially
in the form of Exhibit A, as the same may be amended, supplemented or
otherwise modified from time to time.
"GUARANTEE OBLIGATIONS" shall mean, as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness of any other Person (the "PRIMARY OBLIGOR") in any manner,
whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent, (a) to purchase
any such Indebtedness or any property constituting direct or indirect
security therefor, (b) to advance or supply funds (i) for the purchase
or payment of any such Indebtedness or (ii) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner
of any such Indebtedness of the ability of the primary obligor to make
payment of such Indebtedness or (d) otherwise to assure or hold
harmless the owner of such Indebtedness against loss in respect
thereof; PROVIDED, HOWEVER, that the term "Guarantee Obligations" shall
not include endorsements of instruments for deposit or collection in
the ordinary course of
20
business. The amount of any Guarantee Obligation shall be deemed to be
an amount equal to the stated or determinable amount of the
Indebtedness in respect of which such Guarantee Obligation is made or,
if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith.
"GUARANTEED LOAN NOTES" shall mean loan notes of Newco 4
issued pursuant to the Offer at the election of holders of the Shares,
having the terms contained in the Guaranteed Loan Notes Instrument and
guaranteed by The Chase Manhattan Bank, acting through its London
branch.
"GUARANTEED LOAN NOTES INSTRUMENT" shall mean the Guaranteed
Loan Notes Instrument in the form of Exhibit J to the Credit Agreement
dated as of July 22, 1998, among Newco 4, the lenders party thereto and
Chase as Administrative Agent, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its terms.
"GUARANTOR" shall mean Newco 4, Parent and each other
Subsidiary of Newco 4 that is a Restricted Subsidiary (other than the
Borrower and any Foreign Borrower Subsidiary) and is or has become a
party to the Guarantee.
"HAZARDOUS MATERIALS" shall mean (a) any petroleum or
petroleum products, radioactive materials, friable asbestos, urea
formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing regulated levels of polychlorinated
biphenyls, and radon gas; (b) any chemicals, materials or substances
defined as or included in the definition of "hazardous substances",
"hazardous waste", "hazardous materials", "extremely hazardous waste",
"restricted hazardous waste", "toxic substances", "toxic pollutants",
"contaminants", or "pollutants", or words of similar import, under any
applicable Environmental Law; and (c) any other chemical, material or
substance, exposure to which is prohibited, limited or regulated by any
Governmental Authority.
"HEDGE AGREEMENTS" shall mean interest rate swap, cap or
collar agreements, interest rate future or option contracts, currency
swap agreements, currency future or option contracts and other similar
agreements entered into by Parent or the Borrower in order to protect
Parent or any of the Restricted Subsidiaries against fluctuations in
interest rates or currency exchange rates.
"INDEBTEDNESS" of any Person shall mean (a) all indebtedness
of such Person for borrowed money, (b) the deferred purchase price of
assets or services that in accordance with GAAP would be shown on the
liability side of the balance sheet of such Person, (c) the face amount
of all letters of credit issued for the account of such Person and,
without duplication, all drafts drawn thereunder, (d) all Indebtedness
of a second Person secured by any Lien on any property owned by such
first Person, whether or not such Indebtedness has been assumed, (e)
all Capitalized Lease Obligations of such Person, (f) all obligations
of such Person under interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other similar agreements and
(g) without duplication, all Guarantee Obligations of such Person,
PROVIDED that Indebtedness shall not include trade payables and accrued
expenses, in each case arising in the ordinary course of business.
"INSURANCE BROKING ACCOUNT ASSETS" shall mean the sum of
amounts owing from insurance broking transaction debtors, bank balances
designated "insurance broking
21
accounts" and approved assets designated "insurance broking assets" at
their net realization value.
"INSURANCE BROKING ACCOUNT LIABILITIES" shall mean the sum of
amounts owing to insurance broking transaction creditors and bank
advances designated "insurance broking advances".
"INTERCOMPANY LOAN" shall mean the loans made by the Borrower
to Newco 4 on November 19, 1998, in the principal amounts of
$450,000,000 and $575,000,000, respectively.
"INTERCOMPANY NOTE" shall mean a promissory note evidencing
the Intercompany Loan, as the same may be amended, restated or
otherwise modified from time to time.
"INTEREST PERIOD" shall mean, with respect to any Term Loan or
Revolving Credit Loan, the interest period applicable thereto, as
determined pursuant to Section 2.9.
"L/C MATURITY DATE" shall mean the date that is five Business
Days prior to the Revolving Credit Maturity Date.
"L/C PARTICIPANT" shall have the meaning provided in Section
3.3(a).
"L/C PARTICIPATION" shall have the meaning provided in Section
3.3(a).
"LENDER" shall have the meaning provided in the preamble to
this Agreement.
"LENDER DEFAULT" shall mean (a) the failure (which has not
been cured) of a Lender to make available its portion of any Borrowing
or to fund its portion of any unreimbursed payment under Section 3.3 or
(b) a Lender having notified the Administrative Agent and/or the
Borrower that it does not intend to comply with the obligations under
Section 2.1(b), 2.1(c), 2.1(d), 2.1(f) or 3.3, in the case of either
clause (a) or clause (b) above, as a result of the appointment of a
receiver or conservator with respect to such Lender at the direction or
request of any regulatory agency or authority.
"LETTER OF CREDIT" shall mean each standby letter of credit
issued pursuant to Section 3.1.
"LETTER OF CREDIT COMMITMENT" shall mean $50,000,000, as the
same may be reduced from time to time pursuant to Section 3.1.
"LETTER OF CREDIT EXPOSURE" shall mean, with respect to any
Lender, the sum of (a) the amount of any Unpaid Drawings in respect of
which such Lender has made (or is required to have made) payments to
the Letter of Credit Issuer pursuant to Section 3.4(a), PROVIDED that
the amount of any Unpaid Drawing denominated in Sterling shall be
deemed to be, as of such date, the Dollar Equivalent thereof at such
date and (b) such Lender's Revolving Credit Commitment Percentage of
the Letter of Credit Outstanding (excluding the portion thereof
consisting of Unpaid Drawings in respect of which the Lenders have made
(or are required to have made) payments to the Letter of Credit Issuer
pursuant to Section 3.4(a)).
"LETTER OF CREDIT FEE" shall have the meaning provided in
Section 4.1(b).
"LETTER OF CREDIT ISSUER" shall mean Chase, any of its
Affiliates or any successor pursuant to Section 3.6.
22
"LETTER OF CREDIT OUTSTANDING" shall mean, at any time, the
sum of, without duplication, (a) the aggregate Stated Amount of all
outstanding Letters of Credit and (b) the aggregate amount of all
Unpaid Drawings in respect of all Letters of Credit, PROVIDED that the
amount of any Stated Amount or Unpaid Drawing denominated in Sterling
shall be deemed to be, as of such date, the Dollar Equivalent thereof
at such date.
"LETTER OF CREDIT REQUEST" shall have the meaning provided in
Section 3.2.
"LEVEL I STATUS" shall mean, on any date, the Consolidated
Total Debt to Consolidated EBITDA Ratio is greater than or equal to
4.75:1.00 as of such date.
"LEVEL II STATUS" shall mean, on any date, the circumstance
that Level I Status does not exist and the Consolidated Total Debt to
Consolidated EBITDA Ratio is greater than or equal to 4.25:1.00 as of
such date.
"LEVEL III STATUS" shall mean, on any date, the circumstance
that neither Level I Status nor Level II Status exists and the
Consolidated Total Debt to Consolidated EBITDA Ratio is greater than or
equal to 3.75:1.00 as of such date.
"LEVEL IV STATUS" shall mean, on any date, the circumstance
that none of Level I Status, Level II Status or Level III Status exists
and the Consolidated Total Debt to Consolidated EBITDA Ratio is greater
than or equal to 3.25:1.00 as of such date.
"LEVEL V STATUS" shall mean, on any date, the circumstance
that none of Level I Status, Level II Status, Level III Status or Level
IV Status exists and the Consolidated Total Debt to Consolidated EBITDA
Ratio is greater than or equal to 2.75:1.00 as of such date.
"LEVEL VI STATUS" shall mean, on any date, the circumstance
that none of Level I Status, Level II Status, Level III Status, Level
IV or Level V Status exists and the Consolidated Total Debt to
Consolidated EBITDA Ratio is less than 2.75:1.00 as of such date.
"LIEN" shall mean any mortgage, pledge, security interest,
hypothecation, assignment, lien (statutory or other) or similar
encumbrance (including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement or any lease in the
nature thereof).
"LIMITED GUARANTOR" shall mean any Restricted Foreign
Subsidiary of Newco 4 that is or has become a party to a Guarantee but
the liability of which under such Guarantee is limited in amount.
"LOAN" shall mean any Revolving Credit Loan, Swingline Loan or
Term Loan made by any Lender hereunder.
"MANAGEMENT EQUITY CONTRIBUTION" shall have the meaning
provided in the preamble to this Agreement.
"MANAGEMENT GROUP" shall mean, at any time, the General
Executive Committee, the Chairman of the Board, the President, any
Executive Vice President or Vice President, the Treasurer and the
Secretary of Parent at such time.
"MANDATORY BORROWING" shall have the meaning provided in
Section 2.1(f).
23
"MARGIN STOCK" shall have the meaning provided in
Regulation U.
"MATERIAL ADVERSE CHANGE" shall mean any change in the
business, assets, operations, properties or financial condition of
Newco 4 and its Subsidiaries taken as a whole that would materially
adversely affect the ability of the Borrower and the other Credit
Parties taken as a whole to perform their obligations under this
Agreement and the other Credit Documents taken as a whole.
"MATERIAL ADVERSE EFFECT" shall mean a circumstance or
condition affecting the business, assets, operations, properties or
financial condition of Newco 4 and its Subsidiaries taken as a whole
that would materially adversely affect (a) the ability of the Borrower
and the other Credit Parties taken as a whole to perform their
obligations under this Agreement and the other Credit Documents taken
as a whole or (b) the rights and remedies of the Administrative Agent
and the Lenders under this Agreement and the other Credit Documents
taken as a whole.
"MATERIAL SUBSIDIARY" shall mean, at any date of
determination, (a) the Borrower and (b) any Restricted Subsidiary
(other than the Borrower) (i) whose total assets at the last day of the
Test Period ending on the last day of the most recent fiscal period for
which Section 9.1 Financials have been delivered were equal to or
greater than 5% of the consolidated total assets of Newco 4 and the
Restricted Subsidiaries at such date or (ii) whose gross revenues for
such Test Period were equal to or greater than 5% of the consolidated
gross revenues of Newco 4 and the Restricted Subsidiaries for such
period, in each case determined in accordance with GAAP.
"MATURITY DATE" shall mean the Tranche A Maturity Date, the
Tranche B Maturity Date, the Tranche C Maturity Date, the Tranche D
Maturity Date or the Revolving Credit Maturity Date.
"MINIMUM BORROWING AMOUNT" shall mean (a) with respect to a
Borrowing of Term Loans or Revolving Credit Loans, $1,000,000 (or the
Sterling Equivalent, Euro Equivalent or Yen Equivalent thereof, as
applicable) and (b) with respect to a Borrowing of Swingline Loans,
$100,000 (or the Sterling Equivalent thereof).
"MINORITY INVESTMENT" shall mean any Person (other than a
Subsidiary) in which Newco 4 or any Restricted Subsidiary owns capital
stock or other equity interests.
"MOODY'S" shall mean Moody's Investors Service, Inc. or any
successor by merger or consolidation to its business.
"NET CASH PROCEEDS" shall mean, with respect to any Prepayment
Event or any issuance by Newco 4 of equity securities, (a) the gross
cash proceeds (including payments from time to time in respect of
installment obligations, if applicable) received by or on behalf of
Newco 4 or any of the Restricted Subsidiaries in respect of such
Prepayment Event or issuance, as the case may be, less (b) the sum of:
(i) in the case of any Prepayment Event, the amount, if any,
of all taxes paid or estimated to be payable by Newco 4 or any of the
Restricted Subsidiaries in connection with such Prepayment Event,
(ii) in the case of any Prepayment Event, the amount of any
reasonable reserve established in accordance with GAAP against any
liabilities (other than any taxes deducted pursuant to clause (i)
above) (A) associated with the assets that are the subject of such
Prepayment Event and (B) retained by Newco 4 or any of the Restricted
24
Subsidiaries, PROVIDED that the amount of any subsequent reduction of
such reserve (other than in connection with a payment in respect of any
such liability) shall be deemed to be Net Cash Proceeds of such a
Prepayment Event occurring on the date of such reduction,
(iii) in the case of any Prepayment Event, the amount of any
Indebtedness secured by a Lien on the assets that are the subject of
such Prepayment Event to the extent that the instrument creating or
evidencing such Indebtedness requires that such Indebtedness be repaid
upon consummation of such Prepayment Event,
(iv) in the case of any Asset Sale Prepayment Event, the
amount of any proceeds of such Asset Sale Prepayment Event that the
Borrower has reinvested (or intends to reinvest within one year of the
date of such Asset Sale Prepayment Event) in the business of Newco 4 or
any of the Restricted Subsidiaries (subject to Section 9.14), PROVIDED
that any portion of such proceeds that has not been so reinvested
within such one-year period shall (x) be deemed to be Net Cash Proceeds
of an Asset Sale Prepayment Event occurring on the last day of such
one-year period and (y) be applied to the repayment of Term Loans in
accordance with Section 5.2(a)(i), and PROVIDED FURTHER that, for
purposes of the preceding proviso, such one-year period shall be
extended by up to twelve months from the last day of such one-year
period so long as (A) such proceeds are to be reinvested within such
additional twelve-month period under Newco 4's business plan as most
recently adopted in good faith by its Board of Directors and (B) Newco
4 believes in good faith that such proceeds will be so reinvested
within such additional twelve-month period, and
(v) in the case of any Prepayment Event or any issuance by
Newco 4 of equity securities, reasonable and customary fees,
commissions, expenses, issuance costs, discounts and other costs paid
by Newco 4 or any of the Restricted Subsidiaries in connection with
such Prepayment Event or issuance, as the case may be (other than those
payable to Newco 4 or any Subsidiary of Newco 4), in each case only to
the extent not already deducted in arriving at the amount referred to
in clause (a) above.
"NEWCO 1" shall have the meaning provided in the preamble to
this Agreement.
"NEWCO 2" shall have the meaning provided in the preamble to
this Agreement.
"NEWCO 3" shall mean a newly formed private limited company
organized under the laws of England and Wales all the issued share
capital of which is owned on the date hereof by Newco 2 and that owns
all the issued share capital of Newco 4.
"NEWCO 4" shall have the meaning provided in the preamble to
this Agreement.
"NEWCO 4 COMMON STOCK" shall mean any class of outstanding
ordinary share capital of Newco 4 after giving effect to the
Transactions.
"NEWCO 4 INDEBTEDNESS" shall mean all accrued interest with
respect to and principal and any other amounts owing under the Bridge
Facilities on the Term Loan Funding Date.
"NON-DEFAULTING LENDER" shall mean and include each Lender
other than a Defaulting Lender.
"NON-EXCLUDED TAXES" shall have the meaning provided in
Section 5.4(a).
"NOTICE OF BORROWING" shall have the meaning provided in
Section 2.3.
25
"NOTICE OF CONVERSION OR CONTINUATION" shall have the meaning
provided in Section 2.6.
"OBLIGATIONS" shall mean all monetary amounts of every type or
description at any time owing to the Administrative Agent, any Lender
or, in the case of Hedge Agreements, any affiliate of a Lender pursuant
to the terms of this Agreement, any other Credit Document or any Hedge
Agreement.
"OFFER" shall have the meaning provided in the preamble to
this Agreement.
"PARENT" shall have the meaning provided in the preamble to
this Agreement.
"PARTICIPANT" shall have the meaning provided in Section
13.6(a)(ii).
"PARTICIPATING MEMBER STATE" shall mean any member state of
the European Union that has the euro as its lawful currency.
"PBGC" shall mean the United States Pension Benefit Guaranty
Corporation established pursuant to Section 4002 of ERISA, or any
successor thereto.
"PERMITTED ACQUISITION" shall mean the acquisition, by merger
or otherwise, by Newco 4 or any of the Restricted Subsidiaries of
assets or capital stock or other equity interests, or the acquisition
or retention (a "PERMITTED BROKER ACQUISITION") of one or more
individuals comprising teams engaged in a business described in Section
9.14, so long as (a) such acquisition and all transactions related
thereto shall be consummated in accordance with applicable law; (b)
such acquisition shall, in the case of the acquisition of capital stock
or other equity interests by Newco 4 or any Restricted Domestic Newco 4
Subsidiary, result in the issuer of such capital stock or other equity
interests becoming a Guarantor and a direct Restricted Newco 4
Subsidiary in the case of such an acquisition by Newco 4; (c) such
acquisition shall, in the case of the acquisition of capital stock or
other equity interests by the Borrower or any Restricted Domestic
Borrower Subsidiary, result in the issuer of such capital stock or
other equity interests becoming a Restricted Domestic Borrower
Subsidiary and a direct Restricted Domestic Borrower Subsidiary in the
case of such an acquisition by the Borrower; (d) after giving effect to
such acquisition, no Default or Event of Default shall have occurred
and be continuing; and (e) Newco 4 shall be in compliance, on a pro
forma basis after giving effect to such acquisition (including any
Indebtedness assumed or permitted to exist or incurred pursuant to
Sections 10.1(j) and 10.1(k), respectively, and any related Pro Forma
Adjustment), with the covenants set forth in Sections 10.9, 10.10 and
10.11, as such covenants are recomputed as at the last day of the most
recently ended Test Period under such Sections as if such acquisition
had occurred on the first day of such Test Period.
"PERMITTED BROKER ACQUISITION" shall have the meaning provided
in the definition of the term "Permitted Acquisition".
"PERMITTED INVESTMENTS" shall mean (a) with respect to
Insurance Broking Account Assets, investments in which it is customary
for Persons that are engaged in businesses similar to those of Parent
and its Subsidiaries and subject to all applicable laws and regulations
to invest, PROVIDED that it is consistent with the past practices of
Parent and its Subsidiaries and all applicable laws and regulations to
invest in such investments, and (b) in all other cases (i) securities
issued or unconditionally guaranteed by the United States or United
Kingdom government or any agency or instrumentality thereof, in each
case having maturities of not more than 24 months from the date of
acquisition thereof; (ii) securities issued by any state of the United
States or any political
26
subdivision of any such state or any public instrumentality thereof or
any political subdivision of any such state or any public
instrumentality thereof having maturities of not more than 24 months
from the date of acquisition thereof and, at the time of acquisition,
having an investment grade rating generally obtainable from either S&P
or Moody's (or, if at any time neither S&P nor Moody's shall be rating
such obligations, then from another nationally recognized rating
service); (iii) commercial paper issued by any Lender or any bank
holding company owning any Lender; (iv) commercial paper maturing no
more than 12 months after the date of creation thereof and, at the time
of acquisition, having a rating of at least A-2 or P-2 from either S&P
or Moody's (or, if at any time neither S&P nor Moody's shall be rating
such obligations, an equivalent rating from another nationally
recognized rating service); (v) domestic and eurodollar certificates of
deposit or bankers' acceptances maturing no more than two years after
the date of acquisition thereof issued by any Lender or any other bank
having combined capital and surplus of not less than $250,000,000 in
the case of domestic banks and $100,000,000 in the case of foreign
banks; (vi) repurchase agreements with a term of not more than 30 days
for underlying securities of the type described in clauses (i), (ii)
and (iv) above entered into with any bank meeting the qualifications
specified in clause (iv) above or securities dealers of recognized
national standing; (vii) shares of investment companies that are
registered under the United States Investment Company Act of 1940 and
invest solely in one or more of the types of securities described in
clauses (i) through (vi) above; and (viii) corresponding instruments in
countries other than the United States or the United Kingdom
customarily utilized for high-quality investments.
"PERMITTED LIENS" shall mean (a) Liens for taxes, assessments
or governmental charges or claims not yet due or which are being
contested in good faith and by appropriate proceedings for which
appropriate provisions have been established in accordance with GAAP;
(b) Liens in respect of property or assets of Newco 4 or any of its
Subsidiaries imposed by law, such as carriers', warehousemen's and
mechanics' Liens and other similar Liens arising in the ordinary course
of business, in each case so long as such Liens arise in the ordinary
course of business and do not individually or in the aggregate have a
Material Adverse Effect; (c) Liens arising from judgments or decrees in
circumstances not constituting an Event of Default under Section 11.9;
(d) Liens incurred or deposits made in connection with workers'
compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business; (e) ground
leases in respect of real property on which facilities owned or leased
by Newco 4 or any of its Subsidiaries are located; (f) easements,
rights-of-way, restrictions, minor defects or irregularities in title
and other similar charges or encumbrances not interfering in any
material respect with the business of Newco 4 and its Subsidiaries
taken as a whole; (g) any interest or title of a lessor or secured by a
lessor's interest under any lease permitted by this Agreement; (h)
Liens in favor of customs and revenue authorities arising as a matter
of law to secure payment of customs duties in connection with the
importation of goods; (i) Liens on goods the purchase price of which is
financed by a documentary letter of credit issued for the account of
Newco 4 or any of its Subsidiaries, PROVIDED that such Lien secures
only the obligations of Newco 4 or such Subsidiaries in respect of such
letter of credit to the extent permitted under Section 10.1; and (j)
leases or subleases granted to others not interfering in any material
respect with the business of Newco 4 and its Subsidiaries, taken as a
whole.
"PERMITTED SALE LEASEBACK" shall mean any Sale Leaseback
consummated by Newco 4 or any of the Restricted Subsidiaries after the
Closing Date, PROVIDED that such Sale Leaseback is consummated for fair
value as determined at the time of consummation in good faith by Newco
4 and, in the case of any Permitted Sale Leaseback (or series of
27
related Permitted Sales Leasebacks) the aggregate proceeds of which
exceed $15,000,000, the Board of Directors of Newco 4 (which such
determination may take into account any retained interest or other
investment of Newco 4 or such Restricted Subsidiary in connection with,
and any other material economic terms of, such Sale Leaseback).
"PERSON" shall mean any individual, partnership, joint
venture, firm, corporation, limited liability company, association,
trust or other enterprise or any Governmental Authority.
"PLAN" shall mean any multiemployer or single-employer plan,
as defined in Section 4001 of ERISA and subject to Title IV of ERISA,
that is or was within any of the preceding five plan years maintained
or contributed to by (or to which there is or was an obligation to
contribute or to make payments of) Newco 4, a Subsidiary of Newco 4 or
an ERISA Affiliate.
"PLEDGED SUBSIDIARY" shall mean, at any date of determination,
Parent and any Subsidiary of Newco 4 all the capital stock of which has
been pledged to the Administrative Agent, for the benefit of the
Lenders, on such date in accordance with Section 9.12.
"PREFERRED STOCK" shall have the meaning provided in the
preamble to this Agreement.
"PREPAYMENT EVENT" shall mean any Asset Sale Prepayment Event
and any Debt Incurrence Prepayment Event or any Permitted Sale
Leaseback.
"PRESS RELEASE" shall mean the press release made by or on
behalf of Newco 4 on or about 22nd July, 1998, announcing an intention
to make the Offer.
"PRIME RATE" shall mean the rate of interest per annum
publicly announced from time to time by the Administrative Agent as its
reference rate in effect at its principal office in New York City (the
Prime Rate not being intended to be the lowest rate of interest charged
by Chase in connection with extensions of credit to debtors).
"PRO FORMA ADJUSTMENT" shall mean, for any test period that
includes any of the six fiscal quarters first following any Permitted
Acquisition, with respect to the Acquired EBITDA of the applicable
Acquired Entity or Business, the pro forma increase or decrease in such
Acquired EBITDA projected by Newco 4 in good faith as a result of
reasonably identifiable and supportable net cost savings or additional
net costs, as the case may be, realizable during such period by
combining the operations of such Acquired Entity or Business with the
operations of Newco 4 and its Subsidiaries, PROVIDED that so long as
such net cost savings or additional net costs will be realizable at any
time during such period, it may be assumed, for purposes of projecting
such pro forma increase or decrease to such Acquired EBITDA, that such
net cost savings or additional net costs will be realizable during the
entire such period, and PROVIDED FURTHER that any such pro forma
increase or decrease to such Acquired EBITDA shall be without
duplication for net cost savings or additional net costs actually
realized during such period and already included in such Acquired
EBITDA.
"PRO FORMA ADJUSTMENT CERTIFICATE" shall mean any certificate
of an Authorized Officer of Newco 4 delivered pursuant to Section
9.1(h) or setting forth the information described in clause (iv) to
Section 9.1(d).
"REFERENCE LENDER" shall mean Chase.
28
"REGISTER" shall have the meaning provided in Section 13.6(c).
"REGULATION D" shall mean Regulation D of the Board as from
time to time in effect and any successor to all or a portion thereof
establishing reserve requirements.
"REGULATION T" shall mean Regulation T of the Board as from
time to time in effect and any successor to all or a portion thereof
establishing margin requirements.
"REGULATION U" shall mean Regulation U of the Board as from
time to time in effect and any successor to all or a portion thereof
establishing margin requirements.
"REGULATION X" shall mean Regulation X of the Board as from
time to time in effect and any successor to all or a portion thereof
establishing margin requirements.
"REPAYMENT AMOUNT" shall mean Tranche A Repayment Amount,
Tranche B Repayment Amount, Tranche C Repayment Amount or Tranche D
Repayment Amount.
"REPAYMENT DATE" shall mean Tranche A Repayment Date, Tranche
B Repayment Date, Tranche C Repayment Date or Tranche D Repayment Date.
"REPLACEMENT PREFERRED STOCK" shall mean preferred stock of
Newco 2 that (a) is issued in exchange for, or to replace or refinance,
all or a portion of the Preferred Stock, (b) is not subject to
mandatory redemption or redemption at the option of the holder thereof
prior to the date that is six months later than the maturity date of
the Subordinated Notes and (c) may include, at the election of Newco 2,
(i) provisions for required cash dividends (at a rate per annum not in
excess of 7 1/2%, or a higher rate if the payment of cash dividends in
excess of 7 1/2% is stated in the provisions of such preferred stock to
be subject to the limitations set forth in this Agreement), (ii)
provisions for transferability, (iii) provisions for voting rights
and/or board representation upon the occurrence of non-payment of
dividends and (iv) other terms customary for public issuances of
preferred stock and other terms, in each case so long as the
Administrative Agent shall be reasonably satisfied that such customary
or other terms, taken as a whole, do not adversely affect the interests
of the Lenders in any material respect.
"REPORTABLE EVENT" shall mean an event described in Section
4043 of ERISA and the regulations thereunder.
"REQUIRED GUARANTOR SUBSIDIARY" shall mean each Subsidiary of
Newco 4 other than (a) any Foreign Borrower Subsidiary and (b) any
other Subsidiary of Newco 4 that is not organized under the laws of the
United Kingdom, the United States, any state or territory of the United
States or the District of Columbia.
"REQUIRED LENDERS" shall mean, at any date, (a) Non-Defaulting
Lenders having or holding a majority of the sum of (i) the Adjusted
Total Revolving Credit Commitment at such date, (ii) the Adjusted Total
Term Loan Commitment at such date and (iii) the outstanding principal
amount of the Term Loans (excluding the Term Loans held by Defaulting
Lenders) at such date or (b) if the Total Revolving Credit Commitment
and the Total Term Loan Commitment have been terminated or for the
purposes of acceleration pursuant to Section 11, the holders (excluding
Defaulting Lenders) of a majority of the outstanding principal amount
of the Loans and Letter of Credit Exposures (excluding the Loans and
Letter of Credit Exposures of Defaulting Lenders) in the aggregate at
such date, PROVIDED that the principal amount of any Loan or Letter of
Credit Exposure denominated in a Foreign Currency shall be deemed to
be, as of such date, the Dollar Equivalent thereof at such date.
29
"REQUIRED TRANCHE A LENDERS" shall mean, at any date, (a)
Non-Defaulting Lenders having or holding a majority of the sum of (i)
the Adjusted Total Revolving Credit Commitment at such date, (ii) the
Adjusted Total Tranche A Commitment at such date and (iii) the
outstanding principal amount of the Tranche A Term Loans (excluding the
Tranche A Term Loans held by Defaulting Lenders) in the aggregate at
such date or (b) if the Total Revolving Credit Commitment and the Total
Tranche A Commitment have been terminated or for the purposes of
acceleration pursuant to Section 11, the holders (excluding Defaulting
Lenders) of a majority of Revolving Credit Loans, Tranche A Term Loans
and Letter of Credit Exposures (excluding the Loans and Letters of
Credit Exposures of Defaulting Lenders) in the aggregate at such date,
PROVIDED that the principal amount of any Loan or Letter of Credit
Exposure denominated in a Foreign Currency shall be deemed to be, as of
such date, the Dollar Equivalent thereof at such date.
"REQUIRED TRANCHE B, C AND D LENDERS" shall mean, at any date,
Non-Defaulting Lenders having or holding a majority of the outstanding
principal amount of Tranche B Term Loans, Tranche C Term Loans and
Tranche D Term Loans (excluding the Tranche B Term Loans, Tranche C
Term Loans and Tranche D Term Loans held by Defaulting Lenders) in the
aggregate at such date.
"REQUIREMENT OF LAW" shall mean, 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 assets or to which such Person or any
of its property or assets is subject.
"RESET DATE" shall have the meaning set forth in Section
1.2(a).
"RESTATEMENT DATE" shall mean the Restatement Closing Date as
defined in the Amendment Agreement dated as of February 19, 1999, among
the Borrower, Parent, Newco 4, the Administrative Agent, the Collateral
Agent, the Continuing Lenders (as defined therein) and the Additional
Lenders (as defined therein).
"RESTRICTED DOMESTIC BORROWER SUBSIDIARY" shall mean each
Restricted Subsidiary that is also a Domestic Borrower Subsidiary.
"RESTRICTED DOMESTIC NEWCO 4 SUBSIDIARY" shall mean each
Restricted Subsidiary that is also a Domestic Newco 4 Subsidiary.
"RESTRICTED FOREIGN BORROWER SUBSIDIARY" shall mean each
Restricted Subsidiary that is also a Foreign Borrower Subsidiary.
"RESTRICTED FOREIGN NEWCO 4 SUBSIDIARY" shall mean each
Restricted Subsidiary that is also a Foreign Newco 4 Subsidiary.
"RESTRICTED FOREIGN SUBSIDIARY" shall mean any Restricted
Foreign Newco 4 Subsidiary or any Restricted Foreign Borrower
Subsidiary.
"RESTRICTED NON-CREDIT-PARTY SUBSIDIARY" shall mean any
Restricted Subsidiary that is not a Credit Party.
"RESTRICTED SUBSIDIARY" shall mean any Subsidiary of Newco 4
other than an Unrestricted Subsidiary.
30
"REVOLVING CREDIT COMMITMENT" shall mean, (a) with respect to
each Lender that is a Lender on the date hereof, the amount set forth
opposite such Lender's name on Schedule 1.1 as such Lender's "Revolving
Credit Commitment" and (b) in the case of any Lender that becomes a
Lender after the date hereof, the amount specified as such Lender's
"Revolving Credit Commitment" in the Assignment and Acceptance pursuant
to which such Lender assumed a portion of the Total Revolving Credit
Commitment, in each case (i) subject to the proviso set forth in
Section 2.1(b) and (ii) as the same may be changed from time to time
pursuant to the terms hereof. Notwithstanding anything herein to the
contrary, at all times the Revolving Credit Commitment of each Lender
having a Euro Revolving Credit Commitment or Yen Revolving Credit
Commitment shall be equal to or greater than such Lender's Euro
Revolving Credit Commitment, if any, and Yen Revolving Credit
Commitment, if any.
"REVOLVING CREDIT COMMITMENT PERCENTAGE" shall mean at any
time, for each Lender, the percentage obtained by dividing (a) such
Lender's Available Revolving Credit Commitment by (b) the aggregate
amount of the Available Revolving Credit Commitments, PROVIDED that at
any time when the Total Revolving Credit Commitment shall have been
terminated, each Lender's Revolving Credit Commitment Percentage shall
be its Revolving Credit Commitment Percentage as in effect immediately
prior to such termination.
"REVOLVING CREDIT EXPOSURE" shall mean, with respect to any
Lender at any time, the sum of (a) the aggregate principal amount of
the Revolving Credit Loans (calculated by using the Dollar Equivalent
at such time of the principal amount of any Foreign Currency Revolving
Credit Loans) of such Lender then outstanding, (b) such Lender's Letter
of Credit Exposure at such time and (c) such Lender's Swingline
Exposure at such time.
"REVOLVING CREDIT LOAN" shall have the meaning provided in
Section 2.1.
"REVOLVING CREDIT MATURITY DATE" shall mean the date that is
nine months after the date hereof or, if such date is not a Business
Day, the next preceding Business Day; PROVIDED HOWEVER, that if the
Term Loans are funded on or before such date, the term "Revolving
Credit Maturity Date" shall mean the date that is seven years after the
Term Loan Funding Date, or, if such date is not a Business Day, the
next preceding Business Day.
"SALE LEASEBACK" shall mean any transaction or series of
related transactions pursuant to which Newco 4 or any of the Restricted
Subsidiaries (a) sells, transfers or otherwise disposes of any
property, real or personal, whether now owned or hereafter acquired,
and (b) as part of such transaction, thereafter rents or leases such
property or other property that it intends to use for substantially the
same purpose or purposes as the property being sold, transferred or
disposed.
"S&P" shall mean Standard & Poor's Ratings Service or any
successor by merger or consolidation to its business.
"SEC" shall mean the United States Securities and Exchange
Commission or any successor thereto.
"SECTION 9.1 FINANCIALS" shall mean the financial statements
delivered, or required to be delivered, pursuant to Section 9.1(a) or
(b) together with the accompanying officer's certificate delivered, or
required to be delivered, pursuant to Section 9.1(d).
31
"SENIOR BRIDGE FACILITY" shall mean the senior secured term
loan facility outstanding under the Credit Agreement dated as of July
22, 1998, as amended and restated as of September 25, 1998, as amended
as of October 28, 1998, and as further amended as of November 13, 1998,
among Newco 4, Chase and the other lenders parties thereto.
"SENIOR BRIDGE FACILITY FINAL DATE" shall mean the Final Date
(as defined in the Credit Agreement relating to the Senior Bridge
Facility).
"SOLD ENTITY OR BUSINESS" shall have the meaning provided in
the definition of the term "Consolidated EBITDA".
"SPECIFIED SUBSIDIARY" shall mean, at any date of
determination, (a) any Material Subsidiary or (b) any Unrestricted
Subsidiary (i) whose total assets at the last day of the Test Period
ending on the last day of the most recent fiscal period for which
Section 9.1 Financials have been delivered were equal to or greater
than 15% of the consolidated total assets of Newco 4 and its
Subsidiaries at such date or (ii) whose gross revenues for such Test
Period were equal to or greater than 15% of the consolidated gross
revenues of Newco 4 and its Subsidiaries for such period, in each case
determined in accordance with GAAP.
"SPONSOR" shall have the meaning provided in the preamble to
this Agreement.
"SPONSOR EQUITY CONTRIBUTION" shall have the meaning provided
in the preamble to this Agreement.
"STATED AMOUNT" of any Letter of Credit shall mean the maximum
amount from time to time available to be drawn thereunder, determined
without regard to whether any conditions to drawing could then be met.
"STATUS" shall mean, as of any date, the existence of Level I
Status, Level II Status, Level III Status, Level IV Status, Level V
Status or Level VI Status, as the case may be, on such date. Changes in
Status resulting from changes in the Consolidated Total Debt to
Consolidated EBITDA Ratio shall become effective (the date of such
effectiveness, the "EFFECTIVE DATE") as of the first day following the
last day of the most recent fiscal year or period for which (a) Section
9.1 Financials are delivered to the Lenders under Section 9.1 and (b)
an officer's certificate is delivered by Newco 4 to the Lenders setting
forth, with respect to such Section 9.1 Financials, the then-applicable
Status, and shall remain in effect until the next change to be effected
pursuant to this definition, PROVIDED that (i) if the Borrower shall
have made any payments in respect of interest or commitment fees during
the period (the "INTERIM PERIOD") from and including the Effective Date
to but excluding the day any change in Status is determined as provided
above, then the amount of the next such payment due on or after such
day shall be increased or decreased by an amount equal to any
underpayment or overpayment so made by the Borrower during such Interim
Period, (ii) notwithstanding the foregoing, for the period from and
including the Closing Date to but excluding the date on which the
Borrower shall deliver the Section 9.1 Financials for the second full
fiscal quarter after the Statutory Declaration Date, the Status for
purposes of this Agreement shall be Level I Status, and (iii) each
determination of the Consolidated Total Debt to Consolidated EBITDA
Ratio pursuant to this definition shall be made with respect to the
Test Period ending at the end of the fiscal period covered by the
relevant financial statements.
"STATUTORY DECLARATION DATE" shall mean November 10, 1998.
32
"STERLING", "(L)" OR "pence" shall mean the lawful
currency of the United Kingdom.
"STERLING BORROWING" shall mean a Borrowing comprised of
Sterling Loans.
"STERLING EQUIVALENT" shall mean, on any date of
determination, with respect to any amount denominated in any currency
other than Sterling, the equivalent in Sterling of such amount,
determined by the Administrative Agent pursuant to Section 1.2(a) using
the applicable Exchange Rate then in effect.
"STERLING LOANS" shall mean Loans denominated in Sterling.
"STERLING REVOLVING CREDIT LOAN" shall mean a Revolving Credit
Loan denominated in Sterling and made pursuant to Section 2.1(b).
"STERLING SWINGLINE LOAN" shall have the meaning provided in
Section 2.1(e).
"STERLING SWINGLINE RATE" shall mean, at any time, the rate
charged by The Chase Manhattan Bank in London for Sterling overdrafts
at such time, plus the Applicable Eurodollar Margin for Sterling
Revolving Credit Loans.
"SUB-AGENT'S OFFICE" shall mean The Chase Manhattan Bank,
Trinity Tower, Nine Thomas Moore Street, London E1 9TY, England, or
such other office as the Administrative Agent may hereafter designate
in writing as such to the other parties hereto.
"SUBORDINATED BRIDGE FACILITY" shall mean (a) the borrowing
facility made available pursuant to the Subordinated Promissory Note
dated July 22, 1998, between the Borrower and an Affiliate of the
Sponsor, the material terms of which shall be in the form previously
approved by the Administrative Agent, and (b) any amendment,
replacement or refinancing thereof having terms not materially less
advantageous to the interests of the Lenders than the terms
contemplated by the definition of the term "Subordinated Notes",
PROVIDED that any such amendment, replacement or refinancing shall bear
a rate of interest determined by the Board of Directors of the Borrower
to be a market rate of interest at the date of such amendment,
replacement or refinancing and have other terms customary for similar
issuances under similar market conditions or otherwise be on terms
reasonably acceptable to the Administrative Agent.
"SUBORDINATED LOANS" shall mean subordinated loans made
pursuant to the Subordinated Bridge Facility and having a final
maturity not earlier than the date that is ten years after the Term
Loan Funding Date.
"SUBORDINATED NOTE INDENTURE" shall mean the Indenture between
the Borrower and a trustee to be determined, pursuant to which the
Subordinated Notes will be issued, as the same may be amended,
supplemented or otherwise modified from time to time.
"SUBORDINATED NOTES" shall mean (a) Senior Subordinated Notes
of the Borrower or Newco 4 (i) issued pursuant to the Subordinated Note
Indenture, (ii) bearing a rate of interest determined by the Board of
Directors of the Borrower to be a market rate of interest at the date
of issuance thereof, (iii) having a final maturity not earlier than the
date that is ten years after the Term Loan Funding Date (or, if
earlier, ten years after the initial issuance thereof so long as such
maturity date is at least 91 days after the Final Tranche D Repayment
Date) and (iv) having other terms customary for similar issuances under
similar market conditions or otherwise on terms reasonably acceptable
to the Administrative Agent and (b) any amendment, replacement or
refinancing thereof having
33
terms not materially less advantageous to the interests of the Lenders
than the terms thereof, PROVIDED that any such amendment, replacement
or refinancing shall bear a rate of interest determined by the Board of
Directors of the Borrower to be a market rate of interest at the date
of such amendment, replacement or refinancing and have other terms
customary for similar issuances under similar market conditions or
otherwise be on terms reasonably acceptable to the Administrative
Agent.
"SUBSEQUENT PARTICIPANT" shall mean a member state of the
European Union that adopts the euro as its lawful currency after
January 1, 1999.
"SUBSIDIARY" of any Person shall mean and include (a) any
corporation more than 50% of whose stock of any class or classes having
by the terms thereof ordinary voting power to elect a majority of the
directors of such corporation (irrespective of whether or not at the
time stock or issued share capital of any class or classes of such
corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person
directly or indirectly through Subsidiaries and (b) any partnership,
association, joint venture or other entity in which such Person
directly or indirectly through Subsidiaries has more than a 50% equity
interest at the time. Unless otherwise expressly provided, all
references herein to a "Subsidiary" shall mean a Subsidiary of Parent
and (c) any other corporation, partnership, joint venture or other
entity (i) the accounts of which would be consolidated with those of
such Person in such Person's consolidated financial statements if such
statements were prepared in accordance with GAAP and (ii) that is
controlled (as defined in clause (b) of the definition of such term in
the definition of the term "Affiliate") by such Person.
"SUPERMAJORITY TRANCHE A LENDERS" shall mean, at any date, (a)
Non-Defaulting Lenders having or holding at least 66-2/3% of the sum of
(i) the Adjusted Total Revolving Credit Commitment at such date and
(ii) the outstanding principal amount of the Tranche A Term Loans
(excluding the Tranche A Term Loans held by Defaulting Lenders) at such
date or (b) if the Total Revolving Credit Commitment has been
terminated or for the purposes of acceleration pursuant to Section 11,
the holders (excluding Defaulting Lenders) of at least 66-2/3% of the
outstanding principal amount of the Revolving Credit Loans, Tranche A
Term Loans and Letter of Credit Exposures (excluding the Loans and
Letter of Credit Exposures of Defaulting Lenders) in the aggregate at
such date, PROVIDED that the principal amount of any Loan or Letter of
Credit Exposure denominated in a Foreign Currency shall be deemed to
be, as of such date, the Dollar Equivalent thereof at such date.
"SUPERMAJORITY TRANCHE B, C AND D LENDERS" shall mean, at any
date, Non-Defaulting Lenders having or holding at least 66-2/3% of the
outstanding principal amount of the Tranche B Term Loans, Tranche C
Term Loans and Tranche D Term Loans (excluding the Tranche B Term
Loans, Tranche C Term Loans and Tranche D Term Loans held by Defaulting
Lenders) in the aggregate at such date.
"SWINGLINE COMMITMENT" shall mean $10,000,000.
"SWINGLINE EXPOSURE" shall mean, at any time, the aggregate
principal amount (calculated by using the Dollar Equivalent at such
time of the principal amount of any Sterling Swingline Loans) of all
Swingline Loans then outstanding. The Swingline Exposure of any Lender
at any time shall mean the sum of (a) the amount (calculated by using
the Dollar Equivalent at such time of the principal amount of any
Sterling Swingline Loans) of Swingline Loans then outstanding in
respect of which such Lender has made (or is required to have made)
payments to Chase pursuant to Section 2.1(f) and (b) such Lender's
Revolving Credit Commitment Percentage of the aggregate Swingline
34
Exposure (excluding the portion thereof consisting of Swingline Loans
in respect of which the Lenders have made (or are required to have
made) payments to Chase pursuant to Section 2.1(f)).
"SWINGLINE LOANS" shall have the meaning provided in Section
2.1(e).
"SWINGLINE MATURITY DATE" shall mean, with respect to any
Swingline Loan, the date that is five Business Days prior to the
Revolving Credit Maturity Date.
"SYNDICATION AGENT" shall mean Morgan Stanley Dean Witter, as
the syndication agent for the Lenders under this Agreement and the
other Credit Documents.
"TAKEOVER CODE" shall mean the City Code on Takeovers and
Mergers.
"TERM LOAN" shall mean any Tranche A Term Loan, Tranche B Term
Loan, Tranche C Term Loan or Tranche D Term Loan.
"TERM LOAN COMMITMENT" shall mean, with respect to each
Lender, the sum of such Lender's Tranche A Commitment, Tranche B
Commitment, Tranche C Commitment and Tranche D Commitment.
"TERM LOAN FUNDING DATE" shall mean November 19, 1998.
"TEST PERIOD" shall mean, for any determination under this
Agreement, the four consecutive fiscal quarters of Newco 4 then last
ended.
"THREE-MONTH SECONDARY CD RATE" shall mean, for any day, the
secondary market rate, expressed as a per annum rate, for three-month
certificates of deposit reported as being in effect on such day (or, if
such day shall not be a Business Day, the next preceding Business Day)
by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day), or, if such rate
shall not be so reported on such day or such next preceding Business
Day, the average of the secondary market quotations for three-month
certificates of deposit of major money center banks in New York City
received at approximately 10:00 A.M., New York time, on such day (or,
if such day shall not be a Business Day, on the next preceding Business
Day) by the Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it.
"TOTAL COMMITMENT" shall mean the sum of the Total Term Loan
Commitment and the Total Revolving Credit Commitment.
"TOTAL CREDIT EXPOSURE" shall mean, at any date, the sum of
(a) the Total Revolving Credit Commitment at such date, (b) the Total
Term Loan Commitment at such date and (c) the outstanding principal
amount of all Term Loans at such date.
"TOTAL REVOLVING CREDIT COMMITMENT" shall mean the sum of the
Revolving Credit Commitments of all the Lenders.
"TOTAL TERM LOAN COMMITMENT" shall mean the sum of the Term
Loan Commitments of all the Lenders.
35
"TRANCHE A COMMITMENT" shall mean, (a) in the case of each
Lender that is a Lender on the date hereof, the amount set forth
opposite such Lender's name on Schedule 1.1 as such Lender's "Tranche A
Commitment" and (b) in the case of any Lender that becomes a Lender
after the date hereof, the amount specified as such Lender's "Tranche A
Commitment" in the Assignment and Acceptance pursuant to which such
Lender assumed a portion of the Total Term Loan Commitment, in each
case as the same may be changed from time to time pursuant to the terms
hereof.
"TRANCHE A MATURITY DATE" shall mean the date that is seven
years after the Term Loan Funding Date, or, if such date is not a
Business Day, the next preceding Business Day.
"TRANCHE A REPAYMENT AMOUNT" shall have the meaning provided
in Section 2.5(b).
"TRANCHE A REPAYMENT DATE" shall have the meaning provided in
Section 2.5(b).
"TRANCHE A TERM LOAN" shall have the meaning provided in
Section 2.1.
"TRANCHE B COMMITMENT" shall mean, (a) in the case of each
Lender that is a Lender on the date hereof, the amount set forth
opposite such Lender's name on Schedule 1.1 as such Lender's "Tranche B
Commitment" and (b) in the case of any Lender that becomes a Lender
after the date hereof, the amount specified as such Lender's "Tranche B
Commitment" in the Assignment and Acceptance pursuant to which such
Lender assumed a portion of the Total Term Loan Commitment, in each
case as the same may be changed from time to time pursuant to the terms
hereof.
"TRANCHE B MATURITY DATE" shall mean the date that is eight
years after the Term Loan Funding Date, or, if such date is not a
Business Day, the next preceding Business Day.
"TRANCHE B REPAYMENT AMOUNT" shall have the meaning provided
in Section 2.5(c).
"TRANCHE B REPAYMENT DATE" shall have the meaning provided in
Section 2.5(c).
"TRANCHE B TERM LOAN shall have the meaning provided in
Section 2.1.
"TRANCHE C COMMITMENT" shall mean, (a) in the case of each
Lender that is a Lender on the date hereof, the amount set forth
opposite such Lender's name on Schedule 1.1 as such Lender's "Tranche C
Commitment" and (b) in the case of any Lender that becomes a Lender
after the date hereof, the amount specified as such Lender's "Tranche C
Commitment" in the Assignment and Acceptance pursuant to which such
Lender assumed a portion of the Total Term Loan Commitment, in each
case as the same may be changed from time to time pursuant to the terms
hereof.
"TRANCHE C MATURITY DATE" shall mean the date that is nine
years after the Term Loan Funding Date, or, if such date is not a
Business Day, the next preceding Business Day.
"TRANCHE C REPAYMENT AMOUNT" shall have the meaning provided
in Section 2.5(d).
"TRANCHE C REPAYMENT DATE" shall have the meaning provided in
Section 2.5(d).
36
"TRANCHE C TERM LOAN" shall have the meaning provided in
Section 2.1.
"TRANCHE D COMMITMENT" shall mean, (a) in the case of each
Lender that is a Lender on the date hereof, the amount set forth
opposite such Lender's name on Schedule 1.1 as such Lender's "Tranche D
Commitment" and (b) in the case of any Lender that becomes a Lender
after the date hereof, the amount specified as such Lender's "Tranche D
Commitment" in the Assignment and Acceptance pursuant to which such
Lender assumed a portion of the Total Term Loan Commitment, in each
case as the same may be changed from time to time pursuant to the terms
hereof.
"TRANCHE D MATURITY DATE" shall mean the date that is nine
years and six months after the Term Loan Funding Date, or, if such date
is not a Business Day, the next preceding Business Day.
"TRANCHE D REPAYMENT AMOUNT" shall have the meaning provided
in Section 2.5(e).
"TRANCHE D REPAYMENT DATE" shall have the meaning provided in
Section 2.5(e).
"TRANCHE D TERM LOAN" shall have the meaning provided in
Section 2.1.
"TRANSACTION EXPENSES" shall mean any fees or expenses
incurred or paid by Newco 4 or any of its Subsidiaries in connection
with the Transactions, the financing therefor and the other
transactions contemplated hereby and thereby.
"TRANSACTIONS" shall have the meaning provided in the preamble
to this Agreement.
"TRANSFEREE" shall have the meaning provided in Section
13.6(e).
"TREATY ON EUROPEAN UNION" shall mean the Treaty of Rome of
March 25, 1957, as amended by the Single European Act 1986 and the
Maastricht Treaty (which was signed at Maastricht on February 7, 1992,
and came into force on November 1, 1993), as amended from time to time.
"TYPE" shall mean (a) as to any Term Loan, its nature as an
ABR Loan or a Eurodollar Term Loan and (b) as to any Revolving Credit
Loan, its nature as an ABR Loan or a Eurodollar Revolving Credit Loan.
"U.K. SECURITY AGREEMENT" shall mean and include the Debenture
entered into by Newco 4, Parent, the other grantors party thereto and
the Administrative Agent for the benefit of the Lenders, substantially
in the form of Exhibit I, as the same may be amended, supplemented or
otherwise modified from time to time.
"UNFUNDED CURRENT LIABILITY" of any Plan shall mean the
amount, if any, by which the present value of the accrued benefits
under the Plan as of the close of its most recent plan year, determined
in accordance with Statement of Financial Accounting Standards No. 87
as in effect on the date hereof, based upon the actuarial assumptions
that would be used by the Plan's actuary in a termination of the Plan,
exceeds the fair market value of the assets allocable thereto.
"UNITED STATES" shall mean the United States of America.
"UNPAID DRAWING" shall have the meaning provided in Section
3.4(a).
37
"UNRESTRICTED SUBSIDIARY" shall mean (a) any Subsidiary of
Newco 4 that is formed or acquired after the Closing Date, PROVIDED
that at such time (or promptly thereafter) the Borrower designates such
Subsidiary an Unrestricted Subsidiary in a written notice to the
Administrative Agent, (b) any Restricted Subsidiary on the Closing Date
subsequently re-designated as an Unrestricted Subsidiary by the
Borrower in a written notice to the Administrative Agent, PROVIDED that
such re-designation shall be deemed to be an investment on the date of
such re-designation in an Unrestricted Subsidiary in an amount equal to
the sum of (i) the net worth of such re-designated Restricted
Subsidiary immediately prior to such re-designation (such net worth to
be calculated without regard to any Guarantee provided by such
re-designated Restricted Subsidiary) and (ii) the aggregate principal
amount of any Indebtedness owed by such re-designated Restricted
Subsidiary to Newco 4 or any other Restricted Subsidiary immediately
prior to such re- designation, all calculated, except as set forth in
the parenthetical to clause (i), on a consolidated basis in accordance
with GAAP, (c) each Subsidiary of an Unrestricted Subsidiary; PROVIDED,
HOWEVER, that (i) at the time of any written re-designation by the
Borrower to the Administrative Agent of any Unrestricted Subsidiary as
a Restricted Subsidiary, the Unrestricted Subsidiary so re-designated
shall no longer constitute an Unrestricted Subsidiary, (ii) no
Unrestricted Subsidiary may be re-designated as a Restricted Subsidiary
if a Default or Event of Default would result from such re-designation,
(iii) neither Parent nor the Borrower shall be re-designated as an
Unrestricted Subsidiary and (iv) no Restricted Subsidiary may be
re-designated as an Unrestricted Subsidiary if a Default or Event of
Default would result from such re-designation. On or promptly after the
date of its formation, acquisition or re-designation, as applicable,
each Unrestricted Subsidiary (other than an Unrestricted Subsidiary
that is a Foreign Subsidiary) shall have entered into a tax sharing
agreement containing terms that, in the reasonable judgment of the
Administrative Agent, provide for an appropriate allocation of tax
liabilities and benefits and (d) Sovereign Marine & General Insurance
Company Limited.
"U.S. PLEDGE AGREEMENT" shall mean and include the U.S. Pledge
Agreement entered into by the Borrower, the other pledgors party
thereto and the Administrative Agent for the benefit of the Lenders,
substantially in the form of Exhibit B, as the same may be amended,
supplemented or otherwise modified from time to time.
"VOTING STOCK" shall mean, with respect to any Person, shares
of such Person's capital stock having the right to vote for the
election of directors of such Person under ordinary circumstances.
"YEN" shall mean the lawful currency of Japan.
"YEN BORROWING" shall mean a Borrowing comprised of Yen
Revolving Credit Loans.
"YEN EQUIVALENT" shall mean, on any date of determination,
with respect to any amount denominated in any currency other than Yen,
the equivalent in Yen of such amount, determined by the Administrative
Agent pursuant to Section 1.2(a) using the applicable Exchange Rate
then in effect.
"YEN LENDERS" shall mean the Persons listed on Schedule 2.1(b)
as Yen Lenders and any other Person that shall accept an assignment of
a Yen Revolving Credit Commitment pursuant to an Assignment and
Acceptance, other than any such Person that ceases to have a Yen
Revolving Credit Commitment pursuant to an Assignment and Acceptance.
38
"YEN REVOLVING CREDIT COMMITMENT" shall mean, (a) with respect
to each Yen Lender that is a Yen Lender on the Restatement Date, the
amount set forth opposite such Yen Lender's name on Schedule 2.1(b) as
such Yen Lender's "Yen Revolving Credit Commitment" and (b) in the case
of any Yen Lender that becomes a Yen Lender after the Restatement Date,
the amount specified as such Yen Lender's "Yen Revolving Credit
Commitment" in the Assignment and Acceptance pursuant to which such Yen
Lender assumed its Yen Revolving Credit Commitment, in each case as the
same may be changed from time to time pursuant to the terms hereof.
"YEN REVOLVING CREDIT LOAN" shall mean a Revolving Credit Loan
denominated in Yen and made pursuant to Section 2.1(d).
1.2 EXCHANGE RATES. (a) Not later than 1:00 p.m., New York
City time, on each Calculation Date, the Administrative Agent shall (i)
determine the Exchange Rate as of such Calculation Date to be used for
calculating relevant Dollar Equivalent, Euro Equivalent, Yen Equivalent and
Sterling Equivalent amounts and (ii) give notice thereof to the Lenders and the
Borrower. The Exchange Rates so determined shall become effective on the first
Business Day immediately following the relevant Calculation Date (a "RESET
DATE"), shall remain effective until the next succeeding Reset Date and shall
for all purposes of this Agreement (other than any provision expressly requiring
the use of a current Exchange Rate and except to the extent exchange rates are
otherwise utilized in connection with determining compliance with financial
covenant levels in accordance with GAAP) be the Exchange Rates employed in
converting any amounts between the applicable currencies.
(b) Not later than 5:00 p.m., New York City time, on each
Reset Date and the date of any Borrowing of Foreign Currency Revolving Credit
Loans, the Administrative Agent shall (i) determine the Dollar Equivalent of the
aggregate principal amount of the Foreign Currency Revolving Credit Loans then
outstanding (after giving effect to any Foreign Currency Revolving Credit Loans
made or repaid on such date) and (ii) notify the Lenders and the Borrower of the
results of such determination and of the Aggregate Revolving Credit
Outstandings.
(c) For purposes of determining compliance under Sections
10.1, 10.2, 10.4, 10.5, 10.6, 10.9, 10.10, 10.11 and 10.12 with respect to any
amount in a currency other than Dollars, such amount shall be deemed to equal
the Dollar Equivalent thereof at the time such amount was incurred or expended,
as the case may be, or based on the average exchange rate for the relevant
period, as determined by the Borrower in accordance with GAAP or as otherwise
reflected in the Section 9.1 Financials in accordance with GAAP.
SECTION 2. AMOUNT AND TERMS OF CREDIT.
2.1 COMMITMENTS. (a) Subject to and upon the terms and
conditions herein set forth:
(i) each Lender having a Tranche A Commitment severally agrees
to make a loan or loans in Dollars (each a "TRANCHE A TERM LOAN" and,
collectively, the "TRANCHE A TERM LOANS") to the Borrower, which
Tranche A Term Loans (x) shall not exceed for any such Lender the
Tranche A Commitment of such Lender and (y) shall be repaid in full on
the Tranche A Maturity Date;
(ii) each Lender having a Tranche B Commitment severally
agrees to make a loan or loans in Dollars (each a "TRANCHE B TERM LOAN"
and, collectively, the "TRANCHE B TERM LOANS") to the Borrower, which
Tranche B Term Loans (x) shall not exceed for any
39
such Lender the Tranche B Commitment of such Lender and (y) shall be
repaid in full on the Tranche B Maturity Date;
(iii) each Lender having a Tranche C Commitment severally
agrees to make a loan or loans in Dollars (each a "TRANCHE C TERM LOAN"
and, collectively, the "TRANCHE C TERM LOANS") to the Borrower, which
Tranche C Term Loans (x) shall not exceed for any such Lender the
Tranche C Commitment of such Lender and (y) shall be repaid in full on
the Tranche C Maturity Date; and
(iv) each Lender having a Tranche D Commitment severally
agrees to make a loan or loans in Dollars (each a "TRANCHE D TERM LOAN"
and, collectively, the "TRANCHE D TERM LOANS") to the Borrower, which
Tranche D Term Loans (x) shall not exceed for any such Lender the
Tranche D Commitment of such Lender and (y) shall be repaid in full on
the Tranche D Maturity Date.
Such Term Loans (x) shall be made on the Term Loan Funding Date, (y) may, at the
option of the Borrower, be incurred and maintained as, and/or converted into,
ABR Loans or Eurodollar Term Loans, PROVIDED that all Term Loans made by each of
the Lenders pursuant to the same Borrowing shall, unless otherwise specifically
provided herein, consist entirely of Term Loans of the same Type, and (z) may be
repaid in accordance with the provisions hereof. Once repaid, Term Loans may not
be reborrowed.
(b) Subject to and upon the terms and conditions herein set
forth, each Lender having a Revolving Credit Commitment severally agrees to make
a loan or loans denominated, at the option of the Borrower, in Dollars (each a
"DOLLAR REVOLVING CREDIT LOAN" and, collectively, the "DOLLAR REVOLVING CREDIT
LOANS") or Sterling (each a "STERLING REVOLVING CREDIT LOAN" and, collectively,
the "STERLING REVOLVING CREDIT LOANS" and, together with the Dollar Revolving
Credit Loans, Euro Revolving Credit Loans and Yen Revolving Credit Loans, the
"REVOLVING CREDIT LOANS") to the Borrower, which Dollar Revolving Credit Loans
and Sterling Revolving Credit Loans (i) shall be made at any time and from time
to time on and after the Closing Date and prior to the Revolving Credit Maturity
Date, (ii) in the case of Dollar Revolving Credit Loans, may, at the option of
the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or
Eurodollar Revolving Credit Loans, PROVIDED that all Dollar Revolving Credit
Loans made by each of the Lenders pursuant to the same Borrowing shall, unless
otherwise specifically provided herein, consist entirely of Dollar Revolving
Credit Loans of the same Type, (iii) in the case of Sterling Revolving Credit
Loans, shall be incurred and maintained entirely as Eurodollar Revolving Credit
Loans, (iv) may be repaid and reborrowed in accordance with the provisions
hereof, (v) for any such Lender at any time, shall not result in such Lender's
Revolving Credit Exposure at such time exceeding such Lender's Revolving Credit
Commitment at such time and (vi) after giving effect thereto and to the
application of the proceeds thereof, shall not result at any time in the
aggregate amount of the Lenders' Revolving Credit Exposures at such time
exceeding the Total Revolving Credit Commitment then in effect. Each Lender may
at its option make any Eurodollar Loan by causing any domestic or foreign branch
or Affiliate of such Lender to make such Loan; PROVIDED that (i) any exercise of
such option shall not affect the obligation of the Borrower to repay such Loan
and (ii) in exercising such option, the Lender shall use its reasonable efforts
to minimize any increased costs to the Borrower resulting therefrom (which
obligation of the Lender shall not require it to take, or refrain from taking,
actions that it determines would result in increased costs for which it will not
be compensated hereunder or that it determines would be otherwise
disadvantageous to it and in the event of such request for costs for which
compensation is provided under this Agreement, the provisions of Section 3.5
shall apply). On the Revolving Credit Maturity Date, all Revolving Credit Loans
shall be repaid in full.
40
(c) Subject to and upon the terms and conditions herein set
forth, each Lender having a Euro Revolving Credit Commitment severally agrees to
make a loan or loans denominated in Euro (each a "EURO REVOLVING CREDIT LOAN"
and, collectively, the "EURO REVOLVING CREDIT LOANS") to the Borrower, which
Euro Revolving Credit Loans (i) shall be made at any time and from time to time
on and after the Restatement Date and prior to the Revolving Credit Maturity
Date, (ii) shall be incurred and maintained entirely as Eurodollar Revolving
Credit Loans, (iii) may be repaid and reborrowed in accordance with the
provisions hereof, (iv) shall not exceed for any such Euro Lender at any time
outstanding such Euro Lender's Euro Revolving Credit Commitment, (v) shall not,
after giving effect thereto and to the application of the proceeds thereof,
exceed for all Euro Lenders at any time outstanding that aggregate principal
amount that has a Dollar Equivalent that, when added to the Dollar Equivalent of
the aggregate principal amount of all outstanding Yen Revolving Credit Loans,
equals $75,000,000, (vi) for any such Euro Lender at any time, shall not result
in such Euro Lender's Revolving Credit Exposure at such time exceeding such Euro
Lender's Revolving Credit Commitment at such time and (vii) after giving effect
thereto and to the application of the proceeds thereof, shall not result at any
time in the aggregate amount of the Lenders' Revolving Credit Exposures at such
time exceeding the Total Revolving Credit Commitment then in effect.
(d) Subject to and upon the terms and conditions herein set
forth, each Lender having a Yen Revolving Credit Commitment severally agrees to
make a loan or loans denominated in Yen (each a "YEN REVOLVING CREDIT LOAN" and,
collectively, the "YEN REVOLVING CREDIT LOANS") to the Borrower, which Yen
Revolving Credit Loans (i) shall be made at any time and from time to time on
and after the Restatement Date and prior to the Revolving Credit Maturity Date,
(ii) shall be incurred and maintained entirely as Eurodollar Revolving Credit
Loans, (iii) may be repaid and reborrowed in accordance with the provisions
hereof, (iv) shall not exceed for any such Yen Lender at any time outstanding
such Yen Lender's Yen Revolving Credit Commitment, (v) shall not, after giving
effect thereto and to the application of the proceeds thereof, exceed for all
Yen Lenders at any time outstanding that aggregate principal amount that has a
Dollar Equivalent that, when added to the Dollar Equivalent of the aggregate
principal amount of all outstanding Euro Revolving Credit Loans, equals
$75,000,000, (vi) for any such Yen Lender at any time, shall not result in such
Yen Lender's Revolving Credit Exposure at such time exceeding such Yen Lender's
Revolving Credit Commitment at such time and (vii) after giving effect thereto
and to the application of the proceeds thereof, shall not result at any time in
the aggregate amount of the Lenders' Revolving Credit Exposures at such time
exceeding the Total Revolving Credit Commitment then in effect.
(e) Subject to and upon the terms and conditions herein set
forth, Chase in its individual capacity agrees, at any time and from time to
time on and after the Closing Date and prior to the Swingline Maturity Date, to
make a loan or loans (each a "SWINGLINE LOAN" and, collectively, the "SWINGLINE
LOANS") to the Borrower, which Swingline Loans (i) may, at the option of the
Borrower, be denominated in Dollars (each a "DOLLAR SWINGLINE LOAN" and,
collectively, the "DOLLAR SWINGLINE LOANS") or Sterling (each a "STERLING
SWINGLINE LOAN" and, collectively, the "STERLING SWINGLINE LOANS"), (ii) shall,
in the case of Dollar Swingline Loans, be ABR Loans, (iii) shall, in the case of
Sterling Swingline Loans, bear interest at the Sterling Swingline Rate, (iv)
shall have the benefit of the provisions of Section 2.1(f), (v) shall not exceed
at any time outstanding the Swingline Commitment, (vi) shall not, after giving
effect thereto and to the application of the proceeds thereof, exceed in the
aggregate at any time outstanding the principal amount that, when added to the
aggregate principal amount (calculated by using the Dollar Equivalent at such
time of the principal amount of any Foreign Currency Revolving Credit Loans) of
all Revolving Credit Loans then outstanding and all Letter of Credit Outstanding
at such time, equals the Total Revolving Credit Commitment then in effect and
(vii) may be repaid and reborrowed in accordance with the provisions hereof. On
the Swingline Maturity Date, each outstanding Swingline Loan shall be repaid in
full. Chase shall not make any Swingline Loan after receiving a written notice
from the Borrower or any Lender stating that a Default or Event
41
of Default exists and is continuing until such time as Chase shall have received
written notice of (i) rescission of all such notices from the party or parties
originally delivering such notice or (ii) the waiver of such Default or Event of
Default in accordance with the provisions of Section 13.1.
(f) On any Business Day, Chase may, in its sole discretion,
give notice to the Lenders that all then-outstanding Swingline Loans shall be
funded with a Borrowing of Revolving Credit Loans, in which case (i) in the case
of then-outstanding Dollar Swingline Loans, a Borrowing of Dollar Revolving
Credit Loans constituting ABR Loans and (ii) in the case of then-outstanding
Sterling Swingline Loans, a Borrowing of Sterling Revolving Credit Loans (each
such Borrowing, a "MANDATORY BORROWING") shall be made (x) in the case of Dollar
Swingline Loans, on the immediately succeeding Business Day and (y) in the case
of Sterling Swingline Loans, on the third succeeding Business Day, by all
Lenders PRO RATA based on each Lender's Revolving Credit Commitment Percentage
(determined as of the date of the notice referred to above), and the proceeds
thereof shall be applied directly to Chase to repay Chase for such outstanding
Swingline Loans. Each Lender hereby irrevocably agrees to make such Dollar
Revolving Credit Loans upon one Business Day's notice and such Sterling
Revolving Credit Loans upon three Business Days' notice pursuant to each
Mandatory Borrowing in the amount and in the manner specified in the preceding
sentence and on the date specified to it in writing by Chase notwithstanding (i)
that the amount of the Mandatory Borrowing may not comply with the minimum
amount for each Borrowing specified in Section 2.2, (ii) whether any conditions
specified in Section 7 are then satisfied, (iii) whether a Default or an Event
of Default has occurred and is continuing, (iv) the date of such Mandatory
Borrowing or (v) any reduction in the Total Commitment after any such Swingline
Loans were made. In the event that, in the sole judgment of Chase, any Mandatory
Borrowing cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of a proceeding
under the Bankruptcy Code in respect of the Borrower), each Lender hereby agrees
that it shall forthwith purchase from Chase (without recourse or warranty) such
participation of the outstanding Swingline Loans as shall be necessary to cause
the Lenders to share in such Swingline Loans ratably based upon their respective
Revolving Credit Commitment Percentages on such date, PROVIDED that all
principal and interest payable on such Swingline Loans shall be for the account
of Chase until the date the respective participation is purchased and, to the
extent attributable to the purchased participation, shall be payable to the
Lender purchasing same from and after such date of purchase.
2.2 MINIMUM AMOUNT OF EACH BORROWING; MAXIMUM NUMBER OF
BORROWINGS. The aggregate principal amount of each Borrowing of Term Loans,
Revolving Credit Loans or Swingline Loans shall be in a multiple of $100,000 (or
the Sterling Equivalent, Euro Equivalent or Yen Equivalent, as applicable,
thereof) and shall not be less than the Minimum Borrowing Amount with respect
thereto (except that Mandatory Borrowings shall be made in the amounts required
by Section 2.1(f)). More than one Borrowing may be incurred on any date,
PROVIDED that at no time shall there be outstanding more than 20 Borrowings of
Eurodollar Loans under this Agreement. Without prejudice and in addition to any
method of conversion or rounding prescribed by any EMU Legislation, without
prejudice to the obligations of the Borrower to the Lenders under or pursuant to
this Agreement and without increasing the Commitments of any Lender, all
references in this Agreement to a minimum amount (or an integral multiple
thereof) in a national currency denomination of a Subsequent Participant to be
paid to or by the Administrative Agent shall, immediately upon such Subsequent
Participant becoming a Participating Member State, be replaced by a reference to
such reasonably comparable and convenient amount (or an integral multiple
thereof) in the euro unit as the Administrative Agent may specify.
2.3 NOTICE OF BORROWING. (a) The Borrower shall give the
Administrative Agent at the locations set forth in Section 13.2 (i) prior to
12:00 Noon (London time) at least three
42
Business Days' prior written notice (or telephonic notice promptly confirmed in
writing) of the Borrowing of Term Loans if all or any of such Term Loans are to
be initially Eurodollar Loans and (ii) prior written notice (or telephonic
notice promptly confirmed in writing) prior to 10:00 A.M. (London time) on the
date of the Borrowing of Term Loans if all such Term Loans are to be ABR Loans.
Such notice (together with each notice of a Borrowing of Revolving Credit Loans
pursuant to Section 2.3(b) and each notice of a Borrowing of Swingline Loans
pursuant to Section 2.3(c), a "NOTICE OF BORROWING") shall be irrevocable and
shall specify (i) the aggregate principal amount of the Term Loans to be made on
the Term Loan Funding Date, (ii) the Term Loan Funding Date (which shall be a
Business Day) and (iii) whether the Term Loans shall consist of ABR Loans and/or
Eurodollar Term Loans and, if the Term Loans are to include Eurodollar Term
Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall promptly give each Lender written notice (or
telephonic notice promptly confirmed in writing) of any Borrowing of Term Loans,
of such Lender's proportionate share thereof and of the other matters covered by
the related Notice of Borrowing.
(b) Whenever the Borrower desires to incur Revolving Credit
Loans hereunder (other than Mandatory Borrowings or borrowings to repay Unpaid
Drawings), it shall give the Administrative Agent at the locations set forth in
Section 13.2, (i) prior to (A) 12:00 Noon (London time) in the case of Dollar
Revolving Credit Loans, (B) 11:00 A.M. (London time) in the case of Sterling
Revolving Credit Loans and Euro Revolving Credit Loans or (C) 11:00 A.M. (Tokyo
time) in the case of Yen Revolving Credit Loans, at least three Business Days'
prior written notice (or telephonic notice promptly confirmed in writing) of
each Borrowing of Eurodollar Revolving Credit Loans and (ii) prior to 12:00 Noon
(London time) at least one Business Day's prior written notice (or telephonic
notice promptly confirmed in writing) of each Borrowing of ABR Loans. Each such
Notice of Borrowing, except as otherwise expressly provided in Section 2.10,
shall be irrevocable and shall specify (i) whether such Borrowing is to be a
Dollar Borrowing, a Yen Borrowing, a Euro Borrowing or a Sterling Borrowing,
(ii) the aggregate principal amount of the Revolving Credit Loans to be made
pursuant to such Borrowing (which, in the case of a Foreign Currency Borrowing,
shall be stated in Dollars), (iii) the date of Borrowing (which shall be a
Business Day), (iv) if such Borrowing is to be denominated in Dollars, whether
the respective Borrowing shall consist of ABR Loans or Eurodollar Revolving
Credit Loans, (v) if such Borrowing shall consist of Eurodollar Revolving Credit
Loans, the Interest Period to be initially applicable thereto and (vi) the
number and location of the account to which funds are to be disbursed. The
Administrative Agent shall promptly give each Lender written notice (or
telephonic notice promptly confirmed in writing) of each proposed Borrowing of
Revolving Credit Loans, of such Lender's proportionate share thereof and of the
other matters covered by the related Notice of Borrowing.
(c) Whenever the Borrower desires to incur Swingline Loans
hereunder, it shall give the Administrative Agent at the locations set forth in
Section 13.2 written notice (or telephonic notice promptly confirmed in writing)
of each Borrowing of Swingline Loans no later than 9:00 A.M. (London time) on
the date of such Borrowing. Each such notice shall be irrevocable and shall
specify (i) the aggregate principal amount and currency of the Swingline Loans
to be made pursuant to such Borrowing and (ii) the date of Borrowing (which
shall be a Business Day). The Administrative Agent shall promptly give Chase
written notice (or telephonic notice promptly confirmed in writing) of each
proposed Borrowing of Swingline Loans and of the other matters covered by the
related Notice of Borrowing.
(d) Mandatory Borrowings shall be made upon the notice
specified in Section 2.1(f), with the Borrower irrevocably agreeing, by its
incurrence of any Swingline Loan, to the making of Mandatory Borrowings as set
forth in such Section.
(e) Borrowings to reimburse Unpaid Drawings shall be made upon
the notice specified in Section 3.4(c).
43
(f) Without in any way limiting the obligation of the Borrower
to confirm in writing any notice it may give hereunder by telephone, the
Administrative Agent may act prior to receipt of written confirmation without
liability upon the basis of such telephonic notice believed by the
Administrative Agent in good faith to be from an Authorized Officer of the
Borrower. In each such case the Borrower hereby waives the right to dispute the
Administrative Agent's record of the terms of any such telephonic notice.
2.4 DISBURSEMENT OF FUNDS. (a) No later than (i) 12:00 Noon
(New York time) in the case of Dollar Borrowings, (ii) 12:00 Noon (London time)
in the case of Euro Borrowings and Sterling Borrowings or (iii) 12:00 Noon
(Tokyo time) in the case of Yen Borrowings, on the date specified in each Notice
of Borrowing (including Mandatory Borrowings), each Lender will make available
its PRO RATA portion, if any, of each Borrowing requested to be made on such
date in the manner provided below, PROVIDED that all (i) Dollar Swingline Loans
shall be made available in the full amount thereof by Chase no later than 3:00
P.M. (London time) on the date requested and (ii) Sterling Swingline Loans shall
be made available in the full amount thereof by Chase no later than 2:00 P.M.
(London time).
(b) Each Lender shall make available all amounts it is to fund
under any Borrowing in Dollars, Euro, Yen or Sterling (as specified in the
applicable Notice of Borrowing) and immediately available funds to the
Administrative Agent at the Administrative Agent's Office and the Administrative
Agent will (except in the case of Mandatory Borrowings and Borrowings to repay
Unpaid Drawings) make available to the Borrower by depositing to the Borrower's
account at (i) the Administrative Agent's Office or (ii) the Sub-Agent's Office,
as specified by the Borrower, the aggregate of the amounts so made available in
Dollars, Euro, Yen or Sterling and the type of funds received. Unless the
Administrative Agent shall have been notified by any Lender prior to the date of
any such Borrowing that such Lender does not intend to make available to the
Administrative Agent its portion of the Borrowing or Borrowings to be made on
such date, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on such date of Borrowing, and the
Administrative Agent, in reliance upon such assumption, may (in its sole
discretion and without any obligation to do so) make available to the Borrower a
corresponding amount. If such corresponding amount is not in fact made available
to the Administrative Agent by such Lender and the Administrative Agent has made
available same to the Borrower, the Administrative Agent shall be entitled to
recover such corresponding amount from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent shall promptly notify the Borrower, and the
Borrower shall immediately pay such corresponding amount to the Administrative
Agent. The Administrative Agent shall also be entitled to recover from such
Lender or the Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower to the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to (i) if paid by such Lender, the Federal Funds Effective Rate (or,
in the case of a Euro Borrowing or Yen Borrowing, the rate reasonably determined
by the Administrative Agent to be the cost to it of funding such amount) or (ii)
if paid by the Borrower, the then-applicable rate of interest, calculated in
accordance with Section 2.8, for the respective Loans.
(c) Nothing in this Section 2.4 shall be deemed to relieve
any Lender from its obligation to fulfill its commitments hereunder or to
prejudice any rights that the Borrower may have against any Lender as a
result of any default by such Lender hereunder (it being understood, however,
that no Lender shall be responsible for the failure of any other Lender to
fulfill its commitments hereunder).
44
2.5 REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The Borrower
shall repay to the Administrative Agent, for the benefit of the Lenders, (i) on
the Tranche A Maturity Date, the then-unpaid Tranche A Term Loans and Revolving
Credit Loans, (ii) on the Tranche B Maturity Date, the then-unpaid Tranche B
Term Loans, (iii) on the Tranche C Maturity Date, the then-unpaid Tranche C Term
Loans, and (iv) on the Tranche D Maturity Date, the then-unpaid Tranche D Term
Loans. The Borrower shall repay to the Administrative Agent, for the account of
Chase, on the Swingline Maturity Date, the then-unpaid Swingline Loans.
(b) The Borrower shall repay to the Administrative Agent, for
the benefit of the Lenders of Tranche A Term Loans, on each date set forth below
(each a "TRANCHE A REPAYMENT DATE"), the principal amount of the Tranche A Term
Loans set forth below opposite such Repayment Date (each a "TRANCHE A REPAYMENT
AMOUNT"):
[Download Table]
Number of Months From Term Loan
Funding Date Repayment Amount
------------------------------- ----------------
6 $ 0
12 0
18 0
24 0
30 2,500,000
36 2,500,000
42 3,500,000
48 3,500,000
54 5,000,000
60 5,000,000
66 6,000,000
72 6,000,000
78 8,000,000
84 83,000,000
(c) The Borrower shall repay to the Administrative Agent, for
the benefit of the Lenders of Tranche B Term Loans, on each date set forth below
(each a "TRANCHE B REPAYMENT DATE"), the principal amount of the Tranche B Term
Loans set forth below opposite such Repayment Date (each a "TRANCHE B REPAYMENT
AMOUNT"):
[Download Table]
Number of Months From
Term Loan Funding Date Repayment Amount
---------------------- ----------------
6 $ 0
12 1,250,000
18 625,000
24 625,000
30 625,000
36 625,000
42 625,000
48 625,000
54 625,000
60 625,000
66 625,000
72 625,000
78 625,000
84 625,000
90 625,000
45
[Download Table]
96 115,625,000
(d) The Borrower shall repay to the Administrative Agent, for
the benefit of the Lenders of Tranche C Term Loans, on each date set forth below
(each a "TRANCHE C REPAYMENT DATE"), the principal amount of the Tranche C Term
Loans set forth below opposite such Repayment Date (each a "TRANCHE C REPAYMENT
AMOUNT"):
[Download Table]
Number of Months From
Term Loan Funding Date Repayment Amount
---------------------- ----------------
6 $ 0
12 1,000,000
18 500,000
24 500,000
30 500,000
36 500,000
42 500,000
48 500,000
54 500,000
60 500,000
66 500,000
72 500,000
78 500,000
84 500,000
90 500,000
96 500,000
102 500,000
108 91,500,000
(e) The Borrower shall repay to the Administrative Agent, for
the benefit of the Lenders of Tranche D Term Loans, on each date set forth below
(each a "TRANCHE D REPAYMENT
46
DATE"), the principal amount of the Tranche D Term Loans set forth below
opposite such Repayment Date (each a "TRANCHE D REPAYMENT AMOUNT"):
[Download Table]
Number of Months From
Term Loan Funding Date Repayment Amount
---------------------- ----------------
6 $ 0
12 1,000,000
18 500,000
24 500,000
30 500,000
36 500,000
42 500,000
48 500,000
54 500,000
60 500,000
66 500,000
72 500,000
78 500,000
84 500,000
90 500,000
96 500,000
102 500,000
108 500,000
114 91,000,000
(f) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
the appropriate lending office of such Lender resulting from each Loan made by
such lending office of such Lender from time to time, including the amounts and
currency of principal and interest payable and paid to such lending office of
such Lender from time to time under this Agreement.
(g) The Administrative Agent shall maintain the Register
pursuant to Section 13.6, and a subaccount for each Lender, in which Register
and subaccounts (taken together) shall be recorded (i) the amount and currency
of each Loan made hereunder, whether such Loan is a Term Loan, a Revolving
Credit Loan or a Swingline Loan, the Type of each Loan made and the Interest
Period applicable thereto, (ii) the amount and currency of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender or Chase hereunder and (iii) the amount and currency of any sum received
by the Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(h) The entries made in the Register and accounts and
subaccounts maintained pursuant to paragraphs (f) and (g) of this Section 2.5
shall, to the extent permitted by applicable law, be prima facie evidence of the
existence and amounts of the obligations of the Borrower therein recorded;
PROVIDED, HOWEVER, that the failure of any Lender or the Administrative Agent to
maintain such account, such Register or such subaccount, as applicable, or any
error therein, shall not in any manner affect the obligation of the Borrower to
repay (with applicable interest) the Loans made to the Borrower by such Lender
in accordance with the terms of this Agreement.
2.6 CONVERSIONS AND CONTINUATIONS. (a) The Borrower shall have
the option on any Business Day to convert all or a portion equal to at least the
Minimum Borrowing Amount of the out standing principal amount of Term Loans or
Dollar Revolving Credit Loans of one Type into a Borrowing or Borrowings of
another Type or to continue the outstanding principal amount of any Eurodollar
Term Loans or Eurodollar Revolving Credit Loans as Eurodollar Term Loans
47
or Eurodollar Revolving Credit Loans, as the case may be, for an additional
Interest Period, PROVIDED that (i) no partial conversion of Eurodollar Term
Loans or Eurodollar Revolving Credit Loans shall reduce the outstanding
principal amount of Eurodollar Term Loans or Eurodollar Revolving Credit Loans
made pursuant to a single Borrowing to less than the Minimum Borrowing Amount,
(ii) ABR Loans may not be converted into Eurodollar Term Loans or Eurodollar
Revolving Credit Loans if a Default or Event of Default is in existence on the
date of the conversion and the Administrative Agent has or the Required Lenders
have determined in its or their sole discretion not to permit such conversion,
(iii) Eurodollar Loans (other than Foreign Currency Revolving Credit Loans) may
not be continued as Eurodollar Term Loans or Eurodollar Revolving Credit Loans
for an additional Interest Period if a Default or Event of Default is in
existence on the date of the proposed continuation and the Administrative Agent
has or the Required Lenders have determined in its or their sole discretion not
to permit such continuation, (iv) no Interest Period in excess of one month may
be selected for any Foreign Currency Borrowing if a Default or Event of Default
is in existence on the date of the proposed continuation and the Administrative
Agent has or the Required Lenders have determined in its or their sole
discretion not to permit such longer interest period and (v) Borrowings
resulting from conversions pursuant to this Section 2.6 shall be limited in
number as provided in Section 2.2. Notwithstanding clause (i) above, if the
Dollar Equivalent of any Foreign Currency Revolving Credit Loan at the end of
the Interest Period applicable thereto does not exceed by more than 5%, and is
not less than 95% of, the Dollar Equivalent of such Foreign Currency Revolving
Credit Loan on the relevant Denomination Date, then the Borrower may refinance
such Foreign Currency Revolving Credit Loan with a new Foreign Currency
Revolving Credit Loan with the same principal amount and in the same currency at
the end of such Interest Period, notwithstanding that the Dollar Equivalent of
the new Foreign Currency Revolving Credit Loan is not an integral multiple of
$100,000. For purposes of this Section, any Foreign Currency Borrowing shall be
deemed to be in an amount equal to the Dollar Equivalent of such Foreign
Currency Borrowing determined as of its Denomination Date. Each such conversion
or continuation shall be effected by the Borrower by giving the Administrative
Agent at the locations set forth in Section 13.2 prior to (a) 12:00 Noon (London
time) in the case of Term Loans and Dollar Revolving Credit Loans, (b) 11:00
A.M. (London time) in the case of Sterling Revolving Credit Loans and Euro
Revolving Credit Loans and (c) 11:00 A.M. (Tokyo time) in the case of Yen
Revolving Credit Loans, at least three Business Days' (or one Business Day's
notice in the case of a conversion into ABR Loans) prior written notice (or
telephonic notice promptly confirmed in writing) (each a "NOTICE OF CONVERSION
OR CONTINUATION") specifying the Term Loans or Revolving Credit Loans to be so
converted or continued, the Type of Term Loans or Revolving Credit Loans to be
converted or continued into and, if such Term Loans or Revolving Credit Loans
are to be converted into or continued as Eurodollar Term Loans or Eurodollar
Revolving Credit Loans, the Interest Period to be initially applicable thereto.
The Administrative Agent shall give each Lender notice as promptly as
practicable of any such proposed conversion or continuation affecting any of its
Term Loans or Revolving Credit Loans. This Section shall not be construed to
permit the Borrower to (i) change the currency of any Borrowing or (ii) convert
a Foreign Currency Borrowing to an ABR Borrowing.
(b) If any Default or Event of Default is in existence at the
time of any proposed continuation of any Eurodollar Term Loans or Eurodollar
Revolving Credit Loans and the Administrative Agent has or the Required Lenders
have determined in its or their sole discretion not to permit such continuation,
such Eurodollar Term Loans or Eurodollar Revolving Credit Loans (other than
Foreign Currency Revolving Credit Loans) shall be automatically converted on the
last day of the current Interest Period into ABR Loans. If upon the expiration
of any Interest Period in respect of Eurodollar Term Loans or Eurodollar
Revolving Credit Loans, the Borrower has failed to elect a new Interest Period
to be applicable thereto as provided in paragraph (a) above, the Borrower shall
be deemed to have elected to convert such Borrowing (other than any Foreign
Currency Borrowing) of Eurodollar Term Loans or Eurodollar Revolving Credit
Loans, as the case may be, into a Borrowing of ABR Loans effective as of the
expiration date of such
48
current Interest Period, or in the case of any Foreign Currency Borrowing, to
have elected a new Interest Period of one month.
2.7 PRO RATA BORROWINGS. Each Borrowing of Term Loans under
this Agreement shall be granted by the Lenders PRO RATA on the basis of their
then-applicable Term Loan Commitments. Each Borrowing of Dollar Revolving Credit
Loans and Sterling Revolving Credit Loans under this Agreement shall be granted
by the Lenders PRO RATA on the basis of their then-applicable Available
Revolving Credit Commitments. Each Borrowing of Euro Revolving Credit Loans
under this Agreement shall be granted by the Euro Lenders PRO RATA on the basis
of their then-applicable Euro Revolving Credit Commitments. Each Borrowing of
Yen Revolving Credit Loans under this Agreement shall be granted by the Yen
Lenders PRO RATA on the basis of their then-applicable Yen Revolving Credit
Commitments. It is understood that no Lender shall be responsible for any
default by any other Lender in its obligation to make Loans hereunder and that
each Lender shall be obligated to make the Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to fulfill its
commitments hereunder.
2.8 INTEREST. (a) The unpaid principal amount of each ABR Loan
shall bear interest from the date of the Borrowing thereof until maturity
(whether by acceleration or otherwise) at a rate per annum that shall at all
times be the Applicable ABR Margin plus the ABR in effect from time to time.
(b) The unpaid principal amount of each Eurodollar Term Loan
or Eurodollar Revolving Credit Loan shall bear interest from the date of the
Borrowing thereof until maturity thereof (whether by acceleration or otherwise)
at a rate per annum that shall at all times be the Applicable Eurodollar Margin
in effect from time to time plus the relevant Eurodollar Rate.
(c) If all or a portion of (i) the principal amount of any
Loan or (ii) any interest payable thereon 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 that is (x) in the case of overdue principal,
the rate that would otherwise be applicable thereto PLUS 2% or (y) in the case
of any overdue interest, to the extent permitted by applicable law, the rate
described in Section 2.8(a) PLUS 2% from and including the date of such
non-payment to but excluding the date on which such amount is paid in full
(after as well as before judgment).
(d) Interest on each Loan shall accrue from and including the
date of any Borrowing to but excluding the date of any repayment thereof and
shall be payable (i) in respect of each ABR Loan, quarterly in arrears on the
last day of each March, June, September and December, (ii) in respect of each
Eurodollar Term Loan or Eurodollar Revolving Credit Loan, on the last day of
each Interest Period applicable thereto and, in the case of an Interest Period
in excess of three months, on each date occurring at three-month intervals after
the first day of such Interest Period, (iii) in respect of each Loan (except, in
the case of prepayments, any ABR Loan), on any prepayment (on the amount
prepaid), at maturity (whether by acceleration or otherwise) and, after such
maturity, on demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 5.5.
(f) The Administrative Agent, upon determining the interest
rate for any Borrowing of Eurodollar Loans, shall promptly notify the Borrower
and the relevant Lenders thereof. Each such determination shall, absent clearly
demonstrable error, be final and conclusive and binding on all parties hereto.
2.9 INTEREST PERIODS. At the time the Borrower gives a Notice
of Borrowing or Notice of Conversion or Continuation in respect of the making
of, or conversion into or
49
continuation as, a Borrowing of Eurodollar Term Loans or Eurodollar Revolving
Credit Loans (in the case of the initial Interest Period applicable thereto) or
prior to (a) 10:00 A.M. (London time) in the case of Term Loans and Dollar
Revolving Credit Loans, (b) 11:00 A.M. (London time) in the case of Sterling
Revolving Credit Loans and Euro Revolving Credit Loans and (c) 11:00 A.M. (Tokyo
time) in the case of Yen Revolving Credit Loans, on the third Business Day prior
to the expiration of an Interest Period applicable to a Borrowing of Eurodollar
Term Loans or Eurodollar Revolving Credit Loans, the Borrower shall have the
right to elect by giving the Administrative Agent written notice (or telephonic
notice promptly confirmed in writing) the Interest Period applicable to such
Borrowing, which Interest Period shall, at the option of the Borrower, be a one,
two, three, six or (in the case of Revolving Credit Loans, if available to all
the Lenders making such loans as determined by such Lenders in good faith based
on prevailing market conditions) a nine or twelve month period, PROVIDED that
the initial Interest Period may be for a period less than one month if agreed
upon by the Borrower and the Administrative Agent. Notwithstanding anything to
the contrary contained above:
(a) the initial Interest Period for any Borrowing of
Eurodollar Term Loans or Eurodollar Revolving Credit Loans shall commence on the
date of such Borrowing (including the date of any conversion from a Borrowing of
ABR Loans) and each Interest Period occurring thereafter in respect of such
Borrowing shall commence on the day on which the next preceding Interest Period
expires;
(b) if any Interest Period relating to a Borrowing of
Eurodollar Term Loans or Eurodollar Revolving Credit Loans begins on the last
Business Day of a calendar month or begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period, such Interest Period shall end on the last Business Day of the calendar
month at the end of such Interest Period;
(c) if any Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, PROVIDED that if any Interest Period in respect of a
Eurodollar Term Loan or Eurodollar Revolving Credit Loan would otherwise expire
on a day that is not a Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day; and
(d) the Borrower shall not be entitled to elect any Interest
Period in respect of any Eurodollar Term Loan or Eurodollar Revolving Credit
Loan if such Interest Period would extend beyond the applicable Maturity Date of
such Loan.
2.10 INCREASED COSTS, ILLEGALITY, ETC. (a) In the event that
(x) in the case of clause (i) below, the Administrative Agent or (y) in the case
of clauses (ii) and (iii) below, any Lender shall have reasonably determined
(which determination shall, absent clearly demonstrable error, be final and
conclusive and binding upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for a
Eurodollar Borrowing for any Interest Period that (x) deposits in the
principal amounts of the Loans comprising such Eurodollar Borrowing and
in the currency in which such Loan is to be denominated are not
generally available in the relevant market or (y) by reason of any
changes arising on or after the date hereof affecting the interbank
eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in
the definition of Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased costs
or reductions in the amounts received or receivable hereunder with
respect to any Eurodollar Loans (other than any such increase or
reduction attributable to taxes) because of (x) any change since
50
the date hereof in any applicable law, governmental rule, regulation,
guideline or order (or in the interpretation or administration thereof
and including the introduction of any new law or governmental rule,
regulation, guideline or order), such as, for example, but not limited
to, a change in official reserve requirements, and/or (y) other
circumstances affecting the interbank eurodollar market or the position
of such Lender in such market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has become unlawful by compliance by such Lender in
good faith with any law, governmental rule, regulation, guideline or
order (or would conflict with any such governmental rule, regulation,
guideline or order not having the force of law even though the failure
to comply therewith would not be unlawful), or has become impracticable
as a result of a contingency occurring after the date hereof that
materially and adversely affects the interbank eurodollar market;
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i) above) shall within a reasonable time thereafter give notice
(if by telephone confirmed in writing) to the Borrower and to the Administrative
Agent of such determination (which notice the Administrative Agent shall
promptly transmit to each of the other Lenders). Thereafter (x) in the case of
clause (i) above, Eurodollar Term Loans and Eurodollar Revolving Credit Loans
shall no longer be available until such time as the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such
notice by the Administrative Agent no longer exist (which notice the
Administrative Agent agrees to give at such time when such circumstances no
longer exist), and any Notice of Borrowing or Notice of Conversion given by the
Borrower with respect to Eurodollar Term Loans or Eurodollar Revolving Credit
Loans that have not yet been incurred shall be deemed rescinded by the Borrower,
(y) in the case of clause (ii) above, the Borrower shall pay to such Lender,
promptly after receipt of written demand therefor, such additional amounts (in
the form of an increased rate of, or a different method of calculating, interest
or otherwise as such Lender in its reasonable discretion shall determine) as
shall be required to compensate such Lender for such increased costs or
reductions in amounts receivable hereunder (it being agreed that a written
notice as to the additional amounts owed to such Lender, showing in reasonable
detail the basis for the calculation thereof, submitted to the Borrower by such
Lender shall, absent clearly demonstrable error, be final and conclusive and
binding upon all parties hereto) and (z) in the case of clause (iii) above, the
Borrower shall take one of the actions specified in Section 2.10(b) as promptly
as possible and, in any event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 2.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected pursuant to Section 2.10(a)(iii)
shall) either (i) if the affected Eurodollar Loan is then being made pursuant to
a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic
notice (confirmed promptly in writing) thereof on the same date that the
Borrower was notified by a Lender pursuant to Section 2.10(a)(ii) or (iii) or
(ii) if the affected Eurodollar Loan is then outstanding, upon at least three
Business Days' notice to the Administrative Agent, require the affected Lender
to convert each such Eurodollar Revolving Credit Loan and Eurodollar Term Loan
into an ABR Loan (such conversion to be made, in the case of a Foreign Currency
Revolving Credit Loan, into Dollars at the applicable Exchange Rate), PROVIDED
that if more than one Lender is affected at any time, then all affected Lenders
must be treated in the same manner pursuant to this Section 2.10(b).
(c) If, after the date hereof, the adoption of any applicable
law, rule or regulation regarding capital adequacy, or any change therein, or
any change in the interpretation or administration thereof by any governmental
authority, the National Association of Insurance Commissioners, central bank or
comparable agency charged with the interpretation or
51
administration thereof, or compliance by a Lender or its parent with any request
or directive made or adopted after the date hereof regarding capital adequacy
(whether or not having the force of law) of any such authority, association,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on such Lender's or its parent's capital or assets as a
consequence of such Lender's commitments or obligations hereunder to a level
below that which such Lender or its parent could have achieved but for such
adoption, effectiveness, change or compliance (taking into consideration such
Lender's or its parent's policies with respect to capital adequacy), then from
time to time, promptly after demand by such Lender (with a copy to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender or its parent for such
reduction, it being understood and agreed, however, that a Lender shall not be
entitled to such compensation as a result of such Lender's compliance with, or
pursuant to any request or directive to comply with, any such law, rule or
regulation as in effect on the date hereof. Each Lender, upon determining in
good faith that any additional amounts will be payable pursuant to this Section
2.10(c), will give prompt written notice thereof to the Borrower, which notice
shall set forth in reasonable detail the basis of the calculation of such
additional amounts, although the failure to give any such notice shall not,
subject to Section 2.13, release or diminish any of the Borrower's obligations
to pay additional amounts pursuant to this Section 2.10(c) upon receipt of such
notice.
(d) Notwithstanding the foregoing, in the case of Sterling
Loans, Euro Revolving Credit Loans and Yen Revolving Credit Loans affected by
the circumstances described in Section 2.10(a)(i), as promptly as practicable
but in no event later than three Business Days after the giving of the required
notice by the Administrative Agent with respect to such circumstances, the
Administrative Agent (in consultation with the Lenders) shall negotiate with the
Borrower in good faith in order to ascertain whether a substitute interest rate
(a "Substitute Rate") may be agreed upon for the maintaining of existing
Sterling Loans, Euro Revolving Credit Loans or Yen Revolving Credit Loans, as
applicable. If a Substitute Rate is agreed upon by the Borrower and all the
Lenders, such Substitute Rate shall apply. If a Substitute Rate is not so agreed
upon by the Borrower and all the Lenders within such time, each Lender's
Sterling Loans, Euro Revolving Credit Loans or Yen Revolving Credit Loans, as
applicable, shall thereafter bear interest at a rate equal to the sum of (i) the
rate certified by such Lender to be its costs of funds (from such sources as it
may reasonably select out of those sources then available to it) for such
Sterling Loans, Euro Revolving Credit Loans or Yen Revolving Credit Loans, as
applicable, PLUS (ii) the Applicable Eurodollar Margin PLUS (iii), in the case
of Sterling Loans only, any Additional Cost incurred by such Lender in respect
of such Sterling Loans from time to time.
2.11 COMPENSATION. If (a) any payment of principal of any
Eurodollar Term Loan or Eurodollar Revolving Credit Loan is made by the Borrower
to or for the account of a Lender other than on the last day of the Interest
Period for such Eurodollar Loan as a result of a payment or conversion pursuant
to Section 2.5, 2.6, 2.10, 5.1, 5.2 or 13.7, as a result of acceleration of the
maturity of the Loans pursuant to Section 11 or for any other reason, (b) any
Borrowing of Eurodollar Term Loans or Eurodollar Revolving Credit Loans is not
made as a result of a withdrawn Notice of Borrowing, (c) any ABR Loan is not
converted into a Eurodollar Term Loan or Eurodollar Revolving Credit Loan as a
result of a withdrawn Notice of Conversion or Continuation, (d) any Eurodollar
Loan is not continued as a Eurodollar Term Loan or Eurodollar Revolving Credit
Loan as a result of a withdrawn Notice of Conversion or Continuation or (e) any
prepayment of principal of any Eurodollar Term Loan or Eurodollar Revolving
Credit Loan is not made as a result of a withdrawn notice of prepayment pursuant
to Section 5.1 or 5.2, the Borrower shall, after receipt of a written request by
such Lender (which request shall set forth in reasonable detail the basis for
requesting such amount), pay to the Administrative Agent for the account of such
Lender any amounts required to compensate such Lender for any additional losses,
costs or expenses that such Lender may reasonably incur as a result of such
payment, failure to convert, failure to continue or failure to prepay,
including, without limitation, any loss sustained in converting between any
Foreign Currency and Dollars and any loss, cost or expense
52
(excluding loss of anticipated profits) actually incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender to
fund or maintain such Eurodollar Loan.
2.12 CHANGE OF LENDING OFFICE. Each Lender agrees that, upon
the occurrence of any event giving rise to the operation of Section 2.10(a)(ii),
2.10(a)(iii), 2.10(b), 3.5 or 5.4 with respect to such Lender, it will, if
requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any Loans
affected by such event, PROVIDED that such designation is made on such terms
that such Lender and its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving
rise to the operation of any such Section. Nothing in this Section 2.12 shall
affect or postpone any of the obligations of the Borrower or the right of any
Lender provided in Section 2.10, 3.5 or 5.4.
2.13 NOTICE OF CERTAIN COSTS. Notwithstanding anything in this
Agreement to the contrary, to the extent any notice required by Section 2.10,
2.11, 3.5 or 5.4 is given by any Lender more than 180 days after such Lender has
knowledge (or should have had knowledge) of the occurrence of the event giving
rise to the additional cost, reduction in amounts, loss, tax or other additional
amounts described in such Sections, such Lender shall not be entitled to
compensation under Section 2.10, 2.11, 3.5 or 5.4, as the case may be, for any
such amounts incurred or accruing prior to the giving of such notice to the
Borrower.
2.14. REDESIGNATION OF $75,000,000 OF TRANCHE B TERM LOANS AND
TRANCHE C TERM LOANS. (a) On the Restatement Date, $25,000,000 of the Tranche B
Term Loans and $50,000,000 of the Tranche C Term Loans, in each case outstanding
immediately prior to the Restatement Date, shall be redesignated as Tranche A
Term Loans such that, after giving effect to such redesignation of Tranche B
Term Loans and Tranche C Term Loans, the outstanding Tranche A Term Loans,
Tranche B Term Loans and Tranche C Term Loans for each Lender shall be as
described on Schedule 1.1.
(b) No Lender shall have an obligation to make any additional
Term Loans, other than Term Loans made pursuant to continuations or conversions
of Term Loans outstanding on the Restatement Date.
SECTION 3. LETTERS OF CREDIT.
3.1 LETTERS OF CREDIT. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower, at any time and from time to time on
or after the Closing Date and prior to the L/C Maturity Date, may request that
the Letter of Credit Issuer issue, for the account of the Borrower, a standby
letter of credit or letters of credit in such form as may be approved by the
Letter of Credit Issuer in its reasonable discretion. Each Letter of Credit
shall provide for drawings thereunder to be made in Dollars or, subject to
Section 3.7, Sterling.
(b) Notwithstanding the foregoing, (i) no Letter of Credit
shall be issued the Stated Amount of which, when added to the Letter of Credit
Outstanding at such time, would exceed the Letter of Credit Commitment then in
effect; (ii) no Letter of Credit shall be issued the Stated Amount of which,
when added to the sum of (x) the Letter of Credit Outstanding at such time and
(y) the aggregate principal of all Revolving Credit Loans and Swingline Loans
then outstanding, would exceed the Total Revolving Credit Commitment then in
effect; (iii) each Letter of Credit shall have an expiry date occurring no later
than one year after the date of issuance thereof, unless otherwise agreed upon
by the Administrative Agent and the Letter of Credit Issuer, PROVIDED that in no
event shall such expiry date occur later than the L/C Maturity Date; (iv) each
Letter of Credit shall be denominated in Dollars; and (v) no Letter of Credit
shall
53
be issued by the Letter of Credit Issuer after it has received a written notice
from the Borrower or any Lender stating that a Default or Event of Default has
occurred and is continuing until such time as the Letter of Credit Issuer shall
have received a written notice of (x) rescission of such notice from the party
or parties originally delivering such notice or (y) the waiver of such Default
or Event of Default in accordance with the provisions of Section 13.1.
(c) Upon at least one Business Day's prior written notice (or
telephonic notice promptly confirmed in writing) to the Administrative Agent and
the Letter of Credit Issuer (which notice the Administrative Agent shall
promptly transmit to each of the Lenders), the Borrower shall have the right, on
any day, permanently to terminate or reduce the Letter of Credit Commitment in
whole or in part, PROVIDED that, after giving effect to such termination or
reduction, the Letter of Credit Outstanding shall not exceed the Letter of
Credit Commitment.
3.2 LETTER OF CREDIT REQUESTS. (a) Whenever the Borrower
desires that a Letter of Credit be issued for its account, it shall give the
Administrative Agent and the Letter of Credit Issuer at least five (or such
lesser number as may be agreed upon by the Administrative Agent and the Letter
of Credit Issuer) Business Days' written notice thereof. Each notice shall be
executed by the Borrower and shall be in the form of Exhibit D (each a "LETTER
OF CREDIT REQUEST"). The Administrative Agent shall promptly transmit copies of
each Letter of Credit Request to each Lender.
(b) The making of each Letter of Credit Request shall be
deemed to be a representation and warranty by the Borrower that the Letter of
Credit may be issued in accordance with, and will not violate the requirements
of, Section 3.1(b).
3.3 LETTER OF CREDIT PARTICIPATIONS. (a) Immediately upon the
issuance by the Letter of Credit Issuer of any Letter of Credit, the Letter of
Credit Issuer shall be deemed to have sold and transferred to each other Lender
that has a Revolving Credit Commitment (each such other Lender, in its capacity
under this Section 3.3, an "L/C PARTICIPANT"), and each such L/C Participant
shall be deemed irrevocably and unconditionally to have purchased and received
from the Letter of Credit Issuer, without recourse or warranty, an undivided
interest and participation (each an "L/C PARTICIPATION"), to the extent of such
L/C Participant's Revolving Credit Commitment Percentage from time to time, in
such Letter of Credit, each substitute letter of credit, each drawing made
thereunder and the obligations of the Borrower under this Agreement with respect
thereto, and any security therefor or guaranty pertaining thereto (although
Letter of Credit Fees will be paid directly to the Administrative Agent for the
ratable account of the L/C Participants as provided in Section 4.1(b) and the
L/C Participants shall have no right to receive any portion of any Fronting
Fees).
(b) In determining whether to pay under any Letter of Credit,
the Letter of Credit Issuer shall have no obligation relative to the L/C
Participants other than to confirm that any documents required to be delivered
under such Letter of Credit have been delivered and that they appear to comply
on their face with the requirements of such Letter of Credit. Any action taken
or omitted to be taken by the Letter of Credit Issuer under or in connection
with any Letter of Credit issued by it, if taken or omitted in the absence of
gross negligence or willful misconduct, shall not create for the Letter of
Credit Issuer any resulting liability.
(c) In the event that the Letter of Credit Issuer makes any
payment under any Letter of Credit issued by it and the Borrower shall not have
repaid such amount in full to the Letter of Credit Issuer pursuant to Section
3.4(a), the Letter of Credit Issuer shall promptly notify the Administrative
Agent and each L/C Participant of such failure, and each L/C Participant shall
promptly and unconditionally pay to the Administrative Agent, for the account of
the Letter of Credit Issuer, the amount of such L/C Participant's Revolving
Credit Commitment Percentage (determined as of the date of the notice referred
to above) of such unreimbursed payment in
54
Dollars and in same day funds; PROVIDED, HOWEVER, that no L/C Participant shall
be obligated to pay to the Administrative Agent for the account of the Letter of
Credit Issuer its Revolving Credit Commitment Percentage of such unreimbursed
amount arising from any wrongful payment made by the Letter of Credit Issuer
under a Letter of Credit as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of the Letter of Credit Issuer. If
the Letter of Credit Issuer so notifies, prior to 11:00 A.M. (New York time) on
any Business Day, any L/C Participant required to fund a payment under a Letter
of Credit, such L/C Participant shall make available to the Administrative Agent
for the account of the Letter of Credit Issuer such L/C Participant's Revolving
Credit Commitment Percentage of the amount of such payment on such Business Day
in same day funds. If and to the extent such L/C Participant shall not have so
made its Revolving Credit Commitment Percentage of the amount of such payment
available to the Administrative Agent for the account of the Letter of Credit
Issuer, such L/C Participant agrees to pay to the Administrative Agent for the
account of the Letter of Credit Issuer, forthwith on demand, such amount,
together with interest thereon for each day from such date until the date such
amount is paid to the Administrative Agent for the account of the Letter of
Credit Issuer at the Federal Funds Effective Rate. The failure of any L/C
Participant to make available to the Administrative Agent for the account of the
Letter of Credit Issuer its Revolving Credit Commitment Percentage of any
payment under any Letter of Credit shall not relieve any other L/C Participant
of its obligation hereunder to make available to the Administrative Agent for
the account of the Letter of Credit Issuer its Revolving Credit Commitment
Percentage of any payment under such Letter of Credit on the date required, as
specified above, but no L/C Participant shall be responsible for the failure of
any other L/C Participant to make available to the Administrative Agent such
other L/C Participant's Revolving Credit Commitment Percentage of any such
payment.
(d) Whenever the Letter of Credit Issuer receives a payment in
respect of an unpaid reimbursement obligation as to which the Administrative
Agent has received for the account of the Letter of Credit Issuer any payments
from the L/C Participants pursuant to paragraph (c) above, the Letter of Credit
Issuer shall pay to the Administrative Agent and the Administrative Agent shall
promptly pay to each L/C Participant that has paid its Revolving Credit
Commitment Percentage of such reimbursement obligation, in Dollars and in same
day funds, an amount equal to such L/C Participant's share (based upon the
proportionate aggregate amount originally funded by such L/C Participant to the
aggregate amount funded by all L/C Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of the
respective L/C Participations.
(e) The obligations of the L/C Participants to make payments
to the Administrative Agent for the account of the Letter of Credit Issuer with
respect to Letters of Credit shall be irrevocable and not subject to
counterclaim, set-off or other defense or any other qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of this
Agreement under all circumstances, including, without limitation, any of the
following circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other
right that the Borrower may have at any time against a beneficiary
named in a Letter of Credit, any transferee of any Letter of Credit (or
any Person for whom any such transferee may be acting), the
Administrative Agent, the Letter of Credit Issuer, any Lender or other
Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the Borrower
and the beneficiary named in any such Letter of Credit);
55
(iii) any draft, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default;
PROVIDED, HOWEVER, that no L/C Participant shall be obligated to pay to the
Administrative Agent for the account of the Letter of Credit Issuer its
Revolving Credit Commitment Percentage of any unreimbursed amount arising from
any wrongful payment made by the Letter of Credit Issuer under a Letter of
Credit as a result of acts or omissions constituting willful misconduct or gross
negligence on the part of the Letter of Credit Issuer.
3.4 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS. (a) The
Borrower hereby agrees to reimburse the Letter of Credit Issuer, by making
payment to the Administrative Agent in Dollars in immediately available funds at
the Administrative Agent's Office, for any payment or disbursement made by the
Letter of Credit Issuer under any Letter of Credit (each such amount so paid
until reimbursed, an "UNPAID DRAWING") immediately after, and in any event on
the date of, such payment, with interest on the amount so paid or disbursed by
the Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 P.M.
(New York time) on the date of such payment or disbursement, from and including
the date paid or disbursed to but excluding the date the Letter of Credit Issuer
is reimbursed therefor, at a rate per annum that shall at all times be the
Applicable ABR Margin plus the ABR as in effect from time to time, PROVIDED
that, notwithstanding anything contained in this Agreement to the contrary, (i)
unless the Borrower shall have notified the Administrative Agent and the Letter
of Credit Issuer prior to (A) 10:00 A.M. on the date of such drawing or (B) in
the case of drawings on and after the Term Loan Funding Date under Letters of
Credit issued to the Issuing Lender (as defined in the Credit Agreement relating
to the Senior Bridge Facility) in respect of such Issuing Lender's guarantees of
the Guaranteed Loan Notes, 10:00 A.M. on the day after the date of such drawing
that the Borrower intends to reimburse the Letter of Credit Issuer for the
amount of such drawing with funds other than the proceeds of Loans, the Borrower
shall be deemed to have given a Notice of Borrowing to the Administrative Agent
requesting that the Lenders make Revolving Credit Loans (which shall initially
be ABR Loans) on the date on which such drawing is honored in an amount equal to
the amount of such drawing and (ii) each Lender shall, on such date, make
Revolving Credit Loans in an amount equal to such Lender's pro rata portion of
such Borrowing in accordance with the provisions of Section 2.4.
(b) The Borrower's obligations under this Section 3.4 to
reimburse the Letter of Credit Issuer with respect to Unpaid Drawings
(including, in each case, interest thereon) shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment that the Borrower or any other Person may have or have had
against the Letter of Credit Issuer, the Administrative Agent or any Lender
(including in its capacity as an L/C Participant), including, without
limitation, any defense based upon the failure of any drawing under a Letter of
Credit (each a "DRAWING") to conform to the terms of the Letter of Credit or any
non-application or misapplication by the beneficiary of the proceeds of such
Drawing, PROVIDED that the Borrower shall not be obligated to reimburse the
Letter of Credit Issuer for any wrongful payment made by the Letter of Credit
Issuer under the Letter of Credit issued by it as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of the Letter of
Credit Issuer.
(c) Each payment by the Letter of Credit Issuer under any
Letter of Credit shall constitute a request by the Borrower for an ABR Revolving
Credit Loan in the amount of the
56
Unpaid Drawing in respect of such Letter of Credit. The Letter of Credit Issuer
shall notify the Borrower and the Administrative Agent, by 10:00 A.M. (New York
time) on any Business Day on which the Letter of Credit Issuer intends to honor
a drawing under a Letter of Credit, of (i) the Letter of Credit Issuer's
intention to honor such drawing and (ii) the amount of such drawing. Unless
otherwise instructed by the Borrower by 10:30 A.M. (New York time) on such
Business Day, the Administrative Agent shall promptly notify each Lender of such
drawing and the amount of its Revolving Credit Loan to be made in respect
thereof, and each Lender shall be irrevocably obligated to make an ABR Revolving
Credit Loan to the Borrower in the amount of its Revolving Credit Commitment
Percentage of the applicable Unpaid Drawing by 12:00 Noon (New York time) on
such Business Day by making the amount of such Revolving Credit Loan available
to the Administrative Agent at the Administrative Agent's Office. Such Revolving
Credit Loans shall be made without regard to the Minimum Borrowing Amount. The
Administrative Agent shall use the proceeds of such Revolving Credit Loans
solely for purpose of reimbursing the Letter of Credit Issuer for the related
Unpaid Drawing.
3.5 INCREASED COSTS. If after the date hereof, the adoption of
any applicable law, rule or regulation, or any change therein, or any change in
the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or actual compliance by the Letter of Credit Issuer or
any L/C Participant with any request or directive made or adopted after the date
hereof (whether or not having the force of law), by any such authority, central
bank or comparable agency shall either (a) impose, modify or make applicable any
reserve, deposit, capital adequacy or similar requirement against letters of
credit issued by the Letter of Credit Issuer, or any L/C Participant's L/C
Participation therein, or (b) impose on the Letter of Credit Issuer or any L/C
Participant any other conditions affecting its obligations under this Agreement
in respect of Letters of Credit or L/C Participations therein or any Letter of
Credit or such L/C Participant's L/C Participation therein; and the result of
any of the foregoing is to increase the cost to the Letter of Credit Issuer or
such L/C Participant of issuing, maintaining or participating in any Letter of
Credit, or to reduce the amount of any sum received or receivable by the Letter
of Credit Issuer or such L/C Participant hereunder (other than any such increase
or reduction attributable to taxes) in respect of Letters of Credit or L/C
Participations therein, then, promptly after receipt of written demand to the
Borrower by the Letter of Credit Issuer or such L/C Participant, as the case may
be (a copy of which notice shall be sent by the Letter of Credit Issuer or such
L/C Participant to the Administrative Agent), the Borrower shall pay to the
Letter of Credit Issuer or such L/C Participant such additional amount or
amounts as will compensate the Letter of Credit Issuer or such L/C Participant
for such increased cost or reduction, it being understood and agreed, however,
that the Letter of Credit Issuer or a L/C Participant shall not be entitled to
such compensation as a result of such Person's compliance with, or pursuant to
any request or directive to comply with, any such law, rule or regulation as in
effect on the date hereof. A certificate submitted to the Borrower by the Letter
of Credit Issuer or a L/C Participant, as the case may be (a copy of which
certificate shall be sent by the Letter of Credit Issuer or such L/C Participant
to the Administrative Agent), setting forth in reasonable detail the basis for
the determination of such additional amount or amounts necessary to compensate
the Letter of Credit Issuer or such L/C Participant as aforesaid shall be
conclusive and binding on the Borrower absent clearly demonstrable error.
3.6 SUCCESSOR LETTER OF CREDIT ISSUER. The Letter of Credit
Issuer may resign as Letter of Credit Issuer upon 60 days' prior written notice
to the Administrative Agent, the Lenders and the Borrower. If the Letter of
Credit Issuer shall resign as Letter of Credit Issuer under this Agreement, then
the Borrower shall appoint from among the Lenders with Revolving Credit
Commitments a successor issuer of Letters of Credit, whereupon such successor
issuer shall succeed to the rights, powers and duties of the Letter of Credit
Issuer, and the term "Letter of Credit Issuer" shall mean such successor issuer
effective upon such appointment. At the time such resignation shall become
effective, the Borrower shall pay to the resigning Letter of Credit
57
Issuer all accrued and unpaid fees pursuant to Sections 4.1(c) and (d). The
acceptance of any appointment as the Letter of Credit Issuer hereunder by a
successor Lender shall be evidenced by an agreement entered into by such
successor, in a form satisfactory to the Borrower and the Administrative Agent
and, from and after the effective date of such agreement, such successor Lender
shall have all the rights and obligations of the previous Letter of Credit
Issuer under this Agreement and the other Credit Documents. After the
resignation of the Letter of Credit Issuer hereunder, the resigning Letter of
Credit Issuer shall remain a party hereto and shall continue to have all the
rights and obligations of a Letter of Credit Issuer under this Agreement and the
other Loan Documents with respect to Letters of Credit issued by it prior to
such resignation, but shall not be required to issue additional Letters of
Credit. After any retiring Letter of Credit Issuer's resignation as Letter of
Credit Issuer, the provisions of this Agreement relating to the Letter of Credit
Issuer shall inure to its benefit as to any actions taken or omitted to be taken
by it (a) while it was Letter of Credit Issuer under this Agreement or (b) at
any time with respect to Letters of Credit issued by such Letter of Credit
Issuer.
3.7 STERLING-DENOMINATED LETTERS OF CREDIT. (a) The Borrower
may request the issuance of a Letter of Credit providing for the payment of
drawings in Sterling subject to the terms and conditions of this Section 3.7, in
addition to the other conditions applicable to the issuance of Letters of Credit
hereunder.
(b) For purposes of determining the Letter of Credit Exposure
and for purposes of calculating fees payable under Section 4.1(b), the amount of
such Letter of Credit and of any unreimbursed payment in respect thereof shall
be deemed to be, as of any date of determination, the Dollar Equivalent thereof
at such date. The initial Dollar Equivalent of any such Letter of Credit shall
be determined by the Issuing Bank on the date of issuance thereof and adjusted
from time to time thereafter as provided below. The Dollar Equivalent of each
such Letter of Credit outstanding shall be adjusted by the Issuing Bank on each
Calculation Date. If a payment is made by the Issuing Bank under any such Letter
of Credit, the Dollar Equivalent of such payment shall be determined by the
Issuing Bank on the date that such payment is made. The Issuing Bank shall make
each such determination to be made by it based upon the applicable Exchange
Rate, except that the Dollar Equivalent of such payment may, at the option of
the Issuing Bank, be made by the Issuing Bank by calculating the amount in
Dollars that is actually required in order for the Issuing Bank to purchase an
amount of Sterling equal to the amount of the relevant payment in order to make
such payment, taking into account all foreign exchange costs actually incurred
by the Issuing Bank. The Issuing Bank shall notify the Administrative Agent and
the Borrower promptly of each such Dollar Equivalent determined by it, on the
date that such determination is required to be made.
(c) The obligation of the Borrower to reimburse the Issuing
Bank for any payment made by the Issuing Bank under any Letter of Credit
denominated in Sterling, and to pay interest thereon, shall be payable only in
Sterling, and shall not be discharged by paying an amount in Dollars or any
other currency.
(d) The obligations of each Lender under Section 3.3(c) to pay
its Revolving Credit Commitment Percentage of any unreimbursed payment made by
the Issuing Bank under any Letter of Credit denominated in Sterling shall be
payable in Sterling.
SECTION 4. FEES; COMMITMENTS.
4.1 FEES. (a) The Borrower agrees to pay to the Administrative
Agent in Dollars, for the account of each Lender (in each case pro rata
according to the respective Available Revolving Credit Commitments of all such
Lenders), a commitment fee for each day from and including the Restatement Date
to but excluding the Final Date on the average daily unused
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Revolving Credit Commitment. Such commitment fee shall be payable in arrears (i)
on the last day of each March, June, September and December (for the three-month
period (or portion thereof) ended on such day and (ii) on the Final Date (for
the period ended on such date for which no payment has been received pursuant to
clause (i) above), and shall be computed for each day during such period at a
rate per annum equal to the Commitment Fee Rate in effect on such day on the
Available Commitments in effect on such day. Notwithstanding the foregoing, the
Borrower shall not be obligated to pay any amounts to any Defaulting Lender
pursuant to this Section 4.1.
(b) The Borrower agrees to pay to the Administrative Agent in
Dollars for the account of the Lenders PRO RATA on the basis of their respective
Letter of Credit Exposure, a fee in respect of each Letter of Credit (the
"LETTER OF CREDIT FEE"), for the period from and including the date of issuance
of such Letter of Credit to but not including the termination date of such
Letter of Credit computed at the per annum rate for each day equal to the
Applicable Eurodollar Margin for Revolving Credit Loans minus 0.25% per annum on
the average daily Stated Amount of such Letter of Credit. Such Letter of Credit
Fees shall be due and payable quarterly in arrears on the last day of each
March, June, September and December and on the date upon which the Total
Revolving Credit Commitment terminates and the Letter of Credit Outstandings
shall have been reduced to zero.
(c) The Borrower agrees to pay to the Administrative Agent in
Dollars for the account of the Letter of Credit Issuer a fee in respect of each
Letter of Credit issued by it (the "FRONTING FEE"), for the period from and
including the date of issuance of such Letter of Credit to but not including the
termination date of such Letter of Credit, computed at the rate for each day
equal to 0.25% per annum on the average daily Stated Amount of such Letter of
Credit. Such Fronting Fees shall be due and payable quarterly in arrears on the
last day of each March, June, September and December and on the date upon which
the Total Revolving Credit Commitment terminates and the Letter of Credit
Outstandings shall have been reduced to zero.
(d) The Borrower agrees to pay directly to the Letter of
Credit Issuer in Dollars upon each issuance of, drawing under, and/or amendment
of, a Letter of Credit issued by it such amount as the Letter of Credit Issuer
and the Borrower shall have agreed upon for issuances of, drawings under or
amendments of, letters of credit issued by it.
(e) The Borrower agrees to pay to the Administrative Agent in
Dollars, for the benefit of the Administrative Agent, the fees in the amounts
and on the dates previously agreed to in writing by Newco 4 and the
Administrative Agent. The Administrative Agent agrees to pay to each Lender, on
behalf of the Administrative Agent, for each Lender's own account, the fees in
the amounts and on the dates previously agreed to in writing by the
Administrative Agent and such Lender.
4.2 VOLUNTARY REDUCTION OF REVOLVING CREDIT COMMITMENTS. Upon
at least one Business Day's prior written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent at the Administrative Agent's
Office (which notice the Administrative Agent shall promptly transmit to each of
the Lenders), the Borrower shall have the right, without premium or penalty, on
any day, permanently to terminate or reduce the Revolving Credit Commitments in
whole or in part, PROVIDED that (a) any such reduction shall apply
proportionately and permanently to reduce the Revolving Credit Commitment of
each of the Lenders, (b) any partial reduction pursuant to this Section 4.2
shall be in the amount of at least $1,000,000, (c) after giving effect to such
termination or reduction and to any prepayments of the Loans made on the date
thereof in accordance with this Agreement, the sum of (i) the aggregate
outstanding principal amount of the Revolving Credit Loans and the Swingline
Loans and (ii) the Letter of Credit Outstandings shall not exceed the Total
Revolving Credit Commitment, PROVIDED that the principal amount of any Loan and
the amount of any Letter of Credit Outstandings
59
denominated in a Foreign Currency shall be deemed to be, as of such date, the
Dollar Equivalent thereof at such date and (d) if, after giving effect to such
reduction, the Total Revolving Credit Commitment is less than the aggregate
amount of (i) all the Euro Revolving Credit Commitments or (ii) all the Yen
Revolving Credit Commitments (such difference, the "EXCESS AMOUNT"), then the
Euro Revolving Credit Commitments or Yen Revolving Credit Commitments, as
applicable, shall automatically be reduced by the Excess Amount, PROVIDED that
any such reduction pursuant to this clause (d) shall apply proportionately and
permanently to reduce the Euro Revolving Credit Commitment or Yen Revolving
Commitment, as applicable, of each of the Euro Lenders or Yen Lenders, as
applicable.
4.3 MANDATORY TERMINATION OF COMMITMENTS. (a) The Total Term
Loan Commitment shall terminate at 5:00 P.M. (New York time) on the date that is
nine months after the date hereof.
(b) The Total Revolving Credit Commitment, the Euro Revolving
Credit Commitments and the Yen Revolving Credit Commitments shall terminate at
5:00 P.M. (New York time) on the Revolving Credit Maturity Date.
(c) The Swingline Commitment shall terminate at 5:00 P.M. (New
York time) on the Swingline Maturity Date.
SECTION 5. PAYMENTS.
5.1 VOLUNTARY PREPAYMENTS. The Borrower shall have the right
to prepay Term Loans, Revolving Credit Loans and Swingline Loans, without
premium or penalty, in whole or in part from time to time on the following terms
and conditions: (a) the Borrower shall give the Administrative Agent at the
Administrative Agent's Office written notice (or telephonic notice promptly
confirmed in writing) of its intent to make such prepayment, the amount of such
prepayment and (in the case of Eurodollar Term Loans and Eurodollar Revolving
Credit Loans) the specific Borrowing(s) pursuant to which made, which notice
shall be given by the Borrower no later than (i) in the case of Term Loans or
Dollar Revolving Credit Loans, 10:00 A.M. (New York time) one Business Day prior
to, (ii) in the case of Sterling Revolving Credit Loans and Euro Revolving
Credit Loans, 10:00 A.M. (London time), three Business Days prior to, (iii) in
the case of Yen Revolving Credit Loans, 10:00 A.M. (Tokyo time), three Business
Days prior to, or (iv) in the case of Swingline Loans, 10:00 A.M. (New York
time) on, the date of such prepayment and shall promptly be transmitted by the
Administrative Agent to each of the Lenders or Chase, as the case may be; (b)
each partial prepayment of any Borrowing of Term Loans or Revolving Credit Loans
shall be in an amount that is (or, in the case of any Foreign Currency Revolving
Credit Loan, the Dollar Equivalent of which, determined as of the Denomination
Date for the relevant Loan or Loans, is) a multiple of $100,000 and in an
aggregate principal amount (calculated by using the Dollar Equivalent at such
time of the principal amount of any Foreign Currency Revolving Loan) of at least
$1,000,000 and each partial prepayment of Swingline Loans shall be in an amount
that is (or, in the case of any Sterling Swingline Loan, the Dollar Equivalent
of which, determined as of the Denomination Date for the relevant Loan or Loans,
is) a multiple of $100,000 and in an aggregate principal amount (calculated by
using the Dollar Equivalent at such time of the principal amount of any Sterling
Swingline Loan) of at least $100,000, PROVIDED that no partial prepayment of
Eurodollar Term Loans or Eurodollar Revolving Credit Loans made pursuant to a
single Borrowing shall reduce the outstanding Eurodollar Term Loans or
Eurodollar Revolving Credit Loans made pursuant to such Borrowing to an amount
less than the Minimum Borrowing Amount for Eurodollar Term Loans or Eurodollar
Revolving Credit Loans; (c) any prepayment of Eurodollar Term Loans or
Eurodollar Revolving Credit Loans pursuant to this Section 5.1 on any day other
than the last day of an Interest Period applicable thereto shall be subject to
compliance by the
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Borrower with the applicable provisions of Section 2.11; and (d) each prepayment
in respect of any one or more tranches of Term Loans or Revolving Credit Loans
made pursuant to a Borrowing shall be applied PRO RATA among such tranches of
Term Loans or Revolving Credit Loans made pursuant to such Borrowing, PROVIDED
that at the Borrower's election in connection with any prepayment pursuant to
this Section 5.1, such prepayment shall not be applied to any Term Loan or
Revolving Credit Loan of a Defaulting Lender. Each prepayment of Term Loans
pursuant to this Section 5.1 shall be (a) applied to Tranche A Term Loans,
Tranche B Term Loans, Tranche C Term Loans, Tranche D Term Loans or Revolving
Credit Loans in such manner as the Borrower may determine and (b) applied to
reduce the Repayment Amounts with respect to any such Term Loans in such order
as the Borrower may determine.
5.2 MANDATORY PREPAYMENTS. (a) TERM LOAN PREPAYMENTS. (i) On
each occasion that a Prepayment Event occurs, the Borrower shall, within five
Business Days after the occurrence of such Prepayment Event, offer to prepay, in
accordance with paragraph (c) below, the principal amount of Term Loans in an
amount equal to 100% of the Net Cash Proceeds from such Prepayment Event.
(ii) Not later than the date that is six months after the last
day of any fiscal year commencing with the fiscal year 1999, if the Consolidated
Total Debt to Consolidated EBITDA Ratio as of such day is equal to or greater
than 3.00 to 1.00, the Borrower shall offer to prepay, in accordance with
paragraph (c) below, the principal of Term Loans in an amount equal to (x) 50%
of Excess Cash Flow for such fiscal year MINUS (y) the sum of (A) the amount of
any such Excess Cash Flow that the Borrower has, prior to such date, reinvested
in the business of Parent or any of its Subsidiaries (subject to Section 9.14)
and (B) the amount of any prepayment of the Term Loans pursuant to Section 5.1
or prepayments of Revolving Credit Loans to the extent accompanied by reductions
of the Revolving Credit Commitments.
(b) AGGREGATE REVOLVING CREDIT OUTSTANDINGS. If on any date
the sum of the outstanding principal amount of the Dollar Revolving Credit Loans
and Swingline Loans, the aggregate amount of Letter of Credit Outstandings and
the aggregate Dollar Equivalent of the outstanding principal amount of the
Foreign Currency Revolving Credit Loans (all the foregoing, collectively, the
"AGGREGATE REVOLVING CREDIT OUTSTANDINGS") exceeds 105% of the Total Revolving
Credit Commitment as then in effect, the Borrower shall forthwith repay on such
date the principal amount of Swingline Loans and, after all Swingline Loans have
been paid in full, Revolving Credit Loans, in an amount equal to such excess.
If, after giving effect to the prepayment of all outstanding Swingline Loans and
Revolving Credit Loans, the Aggregate Revolving Credit Outstandings exceed the
Total Revolving Credit Commitment then in effect, the Borrower shall pay to the
Administrative Agent an amount in cash equal to such excess and the
Administrative Agent shall hold such payment for the benefit of the Lenders as
security for the obligations of the Borrower hereunder (including, without
limitation, obligations in respect of Letter of Credit Outstandings) pursuant to
a cash collateral agreement to be entered into in form and substance
satisfactory to the Administrative Agent (which shall permit certain investments
in Permitted Investments satisfactory to the Administrative Agent, until the
proceeds are applied to the secured obligations). If on any date the aggregate
amount of the Dollar Equivalents of the principal amounts of all outstanding
Euro Revolving Credit Loans and Yen Revolving Credit Loans exceeds $78,750,000,
the Borrower shall, on such day, prepay Euro Revolving Credit Loans or Yen
Revolving Credit Loans in an amount equal to such excess (after giving effect to
any other prepayment of Loans on such day). If on any date the aggregate amount
of the Dollar Equivalents of the principal amounts of all Euro Revolving Credit
Loans then outstanding exceeds 105% of the aggregate amount of all Euro
Revolving Credit Commitments on such date, the Borrower shall, on such day,
prepay Euro Revolving Credit Loans in an amount equal to such excess (after
giving effect to any other prepayment of Euro Revolving Credit Loans on such
day). If on any date the aggregate amount of the Dollar Equivalents of the
principal amounts of all Yen Revolving Credit Loans then outstanding exceeds
105% of the aggregate amount of all Yen
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Revolving Credit Commitments on such date, the Borrower shall, on such day,
prepay Yen Revolving Credit Loans in an amount equal to such excess (after
giving effect to any other prepayment of Yen Revolving Credit Loans on such
day).
(c) APPLICATION TO REPAYMENT AMOUNTS. An amount equal to each
prepayment of Term Loans required by Section 5.2(a)(i) shall be (i) allocated
PRO RATA among the Tranche A Term Loans, the Tranche B Term Loans, the Tranche C
Term Loans and the Tranche D Term Loans and (ii) applied (A) in the case of the
Tranche A Term Loans, to reduce the Tranche A Repayment Amounts in the manner
described in paragraph (iii) below and (B) in the case of each of the Tranche B
Term Loans, the Tranche C Term Loans and the Tranche D Term Loans, to reduce the
Repayment Amounts with respect to such Loans in the manner described in
paragraph (ii) below. Each prepayment of Term Loans pursuant to Section
5.2(a)(ii) shall be (a) allocated among the Tranche A Term Loans, the Tranche B
Term Loans, the Tranche C Term Loans and the Tranche D Term Loans in such manner
as the Borrower may determine and (b) applied (i) in the case of the Tranche A
Term Loans, to reduce the Tranche A Repayment Amounts in the manner described in
paragraph (iii) below and (ii) in the case of each of the Tranche B Term Loans,
the Tranche C Term Loans and the Tranche D Term Loans, to reduce the Repayment
Amounts with respect to such Loans in the manner described in paragraph (ii)
below.
(ii) Notwithstanding paragraph (i) above, with respect to the
amount of any mandatory prepayment described in Section 5.2(a) that is allocated
to the then-outstanding Tranche B Term Loans, Tranche C Term Loans or Tranche D
Term Loans (such amounts, the "TRANCHE B PREPAYMENT AMOUNT", the "TRANCHE C
PREPAYMENT AMOUNT" and the "TRANCHE D PREPAYMENT AMOUNT" , respectively), the
Borrower will, in lieu of applying such amount to the prepayment of Tranche B
Term Loans, Tranche C Term Loans and Tranche D Term Loans, respectively, as
provided in paragraph (i) above, on the date specified in Section 5.2(a) 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, Tranche C Lender and Tranche D Lender a notice
(each, a "PREPAYMENT OPTION NOTICE") as described below. As promptly as
practicable after such notice, the Administrative Agent will send to each
Tranche B Lender, Tranche C Lender and Tranche D Lender a Prepayment Option
Notice, which shall be in the form of Exhibit J-1, J-2 or J-3, as applicable,
and shall include an offer by the Borrower to prepay on a specified date (each a
"MANDATORY PREPAYMENT DATE"), which shall not be less than 20 days or more than
25 days after the date of the Prepayment Option Notice, the 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 and
such Lender's Tranche B Term Loans, Tranche C Term Loans and Tranche D Term
Loans, respectively. On the Mandatory Prepayment Date, (A) the Borrower shall
pay to the Administrative Agent the aggregate amount necessary to prepay that
portion of the outstanding Term Loans in respect of which Tranche B Lenders,
Tranche C Lenders and Tranche D Lenders have accepted prepayment as described
above (such Lender, the "ACCEPTING LENDER"), and such amount shall be applied
(x) with respect to prepayments pursuant to Section 5.2(a)(i), (I) first,
sequentially, in the order of maturity, to the next four remaining unpaid
Tranche B Repayment Amounts, Tranche C Repayment Amounts and Tranche D Repayment
Amounts, as applicable, with respect to each Accepting Lender, and (II)
thereafter, PRO RATA to the remaining Tranche B Repayment Amounts, Tranche C
Repayment Amounts and Tranche D Repayment Amounts, as applicable, with respect
to each Accepting Lender and (y) with respect to prepayments pursuant to Section
5.2(a)(ii), PRO RATA with respect to each Accepting Lender in such manner as the
Borrower may determine, (B) the Borrower shall pay to the Administrative Agent
an amount equal to 50% of the portion of the Tranche B Prepayment Amount,
Tranche C Prepayment Amount and Tranche D Prepayment Amount not accepted by the
Accepting Lenders, and such amount shall be applied to reduce the Tranche A
Repayment Amounts in the manner described in paragraph (iii) below, and (C) the
Borrower shall be entitled to retain the remaining 50% of the
62
portion of the Tranche B Prepayment Amount, Tranche C Prepayment Amount and
Tranche D Prepayment Amount not accepted by the Accepting Lenders.
(iii) An amount equal to each prepayment of Tranche A Term
Loans required by this Section 5.2 (including any such prepayment required by
the provisions of paragraph (ii) above) shall be applied (A) with respect to
prepayments pursuant to Section 5.2(a)(i), (x) first, sequentially, in the order
of maturity, to the next four remaining unpaid Tranche A Repayment Amounts, and
(y) thereafter, PRO RATA to the remaining Tranche A Repayment Amounts and (B)
with respect to prepayments pursuant to Section 5.2(a)(ii), in such manner as
the Borrower may determine to the remaining Tranche A Repayment Amounts.
(d) APPLICATION TO TERM LOANS. With respect to each prepayment
of Term Loans required by Section 5.2(a), the Borrower may designate the Types
of Loans that are to be prepaid and the specific Borrowing(s) pursuant to which
made, PROVIDED that (i) Eurodollar Term Loans may be designated for prepayment
pursuant to this Section 5.2 only on the last day of an Interest Period
applicable thereto unless all Eurodollar Term Loans with Interest Periods ending
on such date of required prepayment and all ABR Term Loans have been paid in
full; and (ii) if any prepayment of Eurodollar Term Loans made pursuant to a
single Borrowing shall reduce the outstanding Term Loans made pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount for Eurodollar
Term Loans, such Borrowing shall immediately be converted into ABR Loans. In the
absence of a designation by the Borrower as described in the preceding sentence,
the Administrative Agent shall, subject to the above, make such designation in
its reasonable discretion with a view, but no obligation, to minimize breakage
costs owing under Section 2.11.
(e) APPLICATION TO REVOLVING CREDIT LOANS. With respect to
each prepayment of Revolving Credit Loans required by Section 5.2(b), the
Borrower may designate the Types of Loans that are to be prepaid and the
specific Borrowing(s) pursuant to which made, PROVIDED that (i) Eurodollar
Revolving Credit Loans may be designated for prepayment pursuant to this Section
5.2 only on the last day of an Interest Period applicable thereto unless all
Eurodollar Revolving Credit Loans with Interest Periods ending on such date of
required prepayment and all ABR Loans have been paid in full; (ii) if any
prepayment of Eurodollar Revolving Credit Loans made pursuant to a single
Borrowing shall reduce the outstanding Revolving Credit Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount for
Eurodollar Revolving Credit Loans, such Borrowing shall immediately be converted
into ABR Loans (such conversion to be made, in the case of a Foreign Currency
Revolving Credit Loan, into Dollars at the applicable Exchange Rate); (iii) each
prepayment of any Loans made pursuant to a Borrowing shall be applied PRO RATA
among such Loans; and (iv) notwithstanding the provisions of the preceding
clause (iii), no prepayment made pursuant to Section 5.2(b) of Revolving Credit
Loans shall be applied to the Revolving Credit Loans of any Defaulting Lender.
In the absence of a designation by the Borrower as described in the preceding
sentence, the Administrative Agent shall, subject to the above, make such
designation in its reasonable discretion with a view, but no obligation, to
minimize breakage costs owing under Section 2.11.
(f) EURODOLLAR INTEREST PERIODS. In lieu of making any payment
pursuant to this Section 5.2 in respect of any Eurodollar Loan other than on the
last day of the Interest Period therefor, so long as no Default or Event of
Default shall have occurred and be continuing, the Borrower at its option may
deposit with the Administrative Agent an amount equal to the amount of the
Eurodollar Loan to be prepaid and such Eurodollar Loan shall be repaid on the
last day of the Interest Period therefor in the required amount. Such deposit
shall be held by the Administrative Agent in a corporate time deposit account
established on terms reasonably satisfactory to the Administrative Agent,
earning interest at the then-customary rate for accounts of such type. Such
deposit shall constitute cash collateral for the Obligations, PROVIDED that the
63
Borrower may at any time direct that such deposit be applied to make the
applicable payment required pursuant to this Section 5.2.
(g) MINIMUM AMOUNT. No prepayment shall be required pursuant
to Section 5.2(a)(i) unless and until the amount at any time of Net Cash
Proceeds from Prepayment Events required to be applied at or prior to such time
pursuant to such Section and not yet applied at or prior to such time to prepay
Term Loans pursuant to such Section exceeds $15,000,000 in the aggregate.
(h) FOREIGN ASSET SALES. Notwithstanding any other provisions
of this Section 5.2, (i) to the extent that any of or all the Net Cash Proceeds
of any asset sale by a Restricted Foreign Subsidiary giving rise to an Asset
Sale Prepayment Event (a "FOREIGN ASSET SALE") are prohibited or delayed by
applicable local law from being repatriated to the United Kingdom or the United
States, as applicable, the portion of such Net Cash Proceeds so affected will
not be required to be applied to repay Term Loans at the times provided in this
Section 5.2 but may be retained by the applicable Restricted Foreign Subsidiary
so long, but only so long, as the applicable local law will not permit
repatriation to the United Kingdom or the United States, as applicable, Parent
hereby agreeing to cause the applicable Restricted Foreign Subsidiary to
promptly take all actions required by the applicable local law to permit such
repatriation), and once such repatriation of any of such affected Net Cash
Proceeds is permitted under the applicable local law, such repatriation will be
immediately effected and such repatriated Net Cash Proceeds will be promptly
(and in any event not later than two Business Days after such repatriation)
applied (net of additional taxes payable or reserved against as a result
thereof) to the repayment of the Term Loans pursuant to this Section 5.2 and
(ii) to the extent that Parent has determined in good faith that repatriation of
any of or all the Net Cash Proceeds of any Foreign Asset Sale would have a
material adverse tax cost consequence with respect to such Net Cash Proceeds,
the Net Cash Proceeds so affected may be retained by the applicable Restricted
Foreign Subsidiary, PROVIDED that, in the case of this clause (ii), on or before
the date on which any Net Cash Proceeds so retained would otherwise have been
required to be applied to reinvestments or prepayments pursuant to Section
5.2(a), (x) the Borrower applies an amount equal to such Net Cash Proceeds to
such reinvestments or prepayments as if such Net Cash Proceeds had been received
by the Borrower rather than such Restricted Foreign Subsidiary, less the amount
of additional taxes that would have been payable or reserved against if such Net
Cash Proceeds had been repatriated (or, if less, the Net Cash Proceeds that
would be calculated if received by such Foreign Subsidiary) or (y) such Net Cash
Proceeds are applied to the repayment of Indebtedness of a Restricted Foreign
Subsidiary.
5.3 METHOD AND PLACE OF PAYMENT. (a) Except as otherwise
specifically provided herein, all payments to be made by the Borrower under this
Agreement shall be made, without set-off, counterclaim or deduction of any kind,
to the Administrative Agent for the ratable account of the Lenders entitled
thereto, the Letter of Credit Issuer or Chase, as the case may be, not later
than 12:00 Noon (New York time), or, in the case of amounts payable in Sterling,
Euro or Yen, prior to 12:00 Noon (local time at the place of payment) on the
date when due and shall be made (i) in the case of amounts payable in Dollars,
in immediately available funds at the Administrative Agent's Office, (ii) in the
case of amounts payable in Euro, in immediately available, freely transferable,
cleared funds at such account with such bank in Frankfurt am Main, Germany as
the Administrative Agent shall from time to time specify for this purpose (or to
such account with such bank in such other financial center or centers specified
by the Administrative Agent at the relevant time for this purpose), or (iii) in
the case of amounts payable in Sterling or Yen, in immediately available funds
at such other office as the Administrative Agent shall specify for such purpose
by notice to the Borrower, it being understood that written or facsimile notice
by the Borrower to the Administrative Agent to make a payment from the funds in
the Borrower's account at the Administrative Agent's Office shall constitute the
making of such payment to the extent of such funds held in such account. All
payments under each Credit
64
Document (whether of principal, interest or otherwise) shall be made (i) in the
case of the principal of and interest on each Loan, in the currency in which
such Loan is denominated, (ii) in the case of any indemnification or expense
reimbursement payment, in Dollars or Sterling, as requested by the Person
entitled to receive such payment, or (iii) in all other cases, in Dollars,
except as otherwise expressly provided herein. Each obligation under this
Agreement to make payment in the national currency denomination of a Subsequent
Participant shall be redenominated into the euro unit immediately upon such
Subsequent Participant becoming a Participating Member State (but otherwise in
accordance with EMU legislation). The Administrative Agent will thereafter cause
to be distributed on the same day (if payment was actually received by the
Administrative Agent prior to 2:00 P.M. (New York time) on such day) like funds
relating to the payment of principal or interest or Fees ratably to the Lenders
entitled thereto. Any amount payable by the Administrative Agent to the Lenders
under this Agreement in the currency of a Participating Member State shall be
paid in the euro unit. A payment shall be deemed to have been made by the
Administrative Agent on the date on which it is required to be made under this
Agreement if the Administrative Agent has, on or before such date, taken steps
to make such payment in accordance with the regulations or operating procedures
of the clearing or settlement system used by the Administrative Agent in order
to make such payment.
(b) Any payments under this Agreement that are made later than
2:00 P.M. (New York time), or, in the case of amounts payable in Sterling, Euro
or Yen, 12:00 Noon (local time at the place of payment) shall be deemed to have
been made on the next succeeding Business Day. Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business Day, the due
date thereof shall be extended to the next succeeding Business Day and, with
respect to payments of principal, interest shall be payable during such
extension at the applicable rate in effect immediately prior to such extension.
5.4 NET PAYMENTS. (a) All payments made by the Borrower under
this Agreement shall be made free and clear of, and without deduction or
withholding for or on account of, any current 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 (i) net income taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on the Administrative Agent or any
Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a
result of a current 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). 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, the amounts so payable to the
Administrative Agent or such Lender shall be increased to the extent necessary
to yield to the Administrative Agent or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in this Agreement; PROVIDED, HOWEVER, that the
Borrower shall not be required to increase any such amounts payable to any
Lender that is not organized under the laws of the United States or a state
thereof if such Lender fails to comply with the requirements of paragraph (b) of
this Section 5.4. Whenever any Non- Excluded Taxes are payable by the Borrower,
as promptly as possible thereafter the 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 the Borrower
showing payment thereof. If the 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, the Borrower shall indemnify the Administrative Agent and the Lenders
for any incremental taxes, interest, costs or penalties that may become payable
by the Administrative Agent or any Lender
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as a result of any such failure. The agreements in this Section 5.4(a) shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
(b) Each Lender that is not incorporated or organized under
the laws of the United States or a state thereof shall:
(i) deliver to the Borrower and the Administrative Agent two
copies of either United States Internal Revenue Service Form 1001 or
Form 4224 or, in the case of Non-U.S. Lender claiming exemption from
U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest", a Form W-8, or any
subsequent versions thereof or successors thereto (and, if such
Non-U.S. Lender delivers a Form W-8, a certificate representing that
such Non-U.S. Lender is not a bank for purposes of Section 881(c) of
the Code, is not a 10-percent shareholder (within the meaning of
Section 871(h)(3)(B) of the Code) of the Borrower and is not a
controlled foreign corporation related to the Borrower (within the
meaning of Section 864(d)(4) of the Code)), properly completed and duly
executed by such Non-U.S. Lender claiming complete exemption from, or
reduced rate of, U.S. Federal withholding tax on payments by the
Borrower under this Agreement;
(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Borrower or the Administrative Agent;
unless in any such case any change in treaty, law or regulation has occurred
prior to the date on which any such delivery would otherwise be required that
renders any such form inapplicable or would prevent such Lender from duly
completing and delivering any such form with respect to it and such Lender so
advises the Borrower and the Administrative Agent. Each Person that shall become
a Participant pursuant to Section 13.6 or a Lender pursuant to Section 13.6
shall, upon the effectiveness of the related transfer, be required to provide
all the forms and statements required pursuant to this Section 5.4(b), provided
that in the case of a Participant such Participant shall furnish all such
required forms and statements to the Lender from which the related participation
shall have been purchased.
(c) The Borrower shall not be required to indemnify any
Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in
respect of U.S. Federal withholding tax pursuant to paragraph (a) above to the
extent that (i) the obligation to withhold amounts with respect to U.S. Federal
withholding tax existed on the date such Non-U.S. Lender became a party to this
Agreement (or, in the case of a Non-U.S. Participant, on the date such
Participant became a Participant hereunder); PROVIDED, HOWEVER, that this clause
(i) shall not apply to the extent that (x) the indemnity payments or additional
amounts any Lender (or Participant) would be entitled to receive (without regard
to this clause (i)) do not exceed the indemnity payment or additional amounts
that the person making the assignment, participation or transfer to such Lender
(or Participant) would have been entitled to receive in the absence of such
assignment, participation or transfer, or (y) such assignment, participation or
transfer had been requested by the Borrower, (ii) the obligation to pay such
additional amounts would not have arisen but for a failure by such Non-U.S.
Lender or Non-U.S. Participant to comply with the provisions of paragraph (b)
above or (iii) any of the representations or certifications made by a Non-U.S.
Lender or Non-U.S. Participant pursuant to paragraph (b) above are incorrect at
the time a payment hereunder is
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made, other than by reason of any change in treaty, law or regulation having
effect after the date such representations or certifications were made.
(d) If the Borrower determines in good faith that a reasonable
basis exists for contesting any taxes for which indemnification has been
demanded hereunder, the relevant Lender or the Administrative Agent, as
applicable, shall cooperate with the Borrower in challenging such taxes at the
Borrower's expense if so requested by the Borrower. If any Lender or the
Administrative Agent, as applicable, receives a refund of a tax for which a
payment has been made by the Borrower pursuant to this Agreement, which refund
in the good faith judgment of such Lender or Administrative Agent, as the case
may be, is attributable to such payment made by the Borrower, then the Lender or
the Administrative Agent, as the case may be, shall reimburse the Borrower for
such amount as the Lender or Administrative Agent, as the case may be,
determines to be the proportion of the refund as will leave it, after such
reimbursement, in no better or worse position than it would have been in if the
payment had not been required. A Lender or Administrative Agent shall claim any
refund that it determines is available to it, unless it concludes in its
reasonable discretion that it would be adversely affected by making such a
claim. Neither the Lender nor the Administrative Agent shall be obliged to
disclose any information regarding its tax affairs or computations to the
Borrower in connection with this paragraph (d) or any other provision of this
Section 5.4.
(e) Each Lender represents and agrees that, on the date hereof
and at all times during the term of this Agreement, it is not and will not be a
conduit entity participating in a conduit financing arrangement (as defined in
Section 7701(1) of the Code and the regulations thereunder) with respect to the
Borrowings hereunder unless the Borrower has consented to such arrangement prior
thereto.
5.5 COMPUTATIONS OF INTEREST AND FEES. (a) Except as provided
in the next succeeding sentence, interest on Eurodollar Loans and ABR Loans
shall be calculated on the basis of a 360-day year for the actual days elapsed.
Interest on (i) Sterling Revolving Credit Loans, (ii) ABR Loans in respect of
which the rate of interest is calculated on the basis of the Prime Rate and
(iii) interest on overdue interest shall be calculated on the basis of a 365-
(or 366-, as the case may be) day year for the actual days elapsed.
(b) Fees and Letter of Credit Outstanding shall be calculated
on the basis of a 365- (or 366-, as the case may be) day year for the actual
days elapsed.
SECTION 6. [Intentionally Omitted]
SECTION 7A. [Intentionally Omitted]
SECTION 7B. [Intentionally Omitted]
SECTION 7C. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS. The
agreement of each Lender to make any Loan requested to be made by it on any date
on or after the Restatement Date (excluding in the case of Section 7C.1
Mandatory Borrowings) and the obligation of the Letter of Credit Issuer to issue
Letters of Credit on any date is subject to the satisfaction of the following
conditions precedent:
7C.1 NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time
of each Credit Event (other than the initial Credit Event) and also after giving
effect thereto (a) there shall exist no Default or Event of Default and (b) all
representations and warranties made by any Credit Party contained herein or in
the other Credit Documents shall be true and correct in all material respects
with the same effect as though such representations and warranties had been made
on
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and as of the date of such Credit Event, except where such representations
and warranties expressly relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all material
respects as of such earlier date (it being understood that, for purposes of the
foregoing, the truth and correctness of the representations and warranties set
forth in Section 8.8 shall be determined without reference to the knowledge of
the Borrower).
7C.2 NOTICE OF BORROWING; LETTER OF CREDIT REQUEST. (a) Prior
to the making of each Revolving Credit Loan (other than any Revolving Credit
Loan made pursuant to Section 3.4(a)) and each Swingline Loan, the
Administrative Agent shall have received a Notice of Borrowing (whether in
writing or by telephone) meeting the requirements of Section 2.3.
(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the Letter of Credit Issuer shall have received a
Letter of Credit Request meeting the requirements of Section 3.2(a).
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by each Credit Party to each of the Lenders that all
the applicable conditions specified above exist as of that time.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In
order to induce the Lenders to enter into this Agreement, to make the Loans and
issue or participate in Letters of Credit as provided for herein, Newco 4,
Parent and the Borrower make the following representations and warranties to,
and agreements with, the Lenders, all of which shall survive the execution and
delivery of this Agreement and the making of the Loans and the issuance of the
Letters of Credit:
8.1 CORPORATE STATUS. Newco 4 and each Material Subsidiary (a)
is a duly organized and validly existing corporation or other entity in good
standing under the laws of the jurisdiction of its organization and has the
corporate or other organizational power and authority to own its property and
assets and to transact the business in which it is engaged and (b) has duly
qualified and is authorized to do business and is in good standing in all
jurisdictions where it is required to be so qualified, except
where the failure to be so qualified could not reasonably be expected to result
in a Material Adverse Effect.
8.2 CORPORATE POWER AND AUTHORITY. Each Credit Party has the
corporate power and authority to execute, deliver and carry out the terms and
provisions of the Credit Documents to which it is a party and has taken all
necessary corporate action to authorize the execution, delivery and performance
of the Credit Documents to which it is a party. Each Credit Party has duly
executed and delivered each Credit Document to which it is a party and each such
Credit Document constitutes the legal, valid and binding obligation of such
Credit Party enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and subject to general principles of
equity.
8.3 NO VIOLATION. Neither the execution, delivery and
performance by any Credit Party of the Credit Documents to which it is a party
nor compliance with the terms and provisions thereof nor the consummation of the
Transactions and the other transactions contemplated therein will (a) contravene
any applicable provision of any material law, statute, rule, regulation, order,
writ, injunction or decree of any court or governmental instrumentality, (b)
result in any breach of any of the terms, covenants, conditions or provisions
of, or constitute a default under, or result in the creation or imposition of
(or the obligation to create or impose) any Lien upon any of the property or
assets of Newco 4 or any of its Subsidiaries pursuant to, the terms of any
material indenture (including the Subordinated Note Indenture), loan agreement,
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lease agreement, mortgage, deed of trust, agreement or other material instrument
to which Newco 4 or any of its Subsidiaries is a party or by which it or any of
its property or assets is bound or (c) violate any provision of the certificate
of incorporation or By-Laws of Newco 4 or any of its Subsidiaries.
8.4 LITIGATION. Except as set forth in Parent's audited
financial statements for the fiscal year ended December 31, 1997, there are no
actions, suits or proceedings (including, without limitation, Environmental
Claims) pending or, to the knowledge of Newco 4 or Parent, threatened with
respect to Newco 4 or any of its Subsidiaries that could reasonably be expected
to result in a Material Adverse Effect.
8.5 MARGIN REGULATIONS. Neither the making of any Loan
hereunder nor the use of the proceeds thereof will violate the provisions of
Regulation T, U or X of the Board.
8.6 GOVERNMENTAL APPROVALS. No order, consent, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any Governmental Authority is required to authorize or is
required in connection with (a) the execution, delivery and performance of any
Credit Document or (b) the legality, validity, binding effect or enforceability
of any Credit Document, except any of the foregoing the failure to obtain or
make could not reasonably be expected to have a Material Adverse Effect.
8.7 INVESTMENT COMPANY ACT. Neither Newco 4, Parent nor the
Borrower is an "investment company" within the meaning of the United States
Investment Company Act of 1940, as amended.
8.8 TRUE AND COMPLETE DISCLOSURE. To the knowledge of the
Borrower, (a) all factual information and data (taken as a whole) heretofore or
contemporaneously furnished, by Newco 4, Parent, any of its Subsidiaries or any
of their respective authorized representatives in writing to the Administrative
Agent and/or any Lender on or before the Restatement Date (including, without
limitation, (i) the Confidential Information Memorandum (whether furnished
before, at or at any time after the Restatement Date) and (ii) all information
contained in the Credit Documents) for purposes of or in connection with this
Agreement or any transaction contemplated herein was (or, in the case of the
Confidential Information Memorandum, will be) true and complete in all material
respects on the date as of which such information or data is (or, in the case of
the Confidential Information Memorandum, will be) dated or certified and was not
(or, in the case of the Confidential Information Memorandum, will not be)
incomplete by omitting to state any material fact necessary to make such
information and data (taken as a whole) not misleading at such time in light of
the circumstances under which such information or data was (or, in the case of
the Confidential Information Memorandum, will be) furnished, it being understood
and agreed that for purposes of this Section 8.8(a), such factual information
and data shall not include projections and pro forma financial information.
(b) The projections and pro forma financial information
contained in the information and data referred to in paragraph (a) above were
(or, in the case of the Confidential Information Memorandum, will be) based on
good faith estimates and assumptions believed by such Persons to be reasonable
at the time made, it being recognized by the Lenders that such projections as to
future events are not to be viewed as facts and that actual results during the
period or periods covered by any such projections may differ from the projected
results.
8.9 FINANCIAL CONDITION; FINANCIAL STATEMENTS. The
consolidated balance sheet of Parent and its Subsidiaries at December 31, 1997,
and the related consolidated statements of operations and cash flows for the
fiscal year ended as of such date, which statements have been audited by Ernst &
Young, independent certified public accountants, who delivered an unqualified
opinion with respect thereto, in each case present fairly in all material
respects the
69
consolidated financial position of Parent and its Subsidiaries at
the respective dates of said statements and the results of operations for the
respective periods covered thereby. All such financial statements have been
prepared in accordance with GAAP consistently applied except to the extent
provided in the notes to said financial statements. There has been no Material
Adverse Change since December 31, 1997, other than solely as a result of changes
in general economic conditions.
8.10 TAX RETURNS AND PAYMENTS. Each of Parent and its
Subsidiaries has filed all material tax returns, domestic and foreign, required
to be filed by it and has paid all material taxes and assessments payable by it
that have become due, other than those not yet delinquent or contested in good
faith. Parent and each of its Subsidiaries have paid, or have provided adequate
reserves (in the good faith judgment of the management of the Borrower) in
accordance with GAAP for the payment of, all material income taxes applicable
for all prior fiscal years and for the current fiscal year to the Restatement
Date.
8.11 COMPLIANCE WITH ERISA. Each Plan is in compliance with
ERISA, the Code and any applicable Requirement of Law; no Reportable Event has
occurred (or is reasonably likely to occur) with respect to any Plan; no Plan is
insolvent or in reorganization (or is reasonably likely to be insolvent or in
reorganization), and no written notice of any such insolvency or reorganization
has been given to Parent, any Subsidiary or any ERISA Affiliate; no Plan (other
than a multiemployer plan) has an accumulated or waived funding deficiency (or
is reasonably likely to have such a deficiency); neither Parent nor any
Subsidiary nor any ERISA Affiliate has incurred (or is reasonably likely
expected to incur) any liability to or on account of a Plan pursuant to Section
409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or
Section 4971 or 4975 of the Code or has been notified in writing that it will
incur any liability under any of the foregoing Sections with respect to any
Plan; no proceedings have been instituted (or are reasonably likely to be
instituted) to terminate or to reorganize any Plan or to appoint a trustee to
administer any Plan, and no written notice of any such proceedings has been
given to Parent, any Subsidiary or any ERISA Affiliate; and no lien imposed
under the Code or ERISA on the assets of Parent, any Subsidiary or any ERISA
Affiliate exists (or is reasonably likely to exist) nor has Parent, any
Subsidiary or any ERISA Affiliate been notified in writing that such a lien will
be imposed on the assets of Parent, any Subsidiary or any ERISA Affiliate on
account of any Plan, EXCEPT to the extent that a breach of any of the foregoing
representations, warranties or agreements in this Section 8.11 would not result,
individually or in the aggregate, in an amount of liability that would be
reasonably likely to have a Material Adverse Effect or relates to any matter
disclosed in the financial statements of Parent contained in the Confidential
Information Memorandum. No Plan (other than a multiemployer plan) has an
Unfunded Current Liability that would, individually or when taken together with
any other liabilities referenced in this Section 8.11, be reasonably likely to
have a Material Adverse Effect. With respect to Plans that are multiemployer
plans (as defined in Section 3(37) of ERISA), the representations and warranties
in this Section 8.11, other than any made with respect to (a) liability under
Section 4201 or 4204 of ERISA or (b) liability for termination or reorganization
of such Plans under ERISA, are made to the best knowledge of Parent. The
Borrower shall cause (a) all pension schemes maintained by or for the benefit of
any Material Subsidiary organized under the laws of the United Kingdom and/or
any of its employees to be maintained and operated in all material respects in
accordance with all applicable laws from time to time and (b) all such pension
schemes to be funded substantially in accordance with the governing provisions
of such schemes, except to the extent failure to do so could not reasonably be
expected to have a Material Adverse Effect.
8.12 SUBSIDIARIES. Schedule 8.12(a) lists each Subsidiary of
Parent (and the direct and indirect ownership interest of Parent therein), in
each case existing on the date hereof. To the knowledge of Parent, each Material
Subsidiary as of the date hereof has been so designated on Schedule 8.12(a).
Schedule 8.12(b) lists each Closing Date Excused Subsidiary. No Closing
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Date Excused Subsidiary has, on the date hereof, total assets in excess of the
amount set forth opposite the name of such Subsidiary on Schedule 8.12(b).
8.13 PATENTS, ETC. Newco 4 and each of the Restricted
Subsidiaries have obtained all patents, trademarks, servicemarks, trade names,
copyrights, licenses and other rights, free from burdensome restrictions, that
are necessary for the operation of their respective businesses as currently
conducted and as proposed to be conducted, except where the failure to obtain
any such rights could not reasonably be expected to have a Material Adverse
Effect.
8.14 ENVIRONMENTAL LAWS. (a) Other than instances of
noncompliance that could not reasonably be expected to have a Material Adverse
Effect: (i) Newco 4 and each of its Subsidiaries are in compliance with all
Environmental Laws in all jurisdictions in which Parent and each of its
Subsidiaries are currently doing business (including, without limitation, having
obtained all material permits required under Environmental Laws) and (ii) Newco
4 will comply and cause each of its Subsidiaries to comply with all such
Environmental Laws (including, without limitation, all permits required under
Environmental Laws).
(b) Neither Newco 4 nor any of its Subsidiaries has treated,
stored, transported or disposed of Hazardous Materials at or from any currently
or formerly owned Real Estate (as defined in Section 9.1(f)) or facility
relating to its business in a manner that could reasonably be expected to have a
Material Adverse Effect.
8.15 PROPERTIES. Newco 4 and each of the Restricted
Subsidiaries have good title to or leasehold interest in all properties that are
necessary for the operation of their respective businesses as currently
conducted and as proposed to be conducted, free and clear of all Liens (other
than any Liens permitted by this Agreement) and except where the failure to have
such good title could not reasonably be expected to have a Material Adverse
Effect.
8.16 YEAR 2000. Any reprogramming required to permit the
proper functioning, in and following the year 2000, of (a) Newco 4 and its
Subsidiaries' computer systems and (b) equipment containing embedded microchips
(including systems and equipment supplied by others) and the testing of all such
systems and equipment, as so reprogrammed, will be completed by July 1, 1999,
except to the extent that the failure to complete such reprogramming and testing
by such date could not reasonably be expected to have a Material Adverse Effect.
The cost to Newco 4 and its Subsidiaries of such reprogramming and testing and
of the reasonably foreseeable consequences of year 2000 to Newco 4 and its
Subsidiaries (including, without limitation, reprogramming errors and the
failure of others' systems or equipment) is not reasonably likely to have a
Material Adverse Effect.
SECTION 9. AFFIRMATIVE COVENANTS. Newco 4, Parent and the
Borrower hereby covenant and agree that on the Closing Date and thereafter, for
so long as this Agreement is in effect and until the Commitments, the Swingline
Commitment and each Letter of Credit have terminated and the Loans and Unpaid
Drawings, together with interest, Fees and all other Obligations incurred
hereunder, are paid in full:
9.1 INFORMATION COVENANTS. Newco 4 and Parent will furnish to
each Lender and the Administrative Agent:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available and in
any event on or before the date that is 120 days after the end of each fiscal
year of Newco 4 (PROVIDED that, for purposes of this Section 9.1(a) only, fiscal
year 1998 shall be deemed to end on December 31, 1998), the consolidated balance
sheet of (i) Newco 4 and the Restricted Subsidiaries and (ii) Newco 4 and its
Subsidiaries, in each case as at the end of such fiscal year and the related
consolidated statement of operations and cash flows for such fiscal year and
including a
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reconciliation of such balance sheet and statements of operations and cash flows
to financial statements prepared in accordance with United States generally
accepted accounting principles, prepared in accordance with the requirements
applicable to financial statements included in filings on SEC Form 20-F, setting
forth comparative consolidated figures for the preceding fiscal year, and
certified by independent certified public accountants of recognized national
standing whose opinion shall not be qualified as to the scope of audit or as to
the status of Newco 4 or any of the Material Subsidiaries as a going concern,
together in any event with a certificate of such accounting firm stating that in
the course of its regular audit of the business of Newco 4 and the Material
Subsidiaries, which audit was conducted in accordance with generally accepted
auditing standards, such accounting firm has obtained no knowledge of any
Default or Event of Default relating to Section 10.9, 10.10 and 10.11 that has
occurred and is continuing or, if in the opinion of such accounting firm such a
Default or Event of Default has occurred and is continuing, a statement as to
the nature thereof.
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and
in any event on or before the date that is 60 days after the end of such
quarterly accounting period with respect to each of the first three quarterly
accounting periods in each fiscal year of Newco 4 (including the quarterly
accounting period ended on September 30, 1998), the consolidated balance sheet
of (i) Newco 4 and the Restricted Subsidiaries and (ii) Newco 4 and its
Subsidiaries, in each case as at the end of such quarterly period and the
related consolidated statement of operations for such quarterly accounting
period and for the elapsed portion of the fiscal year ended with the last day of
such quarterly period (PROVIDED that, with respect to the quarterly accounting
period ended on September 30, 1998, such elapsed portion shall include the
previous twelve months), and the related consolidated statement of cash flows
for the elapsed portion of the fiscal year ended with the last day of such
quarterly period (PROVIDED that, with respect to the quarterly accounting period
ended on September 30, 1998, such elapsed portion shall include the previous
twelve months), and setting forth comparative consolidated figures for the
related periods in the prior fiscal year or, in the case of such consolidated
balance sheet, for the last day of the prior fiscal year, and including a
reconciliation of such balance sheet and statements of operations and cash flows
to financial statements prepared in accordance with United States generally
accepted accounting principles, prepared in the same manner as the
reconciliation referred to in Section 9.1(a), all of which shall be certified by
an Authorized Officer of Newco 4, subject to changes resulting from audit and
normal year-end audit adjustments.
(c) BUDGETS. Within 60 days after the commencement of each
fiscal year of the Borrower, budgets of Newco 4 in reasonable detail for the
fiscal year as customarily prepared by management of Newco 4 for its internal
use, setting forth the principal assumptions upon which such budgets are based.
(d) OFFICER'S CERTIFICATES. At the time of the delivery of the
financial statements provided for in Sections 9.1(a) and (b), a certificate of
an Authorized Officer of Parent to the effect that no Default or Event of
Default exists or, if any Default or Event of Default does exist, specifying the
nature and extent thereof, which certificate shall set forth (i) the
calculations required to establish whether the Borrower and its Subsidiaries
were in compliance with the provisions of Sections 10.9, 10.10 and 10.11 as at
the end of such fiscal year or period, as the case may be, (ii) a specification
of any change in the identity of the Restricted Subsidiaries, Unrestricted
Subsidiaries, Acquisition Subsidiaries, Foreign Subsidiaries and Restricted
Non-Credit Party Subsidiaries as at the end of such fiscal year or period, as
the case may be, from the Restricted Subsidiaries, Unrestricted Subsidiaries,
Acquisition Subsidiaries, Foreign Subsidiaries and Restricted Non-Credit Party
Subsidiaries, respectively, provided to the Lenders on the date hereof or the
most recent fiscal year or period, as the case may be, (iii) the then applicable
Status and (iv) the amount of any Pro Forma Adjustment not previously set forth
in a Pro Forma Adjustment Certificate or any change in the amount of a Pro Forma
Adjustment set forth in any Pro Forma Adjustment Certificate previously provided
and, in either case, in reasonable detail,
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the calculations and basis therefor; and at the time of the delivery of the
financial statements provided for in Section 9.1(a), a certificate of an
Authorized Officer of Parent setting forth in reasonable detail the Available
Amount as at the end of the fiscal year to which such financial statements
relate.
(e) NOTICE OF DEFAULT OR LITIGATION. Promptly after an
Authorized Officer of Newco 4 or any of its Subsidiaries obtains knowledge
thereof, notice of (i) the occurrence of any event that constitutes a Default or
Event of Default, which notice shall specify the nature thereof, the period of
existence thereof and what action Newco 4 proposes to take with respect thereto,
and (ii) any litigation or governmental proceeding pending against Newco 4 or
any of its Subsidiaries that could reasonably be expected to result in a
Material Adverse Effect.
(f) ENVIRONMENTAL MATTERS. Parent will promptly advise the
Lenders in writing after obtaining knowledge of any one or more of the following
environmental matters, unless such environmental matters would not, individually
or when aggregated with all other such matters, be reasonably expected to result
in a Material Adverse Effect:
(i) Any pending or threatened Environmental Claim against
Newco 4 or any of its Subsidiaries or any Real Estate (as defined
below);
(ii) Any condition or occurrence on any Real Estate that (x)
results in noncompliance by Newco 4 or any of its Subsidiaries with any
applicable Environmental Law or (y) could reasonably be anticipated to
form the basis of an Environmental Claim against Newco 4 or any of its
Subsidiaries or any Real Estate;
(iii) Any condition or occurrence on any Real Estate that
could reasonably be anticipated to cause such Real Estate to be subject
to any restrictions on the ownership, occupancy, use or transferability
of such Real Estate under any Environmental Law; and
(iv) The taking of any removal or remedial action in response
to the actual or alleged presence of any Hazardous Material on any Real
Estate.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial
action and Parent's response thereto. The term "REAL ESTATE" shall
mean land, buildings and improvements owned or leased by Newco 4 or
any of its Subsidiaries, but excluding all operating fixtures and
equipment, whether or not incorporated into improvements.
(g) OTHER INFORMATION. Promptly upon filing thereof, copies of
any filings on Form 20-F, 6-K, 10-K, 10-Q or 8-K or registration statements
with, and reports to, any Governmental Authority by Newco 4 or any of its
Subsidiaries (other than amendments to any registration statement (to the extent
such registration statement, in the form it becomes effective, is delivered to
the Lenders), exhibits to any registration statement and any registration
statements on Form S-8) and copies of all financial statements, proxy
statements, notices and reports that Newco 4 or any of its Subsidiaries shall
send to the holders of any publicly issued debt of Newco 4 and/or any of its
Subsidiaries (including the Subordinated Notes) in their capacity as such
holders (in each case to the extent not theretofore delivered to the Lenders
pursuant to this Agreement) and, with reasonable promptness, such other
information (financial or otherwise) as the Administrative Agent on its own
behalf or on behalf of any Lender may reasonably request in writing from time to
time.
(h) PRO FORMA ADJUSTMENT CERTIFICATE. Not later than the
consummation of the acquisition of any Acquired Entity or Business by Newco 4 or
any Restricted Subsidiary for which there shall be a Pro Forma Adjustment, a
certificate of an Authorized Officer of Parent
73
setting forth the amount of such Pro Forma Adjustment and, in reasonable detail,
the calculations and basis therefor.
9.2 BOOKS, RECORD AND INSPECTIONS. Newco 4 and Parent will,
and will cause each of the Specified Subsidiaries to, permit officers and
designated representatives of the Administrative Agent or the Required Lenders
to visit and inspect any of the properties or assets of Newco 4, the Borrower
and any such Specified Subsidiary in whomsoever's possession to the extent that
it is within Newco 4's, Parent's or such Specified Subsidiary's control to
permit such inspection, and to examine the books of account of Newco 4, Parent
and any such Specified Subsidiary and discuss the affairs, finances and accounts
of Newco 4, of Parent and of any such Specified Subsidiary with, and be advised
as to the same by, its and their officers and independent accountants, all at
such reasonable times and intervals and to such reasonable extent as the
Administrative Agent or the Required Lenders may desire.
9.3 MAINTENANCE OF INSURANCE. Newco 4 and Parent will, and
will cause each of the Material Subsidiaries to, at all times maintain in full
force and effect, with insurance companies that Parent believes (in the good
faith judgment of the management of Parent) are financially sound and
responsible at the time the relevant coverage is placed or renewed, insurance in
at least such amounts and against at least such risks (and with such risk
retentions) as are usually insured against in the same general area by companies
engaged in the same or a similar business; and will furnish to the Lenders, upon
written request from the Administrative Agent, information presented in
reasonable detail as to the insurance so carried.
9.4 PAYMENT OF TAXES. Newco 4 and Parent will pay and
discharge, and will cause each of their Subsidiaries to pay and discharge, all
material taxes, assessments and governmental charges or levies imposed upon it
or upon its income or profits, or upon any properties belonging to it, prior to
the date on which material penalties attach thereto, and all lawful material
claims that, if unpaid, could reasonably be expected to become a material Lien
upon any properties of Newco 4 or any of the Restricted Subsidiaries, PROVIDED
that neither Newco 4 nor any of its Subsidiaries shall be required to pay any
such tax, assessment, charge, levy or claim that is being contested in good
faith and by proper proceedings if it has maintained adequate reserves (in the
good faith judgment of the management of Parent) with respect thereto in
accordance with GAAP.
9.5 CONSOLIDATED CORPORATE FRANCHISES. Newco 4 and Parent will
do, and will cause each Material Subsidiary to do, or cause to be done, all
things necessary to preserve and keep in full force and effect its existence,
corporate rights and authority, except to the extent that the failure to do so
could not reasonably be expected to have a Material Adverse Effect; PROVIDED,
HOWEVER, that Newco 4 and its Subsidiaries may consummate any transaction
permitted under Section 10.3, 10.4 or 10.5.
9.6 COMPLIANCE WITH STATUTES, OBLIGATIONS, ETC. Newco 4 and
Parent will, and will cause each Subsidiary to, comply with all applicable laws,
rules, regulations and orders, except to the extent the failure to do so could
not reasonably be expected to have a Material Adverse Effect.
9.7 ERISA. Promptly after Parent or any of its Subsidiaries or
any ERISA Affiliate knows or has reason to know of the occurrence of any of the
following events that, individually or in the aggregate (including in the
aggregate such events previously disclosed or exempt from disclosure hereunder,
to the extent the liability therefor remains outstanding), would be reasonably
likely to have a Material Adverse Effect, Parent will deliver to each of the
Lenders a certificate of an Authorized Officer or any other senior officer of
Parent setting forth details as to such occurrence and the action, if any, that
the Parent, such Subsidiary or such ERISA Affiliate is required or proposes to
take, together with any notices (required, proposed or
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otherwise) given to or filed with or by Parent, such Subsidiary, such ERISA
Affiliate, the PBGC, a Plan participant (other than notices relating to an
individual participant's benefits) or the Plan administrator with respect
thereto: that a Reportable Event has occurred; that an accumulated funding
deficiency has been incurred or an application is to be made to the Secretary of
the Treasury for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a Plan; that a
Plan having an Unfunded Current Liability has been or is to be terminated,
reorganized, partitioned or declared insolvent under Title IV of ERISA
(including the giving of written notice thereof); that a Plan has an Unfunded
Current Liability that has or will result in a lien under ERISA or the Code;
that proceedings will be or have been instituted to terminate a Plan having an
Unfunded Current Liability (including the giving of written notice thereof);
that a proceeding has been instituted against the Borrower, any of its
Subsidiaries or an ERISA Affiliate pursuant to Section 515 of ERISA to collect a
delinquent contribution to a Plan; that the PBGC has notified the Borrower, any
of its Subsidiaries or any ERISA Affiliate of its intention to appoint a trustee
to administer any Plan; that the Borrower, any of its Subsidiaries or any ERISA
Affiliate has failed to make a required installment or other payment pursuant to
Section 412 of the Code with respect to a Plan; or that the Borrower, any of its
Subsidiaries or any ERISA Affiliate has incurred or will incur (or has been
notified in writing that it will incur) any liability (including any contingent
or secondary liability) to or on account of a Plan pursuant to Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section
4971 or 4975 of the Code.
9.8 GOOD REPAIR. Newco 4 and Parent will, and will cause each
of the Restricted Subsidiaries to, ensure that its properties and equipment used
or useful in its business in whomsoever's possession they may be to the extent
that it is within Newco 4's, Parent's or such Restricted Subsidiary's control to
cause same, are kept in good repair, working order and condition, normal wear
and tear excepted, and that from time to time there are made in such properties
and equipment all needful and proper repairs, renewals, replacements,
extensions, additions, betterments and improvements thereto, to the extent and
in the manner customary for companies in similar businesses and consistent with
third party leases, except in each case to the extent the failure to do so could
not be reasonably expected to have a Material Adverse Effect.
9.9 TRANSACTIONS WITH AFFILIATES. Newco 4 and Parent will
conduct, and cause each of the Restricted Subsidiaries to conduct, all
transactions with any of its Affiliates (other than Newco 4, Parent or any
Restricted Subsidiary) on terms that are substantially as favorable to Newco 4,
Parent or such Restricted Subsidiary as it would obtain in a comparable
arm's-length transaction with a Person that is not an Affiliate, PROVIDED that
the foregoing restrictions shall not apply to (a) the payment of customary
annual fees to Sponsor and/or its Affiliates for management, consulting and
financial services rendered to Newco 4, Parent and their Subsidiaries and
investment banking fees paid to Sponsor and its Affiliates for services rendered
to Newco 4, Parent and their Subsidiaries in connection with divestitures,
acquisitions, financings and other transactions, (b) customary fees paid to
members of the Board of Directors of Newco 4, Parent and their Subsidiaries, (c)
transactions between and among Newco 4, Parent and the Restricted Subsidiaries
that do not involve any other Affiliate and (d) transactions permitted by
Section 10.6.
9.10 END OF FISCAL YEARS; FISCAL QUARTERS. Newco 4 will, for
financial reporting purposes, cause (a) each of its, and each of its
Subsidiaries', fiscal years to end on December 31 of each year and (b) each of
its, and each of its Subsidiaries', fiscal quarters to end on dates consistent
with such fiscal year-end and Newco 4's past practice; PROVIDED, HOWEVER, that
Newco 4 may, upon written notice to the Administrative Agent, change the
financial reporting convention specified above (i) in the case of a change prior
to December 31, 1998, to a fiscal year ending at a month-end prior thereto (in
which case Test Periods beginning prior to such new year-end will be calculated
on a PRO FORMA basis reasonably acceptable to the Administrative
75
Agent to give effect to a 12-month Test Period ending on the last day of such
Test Period (which the Borrower may determine utilizing an annualization method
in accordance with customary PRO FORMA accounting conventions)), or (ii)
otherwise to any other financial reporting convention reasonably acceptable to
the Administrative Agent, in which case Newco 4, Parent, the Borrower and the
Administrative Agent will, and are hereby authorized by the Lenders to, make any
adjustments to this Agreement that are necessary in order to reflect such change
in financial reporting.
9.11 ADDITIONAL GUARANTORS. Except as provided in Section
10.1(j) or (k), Newco 4 will cause any Required Guarantor Subsidiary (other than
any Unrestricted Subsidiary or Acquisition Subsidiary) formed or otherwise
purchased or acquired after the date hereof and (b) any Subsidiary of Newco 4
(other than any Unrestricted Subsidiary or Acquisition Subsidiary) that is not a
Required Guarantor Subsidiary on the date hereof but subsequently becomes a
Required Guarantor Subsidiary (other than any Unrestricted Subsidiary or
Acquisition Subsidiary), in each case to execute a supplement to the Guarantee
(in the form provided as an appendix thereto or otherwise in form and substance
reasonably satisfactory to the Administrative Agent), in order to become a
Guarantor, provided that nothing in this Section 9.11 (or any other provision of
any Credit Document) shall require any Subsidiary of Newco 4 to incur
obligations under any Guarantee that would (i) cause such Subsidiary to violate
any applicable law, rule or regulation or any requirement of any relevant
regulatory authority; (ii) result in a reduction in such Subsidiary's capital or
financial resources position for applicable regulatory purposes; or (iii) result
in a breach of any existing joint venture or other shareholder agreement
relating to such Subsidiary between Parent or any of its Subsidiaries and a
third-party shareholder in the relevant Subsidiary.
9.12 PLEDGES OF ADDITIONAL STOCK AND EVIDENCE OF INDEBTEDNESS.
(a) Except as provided in Section 10.1(j) or (k), Newco 4 and, after the date
this document has been executed by Parent, Parent will pledge, and, in the case
of clause (ii), will cause each direct subsidiary of Newco 4 or Parent to
pledge, to the Administrative Agent, for the benefit of the Lenders, (i) all the
capital stock of each direct subsidiary of Newco 4 or Parent (other than, prior
to the Term Loan Funding Date, the Shares and other than capital stock of any
Unrestricted Subsidiary, any Acquisition Subsidiary or any Subsidiary that is
not a Guarantor) formed or otherwise purchased or acquired after the date
hereof, in each case pursuant to a supplement to the U.K. Security Agreement (in
the form provided as an appendix thereto or otherwise in form and substance
reasonably satisfactory to the Administrative Agent), (ii) all evidences of
Indebtedness in excess of $5,000,000 received by Newco 4, Parent or any of their
direct Subsidiaries (other than any Unrestricted Subsidiary or Acquisition
Subsidiary) in connection with any disposition of assets pursuant to Section
10.4(b), and (iii) all Associated Undertaking Notes, in each case pursuant to a
supplement to the U.K. Security Agreement (in the form provided as an appendix
thereto or otherwise in form and substance reasonably satisfactory to the
Administrative Agent).
(b) Except as provided in Section 10.1(j) or (k), the Borrower
will pledge, and, in the case of clause (iii), will cause each direct Domestic
Borrower Subsidiary to pledge, to the Administrative Agent, for the benefit of
the Lenders, (i) all the capital stock of each direct Domestic Borrower
Subsidiary (other than any Unrestricted Subsidiary, Acquisition Subsidiary or
any Domestic Borrower Subsidiary the assets of which consist primarily of
capital stock of Foreign Subsidiaries) and 65% of all the capital stock of each
direct Material Subsidiary that is a Foreign Borrower Subsidiary (other than any
Unrestricted Subsidiary or Acquisition Subsidiary), in each case, formed or
otherwise purchased or acquired after the date hereof, in each case pursuant to
a supplement to the U.S. Pledge Agreement in form and substance reasonably
satisfactory to the Administrative Agent, (ii) all the capital stock of any
direct Domestic Borrower Subsidiary (other than any Unrestricted Subsidiary or
Acquisition Subsidiary) and 65% of all the capital stock of each direct Material
Subsidiary that is a Foreign Borrower Subsidiary (other than any Unrestricted
Subsidiary or Acquisition Subsidiary), in each case that is not a
76
direct Subsidiary on the date hereof but subsequently becomes a direct
Subsidiary (other than an Unrestricted Subsidiary or Acquisition Subsidiary), in
each case pursuant to a supplement to the U.S. Pledge Agreement in form and
substance reasonably satisfactory to the Administrative Agent, (iii) all
evidences of Indebtedness in excess of $5,000,000 received by the Borrower or
any of the direct Domestic Borrower Subsidiaries (other than any Unrestricted
Subsidiary or Acquisition Subsidiary) in connection with any disposition of
assets pursuant to Section 10.4(b), and (iv) all Associated Undertaking Notes,
in each case pursuant to a supplement to the U.S. Pledge Agreement in form and
substance reasonably satisfactory to the Administrative Agent.
9.13 USE OF PROCEEDS. The Borrower will use the Letters of
Credit and the proceeds of all Loans for the purposes set forth in the
introductory statement to this Agreement.
9.14 CHANGES IN BUSINESS. From the Control Date, Newco 4 and
its Subsidiaries taken as a whole will not fundamentally and substantively alter
the character of their business taken as a whole from the business conducted by
Parent and its Subsidiaries taken as a whole on the date hereof and other
business activities incidental or related to any of the foregoing.
9.15 OWNERSHIP OF ASSETS. Newco 4 and Parent will, from and
after the date of this Agreement, refrain from engaging in or permitting to
occur any transaction or other event that results, after giving effect to such
transaction or event, in the Pledged Subsidiaries (and their Restricted
Subsidiaries) holding assets representing less than the lesser of (i) a
substantial majority of the aggregate fair value of the assets of Newco 4 and
its Subsidiaries (determined by the Borrower in good faith on a consolidated
basis) at such time and (ii) an aggregate fair value at such time substantially
equal to the fair value (determined by the Borrower in good faith on a
consolidated basis) at such time of the assets held by Pledged Subsidiaries (and
their Restricted Subsidiaries) on the date hereof.
SECTION 10. NEGATIVE COVENANTS. Newco 4, Parent and the
Borrower hereby covenant and agree that on the Closing Date and thereafter, for
so long as this Agreement is in effect and until the Commitments, the Swingline
Commitment and each Letter of Credit have terminated and the Loans and Unpaid
Drawings, together with interest, Fees and all other Obligations incurred
hereunder, are paid in full:
10.1 LIMITATION ON INDEBTEDNESS. Newco 4 and Parent will not,
and will not permit any of the other Restricted Subsidiaries to, create, incur,
assume or suffer to exist any Indebtedness, except:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of (i) Newco 4 to any Subsidiary of Newco 4,
(ii) Parent to Newco 4 or any Subsidiary of Newco 4, (iii) the Borrower to Newco
4 or any Subsidiary of Newco 4 and (iv) any Restricted Subsidiary to Newco 4 or
any other Subsidiary of Newco 4;
(c) Indebtedness in respect of any bankers' acceptance, letter
of credit, warehouse receipt or similar facilities entered into in the ordinary
course of business;
(d) except as provided in clauses (j) and (k) below, Guarantee
Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness
of Newco 4 or other Restricted Subsidiaries that is permitted to be incurred
under this Agreement and (ii) Newco 4 in respect of Indebtedness of the
Restricted Subsidiaries that is permitted to be incurred under this Agreement,
PROVIDED that no Restricted Subsidiary shall guarantee the Subordinated Bridge
Facility or the Subordinated Notes unless (A) it has also guaranteed the
Obligations pursuant to the Guarantee and (B) such guarantee of the Subordinated
Bridge Facility or the Subordinated Notes is
77
subordinated to such Guarantee of the Obligations on terms no less favorable to
the Lenders than the subordination provisions of the Subordinated Notes;
(e) Guarantee Obligations incurred in the ordinary course of
business consistent with those described in Schedule 10.1(a);
(f) (i) Indebtedness (including Indebtedness arising under
Capital Leases) incurred within 270 days of the acquisition, construction or
improvement of fixed or capital assets to finance the acquisition, construction
or improvement of such fixed or capital assets or otherwise incurred in respect
of Capital Expenditures permitted by Section 10.11, (ii) Indebtedness arising
under Capital Leases entered into in connection with Permitted Sale Leasebacks
and (iii) Indebtedness arising under Capital Leases, other than Capital Leases
in effect on the date hereof and Capital Leases entered into pursuant to
subclauses (i) and (ii) above, PROVIDED that the aggregate amount of
Indebtedness incurred pursuant to this subclause (iii) shall not exceed
$25,000,000 at any time outstanding, and (iv) any refinancing, refunding,
renewal or extension of any Indebtedness specified in subclause (i), (ii) or
(iii) above, PROVIDED that the principal amount thereof is not increased above
the principal amount thereof outstanding immediately prior to such refinancing,
refunding, renewal or extension;
(g) Indebtedness outstanding on the date hereof or incurred
pursuant to facilities in place on the date hereof and in each case listed on
Schedule 10.1 (b) and any refinancing, refunding, renewal or extension thereof,
PROVIDED that (i) the principal amount thereof is not increased above the
principal amount thereof outstanding or available immediately prior to such
refinancing, refunding, renewal or extension, except to the extent otherwise
permitted hereunder, and (ii) the direct and contingent obligors with respect to
such Indebtedness are not changed;
(h) Indebtedness in respect of Hedge Agreements;
(i) Indebtedness in respect of (i) (A) the Subordinated Bridge
Facility and (B) the Subordinated Notes, PROVIDED that the aggregate principal
amount of such Indebtedness at any one time outstanding shall not exceed
$575,000,000 and (ii) prior to the Term Loan Funding Date, the Senior Bridge
Facility;
(j) (i) Indebtedness of a Person or Indebtedness attaching to
assets of a Person that, in either case, becomes a Restricted Subsidiary
(including a Restricted Subsidiary that is also an Acquisi tion Subsidiary) or
Indebtedness attaching to assets that are acquired by Newco 4 or any Restricted
Subsidiary (including any Acquisition Subsidiary), in each case after the
Closing Date as the result of a Permitted Acquisition, PROVIDED that (w) such
Indebtedness existed at the time such Person became a Restricted Subsidiary or
at the time such assets were acquired and, in each case, was not created in
anticipation thereof, (x) such Indebtedness is not guaranteed in any respect by
Newco 4 or any Restricted Subsidiary (other than any such person that so becomes
a Restricted Subsidiary), (y)(A) Newco 4 or the Borrower pledges the capital
stock of such Person to the Administrative Agent to the extent required under
Section 9.12, (B) such Person executes a supplement to the Guarantee to the
extent required under Section 9.11 and (C) if any such Indebtedness is secured,
(1) the Guarantee referred to in the preceding subclause (B) is equally and
ratably secured or (2) in the case of assets acquired by Newco 4, Parent or the
Borrower or any other Restricted Subsidiary (other than any Acquisition
Subsidiary), the Borrower's obligations hereunder or Newco 4's, Parent's or such
Restricted Subsidiary's Guarantee, as the case may be, are equally and ratably
secured, PROVIDED that the requirements of this subclause (y) shall not apply to
an aggregate amount at any time outstanding of up to (and including)
$100,000,000 of the aggregate of (1) such Indebtedness and (2) all Indebtedness
as to which the proviso to clause (k)(i)(y) below then applies, and (z) the
aggregate amount of such Indebtedness and all Indebtedness incurred under clause
(k) below, when taken together, does not exceed $200,000,000 in the aggregate at
any time outstanding, PROVIDED that,
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when calculating the outstanding amount of Indebtedness for purposes of this
subclause (z), Indebtedness of any Acquisition Subsidiary, Indebtedness
attaching to assets of any Acquisition Subsidiary and Indebtedness attaching to
assets acquired by any Acquisition Subsidiary shall be excluded, and (ii) any
refinancing, refunding, renewal or extension of any Indebtedness specified in
subclause (i) above, PROVIDED that, except to the extent otherwise permitted
hereunder, (x) the principal amount of any such Indebtedness is not increased
above the principal amount thereof outstanding immediately prior to such
refinancing, refunding, renewal or extension and (y) the direct and contingent
obligors with respect to such Indebtedness are not changed;
(k) (i) Indebtedness of Newco 4 or any Restricted Subsidiary
(including any Acquisition Subsidiary) incurred to finance a Permitted
Acquisition, PROVIDED that (x) such Indebtedness is not guaranteed in any
respect by any Restricted Subsidiary (other than any Person acquired (the
"ACQUIRED PERSON") as a result of such Permitted Acquisition or the Restricted
Subsidiary so incurring such Indebtedness) or, in the case of Indebtedness of
any Restricted Subsidiary, by Newco 4, (y)(A) Newco 4, Parent or the Borrower
pledges the capital stock of such acquired Person to the Administrative Agent to
the extent required under Section 9.12, (B) such acquired Person executes a
supplement to the Guarantee to the extent required under Section 9.11 and (C) if
a guarantee by such acquired Person of any such Indebtedness is secured by
assets of such acquired Person, the Guarantee referred to in the preceding
subclause (B) is equally and ratably secured, PROVIDED that the requirements of
this subclause (y) shall not apply to an aggregate amount at any time
outstanding of up to (and including) $100,000,000 of the aggregate of (1) such
Indebtedness and (2) all Indebtedness as to which the proviso to clause
(j)(i)(y) above then applies, and (z) the aggregate amount of such Indebtedness
and all Indebtedness assumed or permitted to exist under clause (j) above, when
taken together, does not exceed $200,000,000 in the aggregate at any time
outstanding, PROVIDED that, when calculating the outstanding amount of
Indebtedness for purposes of this subclause (z), Indebtedness of any Acquisition
Subsidiary shall be excluded, and (ii) any refinancing, refunding, renewal or
extension of any Indebtedness specified in subclause (i) above, PROVIDED that
(x) the principal amount of any such Indebtedness is not increased above the
principal amount thereof outstanding immediately prior to such refinancing,
refunding, renewal or extension and (y) the direct and contingent obligors with
respect to such Indebtedness are not changed, except to the extent otherwise
permitted hereunder;
(l) Indebtedness of Restricted Non-Credit Party Subsidiaries
in an aggregate amount at any time outstanding not to exceed (i) $75,000,000
MINUS (ii) the amount, if any, by which the aggregate amount of Indebtedness
incurred and outstanding at such time pursuant to clause (o) below exceeds
$125,000,000;
(m) (i) Indebtedness incurred in connection with any Permitted
Sale Leaseback and (ii) any refinancing, refunding, renewal or extension of any
Indebtedness specified in subclause (i) above, PROVIDED that, except to the
extent otherwise permitted hereunder, (x) the principal amount of any such
Indebtedness is not increased above the principal amount thereof outstanding
immediately prior to such refinancing, refunding, renewal or extension and (y)
the direct and contingent obligors with respect to such Indebtedness are not
changed;
(n) the Guaranteed Loan Notes;
(o) (i) additional Indebtedness, PROVIDED that the aggregate
amount of Indebtedness incurred and remaining outstanding pursuant to this
clause (o) shall not at any time exceed the sum of (x) $125,000,000 and (y) the
amount, if any, by which $75,000,000 exceeds the aggregate amount of
Indebtedness then outstanding under clause (l) above, and (ii) any refinancing,
refunding, renewal or extension of any Indebtedness specified in subclause (i)
above;
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(p) Indebtedness under any BACS Facility used in the ordinary
course of business;
(q) Indebtedness incurred in relation to arrangements made in
the ordinary course of business to facilitate the operation of bank accounts on
a net balance basis for the calculation of interest;
(r) Indebtedness that is subject to a Letter of Credit
provided pursuant to the Revolving Credit Facility;
(s) short-term Indebtedness from banks incurred in the
ordinary course of business pursuant to a facility required in order to comply
with, or otherwise falling within, paragraph 25(2) of the Lloyds Brokers By-law
(No. 5 of 1988) (or any other by-law or regulation issued by Lloyds from time to
time with which the relevant company is required to comply); and
(t) any guarantee facility entered into in the ordinary course
of business consistent with industry custom provided in relation to employees
who are Lloyds names.
10.2 LIMITATION ON LIENS. Newco 4 and Parent will not, and
will not permit any of the Restricted Subsidiaries to, create, incur, assume or
suffer to exist any Lien upon any property or assets of any kind (real or
personal, tangible or intangible) of Newco 4, Parent or any Restricted
Subsidiary, whether now owned or hereafter acquired, except:
(a) Liens arising under the Credit Documents and, on and after
the Statutory Declaration Date and prior to the Term Loan Funding Date, Liens
securing Indebtedness in respect of the Senior Bridge Facility;
(b) Permitted Liens;
(c) Liens securing Indebtedness permitted pursuant to Section
10.1(f), PROVIDED that such Liens attach at all times only to the assets so
financed;
(d) Liens existing on the date hereof;
(e) Liens existing on the assets of any Person that becomes a
Restricted Subsidiary, or existing on assets acquired, pursuant to a Permitted
Acquisition to the extent the Liens on such assets secure Indebtedness permitted
by Section 10.1(j), PROVIDED that such Liens attach at all times only to the
same assets that such Liens attached to, and secure only the same Indebtedness
that such Liens secured, immediately prior to such Permitted Acquisition;
(f) (i) Liens placed upon the capital stock of any Restricted
Subsidiary acquired pursuant to a Permitted Acquisition to secure Indebtedness
of Newco 4 or any Restricted Subsidiary incurred pursuant to Section 10.1(k) in
connection with such Permitted Acquisition, (ii) Liens placed upon the assets of
such Restricted Subsidiary to secure a guarantee by such Restricted Subsidiary
of any such Indebtedness of Newco 4 or any Restricted Subsidiary and (iii) Liens
placed upon the capital stock or assets of any Acquisition Subsidiary to secure
Indebtedness of such Acquisition Subsidiary incurred pursuant to Section 10.1(k)
in connection with any Permitted Acquisition;
(g) the replacement, extension or renewal of any Lien
permitted by clauses (a) through (f) above upon or in the same assets
theretofore subject to such Lien or the replacement, extension or renewal
(without increase in the amount or change in any direct or contingent obligor
except to the extent otherwise permitted hereunder) of the Indebtedness secured
thereby;
80
(h) Liens incurred by Restricted Non-Credit-Party Subsidiaries
so long as the aggregate principal amount of the obligations so secured does not
exceed $50,000,000 at any time outstanding;
(i) additional Liens so long as the aggregate principal amount
of the obligations so secured does not exceed $25,000,000 at any time
outstanding;
(j) charges in favor of Lloyds over IBA accounts to the extent
required to be created under the Lloyds Brokers By-law (No. 5 of 1988) (or any
other by-law or regulation issued by Lloyds from time to time with which the
relevant company is required to comply);
(k) Liens existing over IBA assets as contemplated by the
Lloyds Brokers By-law (No. 5 of 1988) (or any other by-law or regulation issued
by Lloyds from time to time with which the relevant company is required to
comply);
(l) Liens over credit balances created in favor of any bank in
order to facilitate the operation of bank accounts on a net balance basis for
the calculation of interest or in connection with any BACS facility used in the
ordinary course of business;
(m) Liens comprised by escrow arrangements entered into in
connection with asset sales, transfers or other dispositions permitted pursuant
to Section 10.4; and
(n) Liens on escrowed amounts of up to (pound)5,500,000 in
connection with run-off arrangements relating to Willis Faber Underwriting
Management Limited.
10.3 LIMITATION ON FUNDAMENTAL CHANGES. Except as expressly
permitted by Section 10.4 or 10.5, Newco 4 and Parent will not, and will not
permit any of the Restricted Subsidiaries to, enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all its business units, assets or
other properties, except that:
(i) any Subsidiary of the Borrower or any other
Person may be merged or consolidated with or into the
Borrower, PROVIDED that (i) the Borrower shall be the
continuing or surviving corporation or the Person formed by
or surviving any such merger or consolidation (if other than
the Borrower) shall be a corporation organized or existing
under the laws of the United States, any state thereof, the
District of Columbia or any territory thereof (the Borrower
or such Person, as the case may be, being herein referred to
as the "SUCCESSOR BORROWER"), (ii) the Successor Borrower
(if other than the Borrower) shall expressly assume all the
obligations of the Borrower under this Agreement and the
other Credit Documents pursuant to a supplement hereto or
thereto in form reasonably satisfactory to the
Administrative Agent, (iii) no Default or Event of Default
would result from the consummation of such merger or
consolidation, (iv) the Successor Borrower shall be in
compliance, on a pro forma basis after giving effect to such
merger or consolidation, with the covenants set forth in
Sections 10.9, 10.10 and 10.11, as such covenants are
recomputed as at the last day of the most recently ended
Test Period under such Section as if such merger or
consolidation had occurred on the first day of such Test
Period, (v) each Guarantor, unless it is the other party to
such merger or consolidation, shall have by a supplement to
the Guarantee confirmed that its Guarantee shall apply to
the Successor Borrower's obligations under this Agreement
and (vi) the Borrower shall have delivered to the
Administrative Agent an officer's certificate and an opinion
of counsel, each stating that such merger or consolidation
and such supplement to this Agreement
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or any Guarantee comply with this Agreement, PROVIDED
FURTHER that if the foregoing are satisfied, the Successor
Borrower (if other than the Borrower) will succeed to, and
be substituted for, the Borrower under this Agreement;
(ii) any Subsidiary of Newco 4 or Parent (other than
Parent and the Borrower) or any other Person may be merged or
consolidated with or into any one or more Subsidiaries of
Newco 4, PROVIDED that (i) in the case of any merger or
consolidation involving one or more Restricted Subsidiaries,
(A) a Restricted Subsidiary shall be the continuing or
surviving corporation or (B) Newco 4 and Parent shall take all
steps necessary to cause the Person formed by or surviving any
such merger or consolidation (if other than a Restricted
Subsidiary) to become a Restricted Subsidiary, (ii) in the
case of any merger or consolidation involving one or more
Guarantors, a Guarantor shall be the continuing or surviving
corporation or the Person formed by or surviving any such
merger or consolidation (if other than a Guarantor) shall
execute a supplement to the Guarantee in form and substance
reasonably satisfactory to the Administrative Agent in order
to become a Guarantor, (iii) no Default or Event of Default
would result from the consummation of such merger or
consolidation, (iv) in the case of any such merger or
consolidation involving a Person other than Newco 4 or any
Restricted Subsidiary, Newco 4 shall be in compliance, on a
pro forma basis after giving effect to such merger or
consolidation, with the covenants set forth in Sections 10.9,
10.10 and 10.11, as such covenants are recomputed as at the
last day of the most recently ended Test Period under such
Section as if such merger or consolidation had occurred on the
first day of such Test Period, and (v) in the case of any such
merger or consolidation involving a Person other than Newco 4
or any Restricted Subsidiary, the Borrower shall have
delivered to the Administrative Agent an Officers' Certificate
stating that such merger or consolidation and such supplement
to any Guarantee comply with this Agreement;
(iii) any Restricted Subsidiary that is not the
Borrower or a Guarantor may, subject to Section 9.15, sell,
lease, transfer or otherwise dispose of any or all of its
assets (upon voluntary liquidation or otherwise) to Newco 4, a
Guarantor or any other Restricted Subsidiary, and
(iv) any Guarantor may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or any other
Guarantor.
10.4 LIMITATION ON SALE OF ASSETS. Newco 4 and Parent will
not, and will not permit any of the Restricted Subsidiaries to, (i) convey,
sell, lease, assign, transfer or otherwise dispose of any of its property,
business or assets (including, without limitation, receivables and leasehold
interests), whether now owned or hereafter acquired (other than any such sale,
transfer, assignment or other disposition resulting from any casualty or
condemnation of any assets of Parent or the Restricted Subsidiaries) or (ii)
sell any shares owned by it of any Restricted Subsidiary's capital stock to any
Person other than Newco 4, another Guarantor or a Restricted Foreign Subsidiary,
except that:
(a) Newco 4 and the Restricted Subsidiaries may sell, transfer
or otherwise dispose of used or surplus equipment, vehicles, inventory and other
assets in the ordinary course of business;
(b) Newco 4 and the Restricted Subsidiaries may sell, transfer
or otherwise dispose of other assets for fair value, PROVIDED that (i) the
aggregate amount of such sales, transfers and disposals by Newco 4 and the
Restricted Subsidiaries taken as a whole pursuant to
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this clause (b) shall not exceed in the aggregate $300,000,000 during the
term of this Agreement, (ii) any consideration in excess of $5,000,000
received by the Borrower or any Guarantor in connection with such sales,
transfers and other dispositions of assets pursuant to
this clause (b) that is in the form of Indebtedness shall be pledged to the
Administrative Agent pursuant to Section 9.12, (iii) with respect to any such
sale, transfer or disposition (or series of related sales, transfers or
dispositions) in an aggregate amount in excess of $10,000,000, Parent shall be
in compliance, on a pro forma basis after giving effect to such sale, transfer
or disposition, with the covenants set forth in Sections 10.9, 10.10 and 10.11,
as such covenants are recomputed as at the last day of the most recently ended
Test Period under such Sections as if such sale, transfer or disposition had
occurred on the first day of such Test Period, and (iv) after giving effect to
any such sale, transfer or disposition, no Default or Event of Default shall
have occurred and be continuing;
(c) Newco 4 and the Restricted Subsidiaries may make sales of
assets to Newco 4 or to any Restricted Subsidiary, PROVIDED that any such sales
to Restricted Non-Credit Party Subsidiaries shall be for fair value;
(d) any Restricted Subsidiary may effect any transaction
permitted by Section 10.3; and
(e) in addition to selling or transferring accounts receivable
pursuant to the other provisions hereof, Newco 4 and the Restricted Subsidiaries
may sell or discount without recourse accounts receivable arising in the
ordinary course of business in connection with the compromise or collection
thereof.
10.5 LIMITATION ON INVESTMENTS. Newco 4 and Parent will not,
and will not permit any of the Restricted Subsidiaries to, make any advance,
loan, extensions of credit or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of or any assets of, or make any
other investment in, any Person, except:
(a) extensions of trade credit and asset purchases in the
ordinary course of business;
(b) Permitted Investments;
(c) loans and advances to officers, directors and employees of
Newco 4 or any of its Subsidiaries (i) to finance the purchase of capital stock
of Newco 4 and (ii) for additional purposes not contemplated by subclause (i)
above in an aggregate principal amount at any time outstanding with respect to
this clause (ii) not exceeding $10,000,000;
(d) investments existing on the date hereof and any
extensions, renewals or reinvestments thereof, so long as the aggregate amount
of all investments pursuant to this clause (d) is not increased at any time
above the amount of such investments existing on the date hereof;
(e) investments in Hedge Agreements permitted by Section
10.1(h);
(f) investments received in connection with the bankruptcy or
reorganization of suppliers or customers and in settlement of delinquent
obligations of, and other disputes with, customers arising in the ordinary
course of business;
(g) investments constituting non-cash proceeds of sales,
transfers and other dispositions of assets to the extent permitted by Section
10.4;
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(h) investments in any Guarantor or Limited Guarantor;
PROVIDED, HOWEVER, that in the case of investments in any Limited Guarantor, the
aggregate amount of such investments at any time outstanding shall not exceed
the amount of such Limited Guarantor's Guarantee at such time;
(i) investments constituting Permitted Acquisitions, PROVIDED
that the aggregate amount of any such investment made by Newco 4 or any
Restricted Subsidiary (other than any Acquisition Subsidiary) in any Acquisition
Subsidiary shall not exceed the Available Amount at the time of such investment,
and PROVIDED FURTHER that the aggregate amount of any such investment made by
Newco 4 or any Restricted Subsidiary (other than any Restricted Non-Credit-Party
Subsidiary) in any Restricted Non-Credit-Party Subsidiary shall not exceed (i)
the Available Non-Credit-Party Investment Amount at the time of such investment
MINUS (ii) the portion of the Available Non-Credit-Party Investment Amount being
used at such time for investments made pursuant to clause (k) below;
(j) investments in any Restricted Non-Credit-Party Subsidiary,
PROVIDED that the aggregate amount of any such investment made by Newco 4 or any
Restricted Subsidiary (other than any Restricted Non-Credit-Party Subsidiary)
shall not exceed (i) the Available Non-Credit-Party Investment Amount at the
time of such investment MINUS (ii) the portion of the Available Non-Credit-
Party Investment Amount being used at such time for investments made pursuant to
clause (k) below;
(k) additional investments (including investments in Minority
Investments, Unrestricted Subsidiaries and Acquisition Subsidiaries) in an
aggregate amount at the time of such investment not in excess of the sum of (i)
the Available Amount at such time and (ii) the amount equal to one-half of the
Available Non-Credit-Party Investment Amount at such time;
(l) investments permitted under Section 10.6.;
(m) investments listed on Schedule 10.5;
(n) loans to any Associated Undertaking, PROVIDED that (i) the
aggregate principal amount of all such loans shall not exceed $50,000,000 at any
one time outstanding and (ii) if the aggregate principal amount of all loans
made to any Associated Undertaking pursuant to this Section 10.5 exceeds
$25,000,000, all such loans made to such Associated Undertaking shall be
evidenced by an Associated Undertaking Note; and
(o) investments to the extent that payment for such
investments is made solely with capital stock of Newco 4.
10.6 LIMITATION ON DIVIDENDS. Newco 4 will not and, after the Control Date and
prior to the consummation of the Acquisition, Parent will not declare or pay any
dividends (other than dividends payable solely in its capital stock to Newco 3)
or return any capital to its stockholders or make any other distribution,
payment or delivery of property or cash to its stockholders as such, or redeem,
retire, purchase or otherwise acquire, directly or indirectly, for
consideration, any shares of any class of its capital stock or the capital stock
of any direct or indirect parent of Newco 4 now or hereafter outstanding (or any
warrants for or options or stock appreciation rights in respect of any of such
shares), or set aside any funds for any of the foregoing purposes, or permit any
of the Restricted Subsidiaries to purchase or otherwise acquire for
consideration (other than in connection with an investment permitted by Section
10.5) any shares of any class of the capital stock of Newco 4, now or hereafter
outstanding (or any options or warrants or stock appreciation rights issued by
such Person with respect to its capital stock) (all of the foregoing
"DIVIDENDS"), PROVIDED that, so long as no Default or Event of Default exists or
would exist after giving effect thereto, (a) Newco 4 may redeem in whole or in
part any capital
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stock of Newco 4 (i) for another class of capital stock or rights to acquire
capital stock of Newco 4 or (ii) with proceeds from substantially concurrent
equity contributions or issuances of new shares of capital stock, PROVIDED that
such other class of capital stock contains terms and provisions at least as
advantageous to the Lenders in all respects material to their interests as those
contained in the capital stock redeemed thereby, (b) Newco 4 may, or may pay
Dividends to Newco 3 to enable Newco 3 to, repurchase (or pay Dividends to
enable its parent company to repurchase, in the case of Newco 3 and Newco 2)
shares of capital stock of Newco 4, Newco 3, Newco 2 or Newco 1 (and/or options
or warrants in respect thereof) held by its officers, directors and employees so
long as such repurchase is pursuant to, and in accordance with the terms of,
management and/or employee stock plans, stock subscription agreements or
shareholder agreements, (c) Newco 4 and Parent may make investments permitted by
Section 10.5, (d) Newco 4 may declare and pay dividends on its capital stock,
PROVIDED that (i) the aggregate amount of dividends paid pursuant to this clause
(d) and clause (e) shall not at any time exceed 50% of Cumulative Consolidated
Net Income Available to Stockholders at such time less the amount of dividends
previously paid pursuant to this clause (d) and clause (e) following the last
day of the most recent fiscal quarter for which Section 9.1 Financials have been
delivered to the Lenders under Section 9.1 and (ii) at the time of the payment
of any such dividends and after giving effect thereto, the Consolidated Total
Debt to Consolidated EBITDA Ratio on the date of such payment of such dividends
shall be less than 3.00:1.00, (e) Newco 4 may declare and pay cash dividends
and/or make distributions on its capital stock to Newco 3 (i) to fund the
payment of dividends (at a rate per annum not in excess of 7 1/2%) on the
Preferred Stock outstanding on the Term Loan Funding Date, on any Replacement
Preferred Stock and on any thereof accreting in lieu of dividends (whether such
dividends have accrued during the then-current fiscal year or any previous
fiscal year), (A) to the extent that the Consolidated Cash Available for Fixed
Charges to Consolidated Fixed Charges Ratio for the Test Period most recently
ended prior to the date on which such dividends would be paid, calculated on a
pro forma basis to give effect to the payment of such dividends (assuming, for
this purpose, that if there were two dividend payments on such Preferred Stock
or Replacement Preferred Stock during such Test Period, the payment of the
proposed dividends is made in lieu of the first such dividend payment during
such Test Period), would be equal to or greater than the ratio (the "Target
Ratio") set forth in the table below opposite the period during which such Test
Period ends or (B) if the Consolidated Cash Available for Fixed Charges to
Consolidated Fixed Charges Ratio for such Test Period (calculated on such pro
forma basis) would be less than the Target Ratio, in an additional amount to the
extent that, after giving effect to the payment of such additional dividends,
the aggregate amount of dividends paid pursuant to this clause (B) during the
term of this Agreement would not exceed $20,000,000, and (ii) so long as no
Default or Event of Default has occurred and is continuing, to fund (A) the
repurchase of outstanding shares of the Preferred Stock or the Replacement
Preferred Stock for an aggregate purchase price not in excess of the Available
Amount at the time of such repurchase and (B) the payment of accrued but unpaid
dividends on the Preferred Stock or the Replacement Preferred Stock in an amount
not in excess of the Available Amount at the time of such dividend payment, (f)
Newco 4 may declare and pay dividends and/or make distributions on its capital
stock, the proceeds of which will be used by Newco 3 solely to pay taxes of
Newco 3 and its Subsidiaries as part of a consolidated tax filing group, along
with franchise taxes, administrative and similar expenses related to its
existence and ownership of Newco 4, PROVIDED that the amount of such dividends
does not exceed in any fiscal year the amount of such taxes and expenses payable
for such fiscal year, (g) Parent may declare and pay a dividend to be paid to
holders of the Shares pro rata during the fiscal quarter ending December 31,
1998, if such dividend is declared prior to the Control Date in accordance with
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past practice and (h) Parent may pay dividends to Newco 4 for use by Newco 4 for
any of the purposes permitted in clauses (a) through (g) above.
[Download Table]
Fiscal Year Ratio
----------- -----
1999 1.25:1.00
2000 1.45:1.00
2001 1.60:1.00
2002 1.70:1.00
2003 1.80:1.00
2004 1.85:1.00
2005 1.95:1.00
2006 2.25:1.00
2007 3.00:1.00
2008 3.75:1.00
10.7 LIMITATIONS ON DEBT PAYMENTS AND AMENDMENTS. (a) Neither
the Borrower nor Newco 4 will (i) prepay, repurchase or redeem or otherwise
defease any portion of the Subordinated Bridge Facility or (ii) prepay,
repurchase or redeem or otherwise defease any Subordinated Notes; PROVIDED,
HOWEVER, that (A) Newco 4 may prepay the principal of, and accrued interest on,
the Subordinated Bridge Facility with the Net Cash Proceeds of the Subordinated
Notes or any refinancing or replacement of the Subordinated Bridge Facility that
has terms material to the interests of the Lenders not materially less
advantageous to the Lenders than the terms contemplated by the definition of the
term "Subordinated Bridge Facility" and (B) so long as no Default or Event of
Default has occurred and is continuing, the Borrower may prepay, repurchase or
redeem Subordinated Notes (x) for an aggregate price not in excess of the
Available Amount at the time of such prepayment, repurchase or redemption or (y)
with the proceeds of subordinated Indebtedness that (1) is permitted by Section
10.1 and (2) has terms material to the interests of the Lenders not materially
less advantageous to the Lenders than those of the Subordinated Notes.
(b) Neither the Borrower nor Newco 4 will waive, amend,
modify, terminate or release the documentation pursuant to which the
Subordinated Loans were made or the Subordinated Note Indenture to the extent
that any such waiver, amendment, modification, termination or release would be
adverse to the Lenders in any material respect.
10.8 LIMITATIONS ON SALE LEASEBACKS. Newco 4 will not, and
will not permit any of the Restricted Subsidiaries to, enter into or effect any
Sale Leasebacks, other than Permitted Sale Leasebacks.
10.9 CONSOLIDATED TOTAL DEBT TO CONSOLIDATED EBITDA RATIO.
Newco 4 and Parent will not permit the Consolidated Total Debt to Consolidated
EBITDA Ratio for any Test
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Period ending during any period set forth below to be greater than the ratio set
forth below opposite such period:
[Download Table]
Period Ratio
------ -------
First two fiscal quarters of 1999 6.00:1.00
Second two fiscal quarters of 1999 5.75:1.00
First two fiscal quarters of 2000 5.50:1.00
Second two fiscal quarters of 2000 5.25:1.00
First two fiscal quarters of 2001 5.00:1.00
Second two fiscal quarters of 2001 4.75:1.00
First two fiscal quarters of 2002 4.50:1.00
Second two fiscal quarters of 2002 4.25:1.00
Fiscal year 2003 through Tranche D
Maturity Date 4.00:1.00
10.10 CONSOLIDATED EBITDA TO CONSOLIDATED INTEREST EXPENSE
RATIO.Newco 4 and Parent will not permit the Consolidated EBITDA to Consolidated
Interest Expense Ratio for any Test Period ending during any period set forth
below to be less than the ratio set forth below opposite such period:
[Download Table]
Period Ratio
------ -------
First two fiscal quarters of 1999 1.70:1.00
Second two fiscal quarters of 1999 1.80:1.00
First two fiscal quarters of 2000 1.90:1.00
Second two fiscal quarters of 2000 2.00:1.00
First two fiscal quarters of 2001 2.10:1.00
Second two fiscal quarters of 2001 2.20:1.00
First two fiscal quarters of 2002 2.30:1.00
Second two fiscal quarters of 2002 2.40:1.00
Fiscal year 2003 through Tranche D
Maturity Date 2.50:1.00
10.11 CAPITAL EXPENDITURES. (a) Newco 4 and Parent will not,
and will not permit any of the Restricted Subsidiaries to, make any Capital
Expenditures (other than Permitted Acquisitions that constitute Capital
Expenditures), that would cause the aggregate amount of such Capital
Expenditures made by Newco 4 and the Restricted Subsidiaries in any fiscal year
of Newco 4 to exceed the greater of (i) $55,000,000 and (ii) an amount equal to
4.75% of Consolidated Gross Revenues for the immediately preceding fiscal year.
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(b) To the extent that Capital Expenditures (other than
Permitted Acquisitions that constitute Capital Expenditures) made by Newco 4 and
the Restricted Subsidiaries during any fiscal year are less than the maximum
amount permitted to be made for such fiscal year, 50% of such unused amount
(each such amount, a "CARRY-FORWARD AMOUNT") may be carried forward to the
immediately succeeding fiscal year and utilized to make such Capital
Expenditures in such succeeding fiscal year in the event the amount set forth
above for such succeeding fiscal year has been used (it being understood and
agreed that (i) no carry-forward amount may be carried forward beyond the first
two fiscal years immediately succeeding the fiscal year in which it arose and,
(ii) no portion of the carry-forward amount available for any fiscal year may be
used until the entire amount of such Capital Expenditures permitted to be made
in such fiscal year (without giving effect to such carry-forward amount) shall
be made and (iii) if the carry forward amount available for any fiscal year is
the sum of amounts carried forward from each of the two immediately preceding
fiscal years, no portion of such carry-forward amount from the earlier of the
two immediately preceding fiscal years may be used until the entire portion of
such carryforward amount from the more recent immediately preceding fiscal year
shall have been used for such Capital Expenditures made in such fiscal year).
(c) Newco 4 and the Restricted Subsidiaries may also make
Capital Expenditures in any fiscal year, in addition to the maximum amount
permitted to be made for such fiscal year in accordance with the foregoing, in
an amount equal to $25,000,000 (each such amount, a "CARRY-BACK AMOUNT") carried
back from the immediately succeeding fiscal year (it being understood and agreed
that (i) the maximum amount of Capital Expenditures permitted to be made in such
next succeeding fiscal year shall be reduced by the carry-back amount used in
such prior fiscal year and (ii) no carry-back amount may be carried back beyond
the immediately preceding fiscal year).
SECTION 11. EVENTS OF DEFAULT. Upon the occurrence of any of
the following specified events (each an "EVENT OF DEFAULT"):
11.1 PAYMENTS. The Borrower shall (a) default in the payment
when due of any principal of the Loans or (b) default, and such default shall
continue for five or more days, in the payment when due of any interest on the
Loans or any Fees or any Unpaid Drawings or of any other amounts owing hereunder
or under any other Credit Document; or
11.2 REPRESENTATIONS, ETC. Any representation, warranty or
statement made or deemed made by any Credit Party herein or in the Guarantee,
the U.S. Pledge Agreement, the U.K. Security Agreement or any certificate
delivered or required to be delivered pursuant hereto or thereto shall prove to
be untrue in any material respect on the date as of which made or deemed made
(it being understood that, for purposes of the foregoing, the truth of the
representations and warranties set forth in Section 8.8 shall be determined
without reference to the knowledge of the Borrower); or
11.3 COVENANTS. Any Credit Party shall (a) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 9.1(e), 9.15 or Section 10 or (b) default in the due performance or
observance by it of any term, covenant or agreement (other than those referred
to in Section 11.1 or 11.2 or clause (a) of this Section 11.3) contained in this
Agreement, the Guarantee, the U.S. Pledge Agreement or the U.K. Security
Agreement and such default shall continue unremedied for a period of at least 30
days after receipt of written notice by the Borrower from the Administrative
Agent or the Required Lenders; or
11.4 DEFAULT UNDER OTHER AGREEMENTS. (a) Newco 4 or any of the
Restricted Subsidiaries shall (i) default in any payment with respect to any
Indebtedness (other than the
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Obligations) in excess of $20,000,000 in the aggregate, for Newco 4 and such
Subsidiaries, beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created or (ii) default in the
observance or performance of any agreement or condition relating to any
such Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created, or (except in
the case of Indebtedness consisting of any Hedge Agreement) 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 a trustee or agent on behalf of such holder or holders) to cause, any such
Indebtedness to become due prior to its stated maturity; or (b) without limiting
the provisions of clause (a) above, any such Indebtedness (other than
Indebtedness consisting of any Hedge Agreement) shall be declared to be due and
payable, or required to be prepaid other than by a regularly scheduled required
prepayment or as a mandatory prepayment, prior to the stated maturity thereof;
or
11.5 BANKRUPTCY, ETC.. The Borrower or any other Specified
Subsidiary that is organized under the laws of the United States, any state or
territory thereof or the District of Columbia shall commence a voluntary case
concerning itself under Title 11 of the United States Code entitled
"Bankruptcy," as now or hereafter in effect, or any successor thereto (the
"BANKRUPTCY CODE"); or an involuntary case is commenced against the Borrower or
any such Specified Subsidiary and the petition is not controverted within 10
days after commencement of the case; or an involuntary case is commenced against
the Borrower or any such Specified Subsidiary and the petition is not dismissed
within 60 days after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or substantially all
of the property of the Borrower or any such Specified Subsidiary; or Newco 4 or
any Specified Subsidiary commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to Newco 4 or any Specified Subsidiary; or there is
commenced against Newco 4 or any Specified Subsidiary any such proceeding that
remains undismissed for a period of 60 days; or Newco 4 or any Specified
Subsidiary is adjudicated insolvent or bankrupt; or any order of relief or other
order approving any such case or proceeding is entered; or Newco 4 or any
Specified Subsidiary suffers any appointment of any custodian or the like for it
or any substantial part of its property to continue undischarged or unstayed for
a period of 60 days; or Newco 4 or any Specified Subsidiary makes a general
assignment for the benefit of creditors; or any corporate action is taken by
Newco 4 or any Specified Subsidiary for the purpose of effecting any of the
foregoing; or Newco 4 or any Specified Subsidiary organized under the laws of
the United Kingdom is unable to pay its debts as they fall due, or makes a
general assignment for the benefit of or a composition with its creditors
generally; or Newco 4 or any Specified Subsidiary organized under the laws of
the United Kingdom takes any corporate action or other steps are taken or legal
proceedings are started for its winding-up, dissolution, administration or
insolvent re-organization or for the appointment of a liquidator, administrator
or administrative receiver of it.
11.6 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof or a waiver of such
standard or extension of any amortization period is sought or granted under
Section 412 of the Code; any Plan is or shall have been terminated or is the
subject of termination proceedings under ERISA (including the giving of written
notice thereof); an event shall have occurred or a condition shall exist in
either case entitling the PBGC to terminate any Plan or to appoint a trustee to
administer any Plan (including the giving of written notice thereof); any Plan
shall have an accumulated funding deficiency (whether or not waived); Parent,
any of its Subsidiaries or any ERISA Affiliate has incurred or is likely to
incur a liability to or on account of a Plan under Section 409, 502(i), 502(l),
515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of
the Code (including the giving of written notice thereof); (b) there could
result from any event or events set forth in
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clause (a) of this Section 11.6 the imposition of a lien, the granting of a
security interest, or a liability, or the reasonable likelihood of incurring a
lien, security interest or liability; and (c) such lien, security interest or
liability will or would be reasonably likely to have a Material Adverse Effect;
or
11.7 GUARANTEE. The Guarantee or any material provision
thereof shall cease to be in full force or effect or any Guarantor thereunder or
any Credit Party shall deny or disaffirm in writing such Guarantor's obligations
under such Guarantee; or
11.8 U.S. PLEDGE AGREEMENT; U.K. SECURITY AGREEMENT. The U.S.
Pledge Agreement, the U.K. Security Agreement or any material provision thereof
shall cease to be in full force or effect (other than pursuant to the terms
hereof or thereof or as a result of acts or omissions of the Administrative
Agent or any Lender) or any Pledgor or grantor thereunder or any Credit Party
shall deny or disaffirm in writing such Pledgor's or grantor's obligations under
the U.S. Pledge Agreement or the U.K. Security Agreement, as applicable; or
11.9 JUDGMENTS. One or more judgments or decrees shall be
entered against Newco 4 or any of the Restricted Subsidiaries involving a
liability of $20,000,000 or more in the aggregate for all such judgments and
decrees for Newco 4 and the Restricted Subsidiaries (to the extent not paid or
fully covered by insurance provided by a carrier not disputing coverage) and any
such judgments or decrees shall not have been satisfied, vacated, discharged or
stayed or bonded pending appeal within 60 days from the entry thereof;
11.10 CHANGE OF CONTROL. A Change of Control shall occur; or
11.11. NEWCO 2 SECURITIES. Newco 2 shall issue any equity or
debt security in exchange for the redemption or cancelation of the Preferred
Stock other than Replacement Preferred Stock;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Lenders, by written notice to the Borrower, take any or
all of the following actions, without prejudice to the rights of the
Administrative Agent or any Lender to enforce its claims against the Borrower,
except as otherwise specifically provided for in this Agreement (PROVIDED that,
if an Event of Default specified in Section 11.5 shall occur with respect to
Newco 4 or any Specified Subsidiary, the result that would occur upon the giving
of written notice by the Administrative Agent as specified in clauses (i), (ii)
and (iv) below shall occur automatically without the giving of any such notice):
(i) declare the Total Term Loan Commitment and the Total Revolving Commitment
terminated, whereupon the Commitments and Swingline Commitment, if any, of each
Lender or Chase, as the case may be, shall forthwith terminate immediately and
any Fees theretofore accrued shall forthwith become due and payable without any
other notice of any kind; (ii) declare the principal of and any accrued interest
in respect of all Loans and all Obligations owing hereunder and thereunder to
be, whereupon the same shall become, forthwith due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; (iii) terminate any Letter of Credit that may be
terminated in accordance with its terms; and/or (iv) direct the Borrower to pay
(and the Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default specified in Section 11.5 with respect to
Newco 4 or any Specified Subsidiary, it will pay) to the Administrative Agent at
the Administrative Agent's Office such additional amounts of cash, to be held as
security for the Borrower's reimbursement obligations for Drawings that may
subsequently occur thereunder, equal to the aggregate Stated Amount of all
Letters of Credit issued and then outstanding.
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SECTION 12. THE ADMINISTRATIVE AGENT.
12.1 APPOINTMENT. Each Lender hereby irrevocably designates
and appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Credit Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Credit 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 Credit
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 Credit Document or
otherwise exist against the Administrative Agent. Neither the Syndication Agent
nor the Documentation Agent, in their respective capacities as such, shall have
any obligations, duties or responsibilities under this Agreement.
12.2 DELEGATION OF DUTIES. The Administrative Agent may
execute any of its duties under this Agreement and the other Credit 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.
12.3 EXCULPATORY PROVISIONS. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (a) 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 Credit Document (except for its or such Person's own gross negligence or
willful misconduct) or (b) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any Guarantor or any officer thereof contained in this Agreement or any other
Credit 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 Credit Document or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Credit Document or for any failure of the Borrower
or any Guarantor 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 Credit
Document, or to inspect the properties, books or records of the Borrower.
12.4 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any 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 Borrower),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the Lender specified in the Register
with respect to any amount owing hereunder as the owner thereof for all purposes
unless a written notice of assignment, negotiation or transfer thereof shall
have been filed with the Administrative Agent. The Administrative Agent shall be
fully justified in failing or refusing to take any action under this Agreement
or any other Credit 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 that 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
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from acting, under this Agreement and the other Credit 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.
12.5 NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the 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 (except to the extent that
this Agreement requires that such action be taken only with the approval of the
Required Lenders or each of the Lenders, as applicable).
12.6 NON-RELIANCE ON ADMINISTRATIVE AGENT 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
has made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Borrower or any Guarantor, 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 Borrower and any Guarantor 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 Credit 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 Borrower and any
Guarantor. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, assets,
operations, properties, financial condition, prospects or creditworthiness of
the Borrower or any Guarantor that may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
12.7 INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective portions of the Total Credit Exposure in
effect on the date on which indemnification is sought (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 their respective
portions of the Total Credit Exposure in effect 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 that 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 Credit Documents or any documents
contemplated by or referred to herein or
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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 resulting from the
Administrative Agent's gross negligence or willful misconduct. The agreements in
this Section 12.7 shall survive the payment of the Loans and all other amounts
payable hereunder.
12.8 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 the Borrower and any Guarantor
as though the Administrative Agent were not the Administrative Agent
hereunder and under the other Credit Documents. With respect to the Loans made
by it, the Administrative Agent shall have the same rights and powers under this
Agreement and the other Credit 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.
12.9 SUCCESSOR AGENT. The Administrative Agent may resign as
Administrative Agent upon 20 days' prior written notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Credit Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall be approved by the Borrower (which approval shall not be
unreasonably withheld), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this Section 12 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 Credit Documents.
SECTION 13. MISCELLANEOUS.
13.1 AMENDMENTS AND WAIVERS. Neither this Agreement nor any
other Credit Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
Section 13.1. The Required Lenders may, or, with the written consent of the
Required Lenders, the Administrative Agent may, from time to time, (a) enter
into with the relevant Credit Party or Credit Parties written amendments,
supplements or modifications hereto and to the other Credit Documents for the
purpose of adding any provisions to this Agreement or the other Credit Documents
or changing in any manner the rights of the Lenders or of the Borrower hereunder
or thereunder or (b) waive, 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 Credit 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 directly (i)
forgive any portion of any Loan or extend the final scheduled maturity date of
any Loan or reduce the stated rate, or forgive any portion, or extend the date
for the payment, of any interest or fee payable hereunder (other than as a
result of waiving the applicability of any post-default increase in interest
rates) or extend the final expiration date of any Lender's Commitment or extend
the final expiration date of any Letter of Credit beyond the L/C Maturity Date
or increase the aggregate amount of the Commitments of any Lender, in each case
without the written consent of each Lender directly and adversely affected
thereby, or (ii) amend, modify or waive any provision of this Section 13.1 or
reduce the percentages specified in the definitions of the terms "Required
Lenders", "Required
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Tranche A Lenders", "Required Tranche B, C and D Lenders", "Supermajority
Tranche A Lenders" and "Supermajority Tranche B, C and D Lenders" or consent to
the assignment or transfer by the Borrower of its rights and obligations under
any Credit Document to which it is a party (except as permitted pursuant to
Section 10.3), in each case without the written consent of each Lender directly
and adversely affected thereby, or (iii) amend, modify or waive any provision of
Section 12 without the written consent of the then-current Administrative Agent,
or (iv) amend, modify or waive any provision of Section 3 without the written
consent of the Letter of Credit Issuer, or (v) amend, modify or waive any
provisions hereof relating to Swingline Loans without the written consent of
Chase, or (vi) change any Revolving Credit Commitment to any other Commitment
(other than a Tranche A Commitment), change any Euro Revolving Credit Commitment
or Yen Revolving Credit Commitment to any other Commitment, change any Tranche A
Commitment to any other Commitment (other than a Revolving Credit Commitment) or
change any Tranche B Commitment, Tranche C Commitment or Tranche D
Commitment to any other Commitment, in each case without the prior written
consent of each Lender directly and adversely affected thereby, or (vii)
decrease any Tranche A Repayment Amount, extend any scheduled Tranche A
Repayment Date or decrease the amount of any mandatory prepayment to be received
by any Lender holding any Tranche A Loans, in each case without the written
consent of the Required Tranche A Lenders, or (viii) decrease any scheduled
Tranche B Repayment Amount, Tranche C Repayment Amount or Tranche D Repayment
Amount, extend any Tranche B Repayment Date, Tranche C Repayment Date or Tranche
D Repayment Date or decrease the amount of any mandatory prepayment to be
received by any Lender holding any Tranche B Loans, Tranche C Loans or Tranche D
Loans, in each case without the written consent of the Required Tranche B, C,
and D Lenders, or (ix) release all or substantially all the Collateral or
release all or substantially all the Guarantors under the Guarantee, in each
case without the written consent of (A) the Supermajority Tranche A Lenders and
(B) the Supermajority Tranche B, C and D Lenders, and PROVIDED FURTHER that at
any time that no Default or Event of Default has occurred and is continuing, the
Revolving Credit Commitment of any Lender may be increased to finance a
Permitted Acquisition, with the consent of such Lender, the Borrower and the
Administrative Agent (which consent, in the case of the Administrative Agent,
shall not be unreasonably withheld) and without the consent of the Required
Lenders, so long as (i) the Increased Commitment Amount (as defined below) at
such time, when added to the amount of Indebtedness incurred pursuant to Section
10.1(k) and outstanding at such time, does not exceed the limits set forth
therein, (ii) the Borrower shall pledge the Capital Stock of any person acquired
pursuant thereto to the Administrative Agent for the benefit of the Lenders to
the extent required under Section 9.12 and (iii) to the extent determined by the
Administrative Agent to be necessary to ensure pro rata borrowings commencing
with the initial borrowing after giving effect to such increase, the Borrower
shall prepay any Eurodollar Loans outstanding immediately prior to such initial
borrowing; as used herein, the "Increased Commitment Amount" means, at any time,
aggregate amount of all increases pursuant to this proviso made at or prior to
such time less the aggregate amount of all voluntary reductions of the Revolving
Credit Commitments made prior to such time. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the
affected Lenders and shall be binding upon the Borrower, such Lenders, the
Administrative Agent and all future holders of the affected Loans. In the case
of any waiver, the Borrower, the Lenders and the Administrative Agent shall be
restored to their former positions and rights hereunder and under the other
Credit Documents, and any Default or Event of Default waived shall be deemed to
be cured and not continuing, it being understood that no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.
13.2 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, or three days after
being deposited in the mail, postage prepaid, or, in the case of
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telecopy notice, when received, addressed as follows in the case of the Borrower
and the Administrative Agent, and as set forth on Schedule 1.1 in the case of
the other parties hereto, or to such other address as may be hereafter notified
by the respective parties hereto:
The Borrower: Willis Corroon Corporation
26 Century Blvd.
P.O. Box 305026
Nashville, TN 37214
Attention: Bart Schwartz, Esq.
Fax: (615) 872-3037
with a copy to:
Willis Corroon Group Limited
10 Trinity Square
London EC3P 3AX
Attention: Thomas Colraine
Fax: 011-44-171-481-7154
and to:
Trinity Acquisition plc
In care of Kohlberg Kravis Roberts & Co., L.P.
9 West 57th Street
New York, NY 10019
Attention: Scott Nuttall
Fax: (212) 750-0003
The Administrative Agent: The Chase Manhattan Bank
c/o The Loan and Agency Services Group
One Chase Manhattan Plaza, Eighth Floor
New York, NY 10081
Attention: Janet Belden
Fax: (212) 552-5658
with a copy to:
The Chase Manhattan Bank
270 Park Avenue
New York, NY 10017
Attention: Helen Newcomb
Fax: (212) 270-1001
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and a copy to:
The Chase Manhattan Bank
Trinity Tower
Nine Thomas Moore Street
London E1 9TY, England
Attention: Steven Clarke
Fax: 011-44-171-777-2360
PROVIDED that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to Sections 2.3, 2.6, 2.9, 4.2 and 5.1 shall not be
effective until received.
13.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder or under the other
Credit 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.
13.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder, in the other Credit Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
13.5 PAYMENT OF EXPENSES AND TAXES. The Borrower agrees (a) to
pay or reimburse the Agents for all their reasonable out-of-pocket costs and
expenses incurred in connection with the development, preparation and execution
of, and any amendment, supplement or modification to, this Agreement and the
other Credit Documents and any other documents prepared in connection herewith
or therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable
fees, disbursements and other charges of counsel to the Agents, (b) to pay or
reimburse each Lender and the Administrative Agent for all its reasonable and
documented costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Credit Documents and
any such other documents, including, without limitation, the reasonable fees,
disbursements and other charges of counsel to each Lender and of counsel to the
Administrative Agent, (c) to pay, indemnify, and hold harmless each Lender and
the Administrative Agent 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, that 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 Credit Documents and any such other documents, and (d)
to pay, indemnify, and hold harmless each Lender and the Administrative Agent
and their respective directors, officers, employees, trustees and agents 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, including, without limitation, reasonable and
documented fees, disbursements and other charges of counsel, with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the other Credit Documents and any such other documents, including,
without limitation, any of the foregoing relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable to the
operations of the Borrower, any of its Subsidiaries or any of the Properties
(all the foregoing in this clause (d), collectively, the "INDEMNIFIED
LIABILITIES"), PROVIDED that the Borrower shall have no obligation hereunder to
the Administrative Agent or any Lender nor any
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of their respective directors, officers, employees and agents with respect to
indemnified liabilities arising from (i) the gross negligence or willful
misconduct of the party to be indemnified or (ii) disputes among the
Administrative Agent, the Lenders and/or their transferees. The agreements in
this Section 13.5 shall survive repayment of the Loans and all other amounts
payable hereunder.
13.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.
(a)(i) This Agreement shall be binding upon and inure to the benefit of Newco 4,
Parent, the Borrower, the Lenders, the Administrative Agent and their respective
successors and assigns, except that the Borrower may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of each Lender.
(ii) Any Lender may, in the ordinary course of its business
and in accordance with applicable law, at any time sell to one or more
banks or other entities ("PARTICIPANTS") participating interests in any
Loan owing to such Lender, any Commitment of such Lender or any other
interest of such Lender hereunder and under the other Credit Documents
(including to loan derivative counterparties in respect of swaps or
similar arrangements having the practical or economic effect thereof).
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 Credit Documents, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations
under this Agreement and the other Credit Documents. In no event shall
any Participant under any such participation have any right to approve
any amendment or waiver of any provision of any Credit Document, or any
consent to any departure by any Credit Party therefrom, except to the
extent that such amendment, waiver or consent would directly forgive
any principal of any Loan or reduce the stated rate, or forgive any
portion, or postpone the date for the payment, of any interest or fee
payable hereunder (other than as a result of waiving the applicability
of any post-default increase in interest rates), or increase the
aggregate amount of the Commitments of any Lender or postpone the date
of the final scheduled maturity of any Loan, in each case to the extent
subject to such participation. The 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, to the maximum extent
permitted by applicable law, be deemed to have 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 13.7 as fully as if it were
a Lender hereunder. The Borrower also agrees that each Participant
shall be entitled to the benefits of Sections 2.10 and 2.11 with
respect to its participation in the Commitments and the Loans
outstanding from time to time as if it were a Lender, PROVIDED 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.
(iii) Any Lender may, in the ordinary course of its business
and in accordance with applicable law, at any time and from time to
time assign to any Lender or any Affiliate thereof or Approved Fund
with respect thereto (with the consent of the Borrower if any increased
costs would result therefrom) or, with the consent of the Borrower and
the Administrative Agent (which in each case shall not be unreasonably
withheld, it being
97
understood that, without limitation, the Borrower shall have the right
to withhold its consent to any assignment if, in order for such
assignment to comply with applicable law, the Borrower would be
required to obtain the consent of, or make any filing or registration
with, any Governmental Authority), to an additional bank or fund that
is regularly engaged in making, purchasing or investing in loans or
securities or financial institution (an "ASSIGNEE") all or any part of
its rights and obligations under this Agreement and the other Credit
Documents pursuant to an Assignment and Acceptance, substantially in
the form of Exhibit F, executed by such Assignee, such assigning Lender
(and, in the case of an Assignee that is not then a Lender, an
Affiliate thereof or an Approved Fund with respect thereto, by the
Borrower and the Administrative Agent) and delivered to the
Administrative Agent for its acceptance and recording in the Register,
PROVIDED that, (a) except in the case of an assignment of all of a
Lender's interests under this Agreement, unless otherwise agreed to by
the Borrower and the Administrative Agent, no such assignment to an
Assignee (other than any Lender, any Affiliate thereof or any Approved
Fund with respect thereto) shall be in an aggregate principal amount of
less than $5,000,000 and (b) after giving effect to each such
assignment, the Revolving Credit Commitment of each Lender having a
Euro Revolving Credit Commitment or Yen Revolving Credit Commitment
shall be equal to or greater than such Lender's Euro Revolving Credit
Commitment, if any, and Yen Revolving Credit Commitment, if any. Upon
such execution, delivery, acceptance and recording, from and after the
effective date determined pursuant to such Assignment and Acceptance,
(x) the Assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with a Commitment as set forth
therein and (y) the assigning Lender thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its
obligations under this Agreement (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). Notwithstanding any provision
of this Agreement to the contrary, the consent of the Borrower shall
not be required for any assignment that occurs at any time when any of
the events described in Section 11.5 shall have occurred and be
continuing with respect to the Borrower.
(b) (b) Nothing herein shall prohibit any Lender from pledging
or assigning all or any portion of its Loans to any Federal Reserve Bank in
accordance with applicable law, and any Lender that is an investment fund that
invests in bank loans may, without the consent of the Borrower or the
Administrative Agent, pledge or assign all or any portion of its Loans and
promissory notes evidencing such Loans to any trustee or any other
representative of holders of obligations owed or securities issued by such
investment fund as security for such obligations or securities, PROVIDED that no
such pledge or assignment shall release a Lender from any of its obligations
hereunder, substitute any such pledgee or assignee for such Lender as party
hereto or increase the obligations of the Borrower hereunder. In order to
facilitate such pledge or assignment, the Borrower hereby agrees that, upon
request of any Lender at any time and from time to time after the Borrower has
made its initial borrowing hereunder, the Borrower shall provide to such Lender,
at the Borrower's own expense, a promissory note, substantially in the form of
Exhibit C-1 or C-2, as the case may be, evidencing the Term Loans and Revolving
Credit Loans, respectively, owing to such Lender.
(c) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in Section 13.2
a copy of each Assignment and Acceptance delivered to it and a register (the
"REGISTER") for the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amount of the Loans (whether or not evidenced
by a promissory note) owing to, each Lender from time to time. The entries in
the Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent and the Lenders shall treat each Person whose
name is recorded in the
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Register as the owner of a Loan or other obligation hereunder as the owner
thereof for all purposes of this Agreement and the other Credit Documents,
notwithstanding any notice to the contrary. Any assignment of any Loan or other
obligation hereunder (whether or not evidenced by a promissory note) shall be
effective only upon appropriate entries with respect thereto being made in the
Register. Any assignment of all or part of a Loan evidenced by a promissory note
shall be registered on the Register only upon surrender for registration of
assignment or transfer of such promissory note evidencing such Loan, accompanied
by a duly executed Assignment and Acceptance, and thereupon one or more new
promissory notes in the same aggregate principal amount shall be issued to the
designated Assignee and the old promissory notes shall be returned by the
Administrative Agent to the Borrower marked "canceled". The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(d) The Administrative Agent shall (i) 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, an Affiliate thereof or an
Approved Fund with respect thereto, by the Borrower and the Administrative
Agent) together with payment to the Administrative Agent of a registration and
processing fee of $3,500, 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 notice of such acceptance and
recordation to the Lenders and the Borrower.
(e) Subject to Section 13.16, the 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 the Borrower and its Affiliates that has been delivered to
such Lender by or on behalf of the Borrower pursuant to this Agreement or which
has been delivered to such Lender by or on behalf of the Borrower in connection
with such Lender's credit evaluation of the Borrower and its Affiliates prior to
becoming a party to this Agreement, PROVIDED that neither the Administrative
Agent nor any Lender shall provide to any Transferee or prospective Transferee
any of the Confidential Information unless such person shall have previously
executed a Confidentiality Agreement in the form of Exhibit H.
13.7 REPLACEMENTS OF LENDERS UNDER CERTAIN CIRCUMSTANCES. The
Borrower shall be permitted to replace any Lender that (a) requests
reimbursement for amounts owing pursuant to Section 2.10, 2.12, 3.5 or 5.4, (b)
is affected in the manner described in Section 2.10(a)(iii) and as a result
thereof any of the actions described in such Section is required to be taken or
(c) becomes a Defaulting Lender, with a replacement bank or other financial
institution, PROVIDED that (i) such replacement does not conflict with any
Requirement of Law, (ii) no Event of Default shall have occurred and be
continuing at the time of such replacement, (iii) the Borrower shall repay (or
the replacement bank or institution shall purchase, at par) all Loans and other
amounts (other than any disputed amounts), pursuant to Section 2.10, 2.11, 2.12,
3.5 or 5.4, as the case may be) owing to such replaced Lender prior to the date
of replacement, (iv) the replacement bank or institution, if not already a
Lender, and the terms and conditions of such replacement, shall be reasonably
satisfactory to the Administrative Agent, (v) the replaced Lender shall be
obligated to make such replacement in accordance with the provisions of Section
13.6 (provided that the Borrower shall be obligated to pay the registration and
processing fee referred to therein) and (vi) any such replacement shall not be
deemed to be a waiver of any rights that the Borrower, the Administrative Agent
or any other Lender shall have against the replaced Lender.
13.8 ADJUSTMENTS; SET-OFF. (a) If any Lender (a "BENEFITTED
LENDER") shall at any time receive any payment of all or part of its Loans, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 11.5, 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
99
Lender's Loans, or interest thereon, such benefitted Lender shall purchase for
cash from the other Lenders a participating interest in such portion of each
such other Lender's Loan, 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) After the occurrence and during the continuance of an
Event of Default, in addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, 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 or agency thereof to or for the
credit or the account of the Borrower. Each Lender agrees promptly to notify the
Borrower 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.
13.9 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 lodged with the
Borrower and the Administrative Agent.
13.10 SEVERABILITY. Any provision of this Agreement that 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.
13.11 INTEGRATION. This Agreement and the other Credit
Documents represent the agreement of the Borrower, the Administrative Agent and
the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to subject matter hereof not expressly set forth or
referred to herein or in the other Credit Documents.
13.12 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
13.13 SUBMISSION TO JURISDICTION; WAIVERS. Each of Newco 4,
Parent and the Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Credit 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;
100
(b) 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;
(c) 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
Borrower at its address set forth in Section 13.2 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto;
(d) 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
(e) 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 13.13 any special, exemplary, punitive or consequential
damages.
13.14 ACKNOWLEDGMENTS. Each of Newco 4, Parent and the
Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Credit Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Credit Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and the
Borrower, 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 Credit
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower and the Lenders.
13.15 WAIVERS OF JURY TRIAL. NEWCO 4, PARENT, THE BORROWER,
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 CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
13.16 CONFIDENTIALITY. The Administrative Agent and each
Lender shall hold all non-public information furnished by or on behalf of the
Borrower in connection with such Lender's evaluation of whether to become a
Lender hereunder or obtained by such Lender or the Administrative Agent pursuant
to the requirements of this Agreement ("CONFIDENTIAL INFORMATION"), in
accordance with its customary procedure for handling confidential information of
this nature and (in the case of a Lender that is a bank) in accordance with safe
and sound banking practices and in any event may make disclosure as required or
requested by any governmental agency or representative thereof or pursuant to
legal process or to such Lender's or the Administrative Agent's attorneys,
professional advisors or independent auditors or Affiliates, PROVIDED that
unless specifically prohibited by applicable law or court order, each Lender and
the Administrative Agent shall notify the Borrower of any request by any
governmental agency or representative thereof (other than any such request in
connection with an examination of the financial condition of such Lender by such
governmental agency) for disclosure of any such non-public information prior to
disclosure of such information, and PROVIDED FURTHER that in no event
101
shall any Lender or the Administrative Agent be obligated or required to return
any materials furnished by the Borrower or any Subsidiary of the Borrower. Each
Lender and the Administrative Agent agrees that it will not provide to
prospective Transferees or to prospective direct or indirect contractual
counterparties in swap agreements to be entered into in connection with Loans
made hereunder any of the Confidential Information unless such Person shall have
previously executed a Confidentiality Agreement in the form of Exhibit H.
13.17 CONVERSION OF CURRENCIES. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto agrees, to
the fullest extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the first currency could be purchased with such other
currency on the Business Day immediately preceding the day on which final
judgment is given.
(b) The obligations of the Borrower in respect of any sum due
to any party hereto or any holder of the obligations owing hereunder (the
"APPLICABLE CREDITOR") shall, notwithstanding any judgment in a currency (the
"JUDGMENT CURRENCY") other than the currency in which such sum is stated to be
due hereunder (the "AGREEMENT CURRENCY"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, the Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrower contained
in this Section 13.17 shall survive the termination of this Agreement and the
payment of all other amounts owing hereunder.
13.18 EUROPEAN ECONOMIC AND MONETARY UNION. Except as
expressly provided herein, each provision of this Agreement shall be subject to
such reasonable changes of construction as the Administrative Agent may from
time to time reasonably specify to be appropriate to reflect the adoption of the
euro in any Participating Member State and any relevant market conventions or
practices relating to the euro.
13.19 MARGIN REGULATIONS. (a) Notwithstanding anything in this
Agreement or any other Credit Document to the contrary, prior to the Term Loan
Funding Date, the Borrowings hereunder are not, and are not intended to be,
secured by the Shares.
(b) Notwithstanding anything in this Agreement or any other
Credit Document to the contrary, prior to the Term Loan Funding Date, no
covenant set forth in this Agreement or any other Credit Document shall be
deemed to have been breached, and no Default or Event of Default shall be deemed
to have occurred, as the result of (a) the granting of any Lien on any of the
Shares, (b) any sale or disposition of the Shares for fair value received by the
Borrower in cash (PROVIDED that the Borrower (i) holds the proceeds of such sale
as cash or (ii) invests the proceeds of such sale in certificates of deposit,
U.S. or U.K. government securities, commercial paper or other money market
instruments that are exempted securities under the United States Federal
securities laws or are of similar investment quality to the foregoing or (c) any
change in the market value of the Shares.
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
WILLIS CORROON CORPORATION, as
Borrower,
by
-------------------------------
Name:
Title:
WILLIS CORROON GROUP LIMITED, as
a Guarantor,
by
-------------------------------
Name:
Title:
TRINITY ACQUISITION plc, as a
Guarantor,
by
-------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender,
by
-------------------------------
Name:
Title:
Dates Referenced Herein
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