SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report(date of earliest event reported):February 23, 2000
CHESAPEAKE CORPORATION
(Exact Name of Registrant as Specified in Charter)
Virginia 1-3203 54-0166880
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(State or Other (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
1021 East Cary Street, Richmond, VA 23219
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (804)697-1000
Page 1 of 7 pages.
Exhibit Index Appears on Page 7.
INFORMATION TO BE INCLUDED IN REPORT
Item 2: Acquisition or Disposition of Assets.
On February 24, 2000, Chesapeake Corporation, a Virginia
corporation ("Chesapeake"), completed its acquisition of
substantially all of the outstanding capital shares of Boxmore
International PLC ("Boxmore"), a European specialty packaging
company headquartered in Belfast, Northern Ireland. The
acquisition was effected through a tender offer by Chesapeake UK
Acquisitions II plc ("Chesapeake UK II"), a wholly-owned
subsidiary of Chesapeake, for all of the outstanding capital
shares of Boxmore at a purchase price of (pound)2.65 per share.
The tender offer, which was recommended by Boxmore's board of
directors, represented a value of approximately US $313 million
for Boxmore's outstanding share capital. Including assumed debt of
approximately $64 million, the tender offer reflected a total
enterprise value for Boxmore of approximately US $377 million.
The offer price was determined through arms-length negotiations
between Chesapeake and Boxmore.
The offer price for Boxmore's capital shares is payable in
cash, provided that Boxmore's shareholders were offered the option
to elect to receive unsecured loan notes to be issued by
Chesapeake UK II and guaranteed by First Union National Bank, London
Branch, ("First Union, London"), with a nominal value of (pound)1
for every (pound)1 of cash consideration (the "Loan Notes"),
instead of all or part of the cash consideration to which they
would otherwise be entitled (subject to proration in the event the
Loan Note alternative was oversubscribed). The aggregate principal
amount of the Loan Notes issuable pursuant to the offer was capped
at approximately (pound) 110 million in nominal value. The Loan
Notes will bear interest at a variable rate per annum equal to the
LIBOR rate for six month sterling deposits less one-half of one percent,
are redeemable in whole or part at the option of the holders on each biannual
interest payment date commencing February 28, 2001, and, if not
earlier redeemed, mature on February 28, 2005.
As of February 10, 2000, Chesapeake UK II had received
shareholder acceptances, irrevocable undertakings or acquired
shares totaling 89% of the outstanding share capital of Boxmore
and declared its offer wholly unconditional. As of February 24,
2000, Chesapeake UK II had received shareholder acceptances,
irrevocable undertakings or acquired shares exceeding 90% of the
outstanding share capital of Boxmore and, at that time, all of the
shareholder acceptances and irrevocable undertakings were accepted
for purchase. As soon as practicable, pursuant to applicable
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provisions of United Kingdom law, Chesapeake UK II intends to
acquire compulsorily all remaining outstanding Boxmore shares at
the offer price, and to cancel Boxmore's listing on the London
Stock Exchange.
Chesapeake estimates that, following the compulsory
acquisition of all remaining outstanding Boxmore shares (for cash
or Loan Notes), approximately $85 million of the aggregate
purchase price will have been funded through the issuance of Loan
Notes, and the remaining $228 million will have been funded
through available cash on hand.
Boxmore is a manufacturer, distributor and seller of
specialty folding carton and packaging products for: the
pharmaceutical, healthcare and toiletries sectors; the food and
beverage sector; and the agrochemical sector. The company operates
19 facilities in Ireland, the United Kingdom, France, Belgium,
Germany, and, through joint ventures, in South Africa and China.
Boxmore reported profits before tax of (pound) 13.6 million (U.S.
$22 million), on revenue of (pound) 106.8 million (U.S. $173.0
million), for the year ended December 31, 1998. For the six months
ending June 30, 1999, Boxmore reported unaudited profits before
tax of (pound)7.5 million (U.S. $ 12.2 million) on revenue of
(pound)60.4 million (U.S. $ 97.8 million). While Chesapeake will
review Boxmore's businesses and their respective assets,
structure, operations and property, Chesapeake has no present
intention to use the plant, equipment or other physical property
of Boxmore for purposes different from the purposes for which they
were used prior to the acquisition.
On February 23, 2000, Chesapeake terminated a commitment for
a long-term senior secured credit facility (which it had obtained
in connection with the anticipated acquisition of Boxmore and its
efforts to acquire Shorewood Packaging Corporation), and entered
into a six month $250 million senior credit facility with First
Union National Bank, as lender and administrative agent for a
syndicate of banks (the "Facility"), to satisfy short-term
liquidity requirements. Borrowings under the Facility bear
interest at a variable rate per annum, which is initially equal to
LIBOR plus 2.0%, with a nominal facility fee to be paid on the
unused amount. In addition, in consideration of First Union,
London's guarantee of the Loan Notes, Chesapeake will pay an
annual guarantee fee under the Facility equal to 2.0% of the
outstanding principal balance of the Loan Notes. The Facility
contains customary representations, warranties and covenants,
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including debt and capital spending limits, a minimum net worth
requirement and a $20 million annual limitation on dividend
payments. The Facility is initially secured by a pledge of the capital
stock of Chesapeake's principal UK subsidiaries, Field Group PLC
and Boxmore. Chesapeake expects to enter into a replacement long-
term credit facility prior to the expiration of the Facility.
The foregoing summary of the Facility is qualified in all
respects by reference to the terms of the Credit Agreement related
thereto, a copy of which is attached hereto as Exhibit 4.1 and
incorporated herein by reference.
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Item 7: Financial Statements, Pro Forma Financial Information
and Exhibits.
a) Financial Statements of Business Acquired.
The Registrant has determined that it is impractical
to file the required audited historical financial
statements of Boxmore concurrently with this Form 8-
K. The Registrant will file such audited historical
financial statements by amendment as soon as
practicable, but in any event not later than May 7,
2000.
b) Pro Forma Financial Information.
The Registrant has determined that it is
impracticable to file the required pro forma
financial information concurrently with this Form 8-
K. The Registrant will file such pro forma
financial information by amendment as soon as
practicable, but in any event not later than May 7,
2000.
c) Exhibits.
4.1 Credit Agreement, dated as of February 23, 2000, among
Chesapeake, Chesapeake UK Acquisitions II PLC, Chesapeake UK
Acquisitions PLC and Chesapeake UK Holdings Limited, as the
Borrowers, Various Financial Institutions and Other Persons
From Time to Time Parties Thereto, as the Lenders, and
First Union National Bank, as the Administrative Agent.
Pursuant to Rule 601(b)(2) of Regulation S-K,
Chesapeake agrees to furnish supplementally
to the Securities and Exchange Commission,
upon request, any omitted schedules or
similar attachments to the foregoing Exhibit.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
CHESAPEAKE CORPORATION
(Registrant)
Date: March 8, 2000 BY: /s/ William T. Tolley
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William T. Tolley
Senior Vice President -
Finance & Chief
Financial Officer
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4.1 Credit Agreement, dated as of February 23, 2000,
among Chesapeake, Chesapeake UK Acquisitions II
PLC, Chesapeake UK Acquisitions PLC and Chesapeake
UK Holdings Limited, as the Borrowers, Various
Financial Institutions and Other Persons From Time
to Time Parties Thereto, as the Lenders, and First
Union National Bank, as the Administrative Agent.
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EX 4.1
$250,000,000
CREDIT AGREEMENT,
dated as of February 23, 2000,
among
CHESAPEAKE CORPORATION
as the U.S. Borrower,
CHESAPEAKE UK ACQUISITIONS II PLC,
CHESAPEAKE UK ACQUISITIONS PLC and
CHESAPEAKE U.K. HOLDINGS LIMITED
as the U.K. Borrowers,
VARIOUS FINANCIAL INSTITUTIONS AND OTHER PERSONS
FROM TIME TO TIME PARTIES HERETO,
as the Lenders,
and
FIRST UNION NATIONAL BANK,
as the Administrative Agent.
___________________________
FIRST UNION SECURITIES, INC.,
as the Lead Arranger and Sole Book Runner
TABLE OF CONTENTS
Section Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS 3
SECTION 1.1. Defined Terms. 3
SECTION 1.2 Use of Defined Terms. 31
SECTION 1.3 Cross-References. 31
SECTION 1.4. Accounting and Financial Determinations. 31
ARTICLE II COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,
NOTES AND LETTERS OF CREDIT 32
SECTION 2.1. Commitments. 32
SECTION 2.1.1 Revolving Loan Commitment, Swing Line
Loan Commitment and Other Currency Loan
Commitment. 32
SECTION 2.1.2 Letter of Credit Commitment. 33
SECTION 2.1.3 Loan Note Guaranty Commitment. 33
SECTION 2.2 Reduction of the Commitment Amounts. 34
SECTION 2.2.1 Optional. 34
SECTION 2.2.2 Mandatory. 34
SECTION 2.3 Borrowing Procedures. 34
SECTION 2.3.1 Borrowing Procedure. 34
SECTION 2.3.2 Swing Line Loans. 35
SECTION 2.3.3 Other Currency Loan Reimbursement. 36
SECTION 2.4 Continuation and Conversion Elections. 37
SECTION 2.5 Funding. 37
SECTION 2.6 Letter of Credit Issuance Procedures. 37
SECTION 2.6.1 Other Lenders' Participation. 38
SECTION 2.6.2 Disbursements. 38
SECTION 2.6.3 Reimbursement. 38
SECTION 2.6.4 Deemed Disbursements. 39
SECTION 2.6.5 Nature of Reimbursement Obligations. 39
SECTION 2.7 Loan Note Guaranty Issuance Procedures. 40
SECTION 2.7.1 Risk Participations, Drawings and
Reimbursements for Loan Note Guaranty Obligations. 40
SECTION 2.7.2 Repayment of Participations. 42
SECTION 2.7.3 Role of the Loan Note Guarantor. 42
SECTION 2.7.4 Obligations Absolute. 43
SECTION 2.7.5 Cash Collateral Pledge. 44
SECTION 2.7.6 Third Party Beneficiary. 45
SECTION 2.8 Register; Notes. 45
SECTION 2.9 Multi Currency Loans. 46
SECTION 2.9.1 Determination of Dollar Equivalents. 46
SECTION 2.9.2 Notification of Availability. 46
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SECTION 2.9.3 Consequences of Non-Availability. 46
SECTION 2.9.4 Automatic Conversions. 46
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES 47
SECTION 3.1 Repayments and Prepayments; Application. 47
SECTION 3.1.1 Repayments and Prepayments. 47
SECTION 3.1.2 Application. 49
SECTION 3.2 Interest Provisions. 49
SECTION 3.2.1 Rates. 49
SECTION 3.2.2 Post-Default Rates. 50
SECTION 3.2.3 Payment Dates. 50
SECTION 3.3 Fees. 50
SECTION 3.3.1 Commitment Fee. 50
SECTION 3.3.2 Agent's Fee. 51
SECTION 3.3.3 Letter of Credit Fee. 51
SECTION 3.3.4 Loan Note Guaranty Fee. 51
ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS, BORROWER
GUARANTIES 51
SECTION 4.1 LIBO Rate Lending Unlawful. 51
SECTION 4.2 Deposits Unavailable. 52
SECTION 4.3 Increased LIBO Rate Loan Costs, etc. 52
SECTION 4.4 Funding Losses. 52
SECTION 4.5 Increased Capital Costs. 53
SECTION 4.6 Taxes. 53
SECTION 4.7 Payments, Computations, etc. 57
SECTION 4.8 Sharing of Payments. 58
SECTION 4.9 Setoff. 58
SECTION 4.10 Guaranty Provisions. 59
SECTION 4.11 Guaranty. 59
SECTION 4.12 Guaranty Absolute, etc. 59
SECTION 4.12.1 Reinstatement, etc. 60
SECTION 4.12.2 Waiver, etc. 60
SECTION 4.12.3 Postponement of Subrogation, etc. 60
SECTION 4.12.4 Guaranty Limitations. 61
SECTION 4.13 Defaulting Lenders. 61
ARTICLE V CONDITIONS TO CREDIT EXTENSIONS 61
SECTION 5.1 Initial Credit Extensions. 61
SECTION 5.1.1 Resolutions, etc. 62
SECTION 5.1.2 Termination of Loan Agreement. 62
SECTION 5.1.3 Closing Fees, Expenses, etc. 62
SECTION 5.1.4 Delivery of Notes. 62
SECTION 5.1.5 Borrowing Request, etc. 62
SECTION 5.1.6 Opinions of Counsel. 63
SECTION 5.1.7 U.K. Equity Financing. 63
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SECTION 5.1.8 Delivery of U.K. Offer Materials. 63
SECTION 5.1.9 No Modification of Agreements. 63
SECTION 5.1.10 Pledge Agreements. 63
SECTION 5.1.11 No Waivers. 64
SECTION 5.1.12 Acceptance Level. 64
SECTION 5.1.13 Compulsory Acquisition Procedures. 64
SECTION 5.1.14 U.K. Offer Price. 64
SECTION 5.1.15 Illegality. 64
SECTION 5.1.16 Unanimous Recommendation. 64
SECTION 5.1.17 Insolvency. 64
SECTION 5.1.18 U.K. Closing Date Certificate. 64
SECTION 5.1.19 Solvency, etc. 65
SECTION 5.2 All Credit Extensions. 65
SECTION 5.2.1 Compliance with Warranties, No Default,
etc. 65
SECTION 5.2.2 Credit Extension Request, etc. 65
SECTION 5.2.3 Satisfactory Legal Form. 65
ARTICLE VI REPRESENTATIONS AND WARRANTIES 65
SECTION 6.1 Organization, etc. 66
SECTION 6.2 Due Authorization, Non-Contravention, etc. 66
SECTION 6.3 Government Approval, Regulation, etc. 66
SECTION 6.4 Validity, etc. 66
SECTION 6.5 Financial Information. 67
SECTION 6.6 No Material Adverse Change. 67
SECTION 6.7 Litigation, Labor Controversies, etc. 67
SECTION 6.8 Subsidiaries. 67
SECTION 6.9 Ownership of Properties. 67
SECTION 6.10 Taxes. 68
SECTION 6.11 Pension and Welfare Plans. 68
SECTION 6.12 Environmental Warranties. 68
SECTION 6.13 Accuracy of Information. 70
SECTION 6.14 Regulations T, U and X. 70
SECTION 6.15 Year 2000. 70
SECTION 6.16 Solvency. 71
SECTION 6.17 Shell Status. 71
SECTION 6.18 Compliance with Laws. 71
SECTION 6.19 No Contractual or Other Restrictions. 71
SECTION 6.20 Absence of any Undisclosed Liabilities. 71
SECTION 6.21 Labor Relations. 71
SECTION 6.22 Announcement and Offer Document. 72
ARTICLE VII COVENANTS 72
SECTION 7.1 Affirmative Covenants. 72
SECTION 7.1.1 Financial Information, Reports,
Notices, etc. 72
SECTION 7.1.2 Maintenance of Existence; Compliance
with Laws, etc. 74
SECTION 7.1.3 Maintenance of Properties. 74
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SECTION 7.1.4 Insurance. 74
SECTION 7.1.5 Books and Records. 74
SECTION 7.1.6 Environmental Law Covenant. 75
SECTION 7.1.7 Use of Proceeds. 75
SECTION 7.1.8 Future Collateral. 75
SECTION 7.1.9 Delivery of Shares of the U.K. Target. 76
SECTION 7.1.10 Covenants Relating to the Conduct of
the U.K. Target and its Subsidiaries after the
U.K. Success Date. 76
SECTION 7.1.11 Foreign Employee Benefit Plan
Compliance. 77
SECTION 7.2 Negative Covenants. 77
SECTION 7.2.1 Business Activities. 77
SECTION 7.2.2 Indebtedness. 77
SECTION 7.2.3 Liens. 79
SECTION 7.2.4 Financial Condition and Operations. 80
SECTION 7.2.5 Investments. 80
SECTION 7.2.6 Restricted Payments, etc. 81
SECTION 7.2.7 Capital Expenditures, etc. 82
SECTION 7.2.8 Capital Securities of Subsidiaries. 82
SECTION 7.2.9 Consolidation, Merger, etc. 82
SECTION 7.2.10 Permitted Dispositions. 82
SECTION 7.2.11 Modification of Certain Agreements. 83
SECTION 7.2.12 Transactions with Affiliates. 83
SECTION 7.2.13 Restrictive Agreements, etc. 83
SECTION 7.2.14 Amendment of Organic Documents. 84
SECTION 7.2.15 Change of Control Affecting
Indebtedness of the U.K. Target. 84
SECTION 7.2.16 Covenants Relating to the Conduct of
the U.K. Offer. 84
SECTION 7.2.17 Changes to Fiscal Year. 85
SECTION 7.2.18 No Prepayment of Subordinated Debt. 85
SECTION 7.2.19 No Investments, etc. in Inactive
Subsidiaries.. 85
ARTICLE VIII EVENTS OF DEFAULT 86
SECTION 8.1 Listing of Events of Default. 86
SECTION 8.1.1 Non-Payment of Obligations. 86
SECTION 8.1.2 Breach of Warranty. 86
SECTION 8.1.3 Non-Performance of Certain Covenants
and Obligations. 86
SECTION 8.1.4 Non-Performance of Other Covenants and
Obligations. 86
SECTION 8.1.5 Default on Other Indebtedness. 86
SECTION 8.1.6 Judgments. 87
SECTION 8.1.7 Pension Plans. 87
SECTION 8.1.8 Change in Control. 87
SECTION 8.1.9 Bankruptcy, Insolvency, etc.. 87
SECTION 8.1.10 Impairment of Security, etc. 88
SECTION 8.1.11 Default Under Senior Notes. 88
SECTION 8.2 Action if Bankruptcy. 88
SECTION 8.3 Action if Other Event of Default. 88
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ARTICLE IX THE ADMINISTRATIVE AGENT, ETC. 89
SECTION 9.1 Actions. 89
SECTION 9.2 Funding Reliance, etc. 89
SECTION 9.3 Exculpation. 90
SECTION 9.4 Successor. 90
SECTION 9.5 Loans by First Union. 91
SECTION 9.6 Credit Decisions. 91
SECTION 9.7 Copies, etc. 91
SECTION 9.8 Reliance by Administrative Agent. 91
SECTION 9.9 Defaults. 92
SECTION 9.10 Arranger and Documentation Agent. 92
ARTICLE X MISCELLANEOUS PROVISIONS 93
SECTION 10.1 Waivers, Amendments, etc.. 93
SECTION 10.2 Notices; Time. 94
SECTION 10.3 Payment of Costs and Expenses. 94
SECTION 10.4 Indemnification. 95
SECTION 10.5 Survival. 96
SECTION 10.6 Severability. 96
SECTION 10.7 Headings. 96
SECTION 10.8 Execution in Counterparts, Effectiveness,
etc. 96
SECTION 10.9 Governing Law; Entire Agreement. 97
SECTION 10.10 Successors and Assigns. 97
SECTION 10.11 Sale and Transfer of Credit Extensions;
Participations in Credit Extensions Notes. 97
SECTION 10.11.1 Assignments. 97
SECTION 10.11.2 Participations. 100
SECTION 10.12 Other Transactions. 101
SECTION 10.13 Certain Collateral and Other Matters;
Rate Protection Agreements; Further Assurances. 101
SECTION 10.14 Forum Selection and Consent to
Jurisdiction. 102
SECTION 10.15 Waiver of Jury Trial. 102
SECTION 10.16 EMU. 103
SECTION 10.17 Judgment Currency. 104
SECTION 10.18 Confidential Information. 104
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SCHEDULE I - Disclosure Schedule
SCHEDULE II - Percentages; LIBOR Office; Domestic Office
SCHEDULE III - Associated Costs
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Other Currency Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of U.K. Closing Date Certificate
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F-1 - Form of U.S. Borrower Foreign Pledge Agreement
EXHIBIT F-2 - Form of U.K. Acquisitions II Pledge Agreement
EXHIBIT F-3 - Form of U.K. Holdings Pledge Agreement
EXHIBIT F-4 - Form of U.K. Acquisitions I Pledge Agreement
EXHIBIT G - Form of U.K. Subsidiary Guaranty
EXHIBIT H - Form of Lender Assignment Agreement
EXHIBIT I - Form of Officer's Solvency Certificate
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of February 23, 2000, is
among CHESAPEAKE CORPORATION, a Virginia corporation (the "U.S.
Borrower"), CHESAPEAKE UK ACQUISITIONS II PLC, a public limited
company organized under the laws of England and Wales ("U.K.
Acquisitions"), CHESAPEAKE UK ACQUISITIONS PLC, a public limited
company organized under the laws of England and Wales ("U.K.
Acquisitions I"), CHESAPEAKE U.K. HOLDINGS LIMITED, a limited
liability company organized under the laws of England and Wales
("U.K. Holdings"; each of U.K. Acquisitions, U.K. Acquisitions I
and U.K. Holdings is sometimes referred to herein as a "U.K.
Borrower" and collectively sometimes referred to herein as the
"U.K. Borrowers", and together with the U.S. Borrower, each
sometimes referred to herein as a "Borrower" and collectively
sometimes referred to herein as the "Borrowers"), the various
financial institutions and other Persons from time to time
parties hereto (the "Lenders"), FIRST UNION NATIONAL BANK ("First
Union"), as administrative agent (in such capacity, the
"Administrative Agent") for the Lenders, and FIRST UNION
SECURITIES, INC., as the Lead Arranger and Sole Book Runner (in
such capacity, the "Arranger").
W I T N E S S E T H:
WHEREAS, U.K. Acquisitions is a newly formed, direct
Subsidiary (such capitalized term, and other capitalized terms
used in these recitals, to have the definitions set forth in
Section 1.1 below) of U.K. Holdings, and was formed solely to
effect the acquisition of Boxmore International PLC, a public
limited company organized under the laws of England and Wales
(the "U.K. Target");
WHEREAS, Donaldson, Lufkin & Jenrette, on behalf of U.K.
Acquisitions, has offered to purchase all of the issued and to be
issued U.K. Ordinary Shares of the U.K. Target for a purchase
price of L2.65 per U.K. Ordinary Share pursuant to a recommended
cash offer (the "U.K. Offer");
WHEREAS, the U.S. Borrower has agreed to contribute at least
the Contribution Amount (or the Sterling equivalent thereof) in
cash to U.K. Holdings which will, in turn, contribute such amount
to U.K. Acquisitions to finance, in part, the consummation of the
U.K. Offer and for market purchases of U.K. Ordinary Shares (the
"U.K. Equity Contribution");
WHEREAS, following the acquisition of 90% of the U.K.
Ordinary Shares (the "U.K. Shares Acquisition"; the U.K. Shares
Acquisition, together with the U.K. Equity Contribution and the
U.K. Offer, the "U.K. Acquisition"), the U.K. Target will be a
direct Subsidiary of U.K. Acquisitions;
WHEREAS, within 30 days of the U.K. Closing Date, U.K.
Acquisitions will repay (the "U.K. Refinancing"; the U.K.
Refinancing, together with the U.K. Acquisition, the "U.K.
Transaction") substantially all of the outstanding Indebtedness
of the U.K. Target in an amount not to exceed $50,000,000;
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WHEREAS, to provide a portion of the financing necessary for
the purposes set forth in Section 7.1.7, the Borrowers have
requested that the Lenders, the Issuer and the Loan Note
Guarantor provide the following Commitments:
(a) for the purposes of providing a portion of the
financing for the U.K. Offer and for the other purposes set
forth in Section 7.1.7:
(i) a Revolving Loan Commitment (to include
availability for Revolving Loans, Swing Line Loans, the
Loan Note Guaranty, Other Currency Loans and Letters of
Credit) pursuant to which Revolving Loans will be made
to the Borrowers, in a maximum aggregate principal
amount not to exceed the Revolving Loan Commitment
Amount, from time to time from and after the U.K.
Closing Date until the Revolving Loan Commitment
Termination Date;
(ii) a Loan Note Guaranty pursuant to which the
Loan Note Guarantor will issue a Loan Note Guaranty, in
a maximum aggregate amount not to exceed the Loan Note
Guaranty Commitment Amount, on the U.K. Closing Date;
(iii) a Letter of Credit Commitment pursuant
to which the Issuer will issue Letters of Credit
(subject to the Revolving Loan Commitment Amount and
the aggregate usage thereof) from time to time from and
after the U.K. Closing Date until the Revolving Loan
Commitment Termination Date;
(iv) a Swing Line Loan Commitment pursuant to
which Swing Line Loans will be made to the U.S.
Borrower (subject to the Revolving Loan Commitment
Amount and the aggregate usage thereof) from time to
time from and after the U.K. Closing Date until the
Revolving Loan Commitment Termination Date; and
(v) an Other Currency Loan Commitment pursuant to
which Other Currency Loans will be made to the
Borrowers (subject to the Revolving Loan Commitment
Amount and the aggregate usage thereof) from time to
time from and after the U.K. Closing Date until the
Revolving Loan Commitment Termination Date; and
WHEREAS, the Lenders, the Issuer and the Loan Note Guarantor
are willing, on the terms and subject to the conditions
hereinafter set forth, to extend the Commitments and make Loans
to the Borrowers, issue (or participate in) Letters of Credit and
issue (or participate in) the Loan Note Guaranty;
NOW, THEREFORE, the parties hereto hereby agree as follows:
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms.
The following terms (whether or not underscored) when used
in this Agreement, including its preamble and recitals, shall,
except where the context otherwise requires, have the following
meanings (such meanings to be equally applicable to the singular
and plural forms thereof):
"Administrative Agent" is defined in the preamble and
includes each other Person, if any, appointed as the successor
Administrative Agent pursuant to Section 9.4.
"Affiliate" of any Person means any other Person which,
directly or indirectly, controls, is controlled by or is under
common control with such Person. "Control" of a Person means the
power, directly or indirectly,
(a) to vote 10% or more of the Capital Securities (on
a fully diluted basis) of such Person having ordinary voting
power for the election of directors, managing members or
general partners (as applicable); or
(b) to direct or cause the direction of the management
and policies of such Person (whether through ownership of
Capital Securities, by contract or otherwise).()
"Agreement" means, on any date, this Credit Agreement as
originally in effect on the Effective Date and as thereafter from
time to time amended, supplemented, amended and restated or
otherwise modified from time to time and in effect on such date.
"Announcement" means the initial press announcement released
or to be released by or on behalf of U.K. Acquisitions in
connection with the U.K. Offer.
"Alternate Base Rate" means, on any date and with respect to
all Base Rate Loans, a fluctuating rate of interest per annum
equal to the higher of (a) the Base Rate in effect on such day;
and (b) the Federal Funds Rate in effect on such day plus 1/2 of
1%. Changes in the rate of interest on that portion of any Loans
maintained as Base Rate Loans will take effect as of the opening
of business on the date of each change in the Alternate Base
Rate. The Administrative Agent will give notice promptly to the
Borrowers and the Lenders of changes in the Alternate Base Rate;
provided, that the failure to give such notice shall not affect
the Alternate Base Rate in effect after such change. If for any
reason the Administrative Agent shall have determined (which
determination shall be conclusive in the absence of manifest
error) that it is unable to ascertain the Federal Funds Rate for
any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in
accordance with the terms hereof, the Alternate Base Rate shall
be determined without regard to clause (b) of the first sentence
of this definition, until the circumstances giving rise to such
inability no longer exist.
"Applicable Margin" means, (a) initially, in the case of
Base Rate Loans, 1% and in the case of LIBO Rate Loans, 2%, and
(b) from and after the four month until the five month
anniversary of the U.K. Closing Date, in the case of Base Rate
-3-
Loans, 2% and in the case of LIBO Rate Loans, 3% and from and
after the fifth month anniversary of the U.K. Closing Date in the
case of Base Rate Loans, 3% and in the case of LIBO Rate Loans
4%.
"Arranger" is defined in the preamble.
"Assignee Lender" is defined in Section 10.11.1.
"Assignor Lender" is defined in Section 10.11.1.
"Associated Costs" means, with respect to any Loan
denominated in an Other Currency, for any Interest Period, the
cost as calculated by the Administrative Agent in accordance with
Schedule III hereto imputed to each applicable Lender of
compliance with the mandatory liquid assets requirements of the
Bank of England during that Interest Period, expressed as a
percentage.
"Authorized Officer" means, relative to any Obligor, those
of its officers, general partners or managing members (as
applicable) whose signatures and incumbency shall have been
certified to the Administrative Agent, the Lenders and the Issuer
pursuant to Sections 5.1.1, or otherwise in a manner reasonably
satisfactory to the Administrative Agent, as updated by the
Borrowers from time to time and certified in the manner provided
above.
"Base Rate" means, at any time, the rate of interest then
most recently established by the Administrative Agent in at its
principal office in Charlotte, North Carolina as its prime rate
for Dollars loaned in the United States. The parties hereto
acknowledge that the Base Rate is an index rate and is not
necessarily intended to be the lowest rate or best rate of
interest charged to other banks or to customers in connection
with extensions of credit.
"Base Rate Loan" means a Loan, in Dollars, bearing interest
at a fluctuating rate determined by reference to the Alternate
Base Rate.
"Borrower" and "Borrowers" are defined in the preamble.
"Borrowing" means the Loans of the same type and, in the
case of LIBO Rate Loans, having the same Interest Period made by
all Lenders required to make such Loans on the same Business Day
and pursuant to the same Borrowing Request in accordance with
Section 2.1.
"Borrowing Request" means a Loan request and certificate
duly executed by an Authorized Officer of any Borrower requesting
such Loans, substantially in the form of Exhibit B-1 hereto.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor
a legal holiday on which banks are authorized or required to
be closed in New York, New York or Charlotte, North
Carolina; and
-4-
(b) relative to the making, continuing, prepaying or
repaying of any LIBO Rate Loans, any day which is a Business
Day described in clause (a) above and which is also a day on
which dealings in Dollars and Other Currency are carried on
in the London interbank market.()
"Capital Expenditures" means, for any period, the aggregate
amount of (a) all expenditures of the U.S. Borrower and its
Subsidiaries for fixed or capital assets made during such period
which, in accordance with GAAP, would be classified as capital
expenditures and (b) Capitalized Lease Liabilities incurred by
the U.S. Borrower and its Subsidiaries during such period.
"Capital Securities" means, with respect to any Person, any
and all shares, interests (including membership interests and
partnership interests), participations or other equivalents
(however designated, whether voting or non-voting) of such
Person's capital (including any instruments convertible into
equity), whether now outstanding or issued after the Effective
Date.
"Capitalized Lease Liabilities" means all monetary
obligations of any Person or any of its Subsidiaries under any
leasing or similar arrangement which have been (or, in accordance
with GAAP, should be) classified as capitalized leases, and for
purposes of each Loan Document the amount of such obligations
shall be the capitalized amount thereof, determined in accordance
with GAAP, and the stated maturity thereof shall be the date of
the last payment of rent or any other amount due under such lease
prior to the first date upon which such lease may be terminated
by the lessee without payment of a premium or a penalty.
"Cash Collateralize" means with respect to (a) the Loan Note
Guaranty, to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Administrative
Agent, the Loan Note Guarantor and the Lenders participating in
Loan Note Guaranties, as collateral for the Loan Note Guaranty
Obligations, cash or deposit account balances pursuant to
documentation in form and substance reasonably satisfactory to
the Administrative Agent and the Loan Note Guarantor (which
documents are hereby consented to by the Lenders) or (b) a Letter
of Credit, the deposit of immediately available funds into a cash
collateral account maintained with (or on behalf of) the
Administrative Agent on terms satisfactory to the Administrative
Agent in an amount equal to the Stated Amount of such Letter of
Credit. Derivatives of such term shall have corresponding
meanings. The Borrowers hereby grant to the Administrative
Agent, for the benefit of the Administrative Agent and the
Lenders, a security interest in all such cash and deposit account
balances to secure Loan Note Guaranty Obligations or Letters of
Credit. Cash collateral shall be maintained in blocked deposit
accounts held by the Administrative Agent or any of its agents.
"Cash Equivalent Investment" means, at any time:
(a) any direct obligation of (or unconditionally
guaranteed by) the United States or a State thereof (or any
agency or political subdivision thereof, to the extent such
obligations are supported by the full faith and credit of
the United States or a State thereof) maturing not more than
one year after such time;
-5-
(b) commercial paper maturing not more than 270 days
from the date of issue, which is issued by
(i) a corporation (other than an Affiliate of any
Obligor) organized under the laws of any State of the
United States or of the District of Columbia and rated
A-1 or higher by S&P or P-1 or higher by Moody's, or
(ii) any Lender (or its holding company);
(c) any certificate of deposit, time deposit or
bankers acceptance, maturing not more than one year after
its date of issuance, which is issued by either
(i) any bank organized under the laws of the
United States or any State thereof and which has (x) a
credit rating of A2 or higher from Moody's or A or
higher from S&P and (y) a combined capital and surplus
greater than $500,000,000, or
(ii) any Lender; or
(d) any repurchase agreement having a term of 30 days
or less entered into with any Lender or any commercial
banking institution satisfying the criteria set forth in
clause (c)(i) which
(i) is secured by a fully perfected security
interest in any obligation of the type described in
clause (a), and
(ii) has a market value at the time such
repurchase agreement is entered into of not less than
100% of the repurchase obligation of such commercial
banking institution thereunder.()
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response
Compensation Liability Information System List.
"Change in Control" means
(a) the failure of the U.S. Borrower at any time to
directly own beneficially and of record on a fully diluted
basis at least 89.99% of the outstanding Capital Securities
of U.K. Holdings, such Capital Securities to be held free
and clear of all Liens (other than Liens granted under a
Loan Document); or
-6-
(b) the failure of U.K. Holdings at any time to
directly own beneficially and of record on a fully diluted
basis at least 99.98% of the outstanding Capital Securities
of U.K. Acquisitions or U.K. Acquisitions I, such Capital
Securities to be held free and clear of all Liens (other
than Liens granted under a Loan Document); or
(c) any person or group (within the meaning of
Sections 13(d) and 14(d) under the Exchange Act), shall
become the ultimate "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of Capital Securities representing more than
24.5% percent of the Capital Securities of the U.S. Borrower
on a fully diluted basis; or
(d) during any period of 24 consecutive months,
individuals who at the beginning of such period constituted
the Board of Directors of the U.S. Borrower (together with
any new directors whose election to such Board or whose
nomination for election by the stockholders of the U.S.
Borrower was approved by a vote of a majority of the
directors then still in office who were either directors at
the beginning of such period or whose election or nomination
for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of
the U.S. Borrower then in office; or
(e) there shall have occurred under any indenture or
other instrument evidencing Indebtedness of or in excess of
the Dollar Equivalent of $10,000,000 any "change in control"
or "change of control" (in each case as defined in such
indenture or other evidence of Indebtedness) obligating any
Borrower to repurchase, redeem or repay all or any part of
the debt or Capital Securities provided for therein.()
"Chesapeake Display" means Chesapeake Display and Packaging
Company, an Iowa Corporation.
"Code" means the Internal Revenue Code of 1986, and the
regulations thereunder, in each case as amended, reformed or
otherwise modified from time to time.
"Color-Box, LLC" means the joint venture to be formed
between Chesapeake Display and Georgia-Pacific Corporation with
the contribution of the assets and liabilities of each Person's
litho-laminated packaging business.
"Commitment" means, as the context may require, a Lender's
Revolving Loan Commitment, the Loan Note Guarantor's Loan Note
Guaranty Commitment, the Swing Line Lender's Swing Line Loan
Commitment, the Other Currency Lender's Other Currency Loan
Commitment and the Issuer's Letter of Credit Commitment.
"Commitment Amount" means, as the context may require the
Revolving Loan Commitment Amount, the Letter of Credit Commitment
Amount, the Loan Note Guaranty Commitment Amount, the Swing Line
Loan Commitment Amount or the Other Currency Loan Commitment
Amount.
-7-
"Commitment Termination Event" means
(a) the occurrence of any Event of Default described
in clauses (a) through (d) of Section 8.1.9 with respect to
any Borrower or the U.K. Target; or
(b) the occurrence and continuance of any other Event
of Default and either
(i) the declaration of all or any portion of the
Loans to be due and payable pursuant to Section 8.3, or
(ii) the giving of notice by the Administrative
Agent, acting at the direction of the Required Lenders,
to the U.S. Borrower that the Commitments have been
terminated;
provided, however, with respect to the portion of Commitments
available to finance the U.K. Offer, no Commitment Termination
Event shall be deemed to have occurred where U.K. Acquisitions,
in compliance with its obligations under Note 2 to Rule 13 of the
U.K. City Code, is not permitted to withdraw the Offer.
"Compliance Certificate" means a certificate duly completed
and executed by an Authorized Officer of the U.S. Borrower,
substantially in the form of Exhibit E hereto, together with such
changes thereto as the Administrative Agent may from time to time
request for the purpose of monitoring the Borrowers' compliance
with the financial covenant contained herein.
"Confidential Memorandum" means the Confidential Information
Memorandum dated December, 1999 prepared by the Arranger based on
information provided by the U.S. Borrower with respect to the
facilities described herein.
"Contingent Liability" means any agreement, undertaking or
arrangement by which any Person guarantees, endorses or otherwise
becomes or is contingently liable upon (by direct or indirect
agreement, contingent or otherwise, to provide funds for payment,
to supply funds to, or otherwise to invest in, a debtor, or
otherwise to assure a creditor against loss) the Indebtedness of
any other Person (other than by endorsements of instruments in
the course of collection), or guarantees the payment of dividends
or other distributions upon the Capital Securities of any other
Person. The amount of any Person's obligation under any
Contingent Liability shall (subject to any limitation set forth
therein) be deemed to be the outstanding principal amount of the
debt, obligation or other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of
continuation or conversion and certificate duly executed by an
Authorized Officer of the U.S. Borrower, substantially in the
form of Exhibit C hereto.
"Contribution Amount" means the Dollar Equivalent of
$82,500,000.
-8-
"Controlled Group" means all members of a controlled group
of corporations and all members of a controlled group of trades
or businesses (whether or not incorporated) under common control
which, together with the U.S. Borrower, are treated as a single
employer under Section 414(b) or 414(c) of the Code or Section
4001 of ERISA.
"Credit Extension" means, as the context may require,
(a) the making of a Loan by a Lender;
(b) the issuance of any Letter of Credit, or the
extension of any Stated Expiry Date of any existing Letter
of Credit, by the Issuer; or
(c) the issuance of the Loan Note Guaranty by the Loan
Note Guarantor.()
"Default" means any Event of Default or any condition,
occurrence or event which, after notice or lapse of time or both,
would constitute an Event of Default.
"Defaulting Lender" is defined in Section 4.11.
"Determination Date" is defined in Section 2.9.1.
"Disbursement" is defined in Section 2.6.2.
"Disbursement Date" is defined in Section 2.6.2.
"Disclosure Schedule" means the Disclosure Schedule attached
hereto as Schedule I, as it may be amended, supplemented, amended
and restated or otherwise modified from time to time by the
Borrowers with the written consent of the Required Lenders.
"Disposable Amount" means, initially, $50,000,000 as such
amount is reduced, Dollar for Dollar, by the amount of any (a)
Permitted Acquisitions, (b) repurchase or redemption of Capital
Securities permitted pursuant to clause (b) of Section 7.2.6, (c)
Investments permitted pursuant to clause (j) of Section 7.2.5 and
Indebtedness incurred pursuant to clause (j) of Section 7.2.2.
"Disposition" (or similar words such as "Dispose") means any
sale, transfer, lease, contribution or other conveyance
(including by way of merger) of, or the granting of options,
warrants or other rights to, any of the U.S. Borrower's or its
Subsidiaries' assets (including accounts receivable and Capital
Securities of Subsidiaries) to any other Person (other than to
another Subsidiary) in a single transaction or series of related
transactions.
"Dollar" and the sign "$" mean lawful money of the United
States.
"Dollar Equivalent" means, at any time, (a) as to any amount
denominated in Dollars, the amount thereof at such time, and (b)
as to any amount denominated in an Other Currency, the equivalent
amount in Dollars as determined by the Administrative Agent at
-9-
such time on the basis of the Spot Rate for the purchase of
Dollars with such Other Currency on the most recent Determination
Date.
"Domestic Office" means the office of a Lender designated as
its "Domestic Office" on Schedule II hereto or in a Lender
Assignment Agreement, or such other office within the United
States as may be designated from time to time by notice from such
Lender to the Administrative Agent and the U.S. Borrower.
"Dow Jones Market Screen 3740 or 3750" means the Telerate
display page designated as "3740" or "3750" on the Dow Jones
Market Service (or such other display page or service that the
Administrative Agent may choose for the purpose of displaying
British Bankers' Association interest settlement rates for
Dollars or Other Currency).
"Effective Date" means the date this Agreement becomes
effective pursuant to Section 10.8.
"Eligible Assignees" means each Lender, any Affiliate of a
Lender, any commercial bank, commercial finance company or other
financial institution, any fund that invests in loans (including
any Related Fund) and any other Person approved in writing by the
Administrative Agent other than direct packaging industry
competitors of the U.S. Borrower identified by the U.S. Borrower
and acknowledged by the Administrative Agent.
"EMU" means economic and monetary union as contemplated in
the Treaty on European Union.
"EMU Legislation" means legislative measures of the European
Council for the introduction of, changeover to or operation of a
single or unified European currency (whether known as the euro or
otherwise), being in part the implementation of the third stage
of EMU.
"Environmental Laws" means all applicable federal, state or
local statutes, laws, ordinances, codes, rules, regulations and
guidelines (including consent decrees and administrative orders)
relating to public health and safety and protection of the
environment.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto of similar
import, together with the regulations thereunder, in each case as
in effect from time to time. References to Sections of ERISA
also refer to any successor Sections thereto.
"Euro" means the single currency of Participating Member
States of the European Union.
"Euro Unit" means a currency unit of the Euro.
"Event of Default" is defined in Section 8.1.
"Exemption Certificate" is defined in clause (e) of Section
4.6.
-10-
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to
(a) the weighted average of the rates on overnight
federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York; or
(b) if such rate is not so published for any day which
is a Business Day, the average of the quotations for such
day on such transactions received by the Administrative
Agent from three federal funds brokers of recognized
standing selected by it.()
"Fee Letter" means that certain second amended and restated
confidential letter, dated as of February 23, 2000, among First
Union National Bank, First Union Securities, Inc., and the U.S.
Borrower, as the same may be amended, supplemented, amended and
restated or otherwise modified from time to time.
"Field Group" means Field Group plc, a public limited
company organized under the laws of England and Wales.
"First Union" is defined in the preamble.
"Fiscal Quarter" means a quarter ending on the last day of
March, June, September or December.
"Fiscal Year" means any period of twelve consecutive
calendar months ending on December 31; references to a Fiscal
Year with a number corresponding to any calendar year (e.g., the
"2000 Fiscal Year") refer to the Fiscal Year ending on December
31 of such calendar year.
"Foreign Employee Benefit Plan" means any employee benefit
plan as defined in Section 3(3) of ERISA which is maintained or
contributed to for the benefit of the employees of the Borrowers,
any of its Subsidiaries or any of its ERISA Affiliates, but which
is not covered by ERISA pursuant to ERISA Section 4(b)(4).
"Foreign Pension Plan" means any employee benefit plan as
defined in Section 3(3) of ERISA which (i) is maintained or
contributed to for the benefit of employees of the Borrowers, any
of its Subsidiaries or any of its ERISA Affiliates, (ii) is not
covered by ERISA pursuant to Section 4(b)(4) of ERISA, and (iii)
under applicable local law, is required to be funded through a
trust or other funding vehicle.
"Foreign Subsidiary" means any Subsidiary that is not a U.S.
Subsidiary.
-11-
"F.R.S. Board" means the Board of Governors of the Federal
Reserve System or any successor thereto.
"GAAP" is defined in Section 1.4.
"Georgia Pacific Indemnity" means the Amended and Restated
Indemnity Agreement, dated as of November 12, 1999, between
Wisconsin Tissue Mills Inc. and Georgia-Pacific Corporation, as
amended, supplemented, amended and restated or otherwise modified
in accordance with Section 7.2.11.
"Governmental Authority" means the government of the United
States, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other
Person exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining
to government.
"Guaranty Fee" is defined in Section 3.3.4.
"Guaranty" means the U.K. Subsidiary Guaranty and/or the
Subsidiary Guaranty.
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended; or
(c) any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material or substance
(including any petroleum product) within the meaning of any
other applicable federal, state or local law, regulation,
ordinance or requirement (including consent decrees and
administrative orders) relating to or imposing liability or
standards of conduct concerning any hazardous, toxic or
dangerous waste, substance or material, all as amended.()
"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under currency exchange agreements,
interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements, and all other agreements or
arrangements designed to protect such Person against fluctuations
in interest rates or currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms
contained in any Loan Document refer to such Loan Document as a
whole and not to any particular Section, paragraph or provision
of such Loan Document.
"Honor Date" is defined in clause (b) of Section 2.7.1.
-12-
"Immaterial Subsidiary" means each Subsidiary of the U.S.
Borrower that (a) accounted for no more than 3% of the
consolidated gross revenues of the U.S. Borrower and its
Subsidiaries, (b) has assets which represent no more than 3% of
the consolidated gross assets of the U.S. Borrower and its
Subsidiaries, in each case, as of the last day of the most
recently completed Fiscal Quarter with respect to which, pursuant
to clauses (a) or (b) of Section 7.1.1, financial statements have
been, or are required to have been, delivered by the U.S.
Borrower and (c) and has been identified as such on Item 1.1 of
the Disclosure Schedule ("Immaterial Subsidiaries"), as such
Schedule is updated from time to time with prior notice to the
Administrative Agent.
"Impermissible Qualification" means any qualification or
exception to the opinion or certification of any independent
public accountant as to any financial statement of the U.S.
Borrower
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination
of matters relevant to such financial statement; or
(c) which relates to the treatment or classification
of any item in such financial statement and which, as a
condition to its removal, would require an adjustment to
such item the effect of which would be to cause the
Borrowers to be in Default.()
"Inactive Subsidiary" means each Subsidiary listed on Item
1.2 of the Disclosure Schedule ("Inactive Subsidiaries").
"include" and "including" means including without limiting
the generality of any description preceding such term, and, for
purposes of each Loan Document, the parties hereto agree that the
rule of ejusdem generis shall not be applicable to limit a
general statement, which is followed by or referable to an
enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Indebtedness" of any Person means:
(a) all obligations of such Person for borrowed money
or advances and all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments;
(b) all obligations, contingent or otherwise, relative
to the face amount of all letters of credit, whether or not
drawn, and banker's acceptances issued for the account of
such Person;
(c) all Capitalized Lease Liabilities of such Person;
-13-
(d) for purposes of Section 8.1.5 only, all other
items which, in accordance with GAAP, would be included as
liabilities on the liability side of the balance sheet of
such Person as of the date at which Indebtedness is to be
determined;
(e) net liabilities of such Person under all Hedging
Obligations;
(f) whether or not so included as liabilities in
accordance with GAAP, all obligations of such Person to pay
the deferred purchase price of property or services
excluding trade accounts payable in the ordinary course of
business which are not overdue for a period of more than 90
days or, if overdue for more than 90 days, as to which a
dispute exists and adequate reserves in conformity with GAAP
have been established on the books of such Person, and
indebtedness secured by (or for which the holder of such
indebtedness has an existing right, contingent or otherwise,
to be secured by) a Lien on property owned or being acquired
by such Person (including indebtedness arising under
conditional sales or other title retention agreements),
whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse;
(g) obligations arising under Synthetic Leases; and
(h) all Contingent Liabilities of such Person in
respect of any of the foregoing.()
The Indebtedness of any Person shall include the Indebtedness of
any other Person (including any partnership in which such Person
is a general partner) to the extent such Person is liable
therefor as a result of such Person's ownership interest in or
other relationship with such Person, except to the extent the
terms of such Indebtedness provide that such Person is not liable
therefor.
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Interest Period" means, relative to any LIBO Rate Loan, the
period beginning on (and including) the date on which such LIBO
Rate Loan is made or continued as, or converted into, a LIBO Rate
Loan pursuant to Sections 2.3 or 2.4 and shall end on (but
exclude) the day which numerically corresponds to such date one,
two or three months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of such
month), as the U.S. Borrower may select in its relevant notice
pursuant to Sections 2.3 or 2.4; provided, however, that
(a) the U.S. Borrower shall not be permitted to select
Interest Periods to be in effect at any one time which have
expiration dates occurring on more than five different
dates;
(b) if such Interest Period would otherwise end on a
day which is not a Business Day, such Interest Period shall
end on the next following Business Day (unless such next
following Business Day is the first Business Day of a
calendar month, in which case such Interest Period shall end
-14-
on the Business Day next preceding such numerically
corresponding day); and
(c) no Interest Period for any Loan may end later than
the Stated Maturity Date for such Loan.()
"Investment" means, relative to any Person,
(a) any loan, advance or extension of credit made by,
or Contingent Liability entered into by, such Person to or
for the benefit of any other Person, including the purchase
by such Person of any bonds, notes, debentures or other debt
securities of any other Person; and
(b) any Capital Securities held by such Person in any
other Person.()
The amount of any Investment shall be the original principal or
capital amount thereof less all returns of principal or equity
thereon and shall, if made by the transfer or exchange of
property other than cash, be deemed to have been made in an
original principal or capital amount equal to the fair market
value of such property at the time of such Investment.
"Issuance Request" means a Letter of Credit request or a
Loan Note Guaranty request and certificate duly executed by an
Authorized Officer of the U.S. Borrower, substantially in the
form of Exhibit B-2 hereto.
"Issuer" means the Administrative Agent in its capacity as
Issuer of the Letters of Credit. At the request of the
Administrative Agent and with the U.S. Borrower's consent (not to
be unreasonably withheld), another Lender or an Affiliate of the
Administrative Agent may issue one or more Letters of Credit
hereunder.
"Judgment Currency" is defined in Section 10.17.
"Lender Assignment Agreement" means an assignment agreement
substantially in the form of Exhibit H hereto.
"Lenders" is defined in the preamble (including any Person
that becomes a Lender pursuant to Section 10.11.1).
"Lender's Environmental Liability" means any and all losses,
liabilities, obligations, penalties, claims, litigation, demands,
defenses, costs, judgments, suits, proceedings, damages
(including consequential damages), disbursements or expenses of
any kind or nature whatsoever (including reasonable attorneys'
fees at trial and appellate levels and experts' fees and
disbursements and expenses incurred in investigating, defending
against or prosecuting any litigation, claim or proceeding) which
may at any time be imposed upon, incurred by or asserted or
awarded against the Administrative Agent, any Lender, the Issuer,
the Loan Note Guarantor or any of such Person's Affiliates,
-15-
shareholders, directors, officers, employees, and agents in
connection with or arising from:
(a) any Hazardous Material on, in, under or affecting
all or any portion of any property of the U.S. Borrower or
any of its Subsidiaries, the groundwater thereunder, or any
surrounding areas thereof to the extent caused by Releases
from the U.S. Borrower's or any of its Subsidiaries' or any
of their respective predecessors' properties;
(b) any misrepresentation, inaccuracy or breach of any
warranty, contained or referred to in Section 6.12;
(c) any violation or claim of violation by the U.S.
Borrower or any of its Subsidiaries of any Environmental
Laws; or
(d) the imposition of any lien for damages caused by
or the recovery of any costs for the cleanup, release or
threatened release of Hazardous Material by the U.S.
Borrower or any of its Subsidiaries, or in connection with
any property owned or formerly owned by the U.S. Borrower or
any of its Subsidiaries.()
"Letter of Credit" is defined in Section 2.1.2.
"Letter of Credit Commitment" means the Issuer's obligation
to issue Letters of Credit pursuant to Section 2.1.2 and, with
respect to each Revolving Loan Lender, the obligations of each
such Lender to participate in such Letters of Credit pursuant to
Section 2.6.1.
"Letter of Credit Commitment Amount" means, on any date, a
maximum amount of $10,000,000, as such amount may be permanently
reduced from time to time pursuant to Section 2.2.
"Letter of Credit Outstandings" means, on any date, an
amount equal to the sum of (a) the then aggregate amount which is
undrawn and available under all issued and outstanding Letters of
Credit, and (b) the then aggregate amount of all unpaid and
outstanding Reimbursement Obligations.
"LIBO Rate" means, relative to any Interest Period, either
(a) the rate of interest per annum determined by the
Administrative Agent (rounded upward to the nearest 1/16 of 1%)
appearing on, in the case of Dollars, the Dow Jones Market Screen
3740 or 3750 and in the case of Other Currency, Reuters screen
LIBO page QOLIBOR1 (or, in each case, if more than one rate
appears on such screen, the arithmetic mean for all such rates
rounded upward to the nearest 1/16 of 1%) as the London interbank
offered rate for deposits in the applicable currency at
approximately 11:00 A.M., London time, on the second full
Business Day preceding the first day of such Interest Period, and
in an amount approximately equal to the amount of the
Administrative Agent's LIBO Rate Loan and for a period
approximately equal to such Interest Period or (b) if such rate
is for any reason not available, the rate per annum equal to the
rate at which the Administrative Agent or its designee is offered
deposits in such currency at or about 11:00 A.M. London, England
-16-
time, 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
LIBO Rate Loans are then being conducted for settlement in
immediately available funds, 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 LIBO Rate Loan
to be outstanding during such Interest Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times
during an Interest Period applicable to such Loan, at a rate of
interest determined by reference to the LIBO Rate (Reserve
Adjusted).
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan
to be made, continued or maintained as, or converted into, a LIBO
Rate Loan for any Interest Period,
(a) which is denominated in Dollars, a rate per annum
(rounded upwards, if necessary, to the nearest 1/16 of 1%)
determined pursuant to the following formula:
LIBO Rate (Reserve = LIBO Rate
Adjusted)
1.00 - LIBOR Reserve
Percentage
(b) which is denominated in Sterling (and funded by
the Borrowers in the United Kingdom) or Euro Units, a rate
per annum (rounded upwards, if necessary, to the nearest
1/16 of 1%) determined pursuant to the following formula:()
LIBO Rate (Reserve = LIBO Rate + Associated
Adjusted) Costs
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO
Rate Loans will be determined by the Administrative Agent on the
basis of the LIBOR Reserve Percentage in effect two Business Days
before the first day of such Interest Period.
"LIBOR Office" means the office of a Lender designated as
its "LIBOR Office" on Schedule II hereto or in a Lender
Assignment Agreement, or such other office designated from time
to time by notice from such Lender to the U.S. Borrower and the
Administrative Agent, whether or not outside the United States,
which shall be making or maintaining the LIBO Rate Loans of such
Lender.
"LIBOR Reserve Percentage" means, relative to any Interest
Period for LIBO Rate Loans, the reserve percentage (expressed as
a decimal) equal to the maximum aggregate reserve requirements
(including all basic, emergency, supplemental, marginal and other
reserves and taking into account any transitional adjustments or
other scheduled changes in reserve requirements) specified under
regulations issued from time to time by the F.R.S. Board and then
applicable to assets or liabilities consisting of or including
"Eurocurrency Liabilities", as currently defined in Regulation D
of the F.R.S. Board, having a term approximately equal or
comparable to such Interest Period.
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"Lien" means any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or otherwise), charge against or interest in property,
or other priority or preferential arrangement of any kind or
nature whatsoever, to secure payment of a debt or performance of
an obligation.
"Loan" means, as the context may require, a Revolving Loan,
Other Currency Loan or a Swing Line Loan of any type.
"Loan Documents" means, collectively, this Agreement, the
Letters of Credit, the Notes, each Rate Protection Agreement, the
Fee Letter, the Loan Note Guaranty, each Guaranty, each Pledge
Agreement, each agreement pursuant to which the Administrative
Agent is granted a Lien to secure any Obligations (including each
Pledge Agreement) and each other agreement, certificate, document
or instrument delivered in connection with any Loan Document,
whether or not specifically mentioned herein or therein.
"Loan Note Advance" means an advance pursuant to clause (b)
of Section 2.7.1.
"Loan Note Guaranty" means a payment guaranty of the Loan
Note Guarantor of the Loan Notes pursuant to a Deed constituting
Floating Rate Unsecured Loan Notes executed and delivered by an
Authorized Officer of the Loan Note Guarantor pursuant to the
terms of this Agreement in form and substance reasonably
satisfactory to the Administrative Agent.
"Loan Note Guaranty Commitment" means the obligation of the
Loan Note Guarantor to issue the Loan Note Guaranty pursuant to
Section 2.7.
"Loan Note Guaranty Commitment Amount" means, on any date,
an amount in Sterling that is the Dollar Equivalent of
$85,000,000; provided, that such amount may be increased by an
amount up to the Dollar Equivalent of $5,000,000 with prior
written notice by the U.S. Borrower to the Administrative Agent
and concurrently with such increase, the Other Currency Loan
Commitment Amount automatically shall be decreased by any such
increase in the Loan Note Guaranty Commitment Amount (and the
Borrowers shall have paid the fee in connection with such
increase pursuant to Section 3.3.4).
"Loan Note Guarantor" means First Union, London Branch.
"Loan Note Guaranty Obligations" means at any time the sum
of (a) the aggregate undrawn amount of the Loan Note Guaranty
plus (b) the amount of all unreimbursed drawings under the Loan
Note Guaranty, including all Loan Note Advances.
"Loan Notes" means notes issued by U.K. Acquisitions to
individual shareholders of the U.K. Target pursuant to a Deed
constituting Floating Rate Unsecured Loan Notes, as payment for
the U.K. Target Shares.
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"Material Adverse Effect" means a material adverse effect on
(a) the assets, business, condition (financial or otherwise),
operations, liabilities, debt service capacity, performance,
properties or prospects of any Borrower, the U.S. Borrower and
its Subsidiaries taken as a whole, U.K. Holdings, or the U.K.
Target, in each case together with its Subsidiaries, taken as a
whole, (b) the rights and remedies of any Secured Party under any
Loan Document or (c) the ability of any Obligor to perform its
Obligations under any Loan Document.
"Material Obligor" means each Obligor that is not an
Immaterial Subsidiary.
"Merge" means for any Person to liquidate or dissolve,
consolidate with, or merge into or with, any other Person, or
purchase or otherwise acquire all or substantially all of the
assets of any Person (or any division thereof)
"Moody's" means Moody's Investors Service, Inc.
"National Currency Unit" means a unit of currency (other
than a Euro Unit) of a Participating Member State.
"Net Debt Proceeds" means, with respect to the sale or
issuance by the U.S. Borrower or any of their respective
Subsidiaries to any Person of any Indebtedness after the
Effective Date and permitted pursuant to clause (m) of Section
7.2.2 or incurred with the prior written consent of the Required
Lenders, the excess of
(a) the gross cash proceeds received by such Person
from such sale or issuance,
over
(b) all reasonable and customary underwriting
commissions and legal, investment banking, brokerage and
accounting and other professional fees, sales commissions
and disbursements and all other reasonable fees, expenses
and charges, in each case actually incurred in connection
with such sale or issuance which have not been paid to
Affiliates of such Person in connection therewith.()
"Net Disposition Proceeds" means, with respect to any
Disposition of any assets of the U.S. Borrower or any of its
Subsidiaries (other than sales permitted pursuant to clause (a),
(b) or (c) of Section 7.2.10, or a Disposition of such Person's
own Capital Securities), the excess of
(a) the gross cash proceeds received by the U.S.
Borrower or such Subsidiary from any such Disposition and
any cash payments received in respect of promissory notes or
other non-cash consideration delivered to the U.S. Borrower
or such Subsidiary in respect thereof,
less
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(b) the sum (without duplication) of (i) all
reasonable and customary fees and expenses with respect to
legal, investment banking, brokerage, accounting and other
professional fees, sales commissions and disbursements and
all other reasonable fees, expenses and charges, in each
case actually incurred in connection with such Disposition,
(ii) all Taxes and other governmental costs and expenses
actually paid or estimated by the U.S. Borrower or such
Subsidiary to be payable in cash in connection with such
Disposition, and (iii) payments made by the U.S. Borrower or
such Subsidiary to retire Indebtedness (other than the
Credit Extensions) of such Person where payment of such
Indebtedness is required in connection with such
Disposition;()
provided, however, that if, after the payment of all Taxes with
respect to such Disposition, the amount of estimated Taxes, if
any, pursuant to clause (b)(ii) above exceeded the Tax amount
actually paid in cash in respect of such Disposition, the
aggregate amount of such excess shall, at such time, constitute
Net Disposition Proceeds.
"Net Equity Proceeds" means with respect to the sale or
issuance by the U.S. Borrower or any Subsidiary of the U.S.
Borrower to any Person of any of its own Capital Securities,
warrants or options or the exercise of any such warrants or
options after the Effective Date other than the issuance of
Capital Securities pursuant to any stock option, compensation,
employee stock option or similar plan of the U.S. Borrower, the
excess of:
(a) the gross cash proceeds received by such Person
from such sale, exercise or issuance,
over
(b) all reasonable and customary underwriting
commissions and legal, investment banking, brokerage and
accounting and other professional fees, sales commissions
and disbursements actually incurred in connection with such
sale or issuance which have not been paid to Affiliates of
the U.S. Borrower in connection therewith.()
"Net Worth" means, at any time, all amounts which, in
accordance with GAAP consistently applied, would be included
under shareholders' equity on a consolidated balance sheet of the
U.S. Borrower and its Subsidiaries at such time; provided that,
in any event, such amounts are to be net of amounts carried on
the books of the U.S. Borrower and its Subsidiaries for (a) any
treasury stock and (b) any write-up in the book value of any
assets of the U.S. Borrower or any of its Subsidiaries resulting
from a revaluation thereof.
"No Less Favorable Terms and Conditions" means, with respect
to any refinancing of any Indebtedness permitted hereunder, terms
and conditions which are no less favorable to the Lenders and
evidenced by documentation which shall not (a) increase the
principal amount of such outstanding Indebtedness, (b) reduce
either the tenor or the average life of such Indebtedness, (c)
change the respective primary obligor(s) on the refinancing
Indebtedness (d) change the security, if any, for the refinancing
Indebtedness (except to the extent that less security is granted
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to holders of such refinancing Indebtedness) and (e) afford the
holders of such refinancing Indebtedness other covenants,
defaults, rights or remedies, taken as a whole, more burdensome
to the obligor(s) than those contained in such Indebtedness (and
in the case of Subordinated Debt, none of the subordination
provisions contained in the refinancing Indebtedness shall be
less favorable to the Lenders, the Issuer, the Loan Note
Guarantor and the Administrative Agent than the Indebtedness so
refinanced).
"Non-Excluded Taxes" means any Taxes other than net income
and franchise Taxes imposed with respect to any Secured Party by
a Governmental Authority under the laws of which such Secured
Party is organized or in which it maintains its applicable
lending office.
"Non-U.S. Lender" means any Lender that is not a "United
States person", as defined under Section 7701(a)(30) of the Code.
"Note" means, as the context may require, a Revolving Note,
Other Currency Note, or a Swing Line Note.
"Obligations" means all obligations (monetary or otherwise,
whether absolute or contingent, matured or unmatured) of the
Borrowers and each other Obligor arising under or in connection
with a Loan Document, including Reimbursement Obligations and the
principal of and premium, if any, and interest (including
interest accruing during, or which would have accrued but for,
the pendency of any proceeding of the type described in Section
8.1.9, whether or not allowed in such proceeding) on the Loans.
"Obligor" means, as the context may require, each Borrower
and each other Person (other than a Secured Party) obligated
under any Loan Document.
"Organic Document" means, relative to any Obligor, as
applicable, its certificate of incorporation, by-laws,
certificate of partnership, partnership agreement, certificate of
formation, limited liability agreement, operating agreement and
all shareholder agreements, voting trusts and similar
arrangements applicable to any of such Obligor's partnership
interests, limited liability company interests or authorized
shares of Capital Securities.
"Other Currency" means Sterling and Euro Units.
"Other Currency Lender" means First Union, London Branch, in
its capacity as the Other Currency Lender.
"Other Currency Loans" is defined in clause (c) of Section
2.1.1.
"Other Currency Loan Commitment" is defined in clause (c) of
Section 2.1.1.
"Other Currency Loan Commitment Amount" means, on any date,
$165,000,000, as such amount may be reduced from time to time
pursuant to Section 2.2, or increased pursuant to Section 2.1.3.
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"Other Currency Note" means a joint and several promissory
note of the Borrowers payable to the Other Currency Lender, in
the form of Exhibit A-3 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of the Borrowers to the
Other Currency Lender resulting from outstanding Other Currency
Loans, and also means all other promissory notes accepted from
time to time in substitution therefor or renewal thereof.
"Other Person" is defined in the definition of "Subsidiary".
"Other Taxes" means any and all stamp, documentary or
similar Taxes, or any other excise or property Taxes or similar
levies that arise on account of any payment made or required to
be made under any Loan Document or from the execution, delivery,
registration, recording or enforcement of any Loan Document.
"Participant" is defined in Section 10.11.2.
"Participating Member State" means each such state so
described in any EMU Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation and
any Person succeeding to any or all of its functions under ERISA.
"Pea Soup Acquisition" means the printing and packaging
company located in the Southeast United States to be purchased by
Chesapeake Display and Packaging Company for no more than
$35,000,000.
"Pension Plan" means a "pension plan", as such term is
defined in Section 3(2) of ERISA, which is subject to Title IV of
ERISA (other than a multiemployer plan as defined in Section
4001(a)(3) of ERISA), and to which the U.S. Borrower or any
corporation, trade or business that is, along with the U.S.
Borrower, a member of a Controlled Group, may have liability,
including any liability by reason of having been a substantial
employer within the meaning of Section 4063 of ERISA at any time
during the preceding five years, or by reason of being deemed to
be a contributing sponsor under Section 4069 of ERISA.
"Percentage" means, relative to any Lender, the applicable
percentage relating to Revolving Loans set forth opposite its
name on Schedule II hereto under the Revolving Loan Commitment
column or set forth in a Lender Assignment Agreement under the
Revolving Loan Commitment column, as such percentage may be
adjusted from time to time pursuant to Lender Assignment
Agreements executed by such Lender and its Assignee Lender and
delivered pursuant to Section 10.11.1.
"Permitted Acquisition" means an acquisition (whether
pursuant to an acquisition of Capital Securities, assets or
otherwise) by the U.S. Borrower or any Subsidiary from any Person
of a business in which the following conditions are satisfied:
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(a) immediately before and after giving effect to such
acquisition no Default shall have occurred and be continuing
or would result therefrom on a pro forma basis (including
under Section 7.2.1);
(b) such acquisition has been approved and recommended
by the board of directors or general partner (or similar
entity) of the Person to be acquired or which owns the
assets to be acquired;
(c) the Borrower shall have furnished to the
Administrative Agent (which shall promptly distribute the
same to the Lenders), prior to the consummation of such
acquisition, pro forma projections and other details (with
reasonable assumptions) with respect to the Person, Persons,
or assets to be acquired; and
(d) the total cash consideration payable in respect of
any one acquisition does not exceed the Disposable Amount.()
"Permitted Liens" is defined in Section 7.2.3.
"Person" means any natural person, corporation, limited
liability company, partnership, joint venture, association, trust
or unincorporated organization, Governmental Authority or any
other legal entity, whether acting in an individual, fiduciary or
other capacity.
"Pledge Agreement" means, as the context may require, the
U.S. Borrower Foreign Pledge Agreement, the U.K. Acquisitions II
Pledge Agreement, the U.K. Acquisitions I Pledge Agreement, the
U.K. Holdings Pledge Agreement and any other agreement pursuant
to which the Administrative Agent is granted a Lien on Capital
Securities.
"Pledged Subsidiary" means each Subsidiary in respect of
which the Administrative Agent has been granted a security
interest in or a pledge of (a) any of the Capital Securities of
such Subsidiary and (b) any intercompany notes of such Subsidiary
owing to the U.S. Borrower or another Subsidiary.
"Quarterly Payment Date" means the last day of March, June,
September and December, or, if any such day is not a Business
Day, the next succeeding Business Day.
"Rate Protection Agreement" means, collectively, any
interest rate swap, cap, collar or similar agreement entered into
by the U.S. Borrower or any of its Subsidiaries under which the
counterparty of such agreement is (or at the time such agreement
was entered into, was) a Lender or an Affiliate of a Lender.
"Refunded Swing Line Loans" is defined in clause (b) of
Section 2.3.2.
"Refunded Other Currency Loans" is defined in Section 2.3.3.
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"Register" is defined in clause (b)(i) of Section 2.8.
"Reimbursement Obligation" is defined in Section 2.6.3.
"Related Fund" means, with respect to any Lender which is a
fund that invests in loans, any other fund that invests in loans
and whose decisions relating to such loans are controlled (by
contract or otherwise) by the same investment advisor as such
Lender or by an Affiliate of such investment advisor.
"Release" means a "release", as such term is defined in
CERCLA.
"Replacement Lender" is defined in clause (g) of Section
10.11.1.
"Required Lenders" means, (a) at any time that there is more
than one Lender and any Lender holds greater than 50% of the
Total Exposure Amount, such Lender plus one other Lender, and (b)
at any other time, Lenders holding greater than 50% of the Total
Exposure Amount.
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq.,
as amended.
"Restricted Payment" means the declaration or payment of any
dividend (other than dividends payable solely in Capital
Securities of the U.S. Borrower or any Subsidiary) on, or the
making of any payment or distribution on account of, or setting
apart assets for a sinking or other analogous fund for, the
purchase, redemption, defeasance, retirement or other acquisition
of any class of Capital Securities of the U.S. Borrower or any
Subsidiary or any warrants or options to purchase any such
Capital Securities, whether now or hereafter outstanding, or the
making of any other distribution in respect thereof, either
directly or indirectly, whether in cash or property, obligations
of the U.S. Borrower or any Subsidiary or otherwise.
"Revolving Loans" is defined in clause (a) of Section 2.1.1.
"Revolving Loan Commitment" means, relative to any Lender,
such Lender's obligation (if any) to make Revolving Loans
pursuant to clause (a) of Section 2.1.1.
"Revolving Loan Commitment Amount" means, on any date, the
Dollar Equivalent of $250,000,000, as such amount may be reduced
from time to time pursuant to Section 2.2.
"Revolving Loan Commitment Termination Date" means the
earliest of
(a) March 1, 2000 (if the U.K. Closing Date has not
occurred on or prior to such date);
(b) August 31, 2000;
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(c) the date on which the Revolving Loan Commitment
Amount is terminated in full or reduced to zero pursuant to
the terms of this Agreement; and
(d) the date on which any Commitment Termination Event
occurs.()
Upon the occurrence of any event described above, the Revolving
Loan Commitments shall terminate automatically and without any
further action.
"Revolving Loan Lender" is defined in clause (a) of Section
2.1.1.
"Revolving Note" means a joint and several promissory note
of the Borrowers payable to any Revolving Loan Lender, in the
form of Exhibit A-1 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of the Borrowers to such
Revolving Loan Lender resulting from outstanding Revolving Loans,
and also means all other promissory notes accepted from time to
time in substitution therefor or renewal thereof.
"S&P" means Standard & Poor's Rating Services, a division of
McGraw-Hill, Inc.
"SEC" means the Securities and Exchange Commission.
"Secured Parties" means, collectively, the Lenders, the
Issuer, the Loan Note Guarantor, the Administrative Agent, each
counterparty to a Rate Protection Agreement that is (or at the
time such Rate Protection Agreement was entered into, was) a
Lender or an Affiliate thereof and (in each case), each of their
respective successors, transferees and assigns.
"Senior Notes" means (a) the U.S. Borrower's 7.20%
Debentures due March 15, 2005 in an original stated amount of
$85,000,000 (b) the U.S. Borrower's 10 3/8% Senior Notes due
October 1, 2000 in an original stated amount of $55,000,000 and
(c) the U.S. Borrower's 9 7/8% Debentures due May 1, 2003 in an
original stated amount of $60,000,000.
"Senior Notes Documents" means the Indenture, dated as of
July 15, 1985, between The Bank of New York, as trustee and the
U.S. Borrower, each supplement thereto, the Senior Notes, in each
case, as amended, supplemented, amended and restated or otherwise
modified in accordance with Section 7.2.11.
"Senior Notes Obligations" means all obligations (monetary
or otherwise, whether absolute or contingent, matured or
unmatured) of the U.S. Borrower arising under or in connection
with any Senior Notes Documents.
"Sharing Agreements" means (a) the Activities Agreement,
dated as of November 12, 1987, among the U.S. Borrower and
various Subsidiaries and (b) the Services Agreement, dated as of
December 31, 1997, among the U.S. Borrower and various
Subsidiaries; in each case, as amended, supplemented, amended and
restated or otherwise modified in accordance with Section 7.2.11.
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"Shorewood Shares" means Capital Securities of Shorewood
Packaging Corporation, a Delaware corporation.
"Solvent" means, with respect to any Person and its
Subsidiaries on a particular date, that on such date (a) the fair
value of the property of such Person and its Subsidiaries on a
consolidated basis is greater than the total amount of
liabilities, including contingent liabilities, of such Person and
its Subsidiaries on a consolidated basis, (b) the present fair
salable value of the assets of such Person and its Subsidiaries
on a consolidated basis is not less than the amount that will be
required to pay the probable liability of such Person and its
Subsidiaries on a consolidated basis on its debts as they become
absolute and matured, (c) such Person does not intend to, and
does not believe that it or its Subsidiaries will, incur debts or
liabilities beyond the ability of such Person and its
Subsidiaries to pay as such debts and liabilities mature, and (d)
such Person and its Subsidiaries on a consolidated basis is not
engaged in business or a transaction, and such Person and its
Subsidiaries on a consolidated basis is not about to engage in
business or a transaction, for which the property of such Person
and its Subsidiaries on a consolidated basis would constitute an
unreasonably small capital. The amount of Contingent Liabilities
at any time shall be computed as the amount that, in light of all
the facts and circumstances existing at such time, can reasonably
be expected to become an actual or matured liability.
"Spot Rate" for any Other Currency means the rate quoted by
the Administrative Agent as the spot rate for the purchase by the
Administrative Agent of such Other Currency with Dollars through
its foreign exchange trading office at approximately 9:00 a.m. on
the date two Business Days prior to the date as of which the
foreign exchange computation is made.
"Stated Amount" means, on any date and with respect to a (a)
particular Letter of Credit, the total amount then available to
be drawn under such Letter of Credit and (b) the Loan Note
Guaranty, the total amount available to be drawn under the Loan
Note Guaranty.
"Stated Expiry Date" is defined in Section 2.6.
"Stated Maturity Date" means August 31, 2000.
"Sterling" and "L" mean the lawful currency of the United
Kingdom of Great Britain and Northern Ireland.
"Stock Exchange" means London Stock Exchange Limited.
"Sub Debt Documents" means, collectively, the loan
agreements, indentures, note purchase agreements, promissory
notes, guarantees, and other instruments and agreements
evidencing the terms of Subordinated Debt, as amended,
supplemented, amended and restated or otherwise modified in
accordance with Section 7.2.11.
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"Subordinated Debt" means unsecured Indebtedness of the U.S.
Borrower subordinated in right of payment to the Obligations
pursuant to documentation containing redemption and other
prepayment events, maturities, amortization schedules, covenants,
events of default, remedies, acceleration rights, subordination
provisions and other material terms satisfactory to the
Administrative Agent.
"Subsidiary" means, with respect to any Person, any
corporation, limited liability company, partnership or other
entity ("Other Person") of which more than 50% of the Voting
Securities of such Other Person (irrespective of whether at the
time Capital Securities of any other class or classes of such
Other Person shall or might have voting power upon the occurrence
of any contingency) is at the time directly or indirectly owned
or controlled by such Person, by such Person and one or more
other Subsidiaries of such Person, or by one or more other
Subsidiaries of such Person. Unless the context otherwise
specifically requires, the term "Subsidiary" shall be a reference
to a Subsidiary of the U.S. Borrower.
"Subsidiary Guarantor" means each Subsidiary of the U.S.
Borrower that has executed and delivered to the Administrative
Agent the Subsidiary Guaranty or the U.K. Subsidiary Guaranty.
"Subsidiary Guaranty" means the subsidiary guaranty executed
and delivered by each Subsidiary that is not an Inactive
Subsidiary pursuant to the terms of this Agreement, in form and
substance satisfactory to the Administrative Agent, as amended,
supplemented, amended and restated or otherwise modified from
time to time.
"Success Date" means the date on which all the conditions of
the U.K. Offer have been fulfilled or waived (if waived, with the
prior written approval of the Administrative Agent to the extent
such approval is required in accordance with the remaining
provisions of this Agreement) and the U.K. Offer becomes or is
declared wholly unconditional in all respects.
"Swing Line Lender" means the Administrative Agent, in its
capacity as the Swing Line Lender.
"Swing Line Loan" is defined in clause (b) of Section 2.1.1.
"Swing Line Loan Commitment" is defined in clause (b) of
Section 2.1.1.
"Swing Line Loan Commitment Amount" means, on any date, $0.
"Swing Line Note" means a joint and several promissory note
of the Borrowers payable to the Swing Line Lender, in form and
substance satisfactory to the Swing Line Lender (as such
promissory note may be amended, endorsed or otherwise modified
from time to time), evidencing the aggregate Indebtedness of the
Borrowers to the Swing Line Lender resulting from outstanding
Swing Line Loans, and also means all other promissory notes
accepted from time to time in substitution therefor or renewal
thereof.
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"Synthetic Lease" means, as applied to any Person, any lease
(including leases that may be terminated by the lessee at any
time) of any property (whether real, personal or mixed) (a) that
is not a capital lease in accordance with GAAP and (b) in respect
of which the lessee retains or obtains ownership of the property
so leased for federal income Tax purposes, other than any such
lease under which that Person is the lessor.
"Taxes" means any and all income, stamp or other taxes,
duties, levies, imposts, charges, assessments, fees, deductions
or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, and all
interest, penalties or similar liabilities with respect thereto.
"Termination Date" means the date on which all Obligations
have been paid in full in cash, all Letters of Credit have been
terminated, expired or Cash Collateralized, the Loan Note
Guaranty has been terminated, expired or Cash Collateralized, all
Rate Protection Agreements have been terminated and all
Commitments shall have permanently terminated.
"Timberlands" means all or substantially all of the
timberlands held by the U.S. Borrower and its Subsidiaries.
"Total Debt" means, on any date, without duplication, the
outstanding principal amount of all Indebtedness of the U.S.
Borrower and its Subsidiaries of the type referred to in clause
(a), clause (b), clause (c) and clause (g), in each case of the
definition of "Indebtedness" (exclusive of intercompany
Indebtedness between the U.S. Borrower and its Subsidiaries) and
any Contingent Liability in respect of any of the foregoing.
"Total Exposure Amount" means, on any date of determination
(and without duplication), the outstanding principal amount of
all Loans, the aggregate amount of all Letter of Credit
Outstandings, Loan Note Guaranty Obligations and the unfunded
amount of the Commitments.
"Treaty on European Union" means the Treaty of Rome of 25
March 1957, as amended by the Single European Act 1986 and the
Maastricht Treaty (which was signed at Maastricht on 7 February
1992, and came into force on 1 November 1993) as amended from
time to time.
"type" means, relative to any Loan, the portion thereof, if
any, being maintained as a Base Rate Loan or a LIBO Rate Loan.
"UCC" means the Uniform Commercial Code as in effect from
time to time in the State of New York; provided, that if, with
respect to any financing statement or by reason of any provisions
of law, the perfection or the effect of perfection or non-
perfection of the security interests granted to the
Administrative Agent pursuant to the applicable Loan Document is
governed by the Uniform Commercial Code as in effect in a
jurisdiction of the United States other than New York, UCC means
the Uniform Commercial Code as in effect from time to time in
such other jurisdiction for purposes of the provisions of each
Loan Document and any financing statement relating to such
perfection or effect of perfection or non-perfection.
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"U.K. Acquisition" is defined in the fourth recital.
"U.K. Acquisitions" is defined in the preamble.
"U.K. Acquisitions I" is defined in the preamble.
"U.K. Acquisitions I Pledge Agreement" means the Deed of
Charge and Memorandum of Deposit executed and delivered by an
Authorized Officer of U.K. Acquisitions I, substantially in the
form of Exhibit F-4 hereto, as amended, supplemented, amended
and restated or otherwise modified from time to time.
"U.K. Acquisitions II Pledge Agreement" means the Deed of
Charge and Memorandum of Deposit executed and delivered by an
Authorized Officer of U.K. Acquisitions I, substantially in the
form of Exhibit F-2 hereto, as amended, supplemented, amended and
restated or otherwise modified from time to time.
"U.K. Borrower" is defined in the preamble.
"U.K. City Code" means the City Code on Takeovers and
Mergers for the time being in effect with respect to takeovers
and mergers in the United Kingdom.
"U.K. Closing Date" means the date on which all conditions
precedent set forth in Section 5.1 are satisfied or waived by
Required Lenders, but in no event shall such date be later than
February 24, 2000.
"U.K. Closing Date Certificate" means the closing date
certificate executed and delivered by the U.K. Borrowers pursuant
to the terms of this Agreement, substantially in the form of
Exhibit D hereto.
"U.K. Equity Contribution" is defined in the third recital.
"U.K. Holdings" is defined in the preamble.
"U.K. Holdings Pledge Agreement" means the Deed of Charge
and Memorandum of Deposit executed and delivered by an Authorized
Officer of U.K. Holdings, substantially in the form of Exhibit
F-3 hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"U.K. Obligations" means all obligations (monetary or
otherwise, whether absolute or contingent, matured or unmatured)
of the U.K. Borrowers and their Subsidiaries arising under or in
connection with a Loan Document, including Reimbursement
Obligations and the principal of and premium, if any, interest
(including interest accruing during, or which would have accrued
but for, the pendency of any proceeding of the type described in
Section 8.1.9, whether or not allowed in such proceeding) and
indemnities on the Loans borrowed by each U.K. Borrower.
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Notwithstanding anything to the contrary contained herein, the
U.K. Obligations shall not include any Credit Extensions actually
made to any Person that is not a U.K. Borrower.
"U.K. Obligor" means the U.S. Borrower, the U.K. Borrowers
and each other U.K. Subsidiary executing a Loan Document.
"U.K. Offer" is defined in the second recital.
"U.K. Offer Document" means the document issued on behalf of
U.K. Acquisitions setting out the terms and conditions of the
U.K. Offer.
"U.K. Offer Materials" means, at any time, each of the
Announcement and the U.K. Offer Document as each of the same may
be varied, revised, amended or supplemented in accordance with
the provisions of this Agreement.
"U.K. Offer Price" means L2.65 per U.K. Ordinary Share.
"U.K. Refinancing" is defined in the fifth recital.
"U.K. Ordinary Shares" means the existing unconditionally
allotted or issued and fully paid ordinary shares of 0.10p each
in the capital of U.K. Target and any further shares which are
unconditionally allotted or issued prior to the date on which the
U.K. Offer closes (or such earlier date or dates as U.K.
Acquisitions may, subject to the U.K. City Code, decide) and
"U.K. Ordinary Share" shall be defined accordingly.
"U.K. Shares Acquisition" is defined in the fourth recital.
"U.K. Subsidiary" means any Subsidiary that is incorporated
or organized under the laws of the England and Wales or Northern
Ireland.
"U.K. Subsidiary Guaranty" means the subsidiary guaranty
executed and delivered by each U.K. Subsidiary that is not an
Inactive Subsidiary pursuant to the terms of this Agreement,
substantially in the form of Exhibit G hereto, as amended,
supplemented, amended and restated or otherwise modified from
time to time.
"U.K. Success Date" means the date on which all the
conditions of the U.K. Offer have been fulfilled or waived (if
waived, with the prior written approval of the Administrative
Agent to the extent such approval is required in accordance with
the remaining provisions of this Agreement) and the U.K. Offer
becomes or is declared wholly unconditional in all respects.
"U.K. Target" is defined in the first recital.
"U.K. Target Shares" means all of the U.K. Ordinary Shares
in the U.K. Target actually acquired by U.K. Acquisitions,
whether as a result of the U.K. Offer, pursuant to the procedures
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under Sections 421 to 423F of the Companies (Northern Ireland)
Order 1986 (as amended) as a result of the U.K. Offer or
otherwise (including through market purchases).
"U.K. Transaction" is defined in the fifth recital.
"U.K. Transaction Documents" means, collectively, the U.K.
Offer Materials and the other documents executed or delivered in
connection with the U.K. Transaction, in each case as amended,
supplemented, amended and restated or otherwise modified from
time to time in accordance with Section 7.2.11.
"United States" or "U.S." means, the United States of
America, its fifty states and the District of Columbia.
"U.S. Borrower" is defined in the preamble.
"U.S. Borrower Foreign Pledge Agreement" means the Deed of
Charge and Memorandum of Deposit executed and delivered by an
Authorized Officer of the U.S. Borrower, substantially in the
form of Exhibit F-1 hereto, as amended, supplemented, amended and
restated or otherwise modified from time to time.
"Voting Securities" means, with respect to any Person,
Capital Securities of any class or kind ordinarily having the
power to vote for the election of directors, managers or other
voting members of the governing body of such Person.
"Welfare Plan" means a "welfare plan", as such term is
defined in Section 3(1) of ERISA.
"wholly owned Subsidiary" means any Subsidiary all of the
outstanding Capital Securities of which (other than any
director's qualifying shares or investments by foreign nationals
mandated by applicable laws) is owned directly or indirectly by
the U.S. Borrower.
SECTION 1.20 Use of Defined Terms.
Unless otherwise defined or the context otherwise requires,
terms for which meanings are provided in this Agreement shall
have such meanings when used in each other Loan Document and the
Disclosure Schedule, and each notice and other communication
delivered from time to time in connection with any Loan Document.
SECTION 1.30 Cross-References.
Unless otherwise specified, references in a Loan Document to
any Article or Section are references to such Article or Section
of such Loan Document, and references in any Article, Section or
definition to any clause are references to such clause of such
Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations.
Unless otherwise specified, all accounting terms used in
each Loan Document shall be interpreted, and all accounting
determinations and computations thereunder (including under
Section 7.2.4 and the definitions used in such calculations)
shall be made, in accordance with those generally accepted
accounting principles ("GAAP") applied in the preparation of the
financial statements of the U.S. Borrower Unless otherwise
expressly provided, all financial covenants and defined financial
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terms shall be computed on a consolidated basis for the U.S.
Borrower and its Subsidiaries, in each case without duplication.
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE
PROCEDURES, NOTES AND LETTERS OF CREDIT
SECTION 2.1. Commitments.
On the terms and subject to the conditions of this
Agreement, the Lenders, the Issuer and the Loan Note Guarantor
severally agree to make Credit Extensions as set forth below.
SECTION 2.1.1 Revolving Loan Commitment, Swing Line Loan
Commitment and Other Currency Loan Commitment.
From time to time on any Business Day occurring from and
after the Effective Date but prior to the Revolving Loan
Commitment Termination Date,
(a) each Lender that has a Revolving Loan Commitment
(referred to as a "Revolving Loan Lender") agrees that it
will make loans (relative to such Lender, its "Revolving
Loans") in Dollars to the Borrowers equal to such Lender's
Percentage of the aggregate amount of each Borrowing of the
Revolving Loans requested by such Borrower to be made on
such day;
(b) the Swing Line Lender agrees that it will make
loans (its "Swing Line Loans") in Dollars to the Borrowers
equal to the principal amount of the Swing Line Loan
requested by such Borrower to be made on such day. The
Commitment of the Swing Line Lender described in this clause
is herein referred to as its "Swing Line Loan Commitment";
and
(c) the Other Currency Lender agrees that it will make
loans (its "Other Currency Loans") in Other Currency to the
Borrowers equal to the principal amount of the Other
Currency Loan requested by such Borrower to be made on such
day. The Commitment of the Other Currency Lender described
in this clause is herein referred to as its "Other Currency
Loan Commitment".
On the terms and subject to the conditions hereof, the Borrowers
may from time to time borrow, prepay and reborrow Revolving
Loans, Swing Line Loans and Other Currency Loans. No Revolving
Loan Lender shall be required to make any Revolving Loan if,
after giving effect thereto, the aggregate outstanding principal
amount of all Revolving Loans of such Revolving Loan Lender
(without giving effect to amounts used for the U.K. Refinancing),
together with such Lender's Percentage of the aggregate amount of
all Swing Line Loans, Letter of Credit Outstandings, Loan Note
Guaranty Obligations and Other Currency Loans, would exceed such
Lender's Percentage of the then existing Revolving Loan
Commitment Amount. Furthermore, the Swing Line Lender shall not
be required to make Swing Line Loans if, after giving effect
thereto, (i) the aggregate outstanding principal amount of all
Swing Line Loans would exceed the then existing Swing Line Loan
Commitment Amount or (ii) unless otherwise agreed to by the Swing
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Line Lender, in its sole discretion, the sum of all Swing Line
Loans and Revolving Loans made by the Swing Line Lender (without
giving effect to amounts used for the U.K. Refinancing) plus the
Swing Line Lender's Percentage of the aggregate amount of Letter
of Credit Outstandings plus the Swing Line Lender's Percentage of
the aggregate amount of Other Currency Loans plus the Swing Line
Lender's Percentage of the aggregate amount of all Loan Note
Guaranty Obligations would exceed the Swing Line Lender's
Percentage of the then existing Revolving Loan Commitment Amount.
Additionally, the Other Currency Lender shall not be required to
make Other Currency Loans if, after giving effect thereto, (i)
the aggregate outstanding principal amount of all Other Currency
Loans would exceed the then existing Other Currency Loan
Commitment Amount or (ii) unless otherwise agreed to by the Other
Currency Lender, in its sole discretion, the sum of all Other
Currency Loans and Revolving Loans made by the Other Currency
Lender (without giving effect to amounts used for the U.K.
Refinancing) plus the Other Currency Lender's Percentage of the
aggregate amount of Letter of Credit Outstandings plus the Other
Currency Lender's Percentage of the aggregate amount of all Swing
Line Loans plus the Other Currency Lender's Percentage of the
aggregate amount of all Loan Note Guaranty Obligations would
exceed the Other Currency Lender's Percentage of the then
existing Revolving Loan Commitment Amount.
SECTION 2.1.2 Letter of Credit Commitment.
From time to time on any Business Day occurring from and
after the Effective Date but prior to the Revolving Loan
Commitment Termination Date, the Issuer agrees that it will
(a) issue one or more standby letters of credit (a
"Letter of Credit") in Dollars for the account of any
Borrower or any Subsidiary Guarantor in the Stated Amount
requested by such Borrower on such day; or
(b) extend the Stated Expiry Date of an existing
standby Letter of Credit previously issued hereunder.
No Stated Expiry Date shall extend beyond the earlier of (i) five
days prior to the Revolving Loan Commitment Termination Date and
(ii) unless otherwise agreed to by the Issuer in its sole
discretion, one year from the date of such extension. The Issuer
shall not be permitted or required to issue any Letter of Credit
if, after giving effect thereto, (i) the aggregate amount of all
Letter of Credit Outstandings would exceed the Letter of Credit
Commitment Amount or (ii) the sum of the aggregate amount of all
Letter of Credit Outstandings plus the aggregate principal amount
of all Revolving Loans (without giving effect to amounts used for
the U.K. Refinancing), Other Currency Loans and Swing Line Loans
then outstanding would exceed the Revolving Loan Commitment
Amount.
SECTION 2.1.3 Loan Note Guaranty Commitment.
On the U.K. Closing Date, the Loan Note Guarantor agrees
that it will issue the Loan Note Guaranty for the account of U.K.
Acquisitions. The Loan Note Guarantor shall not be required to
issue the Loan Note Guaranty if, after giving effect thereto, (a)
the aggregate amount of all Loan Note Guaranty Obligations would
exceed the Loan Note Guaranty Commitment Amount or (b) the sum of
the aggregate amount of all Loan Note Guaranty Obligations plus
the aggregate principal amount of all Revolving Loans (without
giving effect to amounts used for the U.K. Refinancing) then
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outstanding would exceed the Revolving Loan Commitment Amount (it
being understood and agreed that the Borrowers may not request
Revolving Loans or Other Currency Loans that exceed $165,000,000
in the aggregate without a corresponding decrease in the Loan
Note Guarantee Commitment Amount).
SECTION 2.20 Reduction of the Commitment Amounts.
The Commitment Amounts are Reduction of the Commitment
Amounts. subject to reduction from time to time pursuant to this
Section 2.2.
SECTION 2.2.1 Optional.
The U.S. Borrower may, from time to time on any Business Day
occurring after the Effective Date, voluntarily reduce the unused
amount of any Commitment Amount on the Business Day so specified
by the U.S. Borrower; provided, however, that all such reductions
shall require at least one Business Day's prior notice to the
Administrative Agent and be permanent, and any partial reduction
of any Commitment Amount shall be in a minimum amount of
$5,000,000 and in an integral multiple of $1,000,000. Any
optional or mandatory reduction of the Revolving Loan Commitment
Amount pursuant to the terms of this Agreement which reduces the
Revolving Loan Commitment Amount below the sum of (a) the Swing
Line Loan Commitment Amount and (b) the Letter of Credit
Commitment Amount shall result in an automatic and corresponding
reduction of the Swing Line Loan Commitment Amount and/or Letter
of Credit Commitment Amount (as directed by the U.S. Borrower in
a notice to the Administrative Agent delivered together with the
notice of such voluntary reduction in the Revolving Loan
Commitment Amount) to an aggregate amount not in excess of the
Revolving Loan Commitment Amount, as so reduced, without any
further action on the part of the Swing Line Lender or the
Issuer. Any reduction of the Revolving Loan Commitment Amount
shall result in a Dollar for Dollar reduction in the Other
Currency Loan Commitment Amount.
SECTION 2.2.2 Mandatory.
The Revolving Loan Commitment Amount shall be permanently
reduced (a) as set forth in clause (b) of Section 3.1.2 and (b)
by $50,000,000 on the earlier of (i) March 23, 2000 and (ii) the
date on which the Borrowers borrow Loans for the U.K.
Refinancing.
SECTION 2.30 Borrowing Procedures.
Loans (other than Swing Line Loans) shall be made by the
Lenders in accordance with Section 2.3.1, and Swing Line Loans
shall be made by the Swing Line Lender in accordance with Section
2.3.2.
SECTION 2.3.1 Borrowing Procedure.
In the case of other than Swing Line Loans, by delivering a
Borrowing Request to the Administrative Agent (or to the Other
Currency Lender, in the case of Other Currency Loans, who will
then forward the Borrowing Request to the Administrative Agent)
on or before 11:00 a.m. (which shall be London time, in the case
of Other Currency Loans) on a Business Day, any Borrower may from
time to time irrevocably request, (a) on the same Business Day's
notice in the case of Base Rate Loans, (b) on at least three
Business Days' notice in the case of LIBO Rate Loans denominated
in Dollars and (c) on at least four Business Days notice in the
case of LIBO Rate Loans denominated in any Other Currency, and in
either case not more than five Business Days' notice, that a
Borrowing be made, in the case of LIBO Rate Loans, in a minimum
amount of the Dollar Equivalent of $10,000,000 and an integral
multiple of the Dollar Equivalent of $1,000,000, in the case of
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Base Rate Loans, in a minimum amount of the Dollar Equivalent of
$5,000,000 and an integral multiple of the Dollar Equivalent of
$500,000 or, in either case, in the unused amount of the
applicable Commitment; provided, however, that all of the initial
Loans on the U.K. Closing Date shall be made as Base Rate Loans.
On the terms and subject to the conditions of this Agreement,
each Borrowing shall be comprised of the type of the Loans, and
shall be made on the Business Day, specified in such Borrowing
Request. In the case of (x) other than Swing Line Loans
denominated in Dollars, on or before 2:00 p.m. on such Business
Day and (y) other than Swing Line Loans denominated in an Other
Currency, by such time as the Administrative Agent may determine
to be necessary for such funds to be credited on such date in
accordance with normal banking practices in the place of payment,
each Lender that has a Commitment to make the Loans being
requested shall deposit with the Administrative Agent same day
funds in an amount equal to such Lender's Percentage of the
requested Borrowing. Such deposit will be made to an account
which the Administrative Agent shall specify from time to time by
notice to the Lenders. To the extent funds are received from the
Lenders, the Administrative Agent shall make such funds available
to the Borrower requesting such funds by wire transfer to the
accounts such Borrower shall have specified in its Borrowing
Request. No Lender's obligation to make any Loan shall be
affected by any other Lender's failure to make any Loan. The
Dollar Equivalent of any Loan denominated in any Other Currency
shall be determined in accordance with Section 2.9.
SECTION 2.3.2 Swing Line Loans.
(a) By telephonic notice to the Swing Line Lender on
or before 11:00 a.m. on a Business Day (followed (within one
Business Day) by the delivery of a confirming Borrowing Request,
with the Swing Line Lender to be fully protected with respect to
any disputes regarding telephonic notices), any Borrower may from
time to time irrevocably request that Swing Line Loans be made by
the Swing Line Lender in an aggregate minimum principal amount of
the Dollar Equivalent of $2,000,000 and an integral multiple of
the Dollar Equivalent of $1,000,000. All Swing Line Loans shall
be made as Base Rate Loans and shall not be entitled to be
converted into LIBO Rate Loans. The proceeds of each Swing Line
Loan shall be made available by the Swing Line Lender to the
Borrower requesting such Loans by wire transfer to the account
such Borrower shall have specified in its notice therefor by the
close of business on the Business Day telephonic notice is
received by the Swing Line Lender.
(b) If (i) any Swing Line Loan shall be outstanding
for more than four Business Days, (ii) any Swing Line Loan
is or will be outstanding on a date when any Borrower
requests that a Revolving Loan be made, or (iii) any Default
shall occur and be continuing, then each Revolving Loan
Lender (other than the Swing Line Lender) irrevocably agrees
that it will, at the request of the Swing Line Lender, make
a Revolving Loan (which shall initially be funded as a Base
Rate Loan) in an amount equal to such Lender's Percentage of
the aggregate principal amount of all such Swing Line Loans
then outstanding (such outstanding Swing Line Loans
hereinafter referred to as the "Refunded Swing Line Loans").
On or before 11:00 a.m. on the first Business Day following
receipt by each Revolving Loan Lender of a request to make
Revolving Loans as provided in the preceding sentence, each
Revolving Loan Lender shall deposit in an account specified
by the Swing Line Lender the amount so requested in same day
funds and such funds shall be applied by the Swing Line
Lender to repay the Refunded Swing Line Loans. At the time
the Revolving Loan Lenders make the above referenced
Revolving Loans the Swing Line Lender shall be deemed to
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have made, in consideration of the making of the Refunded
Swing Line Loans, Revolving Loans in an amount equal to the
Swing Line Lender's Percentage of the aggregate principal
amount of the Refunded Swing Line Loans. Upon the making
(or deemed making, in the case of the Swing Line Lender) of
any Revolving Loans pursuant to this clause, the amount so
funded shall become outstanding under such Revolving Loan
Lender's Revolving Note and shall no longer be owed under
the Swing Line Note. All interest payable with respect to
any Revolving Loans made (or deemed made, in the case of the
Swing Line Lender) pursuant to this clause shall be
appropriately adjusted to reflect the period of time during
which the Swing Line Lender had outstanding Swing Line Loans
in respect of which such Revolving Loans were made. Each
Revolving Loan Lender's obligation to make the Revolving
Loans referred to in this clause shall be absolute and
unconditional and shall not be affected by any circumstance,
including (i) any set-off, counterclaim, recoupment, defense
or other right which such Lender may have against the Swing
Line Lender, any Obligor or any Person for any reason
whatsoever; (ii) the occurrence or continuance of any
Default; (iii) any adverse change in the condition
(financial or otherwise) of any Obligor; (iv) the
acceleration or maturity of any Obligations or the
termination of any Commitment after the making of any Swing
Line Loan; (v) any breach of any Loan Document by any
Person; or (vi) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
SECTION 2.3.3 Other Currency Loan Reimbursement.
If (i) the Other Currency Lender so requests or (ii) any
Default shall occur and be continuing, then each Revolving Loan
Lender (other than the Other Currency Lender) irrevocably agrees
that it will, at the request of the Other Currency Lender, make a
Revolving Loan (which shall initially be funded as a Base Rate
Loan) in an amount equal to such Lender's Percentage of the
aggregate principal amount of all such Other Currency Loans then
outstanding (such outstanding Other Currency Loans hereinafter
referred to as the "Refunded Other Currency Loans"). On or
before 11:00 a.m. on the first Business Day following receipt by
each Revolving Loan Lender of a request to make Revolving Loans
as provided in the preceding sentence, each Revolving Loan Lender
shall deposit in an account specified by the Other Currency
Lender the amount so requested in same day funds and such funds
shall be applied by the Other Currency Lender to repay the
Refunded Other Currency Loans in Dollars. At the time the
Revolving Loan Lenders make the above referenced Revolving Loans,
the Other Currency Lender shall be deemed to have made, in
consideration of the making of the Refunded Other Currency Loans,
Revolving Loans in an amount equal to the Other Currency Lender's
Percentage of the aggregate principal amount of the Refunded
Other Currency Loans. All interest payable with respect to any
Revolving Loans made (or deemed made, in the case of the Other
Currency Lender) pursuant to this clause shall be appropriately
adjusted to reflect the period of time during which the Other
Currency Lender had outstanding Other Currency Loans in respect
of which such Revolving Loans were made. Each Revolving Loan
Lender's obligation to make the Revolving Loans referred to in
this clause shall be absolute and unconditional and shall not be
affected by any circumstance, including (i) any set-off,
counterclaim, recoupment, defense or other right which such
Lender may have against the Other Currency Lender, any Obligor or
any Person for any reason whatsoever; (ii) the occurrence or
continuance of any Default; (iii) any adverse change in the
condition (financial or otherwise) of any Obligor; (iv) the
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acceleration or maturity of any Obligations or the termination of
any Commitment after the making of any Other Currency Loan; (v)
any breach of any Loan Document by any Person; or (vi) any other
circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.
SECTION 2.40 Continuation and Conversion Elections.
By delivering a Continuation/Conversion Notice to the
Administrative Agent on or before 10:00 a.m. on a Business Day,
the U.S. Borrower may from time to time irrevocably elect, on not
less than one Business Day's notice in the case of Base Rate
Loans, or three Business Days' notice in the case of LIBO Rate
Loans, and in either case not more than five Business Days'
notice, that all, or any portion in an aggregate minimum amount
of the Dollar Equivalent of $10,000,000 and an integral multiple
of the Dollar Equivalent of $1,000,000 be, in the case of Base
Rate Loans, converted into LIBO Rate Loans or be, in the case of
LIBO Rate Loans, converted into Base Rate Loans or continued as
LIBO Rate Loans (in the absence of delivery of a
Continuation/Conversion Notice with respect to any LIBO Rate Loan
at least three Business Days (but not more than five Business
Days) before the last day of the then current Interest Period
with respect thereto, such LIBO Rate Loan shall, on such last
day, automatically convert to a Base Rate Loan); provided,
however, that (x) each such conversion or continuation shall be
pro rated among the applicable outstanding Loans of all Lenders
that have made such Loans, and (y) no portion of the outstanding
principal amount of any Loans may be continued as, or be
converted into, LIBO Rate Loans when any Default has occurred and
is continuing. Loans can only be continued or converted in the
currency that such Loans were made on the date of such Borrowing.
SECTION 2.50 Funding.
Each Lender may, if it so elects, fulfill its obligation to
make, continue or convert LIBO Rate Loans hereunder by causing
one of its foreign branches or Affiliates (or an international
banking facility created by such Lender) to make or maintain such
LIBO Rate Loan; provided, however, that such LIBO Rate Loan shall
nonetheless be deemed to have been made and to be held by such
Lender, and the obligation of the Borrowers to repay such LIBO
Rate Loan shall nevertheless be to such Lender for the account of
such foreign branch, Affiliate or international banking facility.
In addition, the Borrowers hereby consent and agree that, for
purposes of any determination to be made for purposes of Sections
4.1, 4.2, 4.3 or 4.4, it shall be conclusively assumed that each
Lender elected to fund all LIBO Rate Loans by purchasing Dollar
deposits in its LIBOR Office's interbank eurodollar market.
SECTION 2.60 Letter of Credit Issuance Procedures.
By delivering to the Administrative Agent an Issuance
Request on or before 10:00 a.m. on a Business Day, the U.S.
Borrower may from time to time irrevocably request on not less
than three nor more than ten Business Days' notice, in the case
of an initial issuance of a Letter of Credit and not less than
three Business Days' prior notice, in the case of a request for
the extension of the Stated Expiry Date of a standby Letter of
Credit (in each case, unless a shorter notice period is agreed to
by the Issuer, in its sole discretion), that the Issuer issue, or
extend the Stated Expiry Date of, a Letter of Credit in a minimum
amount of $500,000 (or less if otherwise agreed to by the Issuer
thereof) in such form as may be requested by the U.S. Borrower
and approved by the Issuer, solely for the purposes described in
Section 7.1.7. Each Letter of Credit shall by its terms be
stated to expire on a date (its "Stated Expiry Date") no later
than one year from the date of its issuance. The Issuer will
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make available to the beneficiary thereof the original of the
Letter of Credit which it issues.
SECTION 2.6.1 Other Lenders' Participation.
Upon the issuance of each Letter of Credit, and without
further action, each Revolving Loan Lender (other than the
Issuer) shall be deemed to have irrevocably purchased, to the
extent of its Percentage to make Revolving Loans, a participation
interest in such Letter of Credit (including the Contingent
Liability and any Reimbursement Obligation with respect thereto),
and such Revolving Loan Lender shall, to the extent of its
Percentage to make Revolving Loans, be responsible for
reimbursing within one Business Day the Issuer for Reimbursement
Obligations which have not been reimbursed by the Borrowers in
accordance with Section 2.6.3 or which have been required to be
returned or disgorged by the Issuer to the Administrative Agent.
In addition, such Revolving Loan Lender shall, to the extent of
its Percentage to make Revolving Loans, be entitled to receive a
ratable portion of the Letter of Credit fees payable pursuant to
Section 3.3.3 with respect to each Letter of Credit (other than
the issuance fees payable to the Issuer of such Letter of Credit
pursuant to the last sentence of Section 3.3.3) and of interest
payable pursuant to Section 3.2 with respect to any Reimbursement
Obligation. To the extent that any Revolving Loan Lender has
reimbursed the Issuer for a Disbursement, such Lender shall be
entitled to receive its ratable portion of any amounts
subsequently received (from the Borrowers or otherwise) in
respect of such Disbursement.
SECTION 2.6.2 Disbursements.
The Issuer will notify the U.S. Borrower and the
Administrative Agent promptly of the presentment for payment of
any Letter of Credit issued by the Issuer, together with notice
of the date (the "Disbursement Date") such payment shall be made
(each such payment, a "Disbursement"). Subject to the terms and
provisions of such Letter of Credit and this Agreement, the
Issuer shall make such payment to the beneficiary (or its
designee) of such Letter of Credit. Prior to 11:00 a.m. on the
first Business Day following the Disbursement Date, the Borrowers
will reimburse the Administrative Agent, for the account of the
Issuer, for all amounts which the Issuer has disbursed under such
Letter of Credit, together with interest thereon at a rate per
annum equal to the rate per annum then in effect for Base Rate
Loans (with the then Applicable Margin for Revolving Loans
accruing on such amount) pursuant to Section 3.2 for the period
from the Disbursement Date through the date of such
reimbursement. Without limiting in any way the foregoing and
notwithstanding anything to the contrary contained herein or in
any separate application for any Letter of Credit, the Borrowers
hereby acknowledge and agree that they shall be obligated,
jointly and severally, to reimburse the Issuer upon each
Disbursement of a Letter of Credit, and it shall be deemed to be
the obligor for purposes of each such Letter of Credit issued
hereunder (whether the account party on such Letter of Credit is
any Borrower or a Subsidiary Guarantor).
SECTION 2.6.3 Reimbursement.
The obligation (a "Reimbursement Obligation") of the
Borrowers under Section 2.6.2 to reimburse the Issuer with
respect to each Disbursement (including interest thereon), and,
upon the failure of the Borrowers to reimburse the Issuer, each
Revolving Loan Lender's obligation under Section 2.6.1 to
reimburse the Issuer, shall be absolute and unconditional under
any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which such Borrower or such
Revolving Loan Lender, as the case may be, may have or have had
against the Issuer or any Lender, including any defense based
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upon the failure of any Disbursement to conform to the terms of
the applicable Letter of Credit (if, in the Issuer's good faith
opinion, such Disbursement is determined to be appropriate) or
any non-application or misapplication by the beneficiary of the
proceeds of such Letter of Credit; provided, however, that after
paying in full its Reimbursement Obligation hereunder, nothing
herein shall adversely affect the right of such Borrower or such
Lender, as the case may be, to commence any proceeding against
the Issuer for any wrongful Disbursement made by the Issuer under
a Letter of Credit as a result of acts or omissions constituting
gross negligence or wilful misconduct on the part of the Issuer.
SECTION 2.6.4 Deemed Disbursements.
Upon the occurrence and during the continuation of any
Default under Section 8.1.9 or upon notification by the
Administrative Agent (acting at the direction of the Required
Lenders) to the Borrowers of their obligations under this
Section, following the occurrence and during the continuation of
any other Event of Default,
(a) the aggregate Stated Amount of all Letters of
Credit shall, without demand upon or notice to any Borrower
or any other Person, be deemed to have been paid or
disbursed by the Issuer of such Letters of Credit
(notwithstanding that such amount may not in fact have been
paid or disbursed); and
(b) the Borrowers shall be immediately obligated to
reimburse the Issuer for the amount deemed to have been so
paid or disbursed by the Issuer.
Amounts payable by the Borrowers pursuant to this Section shall
be deposited in immediately available funds with the
Administrative Agent and held as collateral security for the
Reimbursement Obligations. When all Defaults giving rise to the
deemed disbursements under this Section have been cured or waived
the Administrative Agent shall return to the applicable Borrower
all amounts then on deposit with the Administrative Agent
pursuant to this Section which have not been applied to the
satisfaction of the Reimbursement Obligations.
SECTION 2.6.5 Nature of Reimbursement Obligations.
Each Borrower, each other Obligor and, to the extent set
forth in Section 2.6.1, each Revolving Loan Lender shall assume
all risks of the acts, omissions or misuse of any Letter of
Credit by the beneficiary thereof. The Issuer (except to the
extent of its own gross negligence or wilful misconduct) shall
not be responsible for:
(a) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any Letter of Credit or any
document submitted by any party in connection with the
application for and issuance of a Letter of Credit, even if
it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any instrument transferring
or assigning or purporting to transfer or assign a Letter of
Credit or the rights or benefits thereunder or the proceeds
thereof in whole or in part, which may prove to be invalid
or ineffective for any reason;
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(c) failure of the beneficiary to comply fully with
conditions required in order to demand payment under a
Letter of Credit;
(d) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise; or
(e) any loss or delay in the transmission or otherwise
of any document or draft required in order to make a
Disbursement under a Letter of Credit.
None of the foregoing shall affect, impair or prevent the vesting
of any of the rights or powers granted to the Issuer or any
Revolving Loan Lender hereunder. In furtherance and not in
limitation or derogation of any of the foregoing, any action
taken or omitted to be taken by the Issuer in good faith (and not
constituting gross negligence or willful misconduct) shall be
binding upon each Obligor and each such Secured Party, and shall
not put the Issuer under any resulting liability to any Obligor
or any Secured Party, as the case may be. In any event, if the
Issuer notifies the applicable Obligor that a draw under a Letter
of Credit is to be made and such Obligor fails to object with
specificity in writing to such draw by the close of business on
the date such notice is received by such Obligor, all Obligors
shall be deemed to have waived any objection to the same.
SECTION 2.70 Loan Note Guaranty Issuance Procedures.
By delivering to the Administrative Agent an Issuance
Request on or before 10:00 a.m. on a Business Day, U.K.
Acquisitions may from time to time irrevocably request on not
less than one nor more than five Business Days' notice (unless a
shorter notice period is agreed to by the Loan Note Guarantor, in
its sole discretion), that the Loan Note Guarantor issue the Loan
Note Guaranty solely for the purposes described in Section 7.1.7.
SECTION 2.7.1 Risk Participations, Drawings and
Reimbursements for Loan Note Guaranty Obligations.
(a) Each Lender with a Revolving Loan Commitment shall
be deemed to purchase, and hereby irrevocably and
unconditionally purchases, from the Loan Note Guarantor a
participation in the Loan Note Guaranty and each drawing
thereunder in an amount equal to the product of (i) the
Percentage of such Lender, multiplied by, (ii) the maximum
amount available to be drawn under the Loan Note Guaranty
and the amount of such drawing, respectively, in Dollars.
For purposes of Section 2.1, the Loan Note Guaranty shall be
deemed to utilize the Revolving Loan Commitment of each
Lender by the amount of such participation. The issuance of
the Loan Note Guaranty shall constitute usage of the
Revolving Loan Commitment and the Revolving Loan Commitment
Amount.
(b) In the event of any request for a drawing under
the Loan Note Guaranty by the beneficiary or transferee
thereof, the Loan Note Guarantor will promptly notify the
Administrative Agent and U.K. Acquisitions of the request
and of the day on which the Loan Note Guarantor is to pay
the holders of the Loan Notes (which payment date is not to
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be less than one day later). U.K. Acquisitions agrees to
reimburse the Loan Note Guarantor prior to 10:00 a.m., on
each date that any amount is paid by the Loan Note Guarantor
under the Loan Note Guaranty (each such date, an "Honor
Date"), in an amount equal to the amount so paid by the Loan
Note Guarantor. In the event U.K. Acquisitions fails to
reimburse the Loan Note Guarantor for the full amount of any
drawing under the Loan Note Guaranty by 10:00 a.m. on the
Honor Date, the Loan Note Guarantor will promptly notify the
Administrative Agent who will in turn promptly notify each
Lender. Unless notified by U.K. Acquisitions to convert an
unreimbursed drawing into Loans or, if U.K. Acquisitions
requests a conversion of an unreimbursed drawing into Loans
but the unreimbursed drawing is not converted because of
U.K. Acquisitions' failure to satisfy the conditions set
forth in this Agreement, each Lender will be deemed to be
obligated to make an advance (a "Loan Note Advance") to U.K.
Acquisitions in the amount (determined as of the Honor Date)
of such Lender's pro rata share of such drawing and such
Loan Note Advances shall bear interest at a rate per annum
equal to the Applicable Margin for Base Rate Loans plus 2%
per annum and shall be immediately due and payable by U.K.
Acquisitions to the Administrative Agent for the benefit of
the Lenders. If for any reason the Loan Note Advances
cannot be made, the Lenders should be deemed to have
purchased a participation in U.K. Acquisitions' obligation
to reimburse the amount paid by the Loan Note Guarantor.
Any notice given by the Loan Note Guarantor or the
Administrative Agent pursuant to this clause may be oral if
immediately confirmed in writing (including by facsimile);
provided that the lack of such an immediate confirmation
shall not affect the conclusiveness or binding effect of
such notice.
(c) With respect to any unreimbursed drawing that U.K.
Acquisitions requests be converted into a Loan Note Advance
and that satisfies the conditions set forth in Section
5.2.1, as the case may be, each Lender shall upon any notice
make available to the Administrative Agent for the account
of the Loan Note Guarantor an amount equal to the amount and
in immediately available funds equal to its pro rata share
of the amount of such drawing, whereupon the participating
Lenders shall each be deemed to have made a Loan Note
Advance to U.K. Acquisitions in that amount herein, interest
at the Applicable Margin for Base Rate Loans plus 2%. If
the Lenders shall be deemed to have made Loan Note Advances
or to have purchased a participation in U.K. Acquisitions'
reimbursement obligation, each Lender shall make available
the amount of its Loan Note Advance or the amount of such
reimbursement obligation to the Administrative Agent and in
immediately available funds. If any Lender so notified
fails to make available to the Administrative Agent for the
account of the Loan Note Guarantor the amount of such
Lender's pro rata share of the amount of such unreimbursed
drawing or the amount of its Loan Note Advance by no later
than 2:00 p.m. on the Honor Date, then interest shall accrue
on such Lender's obligation to make such payment, from the
Honor Date to the date such Lender makes such payment, at a
rate per annum equal to the Applicable Margin for Base Rate
Loans plus 2%. The Administrative Agent shall promptly give
notice of the occurrence of the Honor Date, but failure of
the Administrative Agent to give any such notice on the
Honor Date or in sufficient time to enable any Lender to
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effect such payment on such date shall not relieve such
Lender from its obligations under this Section.
(d) Provided that the Loan Note Guarantor has paid a
drawing under the Loan Note Guaranty substantially in
accordance with its terms, each Lender's obligation in
accordance with this Agreement to make the Loans or Loan
Note Advances or to purchase a participation, as
contemplated by this Section, as a result of a drawing under
the Loan Note Guaranty, shall be absolute and unconditional
and shall not be affected by any circumstance, including (i)
any set-off, counterclaim, recoupment, defense or other
right which such Lender may have against the Loan Note
Guarantor, U.K. Acquisitions, the U.S. Borrower or any other
Person for any reason whatsoever; (ii) the occurrence or
continuance of a Default, an Event of Default or a Material
Adverse Effect; or (iii) any other circumstance, happening
or event whatsoever, whether or not similar to any of the
foregoing; provided, however, that each Lender's obligation
to make Loans under this Section is subject to the
conditions set forth in Section 5.2.1, as the case may be.
Nothing in this Section is intended to, and shall not
preclude, any Borrower or any Lender from pursuing, after
payment, such rights and remedies as it may have against the
Loan Note Guarantor in the event such drawing is wrongfully
paid as a result of the Loan Note Guarantor's gross
negligence or wilful misconduct.
SECTION 2.7.2 Repayment of Participations.
(a) Upon (and only upon) receipt by the Administrative
Agent of immediately available funds from U.K. Acquisitions (i)
in reimbursement of any payment made by the Loan Note Guarantor
under the Loan Note Guaranty with respect to which any Lender has
paid the Administrative Agent for the account of the Loan Note
Guarantor for such Lender's participation in the Loan Note
Guaranty pursuant to Section 2.7, (ii) in payment of interest
thereon or (iii) in repayment of Loan Note Advances or payment of
U.K. Acquisitions' reimbursement obligations hereunder, the
Administrative Agent will pay to such Lender, in the same funds
as those received by the Administrative Agent, the amount of such
Lender's pro rata share of such funds, and the Loan Note
Guarantor shall receive the amount of the pro rata share of such
funds of any Lender that did not so pay the Administrative Agent
for the account of the Loan Note Guarantor.
(b) If the Administrative Agent or the Loan Note
Guarantor is required at any time to pay to U.K.
Acquisitions, or to a trustee, receiver, liquidator,
custodian, or any official in any insolvency proceeding, any
portion of the payments made by U.K. Acquisitions to the
Administrative Agent for the account of the Loan Note
Guarantor pursuant to clause (a) above in reimbursement of a
payment made under the Loan Note Guaranty or interest
thereon, each Lender shall, on demand of the Administrative
Agent, forthwith pay to the Administrative Agent or the Loan
Note Guarantor the amount of its pro rata share of any
amounts so paid by the Administrative Agent or the Loan Note
Guarantor plus interest thereon from the date such demand is
made to the date such amounts are paid by such Lender to the
Administrative Agent or the Loan Note Guarantor at a rate
per annum equal to the Applicable Margin for Base Rate Loans
plus 2%.
SECTION 2.7.3 Role of the Loan Note Guarantor.
(a) Each Lender and U.K. Acquisitions agree that, in
paying any drawing under the Loan Note Guaranty, the Loan Note
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Guarantor shall not have any responsibility to obtain any
document (other than any certificates expressly required by the
Loan Note Guaranty) or to ascertain or inquire as to the validity
or accuracy of any such document or the authority of the Person
executing or delivering any such document.
(b) Neither the Administrative Agent, its respective
Affiliates (including the Lead Arranger and Sole Book
Runner), the officers, directors, employees, agents and
attorneys-in-fact of such Persons nor any of the respective
correspondents, participants or assignees of the Loan Note
Guarantor shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or
with the approval of the Required Lenders, (ii) any action
taken or omitted in the absence of gross negligence or
willful misconduct or (iii) the due execution,
effectiveness, validity or enforceability of any document
related to the Loan Note Guaranty.
(c) U.K. Acquisitions hereby assumes all risks of the
acts or omissions of any beneficiary or transferee with
respect to its use of the Loan Note Guaranty; provided,
however, that this assumption is not intended to, and shall
not, preclude U.K. Acquisitions' pursuing such rights and
remedies as it may have against the beneficiary or
transferee at law or under any other agreement. Neither the
Administrative Agent, its respective Affiliates (including
the Arranger), the officers, directors, employees, agents
and attorneys-in-fact of such Persons nor any of the
respective correspondents, participants or assignees of the
Loan Note Guarantor (including the Lenders), shall be liable
or responsible for any of the matters described in Section
2.7.4; provided, however, anything in such Section to the
contrary notwithstanding, that U.K. Acquisitions may have a
claim against the Loan Note Guarantor, and the Loan Note
Guarantor may be liable to U.K. Acquisitions, to the extent,
but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by U.K.
Acquisitions which U.K. Acquisitions proves were caused by
the Loan Note Guarantor's willful misconduct or gross
negligence or the Loan Note Guarantor's willful failure to
pay under the Loan Note Guaranty after the presentation to
it by the beneficiary of certificate(s) reasonably complying
with the terms and conditions of the Loan Note Guaranty. In
furtherance and not in limitation of the foregoing: (i) the
Loan Note Guarantor may accept documents that appear on
their face to be in order, without responsibility for
further investigation; and (ii) the Loan Note Guarantor
shall not be responsible for the validity or sufficiency of
any instrument transferring or purporting to transfer the
Loan Note Guaranty or the rights or benefits thereunder or
assigning the proceeds thereof, in whole or in part, in
accordance with the terms of the Loan Note Guaranty which
may prove to be invalid or ineffective for any reason.
SECTION 2.7.4 Obligations Absolute.
Provided that the Loan Note Guarantor has paid a drawing
under the Loan Note Guaranty substantially in accordance with its
terms, the obligations of U.K. Acquisitions under this Agreement
and any document related to the Loan Note Guaranty to reimburse
the Loan Note Guarantor, the Administrative Agent or the Lenders
for a drawing under the Loan Note Guaranty, and to repay any Loan
Note Advances and any drawing under the Loan Note Guaranty
converted into Loans, shall be unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this
Agreement and each such other document related to the Loan Note
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Guaranty under all circumstances, including the following:
(a) any lack of validity or enforceability of this
Agreement or any document related to the Loan Note Guaranty;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the obligations
of U.K. Acquisitions in respect of the Loan Note Guaranty or
any other amendment or waiver of or any consent to departure
from all or any of the documents related to the Loan Note
Guaranty, which have been previously agreed to by U.K.
Acquisitions;
(c) the existence of any claim, set-off, defense or
other right that U.K. Acquisitions may have at any time
against any beneficiary or any transferee of the Loan Note
Guaranty (or any Person for whom any such beneficiary or any
such transferee may be acting), the Loan Note Guarantor or
any other Person, whether in connection with this Agreement,
the U.K. Transaction or by the documents related to the Loan
Note Guaranty or any unrelated transaction;
(d) any draft, demand, certificate or other document
presented under the Loan Note Guaranty proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
or any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under the Loan
Note Guaranty;
(e) any payment by the Loan Note Guarantor under the
Loan Note Guaranty against presentation of a draft or
certificate that reasonably complies with the terms of the
Loan Note Guaranty; or any payment made by the Loan Note
Guarantor under the Loan Note Guaranty to any Person
purporting to be (and providing reasonable evidence of its
status as) a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator,
administrator, receiver or other representative of or
successor to any beneficiary or any transferee of the Loan
Note Guaranty, including any arising in connection with any
insolvency proceeding;
(f) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or
consent to departure from any other guarantee, for all or
any of the obligations of U.K. Acquisitions in respect of
the Loan Note Guaranty; or
(g) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including
any other circumstance that might otherwise constitute a
defense available to, or a discharge of, U.K. Acquisitions
or a guarantor.
SECTION 2.7.5 Cash Collateral Pledge.
Upon (a) the request of the Administrative Agent if the Loan
Note Guarantor has honored any full or partial drawing request on
the Loan Note Guaranty and such drawing has resulted in a Loan
Note Advance hereunder, or (b) if, as of the Termination Date,
the Loan Note Guaranty may for any reason remain outstanding and
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partially or wholly undrawn, then U.K. Acquisitions shall
immediately Cash Collateralize the Loan Note Guaranty Obligations
in an amount equal to such Loan Note Guaranty Obligations. If
the Loan Note Guaranty expires without the application of such
Cash Collateral in full, or if all Loan Note Advances with
respect to the Loan Note Guaranty have been paid in full by U.K.
Acquisitions, then as long as there is no Event of Default in
existence and so long as no such application shall be made within
25 days of the expiration of the Loan Note Guaranty, the
Administrative Agent shall return to U.K. Acquisitions any cash
or deposit account balances, together with all interest thereon,
that were used by U.K. Acquisitions to Cash Collateralize the
Loan Note Guaranty pursuant to this Section and were not applied
to Loan Note Advances.
SECTION 2.7.6 Third Party Beneficiary.
It is agreed by all parties hereto that Sections 2.7.1
through 2.7.6 have been entered into for the benefit of the Loan
Note Guarantor, which has relied thereon in issuing the Loan Note
Guaranty and the aforenamed Sections shall survive the
termination of the Agreement and may not be amended without the
consent of the Loan Note Guarantor.
SECTION 2.80 Register; Notes.
(a) Each Lender may maintain in accordance with its
usual practice an account or accounts evidencing the
Indebtedness of the Borrowers to such Lender resulting from
each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from
time to time hereunder. In the case of a Lender that does
not request, pursuant to clause (b)(ii) below, execution and
delivery of a Note evidencing the Loans made by such Lender
to the Borrowers, such account or accounts shall, to the
extent not inconsistent with the notations made by the
Administrative Agent in the Register, be conclusive and
binding on the Borrowers absent manifest error; provided,
however, that the failure of any Lender to maintain such
account or accounts shall not limit or otherwise affect any
Obligations of any Obligor.
(b) (i) Each Borrower hereby designates the
Administrative Agent to serve as such Borrower's agent,
solely for the purpose of this clause (b), to maintain a
register (the "Register") on which the Administrative Agent
will record each Lender's Commitment, the Loans made by each
Lender and each repayment in respect of the principal amount
of the Loans of each Lender and annexed to which the
Administrative Agent shall retain a copy of each Lender
Assignment Agreement delivered to the Administrative Agent
pursuant to Section 10.11.1. Failure to make any
recordation, or any error in such recordation, shall not
affect any Borrower's obligation in respect of such Loans.
The entries in the Register shall be conclusive, in the
absence of manifest error, and each Borrower, the
Administrative Agent and the Lenders shall treat each Person
in whose name a Loan (and as provided in clause (ii) the
Note evidencing such Loan, if any) is registered as the
owner thereof for all purposes of this Agreement,
notwithstanding notice or any provision herein to the
contrary. A Lender's Commitment and the Loans made pursuant
thereto may be assigned or otherwise transferred in whole or
in part only by registration of such assignment or transfer
in the Register. Any assignment or transfer of a Lender's
Commitment or the Loans made pursuant thereto shall be
registered in the Register only upon delivery to the
Administrative Agent of a Lender Assignment Agreement duly
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executed by the Assignor Lender and the compliance by the
parties thereto with the other requirements of Section
10.11.1. No assignment or transfer of a Lender's Commitment
or the Loans made pursuant thereto shall be effective unless
such assignment or transfer shall have been recorded in the
Register by the Administrative Agent as provided in this
Section.
(ii) Each Borrower agrees that, upon the request
to the Administrative Agent by any Lender, such
Borrower will execute and deliver to such Lender, as
applicable, a Note payable to the order of such Lender
in a minimum stated principal amount denominated in
Dollars equal to such Lender's Percentage of the
applicable original Commitment Amount, provided,
however, that all Other Currency Notes shall be in a
minimum stated principal amount denominated in Dollars
equal to such Lender's Percentage of the original
Revolving Loan Commitment Amount, multiplied by 105%.
Each Borrower hereby irrevocably authorizes each Lender
to make (or cause to be made) appropriate notations on
the grid attached to such Lender's Notes (or on any
continuation of such grid), which notations, if made,
shall evidence, inter alia, the date of, the
outstanding principal amount of, and the interest rate
and Interest Period applicable to the Loans evidenced
thereby. Such notations shall, to the extent not
inconsistent with the notations made by the
Administrative Agent in the Register, be conclusive and
binding on such Borrower absent manifest error;
provided, however, that the failure of any Lender to
make any such notations shall not limit or otherwise
affect any Obligations of any Obligor.()
SECTION 2.90 Multi Currency Loans.
SECTION 2.9.1 Determination of Dollar Equivalents.
The Administrative Agent will determine the Dollar
Equivalent amount with respect to any (a) LIBOR Rate Loan that is
an Other Currency Loan as of the requested Borrowing date and as
of the earlier of (i) any requested continuation date or (ii)
ninety days after the Borrowing date and (b) outstanding LIBO
Rate Loans that are an Other Currency Loan as of such dates as
may be requested by the Required Lenders, but in no event more
frequently than once a week (each such date under clause (a) and
(b), a "Determination Date").
SECTION 2.9.2 Notification of Availability.
In the event the Other Currency requested or elected by the
U.S. Borrower to be continued is not available to the Other
Currency Lender, then the Administrative Agent shall notify the
U.S. Borrower no later than 3:30 p.m., one Business Day prior to
the proposed Borrowing or proposed continuation.
SECTION 2.9.3 Consequences of Non-Availability.
If the Administrative Agent notifies the Borrowers pursuant
to Section 2.9.2 that any of the Lenders has notified the
Administrative Agent that the Other Currency requested or elected
by such Borrower to be continued is not available, such
notification shall (a) in the case of any Borrowing Request,
revoke such Borrowing Request and (b) in the case of any
Continuation/Conversion Notice, result in the LIBO Rate Loans
denominated in such Other Currency being automatically converted
into LIBO Rate Loans denominated in Dollars for a one month
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Interest Period on the last day of the then current Interest
Period with respect to such LIBO Rate Loans denominated in such
Other Currency.
SECTION 2.9.4 Automatic Conversions.
Notwithstanding anything herein to the contrary, during the
existence of an Event of Default, unless the Other Currency
Lender otherwise agrees, all outstanding Loans denominated in an
Other Currency shall be redenominated and converted into their
Dollar Equivalent of Base Rate Loans in Dollars on the last day
of the Interest Period applicable to any such Loans.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.10 Repayments and Prepayments; Application.
Each Borrower agrees that the Loans shall be repaid and
prepaid pursuant to the following terms.
SECTION 3.1.1 Repayments and Prepayments.
The Borrowers shall repay in full the unpaid principal
amount of each Loan on the applicable Stated Maturity Date, the
Borrowers shall Cash Collateralize the Loan Note Guaranty on June
23, 2000 and the Borrowers shall Cash Collateralize all Letters
of Credit Outstandings on the Stated Maturity Date unless such
Letters of Credit have been cancelled or replaced. Prior
thereto, payments and prepayments of the Loans shall or may be
made as set forth below.
(a) From time to time on any Business Day, the
Borrowers may make a voluntary prepayment, in whole or in
part, of the outstanding principal amount of any
(i) Revolving Loans (any such prepayment of
Revolving Loans shall be made pro rata among the
Revolving Loans of the same type and, if applicable,
having the same Interest Period of all Lenders that
have made such Revolving Loans); (A) all such voluntary
prepayments shall require at least one but no more than
five Business Days' prior notice to the Administrative
Agent; and (B) all such voluntary partial prepayments
shall be, in the case of LIBO Rate Loans, in an
aggregate minimum amount of $5,000,000 and an integral
multiple of $1,000,000 and, in the case of Base Rate
Loans, in an aggregate minimum amount of $5,000,000 and
an integral multiple of $500,000; and
(ii) Swing Line Loans; provided, that (A) all such
voluntary prepayments shall require prior telephonic
notice to the Swing Line Lender on or before 1:00 p.m.
on the day of such prepayment (such notice to be
confirmed in writing within 24 hours thereafter, with
the Swing Line Lender to be fully protected with
respect to disputes regarding telephonic notices); and
(B) all such voluntary partial prepayments shall be in
an aggregate minimum amount of $400,000 and an integral
multiple of $200,000.()
(b) On each date when the sum of (i) the aggregate
outstanding principal amount of all Revolving Loans, Swing
Line Loans and the Dollar Equivalent of Other Currency
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Loans, (ii) the aggregate amount of all Letter of Credit
Outstandings and (iii) the aggregate amount of all Loan Note
Guaranty Obligations exceeds the Revolving Loan Commitment
Amount (without giving effect to amounts used for the U.K.
Refinancing), the Borrowers shall make a mandatory
prepayment of Revolving Loans, the Dollar Equivalent of
Other Currency Loans or Swing Line Loans (or both) and, if
necessary, Cash Collateralize Letter of Credit Outstandings,
in an aggregate amount equal to such excess.
(c) Upon three Business Days' notice from the
Administrative Agent, in the event that the Administrative
Agent shall have determined at any time (including on each
date of the making of any Loan and on the date of a
Continuation/Conversion Notice with respect to any Loan or
at any other time periodically) that the aggregate principal
amount of all Revolving Loans of outstanding (after
converting, for calculation purposes, all such Loans
denominated in Other Currencies to their Dollar Equivalent
on such date of determination), together with, if
applicable, all Letter of Credit Outstandings and Loan Note
Guaranty Obligations, was in excess of 105% of the Revolving
Loan Commitment Amount the Borrowers shall make a mandatory
prepayment in an aggregate principal amount of such Loans
denominated in Other Currencies, such that the Dollar
Equivalent of the outstanding principal amount of such
Loans, when added, if applicable, to the aggregate principal
amount of all Loans outstanding denominated in Dollars, all
Letter of Credit Outstandings and Loan Note Guaranty
Obligations, as applicable, do not exceed the applicable
Commitment Amount.
(d) Concurrently with the receipt by the U.S. Borrower
or any of its Subsidiaries of any
(i) Net Equity Proceeds, the U.S. Borrower shall
make or cause to be made a mandatory prepayment of the
Loans in an amount equal to 100% of such Net Equity
Proceeds;
(ii) Net Disposition Proceeds, the U.S. Borrower
shall make or cause to be made a mandatory prepayment
of the Loans in an amount equal to 100% of such Net
Disposition Proceeds; provided, however, that no such
mandatory prepayment of the Loans shall be required
under this clause to the extent that (i) no Default has
occurred and is continuing, (ii) such Net Disposition
Proceeds are received in connection with clauses (d) or
(e) of Section 7.2.10 (or otherwise permitted by the
Required Lenders), and (iii) such Net Disposition
Proceeds, when aggregated with all other Net
Disposition Proceeds received by the U.S. Borrower or
any of its Subsidiaries in that Fiscal Year, do not
exceed $5,000,000; provided, further, however, that in
connection with any Net Disposition Proceeds resulting
from the sale of the Shorewood Shares, the U.S.
Borrower shall only be required to prepay the Loans in
an amount equal to the price the U.S. Borrower paid to
acquire such shares; and
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(iii) Net Debt Proceeds, the U.S. Borrower
shall make or cause to be made a mandatory prepayment
of the Loans in an amount equal to 100% of such Net
Debt Proceeds, in each case, to be applied as set forth
in Section 3.1.2.
In order to avoid the payment of "breakage" costs pursuant to
Section 4.4, the Borrowers may make payments into a cash
collateral account held by the Administrative Agent that will be
used to repay the Loans, following the expiration of the
applicable Interest Periods provided, that (x) no Default has
occurred and is continuing and (y) the Administrative Agent has,
for its benefit and the ratable benefit of the Secured Parties, a
first-priority perfected Lien in such cash collateral account and
in which the Administrative Agent has sole dominion and control.
(e) Immediately upon any acceleration of the Stated
Maturity Date of any Loans pursuant to Section 8.2 or
Section 8.3, the Borrowers shall repay all the Loans,
unless, pursuant to Section 8.3, only a portion of all the
Loans is so accelerated (in which case the portion so
accelerated shall be so repaid).
Each prepayment of any Loans made pursuant to this Section shall
be without premium or penalty, except as may be required by
Section 4.4.
SECTION 3.1.2 Application.
Amounts prepaid pursuant to Section 3.1.1 shall be applied
as set forth in this Section.
(a) Subject to clause (b), each prepayment or
repayment of the principal of the Loans shall be applied, to
the extent of such prepayment or repayment, first, to the
principal amount thereof being maintained as Base Rate
Loans, and second, subject to the terms of Section 4.4, to
the principal amount thereof being maintained as LIBO Rate
Loans.
(b) Each prepayment of the Loans made pursuant to
clause (d) of Section 3.1.1 shall be applied to the
repayment of any outstanding Revolving Loans and a
corresponding reduction of the Revolving Loan Commitment
Amount.
SECTION 3.20 Interest Provisions.
Interest on the outstanding principal amount of the Loans
shall accrue and be payable in accordance with the terms set
forth below.
SECTION 3.2.1 Rates.
Subject to Section 2.3.2, pursuant to an appropriately
delivered Borrowing Request or Continuation/Conversion Notice,
the Borrowers may elect that Loans comprising a Borrowing accrue
interest at a rate per annum:
(a) on that portion maintained from time to time as a
Base Rate Loan, equal to the sum of the Alternate Base Rate
from time to time in effect plus the Applicable Margin;
provided that all Swing Line Loans shall always accrue
interest at the then effective Applicable Margin for
Revolving Loans maintained as Base Rate Loans; and
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(b) on that portion maintained as a LIBO Rate Loan,
during each Interest Period applicable thereto, equal to the
sum of the LIBO Rate (Reserve Adjusted) for such Interest
Period plus the Applicable Margin.
All LIBO Rate Loans shall bear interest from and including the
first day of the applicable Interest Period to (but not
including) the last day of such Interest Period at the interest
rate determined as applicable to such LIBO Rate Loan.
SECTION 3.2.2 Post-Default Rates.
After the date any principal amount of any Loan or
Reimbursement Obligation is due and payable (whether on the
Stated Maturity Date, upon acceleration or otherwise), or after
any other monetary Obligation of any Obligor shall have become
due and payable, or after any other Event of Default has occurred
and is continuing, the Borrowers shall pay interest (after as
well as before judgment) on all amounts owing pursuant to this
Agreement at a rate per annum equal to the Alternate Base Rate
from time to time in effect, plus the Applicable Margin for Base
Rate Loans, plus an additional margin of 2%.
SECTION 3.2.3 Payment Dates.
Interest accrued on each Loan shall be payable, without
duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole
or in part, of principal outstanding on such Loan on the
principal amount so paid or prepaid;
(c) with respect to Base Rate Loans, on each Quarterly
Payment Date occurring after the Effective Date;
(d) with respect to LIBO Rate Loans, on the last day
of each applicable Interest Period (and, if such Interest
Period shall exceed three months, on the date occurring on
each three-month interval occurring after the first day of
such Interest Period);
(e) with respect to any Base Rate Loans converted into
LIBO Rate Loans on a day when interest would not otherwise
have been payable pursuant to clause (c), on the date of
such conversion; and
(f) on that portion of any Loans the Stated Maturity
Date of which is accelerated pursuant to Section 8.2 or
Section 8.3, immediately upon such acceleration.
Interest accrued on Loans or other monetary Obligations after the
date such amount is due and payable (whether on the Stated
Maturity Date, upon acceleration or otherwise) shall be payable
upon demand.
SECTION 3.30 Fees.
Each Borrower agrees to pay the fees set forth below. All
such fees shall be non-refundable.
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SECTION 3.3.1 Commitment Fee.
Each Borrower agrees to pay to the Administrative Agent for
the account of each Lender, for the period (including any portion
thereof when any of its Commitments are suspended by reason of
the Borrowers' inability to satisfy any condition of Article V)
commencing on the Effective Date and continuing through the
Revolving Loan Commitment Termination Date, a commitment fee in
an amount equal to .50% on such Lender's Percentage of the sum of
the average daily unused portion of the Revolving Loan Commitment
Amount (net of Letter of Credit Outstandings and Loan Note
Guaranty Outstandings). All commitment fees payable pursuant to
this Section shall be calculated on a year comprised of 360 days
and payable by the Borrowers in arrears on the Effective Date and
thereafter on each Quarterly Payment Date, commencing with the
first Quarterly Payment Date following the Effective Date, and on
the Revolving Loan Commitment Termination Date. The making of
Swing Line Loans shall not constitute usage of the Revolving Loan
Commitment with respect to the calculation of commitment fees to
be paid by the Borrowers to the Lenders.
SECTION 3.3.2 Agent's Fee.
The Borrowers agree to pay to the Administrative Agent, for
its own account, the fees in the amounts and on the dates set
forth in the Fee Letter.
SECTION 3.3.3 Letter of Credit Fee.
The Borrowers agrees to pay to the Administrative Agent, for
the pro rata account of the Issuer and each Revolving Loan
Lender, a Letter of Credit fee in an amount equal to the then
effective Applicable Margin for Revolving Loans maintained as
LIBO Rate Loans, multiplied by the Stated Amount of each such
Letter of Credit, such fees being payable quarterly in arrears on
each Quarterly Payment Date following the date of issuance of
each Letter of Credit and on the Revolving Loan Commitment
Termination Date. The Borrowers further agree to pay to the
Issuer quarterly in arrears on each Quarterly Payment Date
following the date of issuance of each Letter of Credit and on
the Revolving Loan Commitment Termination Date an issuance fee in
an amount equal to 1/8% per annum (calculated on a 360 day basis)
as otherwise agreed to by the Borrowers and the Issuer, together
with the Issuer's customary administrative and other fees in
connection therewith.
SECTION 3.3.4 Loan Note Guaranty Fee.
The Borrowers shall pay to the Administrative Agent for the
pro rata account of each Lender participating in the Loan Note
Guaranty, a guaranty fee (the "Guaranty Fee") computed at a rate
equal to the then Applicable Margin for LIBO Rate Loans
multiplied by the amount of the Loan Note Guaranty, computed on a
quarterly basis in arrears on each Quarterly Payment Date until
payment and/or termination in full of all Loan Note Guaranty
Obligations. The Borrowers further agrees to pay to the Loan
Note Guarantor quarterly in arrears on each Quarterly Payment
Date following the date of issuance of the Loan Note Guaranty, a
fronting fee in an amount equal to 1/8% per annum (calculated on
a 360 day basis), together with the Loan Note Guarantor's
customary administrative and other fees incurred with respect to
the Loan Note Guaranty.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS, BORROWER GUARANTIES
SECTION 4.10 LIBO Rate Lending Unlawful.
If any Lender shall determine (which determination shall,
upon notice thereof to the U.S. Borrower and the Administrative
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Agent, be conclusive and binding on the Borrowers) that the
introduction of or any change in or in the interpretation of any
law makes it unlawful, or any Governmental Authority asserts that
it is unlawful, for such Lender to make or continue any Loan as,
or to convert any Loan into, a LIBO Rate Loan, the obligations of
such Lender to make, continue or convert any such LIBO Rate Loan
shall, upon such determination, forthwith be suspended until such
Lender shall notify the Administrative Agent that the
circumstances causing such suspension no longer exist, and (a)
all LIBO Rate Loans denominated in Dollars shall automatically
convert into Base Rate Loans at the end of the then current
Interest Periods with respect thereto or sooner, if required by
such law or assertion, and (b) all LIBO Rate Loans denominated in
any Other Currency shall automatically become due and payable at
the end of the then current Interest Periods with respect thereto
or sooner, if required by applicable law.
SECTION 4.20 Deposits Unavailable.
If the Administrative Agent shall have determined that
(a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to it in its
relevant market; or
(b) by reason of circumstances affecting its relevant
market, adequate means do not exist for ascertaining the
interest rate applicable hereunder to LIBO Rate Loans;()
then, upon notice from the Administrative Agent to the U.S.
Borrower and the Lenders, the obligations of all Lenders under
Section 2.3 and Section 2.4 to make or continue any Loans as, or
to convert any Loans into, LIBO Rate Loans shall forthwith be
suspended until the Administrative Agent shall notify the U.S.
Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 4.30 Increased LIBO Rate Loan Costs, etc.
The Borrowers agree to reimburse each Lender, the Loan Note
Guarantor and the Issuer for any increase in the cost to such
Lender, the Loan Note Guarantor or the Issuer of, or any
reduction in the amount of any sum receivable by such Secured
Party in respect of, such Secured Party's Commitments and the
making of Credit Extensions hereunder (including the making,
continuing or maintaining (or of its obligation to make or
continue) any Loans as, or of converting (or of its obligation to
convert) any Loans into, LIBO Rate Loans) that arise in
connection with any change in, or the introduction, adoption,
effectiveness, interpretation, reinterpretation or phase-in after
the Effective Date of, any law or regulation, directive,
guideline, decision or request (whether or not having the force
of law) of any Governmental Authority, except for such changes
with respect to increased capital costs and Taxes which are
governed by Sections 4.5 and 4.6, respectively. Each affected
Secured Party shall promptly notify the Administrative Agent and
the U.S. Borrower in writing within 180 days of the occurrence of
any such event, stating the reasons therefor and the additional
amount required fully to compensate such Secured Party for such
increased cost or reduced amount. Such additional amounts shall
be payable by the Borrowers directly to such Secured Party within
five days of its receipt of such notice, and such notice shall,
in the absence of manifest error, be conclusive and binding on
the Borrowers.
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SECTION 4.40 Funding Losses.
In the event any Lender shall incur any loss or expense
(including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired
by such Lender to make or continue any portion of the principal
amount of any Loan as, or to convert any portion of the principal
amount of any Loan into, a LIBO Rate Loan) as a result of
(a) any conversion or repayment or prepayment of the
principal amount of any LIBO Rate Loan on a date other than
the scheduled last day of the Interest Period applicable
thereto, whether pursuant to Article III or otherwise;
(b) any Loans not being made as LIBO Rate Loans in
accordance with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted
into, LIBO Rate Loans in accordance with the
Continuation/Conversion Notice therefor;
then, upon the notice of such Lender to the U.S. Borrower (with a
copy to the Administrative Agent), the Borrowers shall, within
five days of its receipt thereof, pay directly to such Lender
such amount as will (in the reasonable determination of such
Lender) reimburse such Lender for such loss or expense. Such
notice shall, in the absence of manifest error, be conclusive and
binding on the Borrowers.
SECTION 4.50 Increased Capital Costs.
If any change in, or the introduction, adoption,
effectiveness, interpretation, reinterpretation or phase-in of,
any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any Governmental
Authority affects or would affect the amount of capital required
or expected to be maintained by any Secured Party or any Person
controlling such Secured Party, and such Secured Party determines
(in good faith but in its sole and absolute discretion) that the
rate of return on its or such controlling Person's capital as a
consequence of the Commitments or the Credit Extensions made, or
the Letters of Credit or the Loan Note Guaranty participated in,
by such Secured Party is reduced to a level below that which such
Secured Party or such controlling Person could have achieved but
for the occurrence of any such circumstance, then upon notice,
which shall be given within 180 days the date of such Secured
Party having knowledge of such event by such Secured Party to the
U.S. Borrower, the Borrowers shall within five days following
receipt of such notice pay directly to such Secured Party
additional amounts sufficient to compensate such Secured Party or
such controlling Person for such reduction in rate of return. A
statement of such Secured Party as to any such additional amount
or amounts shall, in the absence of manifest error, be conclusive
and binding on the Borrowers. In determining such amount, such
Secured Party may use any method of averaging and attribution
that it (in its sole and absolute discretion) shall deem
applicable.
SECTION 4.60 Taxes.
The Borrowers covenant and agree as follows with respect to
Taxes.
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(a) Any and all payments by any Borrower under each
Loan Document shall be made without setoff, counterclaim or
other defense, and free and clear of, and without deduction
or withholding for or on account of, any Taxes. In the
event that any Taxes are required by law to be deducted or
withheld from any payment required to be made by any
Borrower to or on behalf of any Secured Party under any Loan
Document, then:
(i) subject to clause (f), if such Taxes are Non-
Excluded Taxes, the amount of such payment shall be
increased as may be necessary such that such payment is
made, after withholding or deduction for or on account
of such Taxes, in an amount that is not less than the
amount provided for in such Loan Document; and
(ii) such Borrower shall withhold the full amount
of such Taxes from such payment (as increased pursuant
to clause (a)(i)) and shall pay such amount to the
Governmental Authority imposing such Taxes in
accordance with applicable law.
(b) In addition, the Borrowers shall pay any and all
Other Taxes imposed to the relevant Governmental Authority
imposing such Other Taxes in accordance with applicable law.
(c) As promptly as practicable after the payment of
any Taxes or Other Taxes, and in any event within 45 days of
any such payment being due, the applicable Borrower shall
furnish to the Administrative Agent a copy of an official
receipt (or a certified copy thereof) evidencing the payment
of such Taxes or Other Taxes. The Administrative Agent
shall make copies thereof available to any Lender upon
request therefor.
(d) Subject to clause (f), the Borrowers shall
indemnify each Secured Party for any Non-Excluded Taxes and
Other Taxes levied, imposed or assessed on (and whether or
not paid directly by) such Secured Party (and whether or not
such Non-Excluded Taxes or Other Taxes are correctly or
legally asserted by the relevant Governmental Authority).
Promptly upon having knowledge that any such Non-Excluded
Taxes or Other Taxes have been levied, imposed or assessed,
and promptly upon notice thereof by any Secured Party, the
Borrowers shall pay such Non-Excluded Taxes or Other Taxes
directly to the relevant Governmental Authority (provided,
however, that no Secured Party shall be under any obligation
to provide any such notice to any Borrower). If a Secured
Party receives a refund in respect of any Non-Excluded Taxes
or Other Taxes with respect to which any Borrower has paid
additional amounts pursuant to this Section 4.6, it shall
within 60 days from the date of such receipt pay over to the
Borrowers (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrowers under
this Section with respect to the Non-Excluded Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket
expenses of such Secured Party and without interest (other
than interest paid by the relevant jurisdiction or taxing
authority with respect to such refund) the portion of such
refund which, in the good faith judgment of such Secured
Party, is attributable to the payment of such additional
amounts by the Borrowers and in an amount as will leave such
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Secured Party in no better or worse position than it would
have been in if the payment of such additional amounts had
not been required; provided, however, that the Borrowers,
upon the request of such Secured Party, agree to repay the
amount paid over to the Borrowers (plus penalties, interest
or other charges payable to the relevant jurisdiction or
taxing authority) to such Secured Party in the event such
Secured Party is required to repay such refund to such
jurisdiction or taxing authority. In addition, the Borrowers
shall jointly and severally indemnify each Secured Party for
any incremental Taxes that may become payable by such
Secured Party as a result of any failure of any Borrower to
pay any Taxes when due to the appropriate Governmental
Authority or to deliver to the Administrative Agent,
pursuant to clause (c), documentation evidencing the payment
of Taxes or Other Taxes. With respect to indemnification
for Non-Excluded Taxes and Other Taxes actually paid by any
Secured Party or the indemnification provided in the
immediately preceding sentence, such indemnification shall
be made within 30 days after the date such Secured Party
makes written demand therefor. Each Borrower acknowledges
that any payment made to any Secured Party or to any
Governmental Authority in respect of the indemnification
obligations of the Borrowers provided in this clause shall
constitute a payment in respect of which the provisions of
clause (a) and this clause shall apply.
(e) Each Non-U.S. Lender, on or prior to the date on
which such non-U.S. Lender becomes a Lender hereunder (and
from time to time thereafter upon the request of the U.S.
Borrower or the Administrative Agent, but only for so long
as such non-U.S. Lender is legally entitled to do so), shall
deliver to the U.S. Borrower and the Administrative Agent
either
(i) (x) two duly completed copies of either (A)
Internal Revenue Service Form WBEN or (B) Internal
Revenue Service Form W-BECI, or in either case an
applicable successor form; or
(ii) in the case of a Non-U.S. Lender that is not
legally entitled to deliver either form listed in
clause (e)(i)(x), (x) a certificate of a duly
authorized officer of such Non-U.S. Lender to the
effect that such Non-U.S. Lender is not (A) a "bank"
within the meaning of Section 881(c)(3)(A) of the Code,
(B) a "10 percent shareholder" of any Borrower within
the meaning of Section 881(c)(3)(B) of the Code, or (C)
a controlled foreign corporation receiving interest
from a related person within the meaning of Section
881(c)(3)(C) of the Code (such certificate, an
"Exemption Certificate") and (y) two duly completed
copies of Internal Revenue Service Form W-8 BEN or
applicable successor form.
(f) The Borrowers shall not be obligated to gross up
any payments to any Lender pursuant to clause (a)(i), or to
indemnify any Lender pursuant to clause (d), in respect of
United States federal withholding Taxes to the extent
imposed as a result of (i) the failure of such Lender to
deliver to any Borrower the form or forms and/or an
Exemption Certificate, as applicable to such Lender,
pursuant to clause (e), (ii) such form or forms and/or
Exemption Certificate not establishing a complete exemption
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from U.S. federal withholding Tax or the information or
certifications made therein by the Lender being untrue or
inaccurate on the date delivered in any material respect, or
(iii) the Lender designating a successor lending office at
which it maintains its Loans which has the effect of causing
such Lender to become obligated for Tax payments in excess
of those in effect immediately prior to such designation;
provided, however, that the Borrowers shall be obligated to
gross up any payments to any such Lender pursuant to clause
(a)(i), and to indemnify any such Lender pursuant to clause
(d), in respect of United States federal withholding Taxes
if (i) any such failure to deliver a form or forms or an
Exemption Certificate or the failure of such form or forms
or Exemption Certificate to establish a complete exemption
from U.S. federal withholding Tax or inaccuracy or untruth
contained therein resulted from a change in any applicable
statute, treaty, regulation or other applicable law or any
interpretation of any of the foregoing occurring after the
Effective Date, which change rendered such Lender no longer
legally entitled to deliver such form or forms or Exemption
Certificate or otherwise ineligible for a complete exemption
from U.S. federal withholding Tax, or rendered the
information or certifications made in such form or forms or
Exemption Certificate untrue or inaccurate in a material
respect, (ii) the redesignation of the Lender's lending
office was made at the request of the U.S. Borrower or (iii)
the obligation to gross up payments to any such Lender
pursuant to clause (a)(i) or to indemnify any such Lender
pursuant to clause (d) is with respect to an Assignee Lender
that becomes an Assignee Lender as a result of an assignment
made at the request of the U.S. Borrower.
(g) Each Lender represents to U.K. Acquisitions and
the Administrative Agent that, in the case of a Lender which
is a Lender on the U.K. Closing Date and, in the case of a
Lender which becomes a Lender after the U.K. Closing Date,
on the date it becomes a Lender and on each Quarterly
Payment Date and on the last day of each Interest Period for
any LIBO Rate Loans that it is either (i) a bank
beneficially entitled to interest in respect of such Loans
and within the charge to corporation tax in respect of such
interest for the purposes of Section 349(3)(a) of the Income
and Corporation Taxes Act 1988; or (ii) a bank lending
through any other branch, Affiliate or agency if, at the
time the bank becomes a party, the bank or affiliate (as the
case may be) (A) is resident in a country with which the
United Kingdom has an appropriate double taxation treaty
pursuant to which that bank or Affiliate (as the case may
be) is entitled to receive principal, interest and fees
under this Agreement from the Borrowers without withholding
of United Kingdom income tax (and such bank or affiliate (as
the case may be) has effectively claimed the benefit of such
treaty in respect of this Agreement so that the Borrowers
are not requested to make any such withholding), or (B) is
otherwise entitled to receive principal, interest and fees
without such withholding, and shall forthwith notify the
U.S. Borrower and the Administrative Agent if either
representation ceases to be correct. Each Lender that is not
funding its Loans out of a lending office in the United
Kingdom (or another jurisdiction having an exemption from
United Kingdom income tax by treaty organized under the laws
of the United States) shall submit a duly completed Form
FD13 double tax treaty form to the U.S. Internal Revenue
Service (or the comparable form for its jurisdiction to its
jurisdiction's tax authorities) reasonably promptly seeking
exemption from United Kingdom income tax on interest payable
under the Loan Documents.
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(h) Each Lender agrees that it will use reasonable
efforts to designate an alternate lending office with
respect to its LIBO Rate Loans affected by any of the
matters or circumstances described in this Section to reduce
the obligation of the Borrowers to gross up any payments to
any Lenders pursuant to clause(a)(i), or to indemnify any
Lenders pursuant to clause (d), so long as such designation
is not disadvantageous in any way to such Lender as
determined by such Lender in its sole discretion; provided
that such Lender shall have no obligation to so designate an
alternate lending office located in the United States. Any
Lender claiming any additional amounts payable pursuant to
this Section shall use reasonable efforts (consistent with
legal and regulatory restrictions) to deliver to the
Borrowers or the Administrative Agent any certificate or
document reasonably requested by any Borrower or the
Administrative Agent if the delivery of such certificate or
document would avoid the need for or reduce the amount of
any such additional amounts that may thereafter accrue and
would not, in the sole determination of such Lender, be
otherwise disadvantageous to such Lender.
(i) If any Lender that does not make a LIBO Rate Loan
pursuant to Section 4.1 or Section 4.2, is subject to
increased costs pursuant to Section 4.3, or is owed or
reasonably anticipates being owed additional amounts
pursuant to this Section and fails to take action required
under clause (h) of this Section any Borrower shall have the
right, if no Default then exists, to replace such Lender
with another bank or financial institution with the written
consent of the Administrative Agent, which consent shall not
be unreasonably withheld, provided that (i) the obligations
of any Borrower owing to the Lender being replaced
(including such increased costs) that are not being assigned
to the replacement Lender shall be paid in full to the
Lender being replaced concurrently with such replacement,
(ii) the replacement lender shall execute a Lender
Assignment Agreement and Acceptance pursuant to which it
shall become a party hereto as provided in Section 10.11.1,
and (iii) upon compliance with the provisions for assignment
provided in Section 10.11.1 and the payment of amounts
referred to in clause (i), the replacement lender shall
constitute a "Lender" hereunder and the Lender being so
replaced shall no longer constitute a "Lender" hereunder.()
SECTION 4.70 Payments, Computations, etc.
Unless otherwise expressly provided in a Loan Document, all
payments by the Borrowers pursuant to each Loan Document shall be
made by the Borrowers to the Administrative Agent for the pro
rata account of the Secured Parties entitled to receive such
payment. All payments shall be made without setoff, deduction or
counterclaim not later than 11:00 a.m. (which shall be London
time in the case of Other Currency Loans) on the date due in same
day or immediately available funds to such account as the
Administrative Agent shall specify from time to time by notice to
the U.S. Borrower, provided, however, that all payments in Other
Currency shall be made to the Other Currency Lender in the Other
Currency Lenders designated account. Funds received after that
time shall be deemed to have been received by the Administrative
Agent on the next succeeding Business Day. The Administrative
Agent shall promptly remit in same day funds to each Secured
Party its share, if any, of such payments received by the
Administrative Agent for the account of such Secured Party. All
interest (including interest on LIBO Rate Loans) and fees shall
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be computed on the basis of the actual number of days (including
the first day but excluding the last day) occurring during the
period for which such interest or fee is payable over a year
comprised of 360 days, except with respect to LIBO Rate Loans
denominated in Sterling which shall accrue interest computed on
the basis of 365 days and except as set forth in clause (d) of
the definition of the term "Associated Costs" and except with
respect to Base Rate Loans which shall accrue interest computed
on the basis of a year comprised of 365 or 366 days, as the case
may be, provided, however, that to the extent the current market
practice is to compute interest and/or fees in respect of any
Other Currency or any Loan denominated in any Other Currency in a
manner other than as set forth above, all interest and fees
hereunder shall be computed on the basis of such market practice,
as notified to the U.S. Borrower by the Administrative Agent.
Payments due on other than a Business Day shall (except as
otherwise required by clause (c) of the definition of the term
"Interest Period") be made on the next succeeding Business Day
and such extension of time shall be included in computing
interest and fees in connection with that payment.
SECTION 4.80 Sharing of Payments.
If any Secured Party shall obtain any payment or other
recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Credit Extension or
Reimbursement Obligation (other than pursuant to the terms of
Sections 4.3, 4.4, 4.5 or 4.6) in excess of its pro rata share of
payments obtained by all Secured Parties, such Secured Party
shall purchase from the other Secured Parties such participations
in Credit Extensions made by them as shall be necessary to cause
such purchasing Secured Party to share the excess payment or
other recovery ratably (to the extent such other Secured Parties
were entitled to receive a portion of such payment or recovery)
with each of them; provided, however, that if all or any portion
of the excess payment or other recovery is thereafter recovered
from such purchasing Secured Party, the purchase shall be
rescinded and each Secured Party which has sold a participation
to the purchasing Secured Party shall repay to the purchasing
Secured Party the purchase price to the ratable extent of such
recovery together with an amount equal to such selling Secured
Party's ratable share (according to the proportion of (a) the
amount of such selling Secured Party's required repayment to the
purchasing Secured Party to (b) total amount so recovered from
the purchasing Secured Party) of any interest or other amount
paid or payable by the purchasing Secured Party in respect of the
total amount so recovered. Each Borrower agrees that any Secured
Party purchasing a participation from another Secured Party
pursuant to this Section may, to the fullest extent permitted by
law, exercise all its rights of payment (including pursuant to
Section 4.9) with respect to such participation as fully as if
such Secured Party were the direct creditor of such Borrower in
the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law any Secured Party
receives a secured claim in lieu of a setoff to which this
Section applies, such Secured Party shall, to the extent
practicable, exercise its rights in respect of such secured claim
in a manner consistent with the rights of the Secured Parties
entitled under this Section to share in the benefits of any
recovery on such secured claim.
SECTION 4.90 Setoff.
Each Secured Party shall, upon the occurrence and during the
continuance of any Default described in clauses (a) through (d)
of Section 8.1.9 or, with the consent of the Required Lenders,
upon the occurrence and during the continuance of any other Event
of Default, have the right to appropriate and apply to the
payment of the Obligations owing to it (whether or not then due),
and (as security for such Obligations) each Borrower hereby
grants to each Secured Party a continuing security interest in,
any and all balances, credits, deposits, accounts or moneys of
such Borrower then or thereafter maintained with such Secured
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Party; provided, however, that any such appropriation and
application shall be subject to the provisions of Section 4.8.
Each Secured Party agrees promptly to notify the U.S. Borrower
and the Administrative Agent after any such setoff and
application made by such Secured Party; provided, however, that
the failure to give such notice shall not affect the validity of
such setoff and application. The rights of each Secured Party
under this Section are in addition to other rights and remedies
(including other rights of setoff under applicable law or
otherwise) which such Secured Party may have. The Borrower
agrees to combine currencies to effectuate a set-off at the Spot
Rate.
SECTION 4.100 Guaranty Provisions.
Each Borrower acknowledges and agrees that, whether or not
specifically indicated as such in a Loan Document, all
Obligations shall be joint and several Obligations of each
individual Borrower, and in furtherance of such joint and several
Obligations, each Borrower hereby irrevocably guarantees the
payment of all Obligations of each other Borrower as set forth
below.
SECTION 4.110 Guaranty.
Each Borrower hereby jointly and severally, absolutely,
unconditionally and irrevocably guarantees the full and punctual
payment when due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise, of
all Obligations; provided, however, that each Borrower shall only
be liable under this Agreement for the maximum amount of such
liability that can be hereby incurred without rendering this
Agreement, as it relates to such Borrower, voidable under
applicable law relating to fraudulent conveyance or fraudulent
transfer, and not for any greater amount. This guaranty
constitutes a guaranty of payment when due and not merely of
collection, and each Borrower specifically agrees that it shall
not be necessary or required that any Secured Party exercise any
right, assert any claim or demand or enforce any remedy
whatsoever against any Obligor or any other Person before or as a
condition to the obligations of such Borrower hereunder.
SECTION 4.120 Guaranty Absolute, etc.
The guaranty agreed to above shall in all respects be a
continuing, absolute, unconditional and irrevocable guaranty of
payment, and shall remain in full force and effect until the
Termination Date. Each Borrower jointly and severally guarantees
that the Obligations will be paid strictly in accordance with the
terms of each Loan Document under which such Obligations arise,
regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the
rights of any Secured Party with respect thereto. The liability
of each Borrower under this Agreement shall be joint and several,
absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability
of any Loan Document;
(b) the failure of any Secured Party (i) to assert any
claim or demand or to enforce any right or remedy against
any Obligor or any other Person (including any other
guarantor) under the provisions of any Loan Document or
otherwise, or (ii) to exercise any right or remedy against
any other guarantor (including any Obligor) of, or
collateral securing, any Obligations;
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(c) any change in the time, manner or place of payment
of, or in any other term of, all or any part of the
Obligations, or any other extension, compromise or renewal
of any Obligation;
(d) any reduction, limitation, impairment or
termination of any Obligations for any reason, including any
claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to (and each Borrower
hereby waives any right to or claim of) any defense or
setoff, counterclaim, recoupment or termination whatsoever
by reason of the invalidity, illegality, irregularity,
compromise, unenforceability of, or any other event or
occurrence affecting, any Obligations or otherwise;
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to or departure from, any of
the terms of any Loan Document;
(f) any addition, exchange, release, surrender or non-
perfection of any collateral, or any amendment to or waiver
or release or addition of, or consent to or departure from,
any other guaranty held by any Secured Party securing any of
the Obligations; or
(g) any other circumstance which might otherwise
constitute a defense available to, or a legal or equitable
discharge of, any Obligor, any surety or any guarantor.
SECTION 4.12.1 Reinstatement, etc.
Each Borrower agrees that its guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time
any payment (in whole or in part) of any of the Obligations is
rescinded or must otherwise be restored by any Secured Party,
upon the insolvency, bankruptcy or reorganization of any other
Borrower, any other Obligor or otherwise, all as though such
payment had not been made.
SECTION 4.12.2 Waiver, etc.
Each Borrower hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the
Obligations and this Agreement and any requirement that any
Secured Party protect, secure, perfect or insure any Lien, or any
property subject thereto, or exhaust any right or take any action
against any other Obligor or any other Person (including any
other guarantor) or entity or any collateral securing the
Obligations, as the case may be.
SECTION 4.12.3 Postponement of Subrogation, etc.
Each Borrower agrees that it will not exercise any rights
which it may acquire by way of rights of subrogation under any
Loan Document to which it is a party, nor shall any Borrower seek
or be entitled to seek any contribution or reimbursement from any
Obligor, in respect of any payment made hereunder, under any
other Loan Document or otherwise, until following the Termination
Date. Any amount paid to any Borrower on account of any such
subrogation rights prior to the Termination Date shall be held in
trust for the benefit of the Secured Parties and shall
immediately be paid and turned over to the Administrative Agent
for the benefit of the Secured Parties in the exact form received
by such Borrower (duly endorsed in favor of the Administrative
Agent, if required), to be credited and applied against the
Obligations, whether matured or unmatured, in accordance with
Section 4.7; provided, however, that if
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(a) any Borrower has made payment to the Secured
Parties of all or any part of the Obligations; and
(b) the Termination Date has occurred;
then at such Borrower's request, the Administrative Agent, (on
behalf of the Secured Parties) will, at the expense of such
Borrower, execute and deliver to such Borrower appropriate
documents (without recourse and without representation or
warranty) necessary to evidence the transfer by subrogation to
such Borrower of an interest in the Obligations resulting from
such payment. In furtherance of the foregoing, at all times
prior to the Termination Date each Borrower shall refrain from
taking any action or commencing any proceeding against the any
Obligor (or its successors or assigns, whether in connection with
a bankruptcy proceeding or otherwise) to recover any amounts in
the respect of payments made under any Loan Document to any
Secured Party.
SECTION 4.12.4 Guaranty Limitations.
Notwithstanding anything to the contrary contained herein,
each U.K. Obligor other than U.K. Holdings (which shall guaranty
all Obligations) shall only be a guarantor of the U.K.
Obligations and the indemnities contained herein and not for any
other amounts.
SECTION 4.130 Defaulting Lenders.
Notwithstanding anything in this Agreement to the contrary,
as to any Lender which (a) has refused (which refusal has not
been retracted) to make available its portion of any Borrowing or
to fund its portion of any unreimbursed (or disgorged) payment
under Section 2.6.1 or (b) has given notice to the Administrative
Agent and/or the Borrowers that it does not intend to comply with
its obligations under Section 2.1 or under Section 2.6.1, in the
case of clause (a) or clause (b) above, in connection with or
after the appointment of a receiver or conservator with respect
to such Lender at the direction or request of any regulatory
agency or authority (such Lender, a "Defaulting Lender"):
(i) such Lender shall not be deemed a Required Lender
hereunder and such Lender's Commitments, Loans and Letter of
Credit Outstandings shall be excluded from the calculations
set forth in the definition of Required Lenders;
(ii) such Lender shall not be entitled to receive any
portion of (A) Letter of Credit fees, (B) interest payable
with respect to any Disbursements or (C ) amounts received
in respect of Disbursements; and
(iii) such Lender shall not be entitled to receive
any commitment fee payable in respect of the Commitment
Amount.
In addition to the foregoing, and notwithstanding Section 2.1.2,
if any Lender shall fall within the description set forth in
clause (a) or (b) above, the Issuer shall not be required to
issue any Letter of Credit, unless arrangements reasonably
satisfactory to the Issuer have been entered into to eliminate
the Issuer's risk with respect to the participation in Letters of
Credit by such Lender, including Cash Collateralizing such
Lender's Letter of Credit Commitment.
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ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.10 Initial Credit Extensions.
The obligations of the Lenders and, if applicable, the
Issuer or the Loan Note Guarantor to fund any Credit Extensions
to the Borrowers shall be subject to the prior or concurrent
satisfaction of each of the conditions precedent set forth in
this Section 5.1.
SECTION 5.1.1 Resolutions, etc.
The Administrative Agent shall have received from each
Obligor executing a Loan Document pursuant to Section 5.1, as
applicable, (a) in the case of the U.S. Borrower, a copy of a
good standing certificate (or its equivalent), dated a date
reasonably close to the U.K. Closing Date, for each such Person
and (b) a certificate, dated the U.K. Closing Date and with
counterparts for each Lender, duly executed and delivered by such
Person's Secretary or Assistant Secretary, managing member or
general partner, as applicable, as to
(a) resolutions of each such Person's Board of
Directors (or other managing body, in the case of other than
a corporation) then in full force and effect authorizing, to
the extent relevant, the execution, delivery and performance
of each Loan Document to be executed by such Person and the
U.K. Transaction applicable to such person;
(b) the incumbency and signatures of each Authorized
Officer signing any Loan Documents; and
(c) the full force and validity of each Organic
Document of such Person and copies thereof;
upon which certificates each Secured Party may conclusively rely
until it shall have received a further certificate of the
Secretary, Assistant Secretary, managing member or general
partner, as applicable, of any such Person canceling or amending
the prior certificate of such Person.
SECTION 5.1.2 Termination of Loan Agreement.
The Administrative Agent shall have received a letter
agreement from U.K. Acquisitions that permanently terminates the
Loan Agreement, dated as of December 14, 1999 (as amended,
supplemented, amended and restated or otherwise modified from
time to time), among U.K. Acquisitions and the lenders parties
thereto.
SECTION 5.1.3 Closing Fees, Expenses, etc.
The Administrative Agent shall have received for its own
account, or for the account of each Lender, as the case may be,
all fees, costs and expenses due and payable pursuant to Sections
3.3 and 10.3, if then invoiced.
SECTION 5.1.4 Delivery of Notes.
The Administrative Agent shall have received, for the
account of each Lender that has requested a Note, such Lender's
Notes duly executed and delivered by an Authorized Officer of
each Borrower.
SECTION 5.1.5 Borrowing Request, etc.
The Administrative Agent shall have received a duly executed
Borrowing Request. Each of the delivery of a Borrowing Request
and the acceptance by any Borrower of the proceeds of such Loans
shall constitute a representation and warranty by such Borrower
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that on the date of such Loans (both immediately before and after
giving effect to such Loans and the application of the proceeds
thereof) the statements made in Section 5.2.3 are true and
correct in all material respects.
SECTION 5.1.6 Opinions of Counsel.
The Administrative Agent shall have received opinions, dated
the U.K. Closing Date and addressed to the Administrative Agent
and all Lenders, from
(a) Hunton & Williams, acting as special Virginia and
New York counsel to the Obligors, in form and substance
satisfactory to the Administrative Agent; and
(b) Slaughter and May, acting as special English
counsel to the Obligors, in form and substance satisfactory
to the Administrative Agent.
SECTION 5.1.7 U.K. Equity Financing.
Net cash proceeds of not less than the Dollar Equivalent of
the Contribution Amount in the aggregate in respect of the U.K.
Equity Contribution shall have been contributed to U.K.
Acquisitions as a capital contribution and shall be used by U.K.
Acquisitions, concurrently with the making of the Credit
Extensions, solely to assist in financing the purchase of the
U.K. Ordinary Shares pursuant to the U.K. Offer and pursuant to
market purchases.
SECTION 5.1.8 Delivery of U.K. Offer Materials.
The Administrative Agent shall have received (with copies
for each Lender that shall have expressly requested copies
thereof) true and complete copies of the U.K. Offer Materials,
certified to be true and complete copies thereof by an Authorized
Officer of U.K. Acquisitions.
SECTION 5.1.9 No Modification of Agreements.
Subject to Section 5.1.12, no U.K. Obligor shall have
consented to any amendment, supplement or other modification of
any of the terms or provisions contained in the U.K. Offer
Materials, including the U.K. Offer Price, other than any such
amendment, supplement or other modification which is immaterial
and which could not adversely affect the Administrative Agent or
any Lender.
SECTION 5.1.10 Pledge Agreements.
The Administrative Agent shall have received, with
counterparts for each Lender, the U.S. Borrower Foreign Pledge
Agreement, U.K. Acquisitions II Pledge Agreement, the U.K.
Acquisitions I Pledge Agreement and the U.K. Holdings Pledge
Agreement, each dated as of the U.K. Closing Date, duly executed
and delivered by an Authorized Officer of the applicable U.K.
Obligor respectively, together with, in the case of the U.S.
Borrower Foreign Pledge Agreement, the U.K. Holdings Pledge
Agreement and the U.K. Acquisitions I Pledge Agreement, the
certificates evidencing all of the issued and outstanding shares
of Capital Securities of U.K. Acquisitions (other than those
shares owned by Andrew Kohut), U.K. Acquisitions I (other than
those shares owned by Andrew Kohut), U.K. Holdings (other than
those shares owned by Chesapeake International Holding Company, a
Virginia corporation) and Field Group, respectively, which
certificates shall in each case be accompanied by undated stock
powers or powers of transfer duly executed in blank, or, if any
such shares of Capital Securities pledged pursuant to such Pledge
Agreement are uncertificated securities, the Administrative Agent
shall have obtained "control" (as defined in the UCC) over such
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shares of Capital Securities or otherwise have a perfected
security interest in such Capital Securities.
SECTION 5.1.11 No Waivers.
Subject to U.K. Acquisitions' obligations under Note 2 to
Rule 13 of the U.K. City Code, no condition of the U.K. Offer
shall have been waived in whole or in part without the prior
written consent of the Required Lenders and the Administrative
Agent (such consent not to be unreasonably withheld or delayed),
as confirmed to the Required Lenders and the Administrative Agent
in writing by an Authorized Officer of U.K. Acquisitions.
SECTION 5.1.12 Acceptance Level.
The U.K. Offer shall have been declared unconditional as to
acceptances in respect of at least 90% of all the U.K. Ordinary
Shares of the U.K. Target and shall have become or been declared
unconditional in all respects, provided that the Administrative
Agent and the Required Lenders agree to consult with U.K.
Acquisitions in good faith regarding permitting an acceptance
level that is lower than 90%.
SECTION 5.1.13 Compulsory Acquisition Procedures.
The Required Lenders, the Administrative Agent and their
respective counsel shall be satisfied that the U.K. Offer has
been structured so that it will satisfy the requirements
necessary to enable U.K. Acquisitions to invoke the compulsory
acquisition procedures under Articles 421 to 423 F of the
Companies (Northern Ireland) Order of 1986 (as amended) if
acceptances are received in respect of 90% or more of the U.K.
Ordinary Shares of the U.K. Target to which the U.K. Offer
relates (including, for this purpose, shares which are treated as
having been acquired by virtue of acceptances of the U.K. Offer
in accordance with Section 422(8) of the Companies (Northern
Ireland) Order of 1986 (as amended).
SECTION 5.1.14 U.K. Offer Price.
The U.K. Offer Price shall not exceed L2.65 per U.K.
Ordinary Share.
SECTION 5.1.15 Illegality.
It shall not be unlawful for any Lender to make or fund, or
to have any Commitments hereunder to make or fund, any Loan or
for the Loan Note Guarantor to issue the Loan Note Guaranty.
SECTION 5.1.16 Unanimous Recommendation.
The Required Lenders, the Administrative Agent and their
respective counsel shall be satisfied that the U.K. Offer
Document contains the unanimous recommendation from the directors
of the U.K. Target that the shareholders of U.K. Target accept
the U.K. Offer.
SECTION 5.1.17 Insolvency.
None of the events referred to in Section 8.1.9 shall have
occurred and be continuing in relation to any U.K. Obligor, the
U.K. Target or the Subsidiaries of the U.K. Target, except where
U.K. Acquisitions, in compliance with its obligations under Note
2 to Rule 13 of the U.K. City Code, is not permitted to withdraw
the Offer.
SECTION 5.1.18 U.K. Closing Date Certificate.
The Administrative Agent shall have received, with
counterparts or copies for each Lender, the U.K. Closing Date
Certificate, dated the U.K. Closing Date and duly executed and
delivered by the chief executive financial or accounting (or
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equivalent) Authorized Officer of the U.K. Borrowers, in which
certificate the U.K. Borrowers shall agree and acknowledge that
the statements made therein shall be deemed to be true and
correct representations and warranties of the U.K. Borrowers made
as of such date under this Agreement, and, at the time such
certificate is delivered, such statements shall in fact be true
and correct.
SECTION 5.1.19 Solvency, etc.
The Administrative Agent shall have received, with
counterparts for each Lender, a solvency certificate duly
executed and delivered by the chief financial or accounting
Authorized Officer of each U.S. Borrower, dated the U.K. Closing
Date, in the form of Exhibit I attached hereto.
SECTION 5.20 All Credit Extensions.
The obligation of each Lender, the Issuer or the Loan Note
Guarantor to make any Credit Extension shall be subject to, and
the satisfaction of, each of the conditions precedent set forth
below.
SECTION 5.2.1 Compliance with Warranties, No Default, etc.
Both before and after giving effect to any Credit Extension
(but, if any Default of the nature referred to in Section 8.1.5
shall have occurred with respect to any other Indebtedness,
without giving effect to the application, directly or indirectly,
of the proceeds thereof) the following statements shall be true
and correct:
(a) the representations and warranties set forth in
each Loan Document shall, in each case, be true and correct
in all material respects with the same effect as if then
made (unless stated to relate solely to an earlier date, in
which case such representations and warranties shall be true
and correct in all material respects as of such earlier
date); and
(b) no Default shall have then occurred and be
continuing.
SECTION 5.2.2 Credit Extension Request, etc.
Subject to Section 2.3.2, the Administrative Agent shall
have received a Borrowing Request if Loans are being requested,
or an Issuance Request if a Letter of Credit is being requested
or extended. Each of the delivery of a Borrowing Request or
Issuance Request and the acceptance by any Borrower of the
proceeds of such Credit Extension shall constitute a
representation and warranty by such that on the date of such
Credit Extension (both immediately before and after giving effect
to such Credit Extension and the application of the proceeds
thereof) the statements made in Section 5.2.1 are true and
correct in all material respects.
SECTION 5.2.3 Satisfactory Legal Form.
All documents executed or submitted pursuant hereto by or on
behalf of any Borrower or any of its Subsidiaries or any other
Obligors shall be reasonably satisfactory in form and substance
to the Administrative Agent and its counsel; the Administrative
Agent and its counsel shall have received all information,
approvals, opinions, documents or instruments as the
Administrative Agent or its counsel may reasonably request.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Administrative Agent,
the Issuer and the Loan Note Guarantor to enter into this
Agreement and to make Credit Extensions hereunder, each Borrower
represents and warrants to the Lenders, the Administrative Agent,
the Issuer and the Loan Note Guarantor as set forth in this
Article.
SECTION 6.10 Organization, etc.
Each Obligor is validly organized and existing and in good
standing under the laws of the state or jurisdiction of its
incorporation or organization, is duly qualified to do business
and is in good standing as a foreign entity in each jurisdiction
where the nature of its business requires such qualification
(except for where failure to do so could not reasonably be
expected to have a Material Adverse Effect), and has full power
and authority and holds all requisite governmental licenses,
permits and other approvals to enter into and perform its
Obligations under each Loan Document to which it is a party and
to own and hold under lease its property and to conduct its
business substantially as currently conducted by it (except for
where failure to do so could not reasonably be expected to have a
Material Adverse Effect).
SECTION 6.20 Due Authorization, Non-Contravention, etc.
The execution, delivery and performance by each Obligor of
each Loan Document executed or to be executed by it, each such
Obligor's participation in the consummation of all aspects of the
U.K. Transaction, and the execution, delivery and performance by
such Obligor of the agreements executed and delivered by it in
connection with the U.K. Transaction are in each case within such
Person's powers, have been duly authorized by all necessary
action, and do not
(a) result in a default under or contravene any (i)
Obligor's Organic Documents, (ii) contractual restriction,
indenture or loan agreement binding on or affecting such
Obligor, (iii) court decree or order binding on or affecting
such Obligor or (iv) law or governmental regulation binding
on or affecting such Obligor; or
(b) result in, or require the creation or imposition
of, any Lien on such Obligor's properties (except as
permitted by this Agreement).()
SECTION 6.30 Government Approval, Regulation, etc.
No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority or other
Person (other than those that have been, or on the applicable
Closing Date will be, duly obtained or made and which are, or on
the applicable Closing Date will be, in full force and effect) is
required for the consummation of the U.K. Transaction or the due
execution, delivery or performance by any Obligor of any Loan
Document to which it is a party, or for the due execution,
delivery and/or performance of the U.K. Transaction Documents, in
each case by the parties thereto or the consummation of the U.K.
Transaction. Neither the U.S. Borrower nor any of its
Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or a "holding
company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
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SECTION 6.40 Validity, etc.
This Agreement has been duly executed and delivered by each
Borrower, and each Loan Document and the U.K. Transaction
Documents to which each Obligor is a party constitute, or will,
on the due execution and delivery thereof by such Obligor,
constitute, the legal, valid and binding obligations of such
Obligor, enforceable against it in accordance with their
respective terms (except, in any case, as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally and by
general principles of equity).
SECTION 6.50 Financial Information.
The financial statements of the U.S. Borrower and its
Subsidiaries furnished to the Administrative Agent and each
Lender pursuant to Section 5.1.6 have been prepared in accordance
with GAAP consistently applied, and present fairly, in all
material respects, the consolidated financial condition of the
Persons covered thereby as at the dates thereof and the results
of their operations for the periods then ended, subject to normal
year-end adjustments. All balance sheets, all statements of
operations, shareholders' equity and cash flow and all other
financial information of each of the U.S. Borrower and its
Subsidiaries furnished pursuant to Section 7.1.1 have been and
will for periods following the Effective Date be prepared in
accordance with GAAP consistently applied, and do or will present
fairly, in all material respects, the consolidated financial
condition of the Persons covered thereby as at the dates thereof
and the results of their operations for the periods then ended,
subject to normal year-end adjustments.
SECTION 6.60 No Material Adverse Change.
There has been no material adverse change in the business,
assets, financial condition, liabilities, revenues, tax position,
debt service capacity, operations or prospects of the U.S.
Borrower and its Subsidiaries, taken as a whole, since December
31, 1999 or the U.K. Target and its Subsidiaries since December
31, 1999.
SECTION 6.70 Litigation, Labor Controversies, etc.
There is no pending or, to the knowledge of the U.S.
Borrower or any of its Subsidiaries, threatened litigation,
action, proceeding or labor controversy
(a) except as disclosed in Item 6.7 of the Disclosure
Schedule, affecting any Obligor or any of their respective
properties, businesses, assets or revenues, which could
reasonably be expected to have a Material Adverse Effect,
and no adverse development has occurred in any labor
controversy, litigation, arbitration or governmental
investigation or proceeding disclosed in Item 6.7; or
(b) which purports to affect the legality, validity or
enforceability of any Loan Document, the U.K. Transaction
Documents or U.K. Transaction.()
SECTION 6.80 Subsidiaries.
The U.S. Borrower has no Subsidiaries, except those
Subsidiaries
(a) which are identified in Item 6.8 of the Disclosure
Schedule; or
(b) which are permitted to have been organized or
acquired in accordance with Sections 7.2.5 or 7.2.9.()
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SECTION 6.90 Ownership of Properties.
The U.S. Borrower and each of its Subsidiaries owns (a) in
the case of owned real property, good and marketable fee title
to, and (b) in the case of owned personal property, good and
valid title to, or, in the case of leased real or personal
property, valid and enforceable leasehold interests (as the case
may be) in, all of its material properties and assets, real and
personal, tangible and intangible, of any nature whatsoever, free
and clear in each case of all Liens or claims, except for
Permitted Liens.
SECTION 6.100 Taxes.
The U.S. Borrower and each of its Subsidiaries has filed all
Tax returns and reports required by law to have been filed by it
and has paid all Taxes and governmental charges thereby shown to
be due and owing, except any such Taxes or charges which are
being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on its books or where the failure
to pay, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
SECTION 6.110 Pension and Welfare Plans.
During the twelve-consecutive-month period prior to the
Effective Date and prior to the date of any Credit Extension
hereunder, no steps have been taken to terminate any Pension Plan
which could be reasonably likely to result in a material
liability to any Borrower or any member of the Controlled Group,
and no contribution failure has occurred with respect to any
Pension Plan sufficient to give rise to a Lien under Section
302(f) of ERISA. No condition exists or event or transaction has
occurred with respect to any Pension Plan which might result in
the incurrence by the U.S. Borrower or any member of the
Controlled Group of any material liability, fine or penalty
which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. Neither the U.S.
Borrower nor any member of the Controlled Group has any
contingent liability with respect to any post-retirement benefit
under a Welfare Plan, other than liability for continuation
coverage described in Part 6 of Title I of ERISA other than those
which, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect. Each Foreign
Employee Benefit Plan maintained or contributed to by the
Borrowers, any Foreign Subsidiaries or any ERISA Affiliate is in
compliance with all laws, regulations and rules applicable
thereto and the respective requirements of the governing
documents for such Plan except for such failures which,
individually or in the aggregate could not reasonably be expected
to have a Material Adverse Effect. The aggregate of the
liabilities to provide all of the accrued benefits under any
Foreign Pension Plan maintained or contributed to by the
Borrowers, any Foreign Subsidiaries or any ERISA Affiliate does
not exceed the current fair market value of the assets held in
the trust or other funding vehicle for such Plan in a manner that
could reasonably be expected to have a Material Adverse Effect.
With respect to any Foreign Employee Benefit Plan maintained by
the Borrowers, any Foreign Subsidiaries or any ERISA Affiliate
(other than a Foreign Pension Plan), reasonable reserves have
been established in accordance with prudent business practice or
where required by ordinary accounting practices in the
jurisdiction in which such Plan is maintained. The aggregate
unfunded liabilities, after giving effect to any reserves for
such liabilities, with respect to such Plans are not reasonably
expected to have a Material Adverse Effect. There are no
actions, suits or claims (other than routine claims for benefits)
pending or threatened against the Borrowers, any Foreign
Subsidiaries or any ERISA Affiliate with respect to any Foreign
Employee Benefit Plan other than those which, individually or in
the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
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SECTION 6.120 Environmental Warranties.
Except as set forth in Item 6.12 of the Disclosure Schedule:
(a) all facilities and property (including underlying
groundwater) owned or leased by the U.S. Borrower or any of
its Subsidiaries have been, and continue to be, owned or
leased by the U.S. Borrower and its Subsidiaries in material
compliance with all Environmental Laws other than those
which, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect;
(b) there have been no past, and there are no pending
or threatened (i) claims, complaints, notices or requests
for information received by the U.S. Borrower or any of its
Subsidiaries with respect to any alleged violation of any
Environmental Law, or (ii) complaints, notices or inquiries
to the U.S. Borrower or any of its Subsidiaries regarding
potential liability under any Environmental Law other than
those which, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect;
(c) there have been no Releases of Hazardous Materials
at, on or under any property now or previously owned or
leased by the U.S. Borrower or any of its Subsidiaries that
have, or could reasonably be expected to have, a Material
Adverse Effect;
(d) the U.S. Borrower and its Subsidiaries have been
issued and are in material compliance with all permits,
certificates, approvals, licenses and other authorizations
relating to environmental matters except where the failure
to do so could not reasonably be expected to have a Material
Adverse Effect;
(e) no property now or previously owned or leased by
the U.S. Borrower or any of its Subsidiaries is listed or
proposed for listing (with respect to owned property only)
on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar state list of sites requiring
investigation or clean-up which may lead to any material
claims against the U.S. Borrower or any of its Subsidiaries;
(f) there are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or under
any property now or previously owned or leased by the U.S.
Borrower or any of its Subsidiaries that, singly or in the
aggregate, have, or could reasonably be expected to have, a
Material Adverse Effect;
(g) neither the U.S. Borrower nor any Subsidiary has
directly transported or directly arranged for the
transportation of any Hazardous Material to any location
which is listed or proposed for listing on the National
Priorities List pursuant to CERCLA, on the CERCLIS or on any
similar state list or which is the subject of federal, state
or local enforcement actions or other investigations which
may lead to material claims against the U.S. Borrower or
such Subsidiary for any remedial work, damage to natural
resources or personal injury, including claims under CERCLA;
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(h) there are no polychlorinated biphenyls or friable
asbestos present at any property now or previously owned or
leased by the U.S. Borrower or any Subsidiary that, singly
or in the aggregate, have, or could reasonably be expected
to have, a Material Adverse Effect; and
(i) no conditions exist at, on or under any property
now or previously owned or leased by the U.S. Borrower
which, with the passage of time, or the giving of notice or
both, would give rise to material liability under any
Environmental Law other than those that could not reasonably
be expected to have a Material Adverse Effect.()
SECTION 6.130 Accuracy of Information.
(a) None of the factual information heretofore or
contemporaneously furnished in writing to any Secured Party by or
on behalf of any Obligor in connection with any Loan Document
(including the Confidential Memorandum) or any transaction
contemplated hereby (including the U.K. Transaction), taken as a
whole, contains any untrue statement of a material fact, or omits
to state any material fact necessary to make any information not
misleading, and no other factual information hereafter furnished
in connection with any Loan Document by or on behalf of any
Obligor to any Secured Party, taken as a whole, will contain any
untrue statement of a material fact or will omit to state any
material fact necessary to make any information not misleading on
the date as of which such information is dated or certified.
(b) All written information prepared by any consultant
or professional advisor on behalf of any Borrower or any of
its Subsidiaries which was furnished to the Administrative
Agent or any Lender in connection with the preparation,
execution and delivery of this Agreement has been reviewed
by the Borrowers, and nothing has come to the attention of
the Borrowers in the context of such review which would lead
them to believe that such information (or the assumptions on
which such information is based) is not, taken as a whole,
true and correct in all material respects or that such
information, taken as a whole, omits to state any material
fact necessary to make such information not misleading in
any material respect.
(c) Insofar as any of the information described above
includes assumptions, estimates, projections or opinions,
the Borrowers have reviewed such matters and nothing has
come to the attention of the Borrowers in the context of
such review which would lead them to believe that such
assumptions, estimates, projections or opinions, omit to
state any material fact necessary to make such assumptions,
estimates, projections or opinions not reasonable or not
misleading in any material respect. All projections and
estimates have been prepared in good faith on the basis of
reasonable assumptions.()
SECTION 6.140 Regulations T, U and X.
No Obligor is engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock, and no
proceeds of any Credit Extensions will be used to purchase or
carry margin stock or otherwise for a purpose which violates, or
would be inconsistent with, F.R.S. Board Regulation T, Regulation
U or Regulation X. Terms for which meanings are provided in
F.R.S. Board Regulation T, Regulation U or Regulation X or any
regulations substituted therefor, as from time to time in effect,
are used in this Section with such meanings.
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SECTION 6.150 Year 2000.
Each Obligor successfully addressed the "Year 2000 Problem"
(that is, the risk that computer applications used by such
Obligor may be unable to recognize and properly perform date-
sensitive functions involving certain dates prior to and any date
after December 31, 1999). The Year 2000 Problem could not
reasonably be expected to have a Material Adverse Effect.
SECTION 6.160 Solvency.
The U.K. Transaction (including the incurrence of the Credit
Extension hereunder, the execution and delivery by the Subsidiary
Guarantors of the U.K. Subsidiary Guaranty and the granting of
any Liens as security therefor) will not involve or result in any
fraudulent transfer or fraudulent conveyance under the provisions
of Section 548 of the Bankruptcy Code (11 U.S.C. 101 et seq., as
from time to time hereafter amended, and any successor or similar
statute) or any applicable state law relating to fraudulent
transfers or fraudulent conveyances. After giving effect to each
Credit Extension hereunder, each Borrower and each Guarantor is
Solvent.
SECTION 6.170 Shell Status.
On and prior to the U.K. Closing Date, U.K. Acquisitions
will not have engaged in any business or incurred any
Indebtedness or any other liability other than the Obligations
and in connection with the U.K. Transaction.
SECTION 6.180 Compliance with Laws.
The U.K. Offer complies in all material respects with all
applicable legal requirements and the execution and delivery by
U.K. Acquisitions of the U.K. Offer Materials, and the
consummation of the U.K. Offer will not violate any statute or
regulation of the United States, the United Kingdom or of any
state, province or other applicable jurisdiction, or any order,
judgment or decree of any court or governmental body, or result
in a breach of, or constitute a default under, any material
agreement or indenture, or any order or decree, affecting U.K.
Holdings, any Borrower, the U.K. Target or any of its
Subsidiaries (including any entity which will be a Subsidiary
after giving effect to the U.K. Offer), except to the extent such
violations, breaches and defaults will not have a Material
Adverse Effect or materially adversely affect the value of U.K.
Target.
SECTION 6.190 No Contractual or Other Restrictions.
No Subsidiary, other than those listed in Item 6.19 of the
Disclosure Schedule, is a party to any agreement or arrangement
or subject to any law, rule, regulation or decision that limits
its ability to pay dividends to, or otherwise make Investments in
or other payments to, the U.S. Borrower or that limits its
ability to grant Liens solely in favor of the Administrative
Agent.
SECTION 6.200 Absence of any Undisclosed Liabilities.
There are no material liabilities of the U.S. Borrower or
any of its Subsidiaries of any kind whatsoever, whether accrued,
contingent, absolute, determined, determinable or otherwise, and
there is no existing condition, situation or set of circumstances
which could reasonably be expected to result in such a liability,
other than those liabilities provided for or disclosed in the
most recently delivered financial statements or pursuant to
public filings with SEC.
SECTION 6.210 Labor Relations.
To the best of each Borrower's knowledge, neither such
Borrower nor any of its Subsidiaries is engaged in any unfair
labor practice that could reasonably be expected to have a
Material Adverse Effect and there is (a) no unfair labor practice
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complaint pending against such Borrower or any Subsidiary or
threatened against any of them, before the National Labor
Relations Board, and no material grievance or arbitration
proceeding arising out of or under any collective bargaining
agreement is so pending against such Borrower or any Subsidiary
or threatened against any of them, (b) no strike, labor dispute,
slow down or stoppage pending against such Borrower or any
Subsidiary or threatened against such Borrower or any Subsidiary,
and (c) no union representation proceeding is pending with
respect to the employees of such Borrower or any Subsidiary,
except (with respect to any matter specified in clause (a), (b)
or (c) above, either individually or in the aggregate) such as
could not reasonably be expected to have a Material Adverse
Effect.
SECTION 6.220 Announcement and Offer Document.
The Announcement and the U.K. Offer Materials delivered to
the Lenders pursuant to Section 5.1.8 constitute the Announcement
and the U.K. Offer Materials as in effect on the U.K. Closing
Date.
ARTICLE VII
COVENANTS
SECTION 7.10 Affirmative Covenants.
The Borrowers agree with each of the Secured Parties that
until the Termination Date has occurred, the Borrowers will, and
will cause their respective Subsidiaries to, perform or cause to
be performed the obligations set forth below.
SECTION 7.1.1 Financial Information, Reports, Notices,
etc.
The Borrowers will furnish, or cause to be furnished, to the
Administrative Agent (with sufficient copies for each Lender)
copies of the following financial statements, reports, notices
and information:
(a) as soon as available and in any event within 50
days after the end of each of the first three Fiscal
Quarters of each Fiscal Year, an unaudited consolidated and
consolidating balance sheet of the U.S. Borrower and its
Subsidiaries as of the end of such Fiscal Quarter and
consolidated statements of income and cash flow of the U.S.
Borrower and its Subsidiaries for such Fiscal Quarter and
for the period commencing at the end of the previous Fiscal
Year and ending with the end of such Fiscal Quarter, and
including (in each case), in comparative form the figures
for the corresponding Fiscal Quarter in, and year to date
portion of, the immediately preceding Fiscal Year, certified
by the chief financial or accounting Authorized Officer of
the U.S. Borrower to present fairly, complete and correct in
all material respects the financial condition of the U.S.
Borrower, subject to normal year-end adjustments;
(b) as soon as available and in any event within 90
days after the end of each Fiscal Year, a copy of the
consolidated and consolidating balance sheet of the U.S.
Borrower and its Subsidiaries, and the related consolidated
statements of income and cash flow of the U.S. Borrower and
its Subsidiaries for such Fiscal Year, setting forth in
comparative form the figures for the immediately preceding
Fiscal Year, audited (without any Impermissible
Qualification) by independent public accountants acceptable
to the Administrative Agent stating that, in performing the
examination necessary to deliver the audited financial
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statements of the U.S. Borrower, no knowledge was obtained
of any Default or Event of Default;
(c) concurrently with the delivery of the financial
information pursuant to clauses (a) and (b), a Compliance
Certificate, executed by the chief financial or accounting
Authorized Officer of the U.S. Borrower, showing compliance
with the financial covenant set forth in Section 7.2.4 and
stating that no Default has occurred and is continuing (or,
if a Default has occurred, specifying the details of such
Default and the action that the U.S. Borrower or an Obligor
has taken or proposes to take with respect thereto);
(d) as soon as possible and in any event within three
days after any officer of the U.S. Borrower or any other
Obligor obtains knowledge of the occurrence of a Default, a
statement of an Authorized Officer of the U.S. Borrower
setting forth details of such Default and the action which
the U.S. Borrower or such Obligor has taken and proposes to
take with respect thereto;
(e) as soon as possible and in any event within three
days after the U.S. Borrower or any other Obligor obtains
knowledge of (i) the occurrence of any material adverse
development with respect to any litigation, action,
proceeding or labor controversy described in Item 6.7 of the
Disclosure Schedule or (ii) the commencement of any
litigation, action, proceeding or labor controversy of the
type and materiality described in Section 6.7, notice
thereof and, to the extent the Administrative Agent
requests, copies of all documentation relating thereto;
(f) promptly after the sending or filing thereof,
copies of all reports, notices, prospectuses and
registration statements which any Obligor files with the SEC
or any national securities exchange;
(g) immediately upon becoming aware of (i) the
institution of any steps by any Person to terminate any
Pension Plan, (ii) the failure to make a required
contribution to any Pension Plan if such failure is
sufficient to give rise to a Lien under Section 302(f) of
ERISA, (iii) the taking of any action with respect to a
Pension Plan which could result in the requirement that any
Obligor furnish a bond or other security to the PBGC or such
Pension Plan, or (iv) the occurrence of any event with
respect to any Pension Plan which could result in the
incurrence by any Obligor of any material liability, fine or
penalty, notice thereof and copies of all documentation
relating thereto;
(h) promptly upon receipt thereof, copies of all
"management letters" submitted to the U.S. Borrower or any
other Obligor by the independent public accountants referred
to in clause (b) in connection with each audit made by such
accountants;
(i) promptly following the mailing or receipt of any
notice or report delivered under the terms of the Senior
Notes or any Subordinated Debt, copies of such notice or
report; and
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(j) promptly upon notice thereof, notice of any change
in any of the U.S. Borrower's ratings by S&P or Moody's; and
(k) such other financial and other information as any
Lender or the Issuer through the Administrative Agent may
from time to time reasonably request (including information
and reports in such detail as the Administrative Agent may
request with respect to the terms of and information
provided pursuant to the Compliance Certificate).()
SECTION 7.1.2 Maintenance of Existence; Compliance with
Laws, etc.
Each Borrower will, and will cause each of its respective
Subsidiaries to,
(a) except as otherwise permitted by Section 7.2.10 or
where such Subsidiary is an Immaterial Subsidiary, preserve
and maintain its legal existence; and
(b) comply in all material respects with all
applicable laws, rules, regulations and orders, including
the payment (before the same become delinquent) of all
material Taxes imposed upon such Borrower or any Subsidiary
or upon their property except to the extent being diligently
contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP have been
set aside on the books of such Borrower or any such
Subsidiary, as applicable.()
SECTION 7.1.3 Maintenance of Properties.
Each Borrower will, and will cause each of its respective
Subsidiaries to, maintain, preserve, protect and keep its and
their respective properties in good repair, working order and
condition (ordinary wear and tear excepted), and make necessary
repairs, renewals and replacements so that the business carried
on by such Borrower and its Subsidiaries may be properly
conducted at all times, unless (a) such Borrower or such
Subsidiary determines that the continued maintenance of such
property is no longer economically desirable or (b) where the
failure to do so could not reasonably be expected to have a
Material Adverse Effect.
SECTION 7.1.4 Insurance.
Each Borrower will, and will cause each of its respective
Subsidiaries to:
(a) maintain insurance on its property with
financially sound and reputable insurance companies against
loss and damage in at least the amounts (and with only those
deductibles) customarily maintained, and against such risks
as are typically insured against in the same general area,
by Persons of comparable size engaged in the same or similar
business as such Borrower and its Subsidiaries and
consistent with prior practices; and
(b) all worker's compensation, employer's liability
insurance or similar insurance as may be required under the
laws of any state or jurisdiction in which it may be engaged
in business.
SECTION 7.1.5 Books and Records.
Each Borrower will, and will cause each of its respective
Subsidiaries to, keep books and records in accordance with GAAP
which accurately reflect all of its business affairs and
transactions and permit each Secured Party or any of its
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representatives, at reasonable times and intervals upon
reasonable notice to such Borrower, to visit each Obligor's
offices, to discuss such Obligor's financial matters with its
officers and employees, and its independent public accountants
(and such Borrower hereby authorizes such independent public
accountant to discuss each Obligor's financial matters with each
Secured Party or its representatives whether or not any
representative of such Obligor is present) and to examine (and
photocopy extracts from) any of such Obligor's books and records.
The Borrowers shall pay any fees of such independent public
accountant incurred in connection with (a) the Administrative
Agent's reasonable exercise of its rights pursuant to this
Section or (b) if a Default has occurred and is continuing, such
Secured Party's exercise of its rights pursuant to this Section.
SECTION 7.1.6 Environmental Law Covenant.
Each Borrower will, and will cause each of its respective
Subsidiaries to,
(a) use and operate all of its and their facilities
and properties in material compliance with all Environmental
Laws, keep all necessary permits, approvals, certificates,
licenses and other authorizations relating to environmental
matters in effect and remain in material compliance
therewith, and handle all Hazardous Materials in material
compliance with all applicable Environmental Laws except in
each case where the failure to do so could not reasonably be
expected to have a Material Adverse Effect;
(b) promptly notify the Administrative Agent and
provide copies upon receipt of all written claims,
complaints, notices or inquiries relating to the condition
of its facilities and properties in respect of, or as to
compliance with, Environmental Laws, and shall promptly
resolve any non-compliance with Environmental Laws and keep
its property free of any Lien imposed by any Environmental
Law except in each case where the failure to do so could not
reasonably be expected to have a Material Adverse Effect;
and
(c) provide such information and certifications which
the Administrative Agent may reasonably request from time to
time to evidence compliance with this Section 7.1.6.
SECTION 7.1.7 Use of Proceeds.
The Borrowers will apply the proceeds of the Credit
Extensions to (a) acquire U.K. Ordinary Shares, (b) pay fees and
expenses related to the U.K. Transaction, (c) acquire the
Shorewood Shares, in an approximate amount of $71,000,000 and (d)
provide for working capital and general corporate purposes of the
U.S. Borrower and its Subsidiaries, including Capital
Expenditures and Permitted Acquisitions by such Persons and issue
Letters of Credit for the account of the U.S. Borrower and its
Subsidiaries. The Borrowers may use the proceeds of Credit
Extensions in an amount not to exceed $50,000,000 solely in order
to consummate the U.K. Refinancing on or prior to March 23, 2000.
SECTION 7.1.8 Future Collateral.
(a) As soon as reasonably possible, but in no event
later than the six week anniversary of the U.K. Closing Date, the
Administrative Agent shall have received a first-priority pledge
on 100% of the Capital Securities of the U.K. Target, U.K.
Acquisitions and U.K. Acquisitions I.
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(b) On the four month anniversary of the U.K. Closing
Date, each Borrower will, and will cause (i) each U.S.
Subsidiary that is not an Inactive Subsidiary to execute the
Subsidiary Guaranty, (ii) each U.K. Subsidiary that is not
an Inactive Subsidiary or a Borrower to execute the U.K.
Subsidiary Guaranty and (iii) the Administrative Agent to
have a first-priority pledge on the Capital Securities and
intercompany Indebtedness of each Subsidiary of the
Borrowers that are not Inactive Subsidiaries or a Borrower
provided, that neither the U.S. Borrower nor its
Subsidiaries shall be required to pledge more than 65% of
the Voting Securities of any Foreign Subsidiary, unless such
Subsidiary is a U.K. Obligor and such pledge is to secure
the U.K. Obligations, in which case the U.S. Borrower or
such Subsidiary shall pledge 100% of such Voting Securities.
(c) The Borrowers will take all further action that
may be required under applicable law, or that the
Administrative Agent may reasonably request, in order to
effectuate the transactions contemplated by the Loan
Documents and in order to grant, preserve, protect and
perfect the validity and first priority of the Liens created
or intended to be created by the Loan Documents.
(d) Following the four month anniversary of the U.K.
Closing Date each Borrower will cause any subsequently
acquired or organized Subsidiary to execute the U.K.
Subsidiary Guaranty (or a supplement thereto) or the
Subsidiary Guaranty, as applicable, and each applicable Loan
Document in favor of the Secured Parties.
(e) Each Lien will be created under the Loan Documents
in form and substance satisfactory to the Administrative
Agent, and the applicable Borrower shall deliver, or cause
to be delivered, to the Lenders all such instruments and
documents (including legal opinions, lien searches and
documents similar to those delivered pursuant to Section
5.1.1) as the Administrative Agent shall reasonably request
to evidence compliance with this Section.
SECTION 7.1.9 Delivery of Shares of the U.K. Target.
U.K. Acquisitions shall, as promptly as possible after the
U.K. Success Date, deliver or cause to be delivered to the
Administrative Agent pursuant to the U.K. Acquisitions II Pledge
Agreement, certificates in respect of all U.K. Target Shares
acquired by it, whether pursuant to the U.K. Offer or otherwise,
together with customary stock transfer forms duly executed in
blank.
SECTION 7.1.10 Covenants Relating to the Conduct of the
U.K. Target and its Subsidiaries after the U.K. Success Date.
U.K. Acquisitions hereby covenants and undertakes with the
Administrative Agent and the Lenders that (a) as soon as
practicable within the provisions of the Companies (Northern
Ireland) Order 1986, it shall serve a notice under Article 421 of
the Companies (Northern Ireland) Order 1986 or, if it has failed
to acquire the requisite number of shares within the requisite
period applicable under Articles 421 to 423 of the Companies
(Northern Ireland) Order 1986 or if such notice is set aside by a
Governmental Authority or if the service of a notice under
Article 421 of the Companies (Northern Ireland) Order 1986 is not
practicable within the time limits set out therein, U.K.
Acquisitions shall immediately discuss with the Lenders whether
or not to propose a compromise or arrangement between the U.K.
Target and its shareholders under Article 418 of the Companies
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(Northern Ireland) Order 1986 or make such other proposal for
acquiring the U.K. Target Shares not then held by U.K.
Acquisitions as U.K. Acquisitions shall determine with the
agreement of the Lenders (such agreement and approval not to be
unreasonably withheld) and (b) it shall not, and shall cause the
U.K. Target (and its Subsidiaries) not to, alter its accounting
reference period without first notifying the Administrative Agent
and the Lenders.
SECTION 7.1.11 Foreign Employee Benefit Plan Compliance.
The Borrowers shall cause each of its Foreign Subsidiaries
and ERISA Affiliates to establish, maintain and operate all
Foreign Employee Benefit Plans (other than government-sponsored
plans) in compliance in all material respects with all laws,
regulations and rules applicable thereto and the respective
requirements of the governing documents for such plans, except
where the failure to do so could not reasonably be expected to
have a Material Adverse Effect.
SECTION 7.20 Negative Covenants.
The Borrowers covenant and agree with each Secured Party
that until the Termination Date has occurred, the Borrowers will,
and will cause each of their respective Subsidiaries to, perform
or cause to be performed the obligations set forth below.
SECTION 7.2.1 Business Activities.
The U.S. Borrower will not, and will not permit any of its
Subsidiaries to, engage in any business activity except those
business activities in which the U.S. Borrower and its
Subsidiaries are engaged on the Effective Date and activities
reasonably incidental thereto, provided, however, that prior to
the U.K. Acquisition, U.K. Acquisitions will not (a) except in
connection with the consummation of the U.K. Offer, or as
required hereunder or under any other Loan Document, engage in
any business activity or employ any employees, (b) except for
reasonable costs and expenses incurred in connection with the
U.K. Offer or open market purchases of U.K. Ordinary Shares,
enter into, or cause, suffer or permit to exist any transaction,
arrangement or contract with any Person (including any Affiliate)
requiring any payment to be made by U.K. Acquisitions, or (c)
create or hold any Subsidiary other than the U.K. Target.
SECTION 7.2.2 Indebtedness.
The Borrowers will not, and will not permit any of their
respective Subsidiaries to, create, incur, assume or permit to
exist any Indebtedness, other than, without duplication:
(a) Indebtedness in respect of the Obligations;
(b) until thirty days following the U.K. Closing Date,
Indebtedness of U.K. Target that is to be repaid in full as
further identified in Item 7.2.2(b) of the Disclosure
Schedule, unless repayments of such Indebtedness are
extended beyond the Stated Maturity Date on terms and
conditions satisfactory to the Administrative Agent;
(c) Indebtedness existing as of the Effective Date
(other than the Senior Notes) which is identified in Item
7.2.2(c) of the Disclosure Schedule, and refinancing of such
Indebtedness on No Less Favorable Terms and Conditions;
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(d) unsecured Indebtedness (i) incurred in the
ordinary course of business of the U.S. Borrower and its
Subsidiaries (including open accounts extended by suppliers
on normal trade terms in connection with purchases of goods
and services which are not overdue for a period of more than
90 days or, if overdue for more than 90 days, as to which a
dispute exists and adequate reserves in conformity with GAAP
have been established on the books of the U.S. Borrower or
such Subsidiary) and (ii) in respect of performance, surety
or appeal bonds provided in the ordinary course of business,
but excluding (in each case), Indebtedness incurred through
the borrowing of money or Contingent Liabilities in respect
thereof;
(e) Indebtedness (i) in respect of industrial revenue
bonds or other similar governmental or municipal bonds, (ii)
evidencing the deferred purchase price of newly acquired
property or incurred to finance the acquisition of equipment
of the U.S. Borrower and its Subsidiaries (pursuant to
purchase money mortgages or otherwise, whether owed to the
seller or a third party) used in the ordinary course of
business of the Borrower and its Subsidiaries (provided,
that such Indebtedness is incurred within 60 days of the
acquisition of such property) and (iii) Capitalized Lease
Liabilities; provided, that the aggregate amount of all
Indebtedness outstanding pursuant to this clause shall not
at any time exceed $5,000,000;
(f) Indebtedness of the U.S. Borrower or any
Subsidiary owing to the U.S. Borrower or any other
Subsidiary, which Indebtedness
(i) shall, if payable to the U.S. Borrower or a
U.S. Subsidiary, be evidenced by one or more promissory
notes and shall not be forgiven or otherwise discharged
for any consideration other than payment in full or in
part in cash (provided, that only the amount repaid in
part shall be discharged);
(ii) if incurred by a Foreign Subsidiary (that is
not a Borrower) owing to any Borrower or a Subsidiary
Guarantor, shall not (when aggregated with the amount
of Investments made by such Borrower and the Subsidiary
Guarantors in Foreign Subsidiaries under clause (e)(i)
of Section 7.2.5), exceed $50,000,000; and
(g) unsecured subordinated Indebtedness (not evidenced
by a note or other instrument) of any Borrower owing to a
Subsidiary;
(h) Indebtedness in respect of the Loan Notes;
(i) Indebtedness of the U.S. Borrower in respect of
the Senior Notes;
(j) Indebtedness of a Person existing at the time such
Person became a Subsidiary of the U.S. Borrower in an amount
not to exceed the Disposable Amount, but only to the extent
that such Indebtedness was not created or incurred in
contemplation of such Person becoming a Subsidiary;
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(k) Indebtedness of the Person acquired pursuant to
the Pea Soup Acquisition existing at the time such Person
became a Subsidiary of the U.S. Borrower, but only to the
extent that such Indebtedness was not created or incurred in
contemplation of the Pea Soup Acquisition;
(l) other unsecured Indebtedness of the Subsidiaries
(other than Indebtedness of Foreign Subsidiaries owing to
the U.S. Borrower or U.S. Subsidiaries) in an aggregate
amount at any time outstanding not to exceed the Dollar
Equivalent of $50,000,000, for the purposes of maintaining
working capital;
(m) Subordinated Debt of the U.S. Borrower and its
Subsidiaries;
(n) other unsecured Indebtedness of any Borrower in an
aggregate amount at any time outstanding not to exceed
$25,000,000;
provided, however, that no Indebtedness otherwise permitted by
clause (e), (f)(ii), (h), (k) or (l) shall be assumed or
otherwise incurred if a Default has occurred and is then
continuing or would result therefrom.
SECTION 7.2.3 Liens.
The Borrowers will not, and will not permit any of their
respective Subsidiaries to, create, incur, assume or permit to
exist any Lien upon any of its property (including Capital
Securities of any Person), revenues or assets, whether now owned
or hereafter acquired, except (collectively, the "Permitted
Liens"):
(a) Liens securing payment of the Obligations;
(b) (i) until thirty days following the U.K. Closing
Date, Liens securing payment of Indebtedness of the type
described in clause (b) of Section 7.2.2; and (ii) other
Liens existing on the U.K. Closing Date and securing
Indebtedness in an aggregate amount not exceeding
$5,000,000;
(c) Liens existing as of the Effective Date and
disclosed in Item 7.2.3(c) of the Disclosure Schedule
securing Indebtedness described in clause (c) of Section
7.2.2, and refinancings of such Indebtedness on No Less
Favorable Terms and Conditions; provided, that no such Lien
shall encumber any additional property and the amount of
Indebtedness secured by such Lien is not increased from that
existing on the Effective Date (as such Indebtedness may
have been permanently reduced subsequent to the Effective
Date);
(d) Liens securing Indebtedness of the type permitted
under clause (e) of Section 7.2.2; provided, that (i) such
Lien is granted within 60 days after such Indebtedness is
incurred, (ii) the Indebtedness secured thereby does not
exceed 80% of the lesser of the cost or the fair market
value of the applicable property, improvements or equipment
at the time of such acquisition (or construction) and (iii)
such Lien secures only the assets that are the subject of
the Indebtedness referred to in such clause;
(e) Liens in favor of carriers, warehousemen,
mechanics, materialmen and landlords granted in the ordinary
course of business for amounts not overdue or being
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diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books;
(f) Liens incurred or deposits made in the ordinary
course of business in connection with worker's compensation,
unemployment insurance or other forms of governmental
insurance or benefits, or to secure performance of tenders,
statutory obligations, bids, leases or other similar
obligations (other than for borrowed money) entered into in
the ordinary course of business or to secure obligations on
surety and appeal bonds or performance bonds;
(g) judgment Liens in existence for less than 45 days
after the entry thereof or with respect to which execution
has been stayed or the payment of which is covered in full
(subject to a customary deductible) by insurance maintained
with responsible insurance companies and which do not
otherwise result in an Event of Default under Section 8.1.6;
(h) easements, rights-of-way, zoning restrictions,
minor defects or irregularities in title and other similar
encumbrances not interfering in any material respect with
the value or use of the property to which such Lien is
attached;
(i) Liens for Taxes, assessments or other governmental
charges or levies not at the time delinquent or thereafter
payable without penalty or being diligently contested in
good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside
on its books;
(j) Liens securing the Senior Notes Obligations
secured ratably and equally with the Obligations pursuant to
a collateral sharing agreement;
(k) other Liens securing Indebtedness in an aggregate
amount not exceeding $1,000,000 following the U.K. Closing
Date.
SECTION 7.2.4 Financial Condition and Operations.
The U.S. Borrower will not permit its Net Worth at any time
to be less than $500,000,000.
SECTION 7.2.5 Investments.
The Borrowers will not, and will not permit any of their
respective Subsidiaries to, purchase, make, incur, assume or
permit to exist any Investment in any other Person, except:
(a) Investments existing on the Effective Date and
identified in Item 7.2.5(a) of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) Investments received in connection with the
bankruptcy or reorganization of, or settlement of delinquent
accounts and disputes with, customers and suppliers, in each
case in the ordinary course of business;
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(d) Investments permitted as Capital Expenditures
pursuant to Section 7.2.7;
(e) Investments by way of loans, contributions to
capital or purchases of Capital Securities (i) by the U.S.
Borrower in any Subsidiaries or by any Subsidiary in other
Subsidiaries; provided, that the aggregate amount of
intercompany loans made pursuant to clause (f)(ii) of
Section 7.2.2 and Investments under this clause made by the
U.S. Borrower and Subsidiary Guarantors in Foreign
Subsidiaries other than a Borrower shall not exceed
$10,000,000 at any time, (ii) by any Subsidiary in the U.S.
Borrower or (iii) by the U.S. Borrower in Subsidiaries
organized and existing under the laws of France in an amount
not to exceed $17,000,000 over the term of this Agreement;
(f) Investments constituting (i) accounts receivable
arising, (ii) trade debt granted, or (iii) deposits made in
connection with the purchase price of goods or services, in
each case in the ordinary course of business;
(g) Investments consisting of any deferred portion of
the sales price received by the U.S. Borrower or any
Subsidiary in connection with any Disposition permitted
under Section 7.2.10;
(h) Investments constituting the Pea Soup Acquisition;
(i) Investments in Color-Box LLC;
(j) other Investments in an amount not to exceed the
Disposable Amount over the term of this Agreement;
(k) Investments in U.K. Ordinary Shares and the
Shorewood Shares; and
(l) Investments by way of the acquisition of Capital
Securities constituting Permitted Acquisitions; provided,
that (i) such Investments shall result in the acquisition of
a wholly owned Subsidiary and (ii) upon making such
Investments, the provisions of Section 7.1.8 are complied
with;
provided, however, that
(m) any Investment which when made complies with the
requirements of clause (a), (b) or (c) of the definition of
the term "Cash Equivalent Investment" may continue to be
held notwithstanding that such Investment if made thereafter
would not comply with such requirements; and
(n) no Investment otherwise permitted by clause (d),
(e)(i), (g) or (l) shall be permitted to be made if any
Default has occurred and is continuing or would result
therefrom.
SECTION 7.2.6 Restricted Payments, etc.
The Borrowers will not, and will not permit any of their
respective Subsidiaries to, declare or make a Restricted Payment,
or make any deposit for any Restricted Payment, other than
Restricted Payments made by Subsidiaries to the Borrowers or
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wholly owned Subsidiaries other than so long as no Default has
occurred and continuing, the Borrowers or their respective
Subsidiaries, as the case may be, may (a) pay dividends on
Capital Securities of the U.S. Borrower in an amount consistent
with prior practices (provided, that, in any event, such amount
shall not exceed $20,000,000 in any Fiscal Year) and (b)
repurchase or redeem Capital Securities of any Borrower in an
amount not to exceed the Disposable Amount in any Fiscal Year.
SECTION 7.2.7 Capital Expenditures, etc.
Subject (in the case of Capitalized Lease Liabilities) to
clause (e) of Section 7.2.2, the Borrowers will not, and will not
permit any of their respective Subsidiaries to, make or commit to
make Capital Expenditures (excluding Permitted Acquisitions) in
any Fiscal Year in excess of $65,000,000 over the term of this
Agreement.
SECTION 7.2.8 Capital Securities of Subsidiaries.
The U.S. Borrower will not permit any of its Subsidiaries
to, (a) issue any Capital Securities (whether for value or
otherwise) to any Person other than the U.S. Borrower or another
wholly-owned Subsidiary of the U.S. Borrower or (b) become liable
in respect of any obligation (contingent or otherwise) to
purchase, redeem, retire, acquire or make any other payment in
respect of any Capital Securities of such Subsidiary or any
option, warrant or other right to acquire any such Capital
Securities, except in connection with the U.K. Acquisition.
SECTION 7.2.9 Consolidation, Merger, etc.
The Borrowers will not, and will not permit any of their
respective Subsidiaries to Merge, except any Subsidiary may Merge
with and into, the U.S. Borrower or any other Subsidiary
(provided, however, that a Subsidiary Guarantor may only Merge
with and into, the U.S. Borrower or another Subsidiary
Guarantor), and the assets or Capital Securities of any
Subsidiary may be purchased or otherwise acquired by the U.S.
Borrower or any other Subsidiary (provided, however, that the
assets or Capital Securities of any Subsidiary Guarantor may only
be purchased or otherwise acquired by the U.S. Borrower or
another Subsidiary Guarantor); provided, further, that in no
event shall any Pledged Subsidiary Merge with and into any
Subsidiary other than another Pledged Subsidiary unless after
giving effect thereto, the Administrative Agent shall have a
perfected pledge of, and security interest in and to, at least
the same percentage of the issued and outstanding interests of
Capital Securities (on a fully diluted basis) of the surviving
Person as the Administrative Agent had immediately prior to such
Merger in form and substance satisfactory to the Administrative
Agent and its counsel, pursuant to such documentation and
opinions as shall be necessary in the opinion of the
Administrative Agent to create, perfect or maintain the
collateral position of the Secured Parties therein.
SECTION 7.2.10 Permitted Dispositions.
The Borrowers will not, and will not permit any of their
respective Subsidiaries to, Dispose of any of such Borrower's or
such Subsidiaries' assets (including accounts receivable and
Capital Securities of Subsidiaries) to any Person in one
transaction or series of transactions unless such Disposition is
either (a) inventory Disposed of in the ordinary course of its
business, (b) obsolete or worn out property, (c) permitted by
Section 7.2.9, (d) a Disposition by the U.S. Borrower or any of
its Subsidiaries of such assets: (i) is for fair market value and
the consideration consists of no less than 80% in cash (other
than assets Disposed in an aggregate amount not to exceed the
Dollar Equivalent of $5,000,000 since the Effective Date), (ii)
the Net Disposition Proceeds received from such assets, together
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with the Net Disposition Proceeds of all other assets Disposed of
pursuant to this clause since the Effective Date, does not exceed
(individually or in the aggregate) the Dollar Equivalent of
$5,000,000 over the term of this Agreement and (iii) an amount
equal to the Net Disposition Proceeds generated from such
Disposition is applied to prepay the Loans pursuant to the terms
of Sections 3.1.1 and 3.1.2, (e) a Disposition of assets not in
the ordinary course of business in an amount not to exceed
$500,000 in any one Disposition or in an amount not to exceed
$1,000,000 in the aggregate in any Fiscal Year, or (f) a
Disposition of the Timberlands, such Disposition to be on terms
and conditions reasonably satisfactory to the Administrative
Agent.
SECTION 7.2.11 Modification of Certain Agreements.
The Borrowers will not consent to or enter into any
amendment, supplement or other modification of any of the terms
or provisions contained in, or applicable to, (a) any Sub Debt
Documents, other than any amendment, supplement, waiver or
modification for which no fee is payable to the holders of the
Subordinated Debt and which (i) extends the date or reduces the
amount of any required repayment, prepayment or redemption of the
principal of such Subordinated Debt, (ii) reduces the rate or
extends the date for payment of the interest, premium (if any) or
fees payable on such Subordinated Debt or (iii) makes the
covenants, events of default or remedies in such Sub Debt
Documents less restrictive on such Borrower, (b) any U.K.
Transaction Document, (c) the Sharing Agreements, (d) the Georgia-
Pacific Indemnity, or (e) the Senior Notes Documents.
SECTION 7.2.12 Transactions with Affiliates.
Other than with respect to intercompany transactions among
the Borrowers and the Subsidiary Guarantors that could not in any
way adversely affect the Secured Parties, the Borrowers will not,
and will not permit any of their respective Subsidiaries to,
enter into or cause or permit to exist any arrangement,
transaction or contract (including for the purchase, lease or
exchange of property or the rendering of services) with any of
its other Affiliates, unless such arrangement, transaction or
contract is (a) on fair and reasonable terms no less favorable to
such Borrower or such Subsidiary than it could obtain in an arm's-
length transaction with a Person that is not an Affiliate and (b)
of the kind which would be entered into by a prudent Person in
the position of such Borrower or such Subsidiary with a Person
that is not one of its Affiliates.
SECTION 7.2.13 Restrictive Agreements, etc.
The Borrowers will not, and will not permit any of their
respective Subsidiaries to, enter into any agreement prohibiting
(a) the creation or assumption of any Lien upon its
properties, revenues or assets, whether now owned or
hereafter acquired;
(b) the ability of any Obligor to amend or otherwise
modify any Loan Document; or
(c) the ability of any Subsidiary to make any
payments, directly or indirectly, to any Borrower, including
by way of dividends, advances, repayments of loans,
reimbursements of management and other intercompany charges,
expenses and accruals or other returns on investments.
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The foregoing prohibitions shall not apply to restrictions
contained (i) in any Loan Document, (ii) in the case of clause
(a), any agreement governing any Indebtedness permitted by clause
(e) of Section 7.2.2 as to the assets financed with the proceeds
of such Indebtedness, or (iii) in the case of clauses (a) and
(c), any agreement of a Foreign Subsidiary governing the
Indebtedness permitted by clause (f)(ii) of Section 7.2.2.
SECTION 7.2.14 Amendment of Organic Documents.
The Borrowers will not, and will not permit any of their
respective Subsidiaries to, amend, supplement or otherwise
modify, or permit, consent or suffer to occur any amendment,
supplement or modification of any terms or provisions contained
in, or applicable to, any Organic Document of such Borrower or
such Subsidiary if the effect thereof is to impair, or is in any
manner adverse to, the rights, interests or obligations of any
Secured Party under any Loan Document.
SECTION 7.2.15 Change of Control Affecting Indebtedness of
the U.K. Target.
If, following the change of control of the U.K. Target
arising as a result of such Offer becoming or being declared
wholly unconditional in all respects, any existing lender to the
U.K. Target exercises or is capable of exercising its right to
require repayment of any Indebtedness or its right to terminate
any facility or to require additional security or other similar
rights, the applicable Borrower shall, and shall procure that the
U.K. Target shall notify the Administrative Agent and the Lenders
stating the details of the Indebtedness or facility including the
provisions giving rise to such a right and any existing security
in respect of such Indebtedness or facility (together with a copy
of the relevant loan or facility agreement and security
documentation) and unless the Lenders give their prior written
consent, the U.S. Borrower, the applicable Borrower and the U.K.
Target (and its Subsidiaries) shall:
(a) commence negotiations with the relevant lender for
the continuation of such borrowing or facility; and
(b) keep the Administrative Agent and the Lenders
fully informed of the progress of such negotiations.
SECTION 7.2.16 Covenants Relating to the Conduct of the
U.K. Offer.
The Borrower hereby covenants and undertakes with the
Administrative Agent, the Loan Note Guarantor and the Lenders
that it shall:
(a) not (i) make extensions to the U.K. Offer beyond
the 81st day after the date of such U.K. Offer unless such
U.K. Offer has become unconditional in all respects, without
the prior written consent of the Required Lenders and the
Administrative Agent (not to be unreasonably withheld or
delayed), nor (ii) make any material variation, revision,
amendment or supplement to the terms and conditions of the
U.K. Offer, the Announcement or the U.K. Offer Document
without the prior written consent of the Required Lenders
and the Administrative Agent (not to be unreasonably
withheld or delayed);
(b) ensure that, prior to publication, all publicity
material, press releases and announcements intended to be
published in relation to the U.K. Offer or the U.K. Offer
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Document by or on behalf of the Borrower shall insofar as it
refers to the Lenders or the financing of the U.K. Offer be
approved by the Required Lenders and the Administrative
Agent in writing (such consent not to be unreasonably
withheld or delayed), provided that (i) the Required Lenders
and the Administrative Agent shall not withhold their
consent to the making of any announcement required to be
made to comply with the U.K. City Code or the rules and
regulations of the Stock Exchange and (ii) it is understood
and agreed that the U.K. Offer Document and the Announcement
dated the date hereof have been approved by the Lenders;
(c) at all times conduct the U.K. Offer in accordance
with all applicable laws and regulations (including the
provisions of the Companies Act 1985, the U.K. City Code and
the rules and regulations of the Stock Exchange);
(d) procure that its financial advisers keep the
Administrative Agent and the Lenders informed as to material
developments relating to the U.K. Offer; and
(e) make full written disclosure to the Administrative
Agent and the Lenders, immediately upon becoming aware
thereof, of all information coming to the attention of U.K.
Holdings, the Borrower or the Parent or any Subsidiary of
U.K. Holdings, the Borrower or the Parent (i) which is
material to the U.K. Offer; or (ii) which is material to the
decision whether to waive any term and condition of the U.K.
Offer Document which will not be satisfied or will be
required to be waived, on or before the Success Date.
SECTION 7.2.17 Changes to Fiscal Year.
The Borrowers will not, and will not permit any of their
respective Subsidiaries to, change its Fiscal Year.
SECTION 7.2.18 No Prepayment of Subordinated Debt.
The Borrowers will not, and will not permit any of their
respective Subsidiaries to,
(a) make any payment or prepayment of principal of, or
premium or interest (including cash interest) on, any
Subordinated Debt (i) other than the stated, scheduled date
for payment of interest set forth on the date hereof in the
applicable Sub Debt Documents or (ii) which would violate
the terms of this Agreement or the applicable Sub Debt
Documents;
(b) redeem, retire, purchase, defease or otherwise
acquire any Subordinated Debt; or
(c) make any deposit (including the payment of amounts
into a sinking fund or other similar fund) for any of the
foregoing purposes.
Furthermore, neither the Borrowers nor any of their respective
Subsidiary will designate any Indebtedness other than the
Obligations as "Designated Senior Debt" (or any analogous term)
in any Sub Debt Document.
SECTION 7.2.19 No Investments, etc. in Inactive
Subsidiaries..
Notwithstanding anything to the contrary in this Agreement,
in no event shall the aggregate amount of Investments by the
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Borrowers and their Subsidiaries in, or transfers of cash or
property by the Borrowers or their Subsidiaries to, any Inactive
Subsidiary, in the aggregate exceed $50,000 in any Fiscal Year.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.10 Listing of Events of Default.
Each of the following events or occurrences described in
this Article shall constitute an "Event of Default".
SECTION 8.1.1 Non-Payment of Obligations.
The Borrowers shall default in the payment or prepayment
when due of
(a) any principal of any Loan, or any Reimbursement
Obligation or any deposit of cash for collateral purposes
pursuant to Section 2.6.4; or
(b) any payment of interest on any Loan, any fee
described in Article III or any other monetary Obligation,
and such default shall continue unremedied for a period of
three days after such amount was due.
SECTION 8.1.2 Breach of Warranty.
Any representation or warranty of any Obligor made or deemed
to be made in any Loan Document to which such Obligor is party
(including any certificates delivered pursuant to Article V) is
or shall be incorrect when made or deemed to have been made in
any material respect.
SECTION 8.1.3 Non-Performance of Certain Covenants and
Obligations.
Any Borrower shall default in the due performance or
observance of any of its obligations under clauses (d), (e) and
(g) of Sections 7.1.1, 7.1.2, 7.1.6, 7.1.7, 7.1.8, 7.1.9, 7.1.11
or Section 7.2.
SECTION 8.1.4 Non-Performance of Other Covenants and
Obligations.
Any Obligor shall default in the due performance or
observance of any other agreement contained in any Loan Document
to which such Obligor is party, and such default shall continue
unremedied for a period of 30 days after notice thereof shall
have been given to the U.S. Borrower by the Administrative Agent
or any Lender.
SECTION 8.1.5 Default on Other Indebtedness.
A default shall occur in the payment of an amount when due
(subject to any applicable grace period), whether by acceleration
or otherwise, of any Indebtedness (other than Indebtedness
described in Section 8.1.1) of any Obligor having a principal
amount, individually or in the aggregate, or there is a demand
for payment under the Georgia Pacific Indemnity individually or
in the aggregate, in excess of the Dollar Equivalent of
$10,000,000, or a default shall occur in the performance or
observance of any obligation or condition with respect to such
Indebtedness if the effect of such default is to accelerate the
maturity of any such Indebtedness or such default shall continue
unremedied for any applicable period of time sufficient to permit
the holder or holders of such Indebtedness, or any trustee or
agent for such holders, to cause or declare such Indebtedness to
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become due and payable or to require such Indebtedness to be
prepaid, redeemed, purchased or defeased, or require an offer to
purchase or defease such Indebtedness to be made, prior to its
expressed maturity or which such default shall continue
unremedied for 30 days.
SECTION 8.1.6 Judgments.
Any judgment or order for the payment of money, in excess of
the Dollar Equivalent of $10,000,000, (exclusive of any amounts
fully covered by insurance (less any applicable deductible) and
as to which the insurer has acknowledged its responsibility to
cover such judgment or order) shall be rendered against any
Material Obligor and such judgment shall not have been vacated or
discharged or stayed or bonded pending appeal within 30 days
after the entry thereof or enforcement proceedings shall have
been commenced by any creditor upon such judgment or order.
SECTION 8.1.7 Pension Plans.
Any of the following events shall occur with respect to any
Pension Plan
(a) the institution of any steps by any Obligor, any
member of its Controlled Group or any other Person to
terminate a Pension Plan if, as a result of such
termination, such Obligor or any such member could be
required to make a contribution to such Pension Plan, or
could reasonably expect to incur a liability or obligation
to such Pension Plan, in excess of $1,000,000; or
(b) a contribution failure occurs with respect to any
Pension Plan sufficient to give rise to a Lien under section
302(f) of ERISA.
SECTION 8.1.8 Change in Control.
Any Change in Control shall occur.
SECTION 8.1.9 Bankruptcy, Insolvency, etc..
Any Material Obligor shall()
(a) become insolvent or generally fail to pay, or
admit in writing its inability or unwillingness generally to
pay, debts as they become due;
(b) apply for, consent to, or acquiesce in the
appointment of a trustee, receiver, administrator,
administrative receiver, sequestrator or other custodian or
similar officer for any substantial part of the property of
any thereof, or make a general assignment for the benefit of
creditors;
(c) in the absence of such application, consent or
acquiescence in or permit or suffer to exist the appointment
of a trustee, receiver, administrator, administrative
receiver, sequestrator or other custodian or similar officer
for a substantial part of the property of any thereof, and
such trustee, receiver, sequestrator or other custodian
shall not be discharged within 60 days; provided, that each
Material Obligor hereby expressly authorizes each Secured
Party to appear in any court conducting any relevant
proceeding during such 60-day period to preserve, protect
and defend their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case
or proceeding under any bankruptcy or insolvency law or any
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administration dissolution, winding up or liquidation
proceeding, in respect thereof, and, if any such case or
proceeding is not commenced by any Material Obligor, such
case or proceeding shall be consented to or acquiesced in by
such Material Obligor or shall result in the entry of an
order for relief or shall remain for 60 days undismissed;
provided, that each Material Obligor hereby expressly
authorizes each Secured Party to appear in any court
conducting any such case or proceeding during such 60-day
period to preserve, protect and defend their rights under
the Loan Documents; or
(e) take any action authorizing, or in furtherance of,
any of the foregoing.()
SECTION 8.1.10 Impairment of Security, etc.
Any Loan Document or any Lien granted thereunder shall
(except in accordance with its terms), in whole or in part,
terminate, cease to be effective or cease to be the legally
valid, binding and enforceable obligation of any Obligor party
thereto; any Obligor or any other party shall, directly or
indirectly, contest in any manner such effectiveness, validity,
binding nature or enforceability; or, except as permitted under
any Loan Document, any Lien securing any Obligation shall, in
whole or in part, cease to be a perfected first priority Lien
(other than Permitted Liens).
SECTION 8.1.11 Default Under Senior Notes.
Parent shall fail to observe or perform any covenant or
agreement contained in the Senior Notes or the Senior Notes
Indenture within any applicable grace period, if the effect of
such failure or other event is to accelerate, or to permit the
holders of the Senior Notes or any other Person to accelerate,
the maturity thereof.
SECTION 8.20 Action if Bankruptcy.
If any Event of Default described in clauses (a) through (d)
of Section 8.1.9 with respect to any Borrower shall occur, the
Commitments (if not theretofore terminated) shall automatically
immediately terminate and the outstanding principal amount of all
outstanding Loans and all other Obligations (including
Reimbursement Obligations) shall automatically be and become
immediately due and payable, without notice or demand to any
Person, and each Obligor shall automatically and immediately be
obligated to Cash Collateralize all Letter of Credit
Outstandings.
SECTION 8.30 Action if Other Event of Default.
If any Event of Default (other than any Event of Default
described in clauses (a) through (d) of Section 8.1.9 with
respect to any Borrower) shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Administrative
Agent, upon the direction of the Required Lenders, (a) shall by
notice to the U.S. Borrower declare all or any portion of the
outstanding principal amount of the Loans and other Obligations
(including Reimbursement Obligations) to be due and payable
and/or the Commitments (if not theretofore terminated) to be
terminated, whereupon the full unpaid amount of such Loans and
other Obligations which shall be so declared due and payable
shall be and become immediately due and payable, without further
notice, demand or presentment, and/or, as the case may be, the
Commitments shall terminate and the Borrowers shall automatically
and immediately be obligated to Cash Collateralize all Letter of
Credit Outstandings and (b) may exercise any and all other rights
and remedies, at law or in equity, including without limitation,
claims for damages and specific enforcement. All rights and
remedies shall be cumulative and not exclusive of each other.
Notwithstanding the foregoing, the Commitment and the obligation
of each Lender to make any Loan in accordance with Sections
2.1.3, 5.1 or 5.2, in each case solely with respect to financing
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of the U.K. Offer, shall only be able to be terminated pursuant
to this Section 8.3, and the principal amount of the Loans made
to finance the U.K. Offer shall only become due and payable
pursuant to this Section 8.3, prior to the applicable Revolving
Loan Commitment Termination Dates, upon the occurrence of the
events referred to in Section 5.1.18. Notwithstanding anything
to the contrary contained in this Agreement, subject only to
Section 5.1 or 5.2, as the case may be, during the period prior
to the applicable Revolving Loan Commitment Termination Dates for
Loans available to finance the U.K. Offer, no Lender shall be
entitled to exercise any right which would allow it not to make
any Loans to the Borrower for purposes of financing the U.K.
Offer in accordance with Section 2.1.3 of this Agreement.
ARTICLE IX
THE ADMINISTRATIVE AGENT, ETC.
SECTION 9.10 Actions.
Each Lender hereby appoints First Union as its
Administrative Agent under and for purposes of each Loan
Document. Each Lender authorizes the Administrative Agent to act
on behalf of such Lender under each Loan Document and, in the
absence of other written instructions from the Required Lenders
received from time to time by the Administrative Agent (with
respect to which the Administrative Agent agrees that it will
comply, except as otherwise provided in this Section or as
otherwise advised by counsel in order to avoid contravention of
applicable law), to exercise such powers hereunder and thereunder
as are specifically delegated to or required of the
Administrative Agent by the terms hereof and thereof, together
with such powers as may be reasonably incidental thereto. Each
Lender hereby indemnifies (which indemnity shall survive any
termination of this Agreement) the Administrative Agent and the
Arranger, pro rata according to such Lender's proportionate Total
Exposure Amount, from and against any and all liabilities,
obligations, losses, damages, claims, costs or expenses of any
kind or nature whatsoever which may at any time be imposed on,
incurred by, or asserted against, the Administrative Agent or the
Arranger in any way relating to or arising out of any Loan
Document, including reasonable attorneys' fees, and as to which
the Administrative Agent or the Arranger is not reimbursed by the
Borrowers; provided, however, that no Lender shall be liable for
the payment of any portion of such liabilities, obligations,
losses, damages, claims, costs or expenses which are determined
by a court of competent jurisdiction in a final proceeding to
have resulted from the Administrative Agent's or the Arranger's
gross negligence or wilful misconduct. The Administrative Agent
shall not be required to take any action under any Loan Document,
or to prosecute or defend any suit in respect of any Loan
Document, unless it is indemnified hereunder to its satisfaction.
If any indemnity in favor of the Administrative Agent shall be or
become, in the Administrative Agent's determination, inadequate,
the Administrative Agent may call for additional indemnification
from the Lenders and cease to do the acts indemnified against
hereunder until such additional indemnity is given.
SECTION 9.20 Funding Reliance, etc.
Unless the Administrative Agent shall have been notified in
writing by any Lender by 3:00 p.m. on the Business Day prior to a
Borrowing that such Lender will not make available the amount
which would constitute its Percentage of such Borrowing on the
date specified therefor, the Administrative Agent may assume that
such Lender has made such amount available to the Administrative
Agent and, in reliance upon such assumption, make available to
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the Borrowers a corresponding amount. If and to the extent that
such Lender shall not have made such amount available to the
Administrative Agent, such Lender and the Borrowers severally
agree to repay the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day
from the date the Administrative Agent made such amount available
to the Borrowers to the date such amount is repaid to the
Administrative Agent, at the interest rate applicable at the time
to Loans comprising such Borrowing (in the case of the Borrowers)
and (in the case of a Lender), at the Federal Funds Rate (for the
first two Business Days after which such amount has not been
repaid, and thereafter at the interest rate applicable to Loans
comprising such Borrowing.
SECTION 9.30 Exculpation.
Neither the Administrative Agent nor the Arranger nor any of
their respective directors, officers, employees or agents shall
be liable to any Lender for any action taken or omitted to be
taken by it under any Loan Document, or in connection herewith or
therewith, except for its own wilful misconduct or gross
negligence, nor responsible for any recitals or warranties herein
or therein, nor for the effectiveness, enforceability, validity
or due execution of any Loan Document, nor for the creation,
perfection or priority of any Liens purported to be created by
any of the Loan Documents, or the validity, genuineness,
enforceability, existence, value or sufficiency of any collateral
security, nor to make any inquiry respecting the performance by
any Obligor of its Obligations. Any such inquiry which may be
made by the Administrative Agent shall not obligate it to make
any further inquiry or to take any action. The Administrative
Agent shall be entitled to rely upon advice of counsel concerning
legal matters and upon any notice, consent, certificate,
statement or writing which the Administrative Agent believes to
be genuine and to have been presented by a proper Person.
Neither the Administrative Agent, nor the Arranger, nor any of
their respective directors, officers, employees or agents shall
be responsible for or have any duty to ascertain, inquire into or
verify (a) any statement, warranty or representation made in
connection with any Loan Document or any borrowing hereunder
(other than a statement, warranty or representation made by the
Agent in writing), (b) the performance or observance of any of
the covenants or agreements of any Obligor under the Loan
Document, including, without limitation, any agreement by an
Obligor to furnish information directly to each Lender, (c) the
satisfaction of any condition specified in Article V, expect
receipt of items required to be delivered solely to the
Administrative Agent, (d) the existence or possible existence of
any Default or Event of Default, or (e) the financial condition
of any Obligor. Any such inquiry which may be made by the
Administrative Agent or the Issuer shall not obligate it to make
any further inquiry or to take any action. The Administrative
Agent and the Issuer shall be entitled to rely upon advice of
counsel concerning legal matters and upon any notice, consent,
certificate, statement or writing which the Administrative Agent
or the Issuer, as applicable, believe to be genuine and to have
been presented by a proper Person.
SECTION 9.40 Successor.
The Administrative Agent may resign as such at any time upon
at least 30 days' prior notice to the U.S. Borrower and all
Lenders. If the Administrative Agent at any time shall resign,
the Required Lenders may appoint another Lender as a successor
Administrative Agent which shall thereupon become the
Administrative Agent hereunder. If no successor Administrative
Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving notice of resignation,
then the retiring Administrative Agent may, on behalf of the
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Lenders, appoint a successor Administrative Agent, which shall be
one of the Lenders or a commercial banking institution organized
under the laws of the U.S. (or any State thereof) or a U.S.
branch or agency of a commercial banking institution, and having
a combined capital and surplus of at least $250,000,000;
provided, however, that if, such retiring Administrative Agent is
unable to find a commercial banking institution which is willing
to accept such appointment and which meets the qualifications set
forth in above, the retiring Administrative Agent's resignation
shall nevertheless thereupon become effective and the Lenders
shall assume and perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders
appoint a successor as provided for above. Upon the acceptance
of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative
Agent shall be entitled to receive from the retiring
Administrative Agent such documents of transfer and assignment as
such successor Administrative Agent may reasonably request, and
shall thereupon succeed to and become vested with all rights,
powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under the Loan Documents. After
any retiring Administrative Agent's resignation hereunder as the
Administrative Agent, the provisions of this Article shall inure
to its benefit as to any actions taken or omitted to be taken by
it while it was the Administrative Agent under the Loan
Documents, and Section 10.3 and Section 10.4 shall continue to
inure to its benefit.
SECTION 9.50 Loans by First Union.
First Union shall have the same rights and powers with
respect to (x) the Credit Extensions made by it or any of its
Affiliates, and (y) the Notes held by it or any of its Affiliates
as any other Lender and may exercise the same as if it were not
the Administrative Agent. First Union and its Affiliates may
accept deposits from, lend money to, and generally engage in any
kind of business with the Borrowers or any Subsidiary of any
Borrower or Affiliate of any Borrower as if First Union were not
the Administrative Agent hereunder.
SECTION 9.60 Credit Decisions.
Each Lender acknowledges that it has, independently of the
Administrative Agent and each other Lender, and based on such
Lender's review of the financial information of the Borrowers,
the Loan Documents (the terms and provisions of which being
satisfactory to such Lender) and such other documents,
information and investigations as such Lender has deemed
appropriate, made its own credit decision to extend its
Commitments. Each Lender also acknowledges that it will,
independently of the Administrative Agent and each other Lender,
and based on such other documents, information and investigations
as it shall deem appropriate at any time, continue to make its
own credit decisions as to exercising or not exercising from time
to time any rights and privileges available to it under the Loan
Documents.
SECTION 9.70 Copies, etc.
The Administrative Agent shall give prompt notice to each
Lender of each notice or request required to be given to the
Administrative Agent by the Borrowers pursuant to the terms of
the Loan Documents (unless concurrently delivered to the Lenders
by such Borrower). The Administrative Agent will distribute to
each Lender each document or instrument received by the
Administrative Agent from the Borrowers for distribution to the
Lenders by the Administrative Agent in accordance with the terms
of the Loan Documents.
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SECTION 9.80 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely upon any
certification, notice or other communication (including any
thereof by telephone, telecopy, telegram or cable) believed by it
to be genuine and correct and to have been signed or sent by or
on behalf of the proper Person, and upon advice and statements of
legal counsel, independent accountants and other experts selected
by the Administrative Agent. As to any matters not expressly
provided for by the Loan Documents, the Administrative Agent
shall in all cases be fully protected in acting, or in refraining
from acting, hereunder or thereunder in accordance with
instructions given by the Required Lenders or all of the Lenders
as is required in such circumstance, and such instructions of
such Lenders and any action taken or failure to act pursuant
thereto shall be binding on all Secured Parties. For purposes of
applying amounts in accordance with this Section, the
Administrative Agent shall be entitled to rely upon any Secured
Party that has entered into a Rate Protection Agreement with any
Obligor for a determination (which such Secured Party agrees to
provide or cause to be provided upon request of the
Administrative Agent) of the outstanding Obligations owed to such
Secured Party under any Rate Protection Agreement. Unless it has
actual knowledge evidenced by way of notice from any such Secured
Party and any Borrower to the contrary, the Administrative Agent,
in acting in such capacity under the Loan Documents, shall be
entitled to assume that no Rate Protection Agreements or
Obligations in respect thereof are in existence or outstanding
between any Secured Party and any Obligor.
SECTION 9.90 Defaults.
The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default unless the
Administrative Agent has received a notice from a Lender or any
Borrower specifying such Default and stating that such notice is
a "Notice of Default". In the event that the Administrative
Agent receives such a notice of the occurrence of a Default, the
Administrative Agent shall give prompt notice thereof to the
Lenders. The Administrative Agent shall (subject to Section
10.1) take such action with respect to such Default as shall be
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 as it shall deem advisable in the best interest of
the Lenders except to the extent that this Agreement expressly
requires that such action be taken, or not be taken, only with
the consent or upon the authorization of the Required Lenders or
all Lenders.
SECTION 9.100 Arranger and Documentation Agent.
The parties acknowledge and agree that each of the Arranger
and Documentation Agent shall be credited as, and may publicize
that it is, the Arranger and Documentation Agent, as the case may
be. Without in any respect limiting the rights, privileges,
powers, immunities, indemnities and other benefits granted to the
Secured Parties, the parties further acknowledge and agree that
(a) neither the Arranger, nor the Syndication Agent shall have by
reason of its designation as such, any power, duty,
responsibility or liability whatsoever under this Agreement or
any Loan Document or in respect of financing the transaction
contemplated hereby and (b) each of the Arranger and the
Documentation Agent shall nevertheless be entitled to each of the
protections and immunities granted to the Administrative Agent
under Sections 9.3, 9.5, 9.6 and 9.8 (with respect to the first
sentence thereof) as fully as if it were expressly referred to
therein.
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ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.10 Waivers, Amendments, etc..
The provisions of each Loan Document may from time to time
be amended, modified or waived, if such amendment, modification
or waiver is in writing and consented to by the Borrowers and the
Required Lenders; provided, however, that no such amendment,
modification or waiver shall:
(a) modify this Section without the consent of all
Lenders;
(b) increase the aggregate amount of any Credit
Extensions required to be made by a Lender pursuant to its
Commitments, extend the Revolving Loan Commitment
Termination Date of Credit Extensions made (or participated
in) by a Lender or reduce any fees described in Article III
payable to any Lender without the consent of such Lender;
(c) extend the final Stated Maturity Date for any
Lender's Loan, or reduce the principal amount of or rate of
interest on any Lender's Loan or extend the date on which
interest or fees are payable in respect of such Lender's
Loans, in each case, without the consent of such Lender (it
being understood and agreed, however, that any vote to
rescind any acceleration made pursuant to Sections 8.2 and
8.3 of amounts owing with respect to the Loans and other
Obligations shall only require the vote of the Required
Lenders);
(d) reduce the percentage set forth in the definition
of "Required Lenders" or modify any requirement hereunder
that any particular action be taken by all Lenders without
the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit
unless consented to by the Issuer or increase the amount of
any Loan Note Guaranty unless consented to by the Loan Note
Guarantor;
(f) except as otherwise expressly provided in a Loan
Document or in connection with and to effectuate permitted
asset sales, release (i) any Borrower from its Obligations
under the Loan Documents or any Subsidiary Guarantor from
its obligations under the Subsidiary Guaranty or (ii) all or
substantially all of the collateral under the Loan
Documents, in each case without the consent of all Lenders;
(g) change any of the terms of or Section 2.3.2
without the consent of the Swing Line Lender;
(h) change any of the terms of or Sections 2.3.3 or
2.9 without the consent of the Other Currency Lender; or
(i) affect adversely the interests, rights or
obligations of the Administrative Agent (in its capacity as
the Administrative Agent), the Swing Line Lender (in its
capacity as Swing Line Lender), the Other Currency Lender
(in its capacity as Other Currency Lender), the Issuer (in
its capacity as Issuer), or the Loan Note Guarantor (in its
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capacity as Loan Note Guarantor), unless consented to by the
Administrative Agent, the Swing Line Lender, the Other
Currency Lender, the Issuer or the Loan Note Guarantor, as
the case may be.()
No failure or delay on the part of the Administrative Agent, the
Issuer, the Loan Note Guarantor or any Lender in exercising any
power or right under any Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such
power or right preclude any other or further exercise thereof or
the exercise of any other power or right. No notice to or demand
on any Obligor in any case shall entitle it to any notice or
demand in similar or other circumstances. No waiver or approval
by the Administrative Agent, the Issuer, the Loan Note Guarantor
or any Lender under any Loan Document shall, except as may be
otherwise stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval hereunder shall
require any similar or dissimilar waiver or approval thereafter
to be granted hereunder.
SECTION 10.20 Notices; Time.
All notices and other communications provided under each
Loan Document shall be in writing (including facsimile
transmission) unless otherwise specified herein and addressed,
delivered or transmitted, to such Person, at its address or
facsimile number set forth below its signature to this Agreement,
and if to a Lender, the Loan Note Guarantor or the Issuer, to the
applicable Person at its address or facsimile number set forth on
Schedule II hereto or set forth in the Lender Assignment
Agreement, or, in any case, at such other address or facsimile
number as may be designated by such party in a notice to the
other parties. Any notice, if mailed and properly addressed with
postage prepaid or if properly addressed and sent by pre-paid
courier service, shall be deemed given when received except
notices given by the Administrative Agent pursuant to Section
8.3, which shall be deemed to be given when sent; any notice, if
transmitted by facsimile, shall be deemed given when the
confirmation of transmission thereof is received by the
transmitter. Unless otherwise indicated, all references to the
time of a day in a Loan Document shall refer to New York time.
SECTION 10.30 Payment of Costs and Expenses.
The Borrowers agrees to pay on demand all fees and expenses
of the Administrative Agent (including the fees and other charges
of Mayer, Brown & Platt, counsel to the Administrative Agent and
of local counsel, if any, who may be retained by or on behalf of
the Administrative Agent) in connection with
(a) the negotiation, preparation, execution and
delivery and ongoing administration of each Loan Document,
including schedules and exhibits, the syndication of the
Loans and any amendments, waivers, consents, supplements or
other modifications to any Loan Document as may from time to
time hereafter be required, whether or not the transactions
contemplated hereby are consummated and any and all legal
advice in connection with any of the foregoing;
(b) the filing, recording, refiling or rerecording of
any Loan Document and/or any Filing Statements relating
thereto and all amendments, supplements, amendments and
restatements and other modifications to any thereof and any
and all other documents or instruments of further assurance
required to be filed or recorded or refiled or rerecorded by
the terms of any Loan Document;
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(c) the preparation and review of the form of any
document or instrument relevant to any Loan Document; and
(d) post-closing UCC-11 searches (within 120 days of
the U.S. Closing Date) to confirm that the Liens granted to
the Administrative Agent for the last occurring benefit of
the Secured Parties have been perfected.()
Each Borrower further agrees to pay, and to save each Secured
Party harmless from all liability for, any stamp or other Taxes
which may be payable in connection with the execution or delivery
of each Loan Document, the Credit Extensions or the issuance of
the Notes. Each Borrower also agrees to reimburse each Secured
Party upon demand for all out-of-pocket expenses (including
attorneys' fees and legal expenses of counsel to each Secured
Party) incurred by such Secured Party in connection with (x) the
negotiation of any restructuring or "work-out" with any Borrower,
whether or not consummated, of any Obligations and (y) the
enforcement of any Obligations.
SECTION 10.40 Indemnification.
In consideration of the execution and delivery of this
Agreement by each Secured Party, each Borrower hereby
indemnifies, exonerates and holds each Secured Party and each of
their respective officers, directors, employees and agents
(collectively, the "Indemnified Parties") free and harmless from
and against any and all actions, causes of action, suits, losses,
costs, liabilities and damages, and expenses incurred in
connection therewith (irrespective of whether any such
Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable
attorneys' fees and disbursements, whether incurred in connection
with actions between or among the parties hereto or the parties
hereto and third parties (collectively, the "Indemnified
Liabilities"), incurred by the Indemnified Parties or any of them
as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in
whole or in part, directly or indirectly, with the proceeds
of any Credit Extension, including all Indemnified
Liabilities arising in connection with U.K. Transaction;
(b) the entering into and performance of any Loan
Document by any of the Indemnified Parties (including any
action brought by or on behalf of such Borrower as the
result of any determination by the Required Lenders pursuant
to Article V not to fund any Credit Extension, provided that
any such action is resolved in favor of such Indemnified
Party);
(c) any investigation, litigation or proceeding
related to any acquisition or proposed acquisition by any
Obligor or any Subsidiary thereof of all or any portion of
the Capital Securities or assets of any Person, whether or
not an Indemnified Party is party thereto;
(d) any investigation, litigation or proceeding
(including any threatened investigation, litigation or
proceeding) related to any environmental cleanup, audit,
compliance or other matter relating to the protection of the
environment or the Release by any Obligor or any Subsidiary
thereof of any Hazardous Material;
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(e) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or
releases from, any real property owned or operated by any
Obligor or any of its Subsidiaries of any Hazardous Material
(including any losses, liabilities, damages, injuries,
costs, expenses or claims asserted or arising under any
Environmental Law), regardless of whether caused by, or
within the control of, such Obligor or such Subsidiary; or
(f) each Lender's Environmental Liability (the
indemnification herein shall survive repayment of the
Obligations and any transfer of the property of any Obligor
or any of its Subsidiaries by foreclosure or by a deed in
lieu of foreclosure for any Lender's Environmental
Liability, regardless of whether caused by, or within the
control of, such Obligor or such Subsidiary);()
except for Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant
Indemnified Party's gross negligence or wilful misconduct as
determined by a court of competent jurisdiction in a final
proceeding. Each Obligor and its successors and assigns hereby
waive, release and agree not to make any claim or bring any cost
recovery action against, any Indemnified Party under CERCLA or
any state equivalent, or any similar law now existing or
hereafter enacted. It is expressly understood and agreed that to
the extent that any Indemnified Party is strictly liable under
any Environmental Laws, each Obligor's obligation to such
Indemnified Party under this indemnity shall likewise be without
regard to fault on the part of any Obligor with respect to the
violation or condition which results in liability of an
Indemnified Party. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, each Obligor
agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.
SECTION 10.50 Survival.
The obligations of each Borrower under Sections 4.3, 4.4,
4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
Section 9.1, shall in each case survive any assignment from one
Lender to another (in the case of Sections 10.3 and 10.4) and the
occurrence of the Termination Date. The representations and
warranties made by each Obligor in each Loan Document shall
survive the execution and delivery of such Loan Document.
SECTION 10.60 Severability.
Any provision of any Loan Document which is prohibited or
unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions of such Loan Document or affecting the
validity or enforceability of such provision in any other
jurisdiction.
SECTION 10.70 Headings.
The various headings of each Loan Document are inserted for
convenience only and shall not affect the meaning or
interpretation of such Loan Document or any provisions thereof.
SECTION 10.80 Execution in Counterparts, Effectiveness,
etc.
This Agreement may be executed by the parties hereto in
several counterparts, each of which shall be an original (whether
such counterpart is originally executed or an electronic copy of
an original and each party hereto expressly waives its rights to
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receive originally executed documents other than with respect to
any Notes) and all of which shall constitute together but one and
the same agreement. This Agreement shall become effective as of
the date first above written when counterparts hereof executed on
behalf of each Borrower, the Administrative Agent and each Lender
(or notice thereof satisfactory to the Administrative Agent)
shall have been received by the Administrative Agent.
SECTION 10.90 Governing Law; Entire Agreement.
EACH LOAN DOCUMENT (OTHER THAN AS OTHERWISE EXPRESSLY SET
FORTH IN A LOAN DOCUMENT) WILL EACH BE DEEMED TO BE A CONTRACT
MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF
THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). The Loan
Documents constitute the entire understanding among the parties
hereto with respect to the subject matter thereof and supersede
any prior agreements (including the Amended and Restated
Commitment Letter, dated as of November 10, 1999 by and among the
U.S. Borrower, First Union and First Union Securities, Inc.),
written or oral, with respect thereto.
SECTION 10.100 Successors and Assigns.
This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and
assigns; provided, however, that no Borrower may assign or
transfer its rights or obligations hereunder without the consent
of all Lenders.
SECTION 10.110 Sale and Transfer of Credit Extensions;
Participations in Credit Extensions Notes.
Each Lender may assign, or sell participations in, its
Loans, Letters of Credit, Loan Note Guaranties and Commitments to
one or more other Persons in accordance with this the terms set
forth below.
SECTION 10.11.1 Assignments.
Any Lender, pursuant to a Lender Assignment Agreement,
(a) with the consent of the U.S. Borrower and the
Administrative Agent (which consents shall not be
unreasonably delayed or withheld and which consent, in the
case of the U.S. Borrower, shall not be required (i) during
the continuation of a Default or (ii) for an assignment by
any Lender to any of its Affiliates, another Lender or an
Eligible Assignee), may at any time assign and delegate to
one or more Eligible Assignees; provided, however, that the
Administrative Agent may withhold such consent in its sole
discretion to an assignment to a Person not satisfying the
credit ratings set forth in clause (f), or if such
assignment would, pursuant to any applicable laws, rules or
regulations binding on the Issuer, result in a reduced rate
of return to the Issuer or require the Issuer to set aside
capital in an amount that is greater than that which is
required to be set aside for other Lenders participating in
the Letters of Credit; and
(b) upon notice to the U.S. Borrower and the
Administrative Agent, upon the Administrative Agent's
acknowledgment on a Lender Assignment Agreement, may assign
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and delegate to any of its Affiliates, to any other Lender
or to a Related Fund of any Lender;
(each Person described in either of the foregoing clauses as
being the Person to whom such assignment and delegation is to be
made, being hereinafter referred to as an "Assignee Lender"), all
or any fraction of such Lender's Loans, Letter of Credit
Outstandings and Commitments in a minimum aggregate amount of
$1,000,000 (or, if less, the entire remaining amount of such
Lender's Loans, Letter of Credit Outstandings and Commitments).
Each Obligor and the Administrative Agent shall be entitled to
continue to deal solely and directly with a Lender in connection
with the interests so assigned and delegated to an Assignee
Lender until
(c) notice of such assignment and delegation, together
with (i) payment instructions, (ii) the Internal Revenue
Service forms or other statements contemplated or required
to be delivered pursuant to Section 4.6, if applicable, and
(iii) addresses and related information with respect to such
Assignee Lender, shall have been delivered to the U.S.
Borrower and the Administrative Agent by such assignor
Lender each Person described in the foregoing clauses as
being the Person making such assignment and delegation,
being hereinafter referred to as an "Assignor Lender", and
such Assignee Lender;
(d) such Assignee Lender shall have executed and
delivered to the U.S. Borrower and the Administrative Agent
a properly completed Lender Assignment Agreement, received
by the Administrative Agent; and
(e) the processing fees described below, to the extent
required, shall have been paid; and
(f) the Administrative Agent shall have registered
such assignment in the Register pursuant to clause (b) of
Section 2.8.
From and after the date that the Administrative Agent accepts
such Lender Assignment Agreement, (x) the Assignee Lender
thereunder shall be deemed automatically to have become a party
hereto and to the extent that rights and obligations hereunder
have been assigned and delegated to such Assignee Lender in
connection with such Lender Assignment Agreement, shall have the
rights and obligations of a Lender under the Loan Documents, and
(y) the Assignor Lender, to the extent that rights and
obligations hereunder have been assigned and delegated by it in
connection with such Lender Assignment Agreement, shall be
released from its obligations hereunder and under the other Loan
Documents. Within five Business Days after its receipt of notice
that the Administrative Agent has received and accepted an
executed Lender Assignment Agreement (and if requested by the
Assignee Lender), but subject to clause (c), the U.S. Borrower
shall execute and deliver to the Administrative Agent (for
delivery to the relevant Assignee Lender) a new Note evidencing
such Assignee Lender's assigned Loans and Commitments and, if the
Assignor Lender has retained Loans and Commitments hereunder (and
if requested by such Lender), a replacement Note in the principal
amount of the Loans and Commitments retained by the Assignor
Lender hereunder (such Note to be in exchange for, but not in
payment of, the Note then held by such Assignor Lender). Each
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such Note shall be dated the date of the predecessor Note. The
Assignor Lender shall mark each predecessor Note "exchanged" and
deliver each of them to the U.S. Borrower. Accrued interest on
that part of each predecessor Note evidenced by a new Note, and
accrued fees, shall be paid as provided in the Lender Assignment
Agreement. Accrued interest on that part of each predecessor
Note evidenced by a replacement Note shall be paid to the
Assignor Lender; Such Assignor Lender or such Assignee Lender
must also pay a processing fee in the amount of $3,500 to the
Administrative Agent upon delivery of any Lender Assignment
Agreement provided, that no such processing fee shall be required
in connection with any such assignment and delegation (i) by a
Lender to its Affiliate or to a Related Fund, (ii) by a Lender to
a Federal Reserve Bank (or, if such Lender is an investment fund,
to the trustee under the indenture to which such fund is a party
in support of its obligations to such trustee), (iii) in
connection with the consummation of the first syndication after
the U.S. Closing Date or (iv) if the non-payment of the
processing fee is otherwise consented to in writing by the
Administrative Agent. Accrued interest and accrued fees shall be
paid at the same time or times provided in the predecessor Note
and in this Agreement. Notwithstanding any other term of this
Agreement, the agreement of the Swing Line Lender to provide the
Swing Line Loan Commitment and issue the Letters of Credit shall
not impair or otherwise restrict in any manner the ability of the
Swing Line Lender to make any assignment of its Loans or
Commitments, it being understood and agreed that Swing Line
Lender may terminate its Swing Line Loan Commitment, either in
whole or in part, or resign as the Issuer in connection with the
making of any assignment. Any attempted assignment and
delegation not made in accordance with this Section shall be null
and void. Notwithstanding anything to the contrary set forth
above, any Lender may (without requesting the consent of the U.S.
Borrower or the Administrative Agent) pledge its Loans to a
Federal Reserve Bank in support of borrowings made by such Lender
from such Federal Reserve Bank.
(g) In the event that S&P or Moody's, shall, after the
date that any Person becomes a Lender, downgrade the
long-term certificate of deposit ratings of such Lender, and
the resulting ratings shall be below Investment Grade or the
equivalent, then the U.S. Borrower, the Swing Line Lender,
the Other Currency Lender and the Issuer shall each have the
right, but not the obligation, upon notice to such Lender
and the Administrative Agent, to replace such Lender with a
financial institution or other Eligible Assignee (a
"Replacement Lender") acceptable to the U.S. Borrower and
the Administrative Agent (such consents not to be
unreasonably withheld or delayed; provided, that no such
consent shall be required if the Replacement Lender is an
existing Lender), and upon any such downgrading of any
Lender's long-term certificate of deposit rating, each such
Lender hereby agrees to transfer and assign (in accordance
with Section 10.11.1) all of its Commitments and other
rights and obligations under the Loan Documents (including
Reimbursement Obligations) to such Replacement Lender;
provided, however, that (i) such assignment shall be without
recourse, representation or warranty (other than that such
Lender owns the Commitments, Loans and Notes being assigned,
free and clear of any Liens) and (ii) the purchase price
paid by the Replacement Lender shall be in the amount of
such Lender's Loans and its Percentage of outstanding
Reimbursement Obligations, together with all accrued and
unpaid interest and fees in respect thereof, plus all other
amounts (other than the amounts (if any) demanded and
unreimbursed under Sections 4.2, 4.3, 4.5 and 4.6, which
shall be paid by the Borrowers), owing to such Lender
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hereunder. Upon any such termination or assignment, such
Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of any provisions of this
Agreement which by their terms survive the termination of
this Agreement.()
SECTION 10.11.2 Participations.
Any Lender may sell to one or more commercial banks or other
Persons other than direct packaging industry competitors of the
U.S. Borrower identified by the U.S. Borrower and acknowledged by
the Administrative Agent (each of such commercial banks and other
Persons being herein called a "Participant") participating
interests in any of the Loans, Commitments, or other interests of
such Lender hereunder; provided, however, that
(a) no participation contemplated in this Section
shall relieve such Lender from its Commitments or its other
obligations under any Loan Document;
(b) such Lender shall remain solely responsible for
the performance of its Commitments and such other
obligations;
(c) each Obligor and the Administrative Agent shall
continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under
each Loan Document;
(d) no Participant, unless such Participant is an
Affiliate of such Lender or is itself a Lender, shall be
entitled to require such Lender to take or refrain from
taking any action under any Loan Document, except that such
Lender may agree with any Participant that such Lender will
not, without such Participant's consent, take any actions of
the type described in clauses (a), (b), (c) or (f) of
Section 10.1 with respect to Obligations participated in by
such Participant; and
(e) the Borrowers shall not be required to pay any
amount under this Agreement that is greater than the amount
which it would have been required to pay had no
participating interest been sold.()
Each Borrower acknowledges and agrees that each Participant, for
purposes of Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 7.1.1, 10.3
and 10.4, shall be considered a Lender. Each Participant shall
only be indemnified for increased costs pursuant to Section 4.3,
4.5 or 4.6 if and to the extent that the Lender which sold such
participating interest to such Participant concurrently is
entitled to make, and does make, a claim on such Borrower for
such increased costs. Any Lender that sells a participating
interest in any Loan, Commitment or other interest to a
Participant under this Section shall indemnify and hold harmless
the Borrowers and the Administrative Agent from and against any
Taxes, penalties, interest or other costs or losses (including
reasonable attorneys' fees and expenses) incurred or payable by
the Borrowers or the Administrative Agent as a result of the
failure of the Borrowers or the Administrative Agent to comply
with its obligations to deduct or withhold any Taxes from any
payments made pursuant to this Agreement to such Lender or the
Administrative Agent, as the case may be, which Taxes would not
have been incurred or payable if such Participant had been a Non-
U.S. Lender that was entitled to deliver to the Borrowers, the
Administrative Agent or such Lender, and did in fact so deliver,
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a duly completed and valid Form 1001 or 4224 (or applicable
successor form) entitling such Participant to receive payments
under this Agreement without deduction or withholding of any
United States federal Taxes.
SECTION 10.120 Other Transactions.
Nothing contained herein shall preclude the Administrative
Agent, the Issuer, the Loan Note Guarantor or any other Lender
from engaging in any transaction, in addition to those
contemplated by the Loan Documents, with the Borrowers or any of
their respective Affiliates in which such Borrower or such
Affiliate is not restricted hereby from engaging with any other
Person.
SECTION 10.130 Certain Collateral and Other Matters; Rate
Protection Agreements; Further Assurances.
(a) The Administrative Agent is authorized on behalf
of all the Lenders, without the necessity of any notice to or
further consent from the Lenders, from time to time to take any
action with respect to any collateral security or the Loan
Documents which may be necessary to perfect and maintain
perfected the security interest in and Liens upon the collateral
security granted pursuant to the Loan Documents.
(b) The Lenders irrevocably authorize the
Administrative Agent, at its option and in its discretion,
to release any security interest or Lien granted to or held
by the Administrative Agent upon any collateral (i) on the
Termination Date (in which case the Lenders hereby authorize
the Administrative Agent to execute, and the Administrative
Agent agrees to execute, reasonable releases in connection
with this Agreement); (ii) constituting property in which
the Borrower or any Subsidiary of the Borrower owned no
interest at the time the security interest and/or Lien was
granted or at any time thereafter; (iii) constituting
property leased to any Borrower or any Subsidiary of any
Borrower under a lease which has expired or been terminated
in a transaction permitted under this Agreement or is about
to expire and which has not been, and is not intended by any
Borrower or such Subsidiary to be, renewed or extended; (iv)
consisting of an instrument evidencing Indebtedness or other
debt instrument, if the Indebtedness evidenced thereby has
been paid in full; (v) if approved, authorized or ratified
in writing by the Required Lenders or, if required by
Section 10.1, each Lender. Upon request by the
Administrative Agent at any time, the Lenders will confirm
in writing the Administrative Agent's authority to release
particular types or items of collateral pursuant to this
Section 10.13.
(c) Each Lender which enters into arrangements with
any Borrower in respect of Rate Protection Agreements hereby
agrees to supply the Administrative Agent in writing on or
about each Quarterly Payment Date with the amount of any
termination obligations of such Borrower thereunder and any
net payments owing by such Borrower thereunder.
(d) The Lenders hereby irrevocably authorize the
Administrative Agent to enter into a collateral sharing
agreement with the trustee under the Senior Notes to the
extent required by the terms of the Senior Notes Documents
and any modifications thereto and agree to be bound by all
of the terms and conditions contained therein.
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(e) The Borrowers agree to take such further action,
and execute such further instruments, as the Administrative
Agent may reasonably request to effectuate the purposes of
this Agreement.()
SECTION 10.140 Forum Selection and Consent to Jurisdiction.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, ANY LOAN DOCUMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF THE ADMINISTRATIVE AGENT, THE LENDERS, THE ISSUER, THE
LOAN NOTE GUARANTOR OR ANY BORROWER IN CONNECTION HEREWITH OR
THEREWITH MAY BE BROUGHT AND MAINTAINED IN THE COURTS OF THE
STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT
SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY
BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS
OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY
BE FOUND. EACH BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS
FOR NOTICES SPECIFIED IN SECTION 10.2. EACH BORROWER HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO
THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH
COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT
EACH BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, EACH BORROWER HEREBY IRREVOCABLY WAIVES
TO THE FULLEST EXTENT PERMITTED BY LAW SUCH IMMUNITY IN RESPECT
OF ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS.
SECTION 10.150 Waiver of Jury Trial.
THE ADMINISTRATIVE AGENT, EACH LENDER, THE ISSUER, THE LOAN
NOTE GUARANTOR AND EACH BORROWER HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW
ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, EACH LOAN DOCUMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF THE ADMINISTRATIVE AGENT, SUCH LENDER, THE ISSUER, THE
LOAN NOTE GUARANTOR OR EACH BORROWER IN CONNECTION THEREWITH.
EACH BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL
AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER
PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
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ADMINISTRATIVE AGENT, EACH LENDER, THE LOAN NOTE GUARANTOR AND
THE ISSUER ENTERING INTO THE LOAN DOCUMENTS. EACH BORROWER
HEREBY IRREVOCABLY APPOINTS CT CORPORATION SYSTEMS (THE "PROCESS
AGENT"), WITH AN OFFICE ON THE DATE HEREOF AT 111 EIGHTH AVENUE,
NEW YORK, NY 10011, UNITED STATES, AS ITS ADMINISTRATIVE AGENT TO
RECEIVE, ON SUCH BORROWER'S BEHALF AND ON BEHALF OF SUCH
BORROWER'S PROPERTY, SERVICE OF COPIES OF THE SUMMONS AND
COMPLAINT AND ANY OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH
ACTION OR PROCEEDING. SUCH SERVICE MAY BE MADE BY MAILING OR
DELIVERING A COPY OF SUCH PROCESS TO THE BORROWER IN CARE OF THE
PROCESS AGENT AT THE PROCESS AGENT'S ABOVE ADDRESS, AND EACH
BORROWER HEREBY IRREVOCABLY AUTHORIZES AND DIRECTS THE PROCESS
AGENT TO ACCEPT SUCH SERVICE ON ITS BEHALF. AS AN ALTERNATIVE
METHOD OF SERVICE, THE BORROWER FURTHER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK TO ITS
ADDRESS FOR NOTICES HEREUNDER.
SECTION 10.160 EMU.
If and to the extent that any provision of this Section
relates to any state (or the currency of such state) that is not
a Participating Member State on the Effective Date, such
provision shall become effective in relation to such state (and
the currency of such state) at and from the date on which such
state becomes a Participating Member State.
(a) An amount denominated in the National Currency
Unit of a Participating Member State shall be redenominated
into Euro in accordance with EMU legislation and paid by the
debtor either in the Euro Unit or in that National Currency
Unit and an amount denominated in the Euro Unit shall be
paid by the debtor in the Euro Unit unless EMU Legislation
provides otherwise, provided, that if and to the extent that
any EMU Legislation provides that an amount denominated
either in the Euro or in the National Currency Unit of a
Participating Member State and payable within the
Participating Member State by crediting an account of the
creditor can be paid by the debtor either in the Euro Unit
or in that National Currency Unit, any party to this
Agreement shall be entitled to pay or repay any such amount
either in the Euro Unit or in such National Currency Unit.
(b) If the basis of accrual of interest or fees
expressed in this Agreement with respect to the currency of
any state that is or becomes a Participating Member State
shall be inconsistent with any convention or practice in the
London Interbank Market for the basis of accrual of interest
or fees in respect of the Euro, such convention or practice
shall replace such expressed basis effective as of and from
the date on which such state becomes a Participating Member
State.
(c) Without prejudice to the respective liabilities of
the Borrowers to the Lenders, the Issuer and the Loan Note
Guarantor and the Lenders, the Issuer and the Loan Note
Guarantor to the Borrowers under or pursuant to this
Agreement, except as expressly provided in this clause (c),
each provision of this Agreement shall be subject to such
reasonable changes of construction as the Administrative
Agent in consultation with the Borrowers may from time to
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time specify to be necessary or appropriate to reflect the
introduction of or changeover to the Euro in Participating
Member States.()
SECTION 10.170 Judgment Currency.
The Obligations of the Borrowers in respect of any sum due
to any Lender, the Issuer, the Loan Note Guarantor or the
Administrative Agent hereunder shall, notwithstanding any
judgment in a currency (the "Judgment Currency") other than
Dollars, be discharged only to the extent that on the Business
Day following receipt by such Lender, the Issuer, the Loan Note
Guarantor or the Administrative Agent of any sum adjudged to be
so due in the Judgment Currency, such Lender, the Issuer, the
Loan Note Guarantor or the Administrative Agent, in accordance
with normal banking procedures, purchases Dollars with the
Judgment Currency. If the amount of Dollars so purchased is less
than the sum originally due to such Lender, the Issuer, the Loan
Note Guarantor or the Administrative Agent, the Borrowers agree
as a separate obligation and notwithstanding any such judgment,
jointly and severally to indemnify each Lender, the Issuer, the
Loan Note Guarantor and the Administrative Agent, as the case may
be, against such loss.
SECTION 10.180 Confidential Information.
The Administrative Agent, the Issuer, the Loan Note
Guarantor and each Lender agree to hold all non-public
information (which has been identified in writing as such by the
Borrowers to the Administrative Agent and each Lender) obtained
pursuant to this Agreement and the other Loan Documents in
accordance with its customary procedures for handling
confidential information, provided that disclosure of such
confidential information may be made (a) to the Affiliates,
examiners, directors, shareholders, accountants, auditors,
counsel and other professional advisors of the Administrative
Agent, the Issuer, the Loan Note Guarantor and each Lender,
(b) in connection with any assignment or participation to an
Assignee Lender or Participant, as the case may be, so long as
such Assignee Lender or Participant has previously agreed to
these confidentiality provisions, or (c) as required or requested
by any governmental agency, authority or representative, or
pursuant to any court order, legal process or applicable law,
rule or regulation or in connection with enforcement of any
Obligations.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized as of the day and year first above written.
CHESAPEAKE CORPORATION
By:/s/ J. P. Causey, Jr.
---------------------
J. P. Causey, Jr.
Title:
CHESAPEAKE UK ACQUISITIONS PLC
By:/s/ J. P. Causey, Jr.
---------------------
J. P. Causey, Jr.
Title:
CHESAPEAKE UK ACQUISITIONS II PLC
By:/s/ J. P. Causey, Jr.
---------------------
J. P. Causey, Jr.
Title:
CHESAPEAKE U.K. HOLDINGS LIMITED
By:/s/ J. P. Causey, Jr.
---------------------
J. P. Causey, Jr.
Title:
FIRST UNION NATIONAL BANK,
as the Administrative Agent and as a Lender
By:/s/ Gerald P. Hullinger
-----------------------
Gerald P. Hullinger
Title:
FIRST UNION SECURITIES, INC.,
as Lead Arranger and Sole Book Runner
By:/s/ Ted Swimmer
---------------
Ted Swimmer
Title:
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