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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
______________________
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 28, 1997
COMMISSION FILE NUMBER 0-23198
INTERIM SERVICES INC.
(Exact name of registrant in its charter)
DELAWARE 36-3536544
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
2050 SPECTRUM BOULEVARD
FORT LAUDERDALE, FLORIDA 33309
(Address of principal executive offices, including zip code)
(954) 938-7600
(Registrant's telephone number, including area code)
_______________________
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months, and (2) has been subject to such filing
requirements for the past 90 days.
Yes ( X ) No ( )
The number of shares outstanding of the registrant's Common Stock, $0.0l par
value, at April 25, 1997 was 19,585,518 shares.
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TABLE OF CONTENTS
PART I Financial Information
Item 1. Financial Statements Page
----
Consolidated Statements of Earnings
Quarter Ended March 28, 1997 and March 29, 1996.................. 4
Consolidated Balance Sheets
March 28, 1997 and December 27, 1996............................. 6
Consolidated Statements of Cash Flows
Quarter Ended March 28, 1997 and March 29, 1996.................. 8
Notes to Consolidated Financial Statements....................... 10
Item 2.
Management's Discussion and Analysis of Results of
Operations and Financial Condition............................... 11
PART II Other Information
Item 4.
Matters Submitted to a Vote of Security Holders................. 14
Item 6.
Exhibits and Reports on Form 8-K................................. 15
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PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
INTERIM SERVICES INC.
CONSOLIDATED STATEMENT OF EARNINGS
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
QUARTER ENDED
------------------------
MARCH 28, MARCH 29,
1997 1996
---------- ----------
Revenues $ 316,785 $ 264,725
Cost of services 219,345 185,728
---------- ----------
Gross profit 97,440 78,997
---------- ----------
Selling, general and
administrative expenses 70,779 55,777
Licensee commissions 9,428 9,182
Amortization of intangibles 2,284 2,149
Interest expense 275 1,636
Merger expense -- 417
---------- ----------
82,766 69,161
---------- ----------
Earnings before taxes 14,674 9,836
Income taxes 6,149 4,347
---------- ----------
Net earnings $ 8,525 $ 5,489
---------- ----------
---------- ----------
Net earnings per common and
common equivalent shares $ 0.43 $ 0.35
---------- ----------
---------- ----------
Weighted average shares
outstanding 19,906 15,839
---------- ----------
---------- ----------
SEE NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
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INTERIM SERVICES INC.
CONSOLIDATED BALANCE SHEETS
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
MARCH 28, DECEMBER 27,
1997 1996
----------- -----------
Assets
Current Assets:
Cash and cash equivalents $ 3,826 $ 18,938
Marketable securities -- 7,499
Receivables, less allowance for doubtful
accounts of $3,511 and $3,023 208,919 186,732
Insurance deposits 29,994 32,794
Other current assets 19,923 18,301
----------- -----------
Total current assets 262,662 264,264
Investment in Michael Page Group PLC 75,125 --
Intangible Assets, net 209,096 174,747
Property and Equipment, net 55,318 49,795
Other Assets 33,922 23,684
----------- -----------
$636,123 $512,490
----------- -----------
----------- -----------
Liabilities and Stockholders' Equity
Current Liabilities:
Notes payable to banks $ 300 $ --
Accounts payable and other accrued expenses 32,748 27,092
Accrued salaries, wages and payroll taxes 49,277 40,948
Accrued insurance 27,097 26,782
Accrued income taxes 5,641 159
----------- -----------
Total current liabilities 115,063 94,981
Long-Term Obligations 93,300 --
Deferred Tax Liability 3,099 2,798
Commitments and Contingencies -- --
Stockholders' Equity:
Preferred stock, par value $.01 per share;
authorized-- 2,500,000 shares; none issued
or outstanding -- --
Common stock, par value $.01 per share;
authorized-- 50,000,000 and 25,000,000
shares: issued and outstanding-- 19,578,496
and 19,476,684 shares respectively 196 195
Treasury stock (460) (460)
Additional paid-in capital 252,742 251,236
Retained earnings 172,183 163,740
----------- -----------
Total stockholders' equity 424,661 414,711
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$ 636,123 $ 512,490
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SEE NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
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INTERIM SERVICES INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(AMOUNTS IN THOUSANDS)
QUARTER ENDED
-------------------------
MARCH 28, MARCH 29,
1997 1996
----------- -----------
Cash Flows from operating activities:
Net Earnings $ 8,525 $ 5,489
Adjustments to reconcile net earnings to net cash
from operating activities:
Depreciation and amortization 5,665 4,367
Provision for/benefit from deferred taxes on income (20) 30
Changes in assets and liabilities, net of effects of
acquisitions:
Receivables (16,535) (9,461)
Insurance deposits 2,800 (4,233)
Other current assets (1,028) 615
Other assets (10,238) (1,246)
Accounts payable and accrued expenses 5,592 (1,868)
Accrued salaries, wages and payroll taxes 7,594 4,835
Accrued insurance 259 3,772
Accrued income taxes 5,483 2,238
Other (82) 4
----------- -----------
Net cash provided by operating activities 8,015 4,542
----------- -----------
Cash flows from investing activities:
Capital expenditures (6,708) (5,349)
Purchases of marketable securities -- (1,103)
Proceeds from sale of marketable securities 7,499 1,404
Decrease in deposits -- (41)
Acquisitions, net of cash acquired (43,600) (417)
Investment in Michael Page Group PLC (75,125) --
----------- -----------
Net cash used in investing activities (117,934) (5,506)
----------- -----------
Cash flows from financing activities:
Issuances/(Repayments) of notes payable 93,300 (827)
Transactions of pooled company -- (182)
Proceeds from exercise of employee stock options 1,507 416
----------- -----------
Net cash provided by/(used in) financing
activities 94,807 (593)
----------- -----------
Net decrease in cash and cash equivalents (15,112) (1,557)
Cash and cash equivalents, beginning of period 18,938 4,025
----------- -----------
Cash and cash equivalents, end of period $ 3,826 $ 2,468
----------- -----------
----------- -----------
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Supplemental disclosures of cash flow information:
Income taxes paid $ 621 $ 2,076
----------- -----------
----------- -----------
Interest paid $ 260 $ 1,910
----------- -----------
----------- -----------
SEE NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Basis of Presentation
The consolidated financial statements of Interim Services Inc. and
subsidiaries (the "Company"), included herein, do not include all
footnote disclosures normally included in annual financial statements
and, therefore, should be read in conjunction with the Company's
financial statements and notes thereto for each of the three years in
the period ended December 27, 1996 included in the Company's Annual
Report on Form 10-K.
The interim consolidated financial statements for the three months ended
March 28, 1997 are unaudited and, in the opinion of management, reflect
all adjustments (consisting only of normal recurring adjustments)
necessary for fair presentation the financial position, results of
operations and cash flows for such periods. Results for the three months
ended March 28, 1997 are not necessarily indicative of results to be
expected for the full fiscal year ending December 26, 1997.
2. Net earnings per share is based on the weighted average number of
shares of common stock and common stock equivalents outstanding during each
period. As of March 28, 1997, the Company has 19,578,496 shares of common
stock outstanding.
3. In February 1997, the Financial Accounting Standard Board issued Statement
of Financial Accounting Standard ("SFAS") No. 128, "Earnings per Share."
The statement is effective for financial statements for period ending after
December 15, 1997, and changes the method in which earnings per share will
be determined. Adoption of this statement by the Company will not have a
material impact on earnings per share.
4. On March 3, 1997, the Company announced a cash tender offer with a loan
note alternative (the "Tender Offer") to purchase all of the outstanding
shares of Michael Page Group PLC (Michael Page), a UK based
international provider of recruitment and staffing. On April 18, 1997,
Interim Services (UK) PLC ("Interim UK"), a wholly-owned subsidiary of
Interim Services Inc. (the "Company"), acquired 74.8% of the outstanding
ordinary share capital of Michael Page pursuant to the Tender Offer.
When aggregated with the 17.3% ownership held by Interim UK as a result
of open market purchases made since the announcement of the Tender
Offer, Interim UK's holdings totaled approximately 92% of the
outstanding ordinary share capital of Michael Page. Payment for the
tendered shares was made on May 2, 1997. The Company and Interim UK
obtained such funds from borrowings of approximately $509,000,000 under
a $675,000,000 syndicated credit agreement entered into as of May 1,
1997 (the "Credit Facility"). The Credit Facility consists of a
revolving loan facility of $400,000,000 and a term loan of $275,000,000.
Interest rates on amounts outstanding under the Credit Facility are
based on LIBOR plus a variable margin, determined by financial tests.
The borrowings under the revolver portion of the Credit Facility mature
May 1, 2003, subject to prepayment by the Company at any time.
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ITEM 2.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
RESULTS OF OPERATIONS
The following analysis of operations for the quarter ended March 28, 1997
compared to the quarter ended March 29, 1996 should be read in conjunction
with the Consolidated Statement of Earnings found on page 1.
QUARTER ENDED MARCH 28, 1997 COMPARED TO QUARTER ENDED MARCH 29, 1996
Revenues increased 19.7% to $316.8 million from $264.7 million last year.
Revenues are generated primarily through two operating divisions, Commercial
and HealthCare. Commercial revenues increased 23.4% reflecting high growth
rates in the Information Technology (IT) service line, continued acquisitions
and growth in the Search/HR business line, expansion of the On-Premise
program and an increase in the number of offices. HealthCare Division
revenues increased 4.9% due to a slightly higher average billing rate in the
first quarter of 1997 and expansion of our Occupational Health and Therapy
services.
Gross profit increased 23.3% to $97.4 million compared to $79.0 million a
year ago. Increases in cost of services and gross profit are associated with
increased revenues. Gross profit margin increased to 30.8% from 29.8% last
year principally due to growth in the percentage of revenues being derived
from professional services, a higher margin service.
Selling, general and administrative expenses as a percentage of revenues
were 22.3% compared to 21.1% a year ago. Operating expenses increased due to
the higher costs associated with our professional services group which has
higher gross margins and higher operating expenses.
Licensee commissions increased 2.7% to $9.4 million from $9.2 million last
year. Licensee commissions as a percent of revenues decreased to 3.0% from
3.5% due to branch revenues growing at a faster rate than licensee revenue,
caused in part by a large licensee converting to a franchise.
Amortization expense increased from $2.1 million to $2.3 million reflecting
an increase in intangible assets arising from acquisitions.
The effective tax rate for the first quarter of 1997 was 41.9% compared to
44.2% last year. The reduction in effective tax rate is primarily due to the
recognition of tax credits.
Net earnings for the quarter were up 55.3% to $8.5 million, or $0.43 per
share, compared to $5.4 million, or $0.35 per share last year, representing a
23.6% increase in per share earnings. Exclusive of 1996 merger expenses, net
earnings for the quarter were up 50.4% compared to $5.7 million, or $0.36 per
share last year, representing a 19.7% increase in per share earnings.
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The weighted average number of shares outstanding was 19,906,000 compared to
15,839,000 last year.
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FINANCIAL CONDITION
These comments should be read in conjunction with the Consolidated Balance
Sheets and Consolidated Statements of Cash Flows found on pages 2 and 3,
respectively.
Net cash provided by operating activities was $8.0 million and $4.5 million
in the first quarter of 1997 and 1996, respectively. This increase in cash
flow provided by operating activities was primarily due to increased net
earnings and increased accounts payable net of an increase in other assets.
Other assets increased from start-up costs related to a major contract for
which the Company will be reimbursed over the term of the contract.
Investing activities used $117.9 million in cash primarily relating to
acquisitions and the initial investment in Michael Page Group PLC (see
subsequent event). The Company increased its borrowings to $93.6 million to
fund this investment and other acquisitions.
The Company believes that its internally generated funds and lines of credit
are sufficient to support anticipated levels of growth.
SUBSEQUENT EVENT
On March 3, 1997, the Company announced a cash tender offer with a loan note
alternative (the "Tender Offer") to purchase all of the outstanding shares of
Michael Page Group PLC (Michael Page), a UK based international provider of
recruitment and staffing. On April 18, 1997, Interim Services (UK) PLC
("Interim UK"), a wholly-owned subsidiary of Interim Services Inc. (the
"Company"), acquired 74.8% of the outstanding ordinary share capital of
Michael Page pursuant to the Tender Offer. When aggregated with the 17.3%
ownership held by Interim UK as a result of open market purchases made since
the announcement of the Tender Offer, Interim UK's holdings totaled
approximately 92% of the outstanding ordinary share capital of Michael Page.
Payment for the tendered shares was made on May 2, 1997. The Company and
Interim UK obtained such funds from borrowings of approximately $509,000,000
under a $675,000,000 syndicated credit agreement entered into as of May 1,
1997 (the "Credit Facility"). The Credit Facility consists of a revolving
loan facility of $400,000,000 and a term loan of $275,000,000. Interest rates
on amounts outstanding under the Credit Facility are based on LIBOR plus a
variable margin, determined by financial tests. The borrowings under the
revolver portion of the Credit Facility mature May 1, 2003, subject to
prepayment by the Company at any time.
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PART II - OTHER INFORMATION
ITEM 4. - MATTERS SUBMITTED TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to the security holders for a vote during the
period covered by this report.
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ITEM 6 - EXHIBITS AND REPORTS ON FORM 8-K
EXHIBITS
EXHIBIT
NUMBER EXHIBIT NAME NOTE
------- ------------ ----
3.1 Restated Certificate of Incorporation of Registrant, as amended
September 12, 1996 (1)
3.2 By-Laws of Registrant, as amended (1)
4.1 Rights Agreement, dated as of April 1, 1994, between Interim
Services and Boatmen's Trust Company (2)
4.1A Amendment No. 1 to Rights Agreement dated as of April 1, 1994 (1)
4.1B Amendment No.2 to Rights Agreement dated as of April 1, 1994 *
4.2 Form of Certificate of Designations, Preferences and Rights of
Participating Preferred Stock of Interim Services (2)
4.3 Form of Stock Certificate, as amended (3)
4.4 Articles Fourth, Fifth, Seventh, Eighth and Tenth of the
Restated Certificate of Incorporation of the Company, as
amended September 12, 1996 (3)
4.5 Sections Four through Twelve and Thirty-Five through Forty-One
of the Bylaws of the Company (4)
10.1 Interim Services' 1993 Long-Term Executive Compensation Plan,
as amended (5)
10.2 Interim Services' 1993 Stock Option Plan for Outside Directors,
as amended (5)
10.3 Second Amended and Restated Credit Agreement of Interim
Services dated as of January 15, 1997 *
10.4 Tax Sharing Agreement dated October 1993, by and between H&R
Block, Inc. and Interim Services (6)
10.5 Amendment No. 2 dated November 28, 1995 to Amended and Restated
Revolving Credit Agreement of Interim Services dated as of
June 2, 1995. (7)
10.6 Indemnification Agreement dated January 1, 1994, by and between
Interim Services and H&R Block, Inc. (6)
10.7 Franchise/License Agreement dated July 12, 1993, by and between
Interim Services and Keco Health Care, Inc. (6)
10.8 Interim Services' 1994 Stock Option Plan for Franchisees,
Licensees and Agents, as amended (8)
10.9 Employment Agreement dated as of May 1, 1994, by and between
Interim Services and Raymond Marcy (9)
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10.10 Employment, Confidentiality, and Noncompetition Agreement
by and between Interim Services and Allan C. Sorensen (9)
10.11 Credit Agreement of Interim Services dated as of May 1, 1997 *
11 Statement re: Computation of Per Share Earnings Page 12
22 Published report regarding matters submitted to vote of
security holders None
23.1 Consent of Bryan Cave LLP (4)
23.2 Consent of Deloitte & Touche LLP (10)
27 Financial Data Schedule
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(1) This Exhibit is filed as an Exhibit to Interim Services' Form 10-Q as
filed with the SEC on November 12, 1996, and is incorporated herein by
reference.
(2) This Exhibit is filed as an Exhibit to Interim Services' Form 8-A, dated
April 11, 1994, SEC Registration No. 0-23198, and is incorporated herein by
reference.
(3) This Exhibit is filed as an Exhibit to Interim Services' Form 10-K for the
twelve month period ended December 27, 1996, and is incorporated herein by
reference.
(4) This Exhibit is filed as an Exhibit to Interim Services' Form S-3
Amendment No. 1, dated September 16, 1996, and is incorporated herein by
reference.
(5) This Exhibit is filed as an Exhibit to Interim Services' Proxy Statement
dated March 28, 1996 filed in connection with Interim Services' 1996 Annual
Meeting, and is incorporated herein by reference.
(6) This Exhibit is filed as an Exhibit to Interim Services' Form S-1,
Amendment No.2, dated January 12, 1994, SEC Registration No. 33-71338, and is
incorporated herein by reference.
(7) This Exhibit is filed as an Exhibit to Interim Services' Form 8-K dated
December 15, 1995, and is incorporated herein by reference.
(8) This Exhibit is filed as an Exhibit to Interim Services' Form S-8, as
filed with the SEC on July 12, 1995, and is incorporated herein by reference.
(9) This Exhibit is filed as an Exhibit to Interim Services' Form 10-K for
the twelve month period ended December 30, 1994, and is incorporated herein
by reference.
(10) This Exhibit is filed as an Exhibit to Interim Services' Form S-3 as
filed with the SEC on July 29, 1996, Registration No. 333-09109 and is
incorporated herein by reference.
* Filed herewith
Reports on Form 8-K
During the period covered by this report, the company filed a Report on Form
8-K dated May 5, 1997 and received by the SEC on May 5, 1997. The Report was
filed under Item 2 of Form 8-K.
The Company subsequently filed an amended report on Form 8-K/A dated May 9,
1997 and received by the SEC on May 9, 1997. The amendment was filed under
Item 2 and 7 of Form 8-K.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of l934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
INTERIM SERVICES INC.
-------------------------
(Registrant)
DATE 05/12/ 97 BY /s/ Roy G. Krause
--------- -----------------
Roy G. Krause
Executive Vice President
and Chief Financial Officer
DATE 05/12/ 97 BY /s/ Paul Haggard
--------- -----------------
Paul Haggard
Financial Vice President/Treasurer
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AMENDMENT NO. 2 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 2 is entered into as of the 25th day of February,
1997, by and among INTERIM SERVICES INC., a Delaware corporation (the
"Company"), and CHASEMELLON SHAREHOLDER SERVICES, L.L.C., a New York limited
liability company ("Chase" or the "Rights Agent").
R E C I T A L S:
A. The Company and Boatmen's Trust Company entered into that certain
Rights Agreement dated March 17, 1994, whereby the Company appointed Boatmen's
as the Rights Agent to act as agent for the Company and the holders of the
Rights in accordance with the terms and conditions of said Rights Agreement.
B. The Company, Boatmen's Trust Company and Chase entered into that
certain Amendment No. 1 to Rights Agreement dated June 26, 1996 whereby the
Company removed Boatmen's as Rights Agent and appointed Chase as Successor
Rights Agent in accordance with the terms and conditions of said Rights
Agreement.
C. The Company now wishes to amend certain additional provisions of
the Rights Agreement as provided herein.
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein and in the Rights Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and the Rights Agent hereby agree as follows:
1. Section 1(a) of the Rights Agreement is hereby amended (i) by
deleting the words "prior written approval of a majority of the Board of
Directors" in the fourth and fifth lines of such Section and substituting in
place thereof the words "Prior Written Approval of the Company", (ii) by adding
the words "without the Prior Written Approval of the Company" after the words
"of the Company" in the second to the last line of such Section, and (iii) by
adding the following sentence at the end of such Section:
"Any Person who or which, together with all Affiliates and
Associates of such Person, inadvertently becomes the
Beneficial Owner of securities of the Company
representing 15% or more of Voting Power of the Company
or otherwise becomes a Beneficial Owner without a plan
or intention to acquire control of the Company, shall
not become an "Acquiring Person" so long as such
Person, individually or together with
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the Affiliates and Associates of such Person, promptly
enters into, and delivers to the Company, an
irrevocable commitment to promptly divest, and
thereafter promptly divests (without exercising or
retaining any power, including voting, with respect to
such securities), sufficient securities of the Company
so that such Person, together with all Affiliates and
Associates of such Person, ceases to be the Beneficial
Owner of 15% or more of the Voting Power of the
Company.
2. Section 1(c)(i) is hereby amended by adding the following phrase
at the end of such Section:
", as determined pursuant to Rule 13d-3 of the
General Rules and Regulations under the Exchange Act as
in effect on the date hereof".
3. Section 1(c) is hereby amended by adding the following new
Section 1(c)(iv):
"Notwithstanding anything in this definition of
Beneficial Ownership to the contrary, the phrase "then
outstanding", when used with reference to a Person's
Beneficial Ownership of securities of the Company,
shall mean the number of such securities then issued
and outstanding together with the number of such
securities not then actually issued and outstanding
which such Person would be deemed to own beneficially
hereunder.
4. Section 1 of the Rights Agreement is hereby amended by deleting
Subsection (h), relettering Subsection (i) as Subsection (h), and adding the
following new Subsection (i):
"Prior Written Approval of the Company" shall mean
prior express written consent of the Company to the
actions in question, executed on behalf of the Company
by a duly authorized officer of the Company following
the express approval by action of at least a majority
of the members of the Board of Directors then in
office.
5. Section 1(l) of the Rights Agreement is hereby amended by (i)
deleting the words "any corporation or other entity" in the first and second
lines of said Section and
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substituting in place thereof the words "with respect to any Person, any other
Person", and (ii) by deleting the words "another corporation or other entity and
shall include Subsidiaries of Subsidiaries" in the sixth and seventh lines of
said Section and substituting in place thereof the words "such Person or one or
more of such Person's Subsidiaries".
6. Section 3(a) of the Rights Agreement is hereby amended (i) by
deleting the parenthetical language in the third and fourth lines of said
Section and substituting in place thereof the following: "(or such later date
as may be determined by action of the Board of Directors, but in no event
later than the date set forth in clause (i) above)", and (ii) by deleting the
words "prior written approval of a majority of the Board of Directors" in the
thirteenth and fourteenth lines of such Section and substituting in place
thereof "Prior Written Approval of the Company".
7. Section 3(c) of the Rights Agreement is hereby amended by
inserting the words "as it may from time to time be supplemented or amended"
after the parenthetical in the seventh line of such legend.
8. Section 5(a) of the Rights Agreement is hereby amended by
deleting the word "manually" in the eighth line of such Section, and
inserting the words "manually or by facsimile signature" after the word
"countersigned" in the eighth line of such Section.
9. Section 7(c) of the Rights Agreement is hereby amended by
inserting the words "or the Rights Agent" after the words "of the Company" in
the ninth line of such Section.
10. Section 7(e) of the Rights Agreement is hereby amended (i) by
inserting a comma after the words "Section 11(b)" in the sixth line of such
Section, (ii) by deleting the word "and" in the sixth line of such Section,
(iii) by inserting the words "and Section 24" after the words "Section 13(a)"
in the seventh line of said Section, and (iv) by inserting the following at
the end of such Section", or to receive any Common Stock in exchange therefor
pursuant to the provisions of Section 24 hereof."
11. Section 11(b) of the Rights Agreement is hereby amended (i) by
deleting the parenthetical language in the second through ninth lines of such
Section, (ii) by inserting the words "and Section 24" after the words
"Section 7(e)" in the eleventh line of such Section, and (iii) by deleting
the words "for a period of sixty days" in the eleventh and twelfth lines of
such Section.
12. Section 11(q) of the Rights Agreement is hereby amended by
inserting the words "or exchanged pursuant to Section 24 hereof" after the
word "hereof" in the fourth line of such Section.
13. Section 11(r) of the Rights Agreement is hereby amended by
inserting the words "and 24" after the words "Section 23" in the third line
of such Section.
14. Section 12 of the Rights Agreement is hereby amended by deleting
the
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numeral "25" in the third from the last line of such Section and substituting in
place thereof the numeral "26".
15. Section 13(c) of the Rights Agreement is hereby amended by
inserting the following after the word "unless" in the second line of such
Section:
"the Principal Party shall have a sufficient number of
shares of its authorized Common Stock which have not
been issued or reserved for issuance to permit the
exercise in full of the Rights in accordance with this
Section 13, and unless".
16. Section 13 of the Rights Agreement is hereby amended by deleting
Subsection (d) of such Section.
17. Section 17 of the Rights Agreement is hereby amended by deleting
the numeral "24" in the fourth line from the bottom of such Section and
substituting in place thereof the numeral "25".
18. Section 21 of the Rights Agreement is hereby amended by deleting
the comma after the word "days" in the fourth line of such Section.
19. Section 22 of the Rights Agreement is hereby amended by adding
the following new paragraph at the end of such Section:
"In addition, in connection with the issuance or sale of
Common Stock following the Distribution Date and prior
to the redemption, exchange or expiration of the
Rights, the Company (a) shall with respect to shares of
Common Stock so issued or sold pursuant to the exercise
of stock options or under any employee benefit plan or
arrangement, or upon the exercise, conversion or
exchange of securities hereinafter issued by the
Company, and (b) may, in any other case, if deemed
necessary or appropriate by the Board of Directors of
the Company, issue Rights Certificates representing the
appropriate number of Rights in connection with such
issuance or sale; PROVIDED, HOWEVER, that (i) no such
Rights Certificates shall be issued if, and to the
extent that, the Company shall be advised by counsel
that such issuance would create a significant risk of
material adverse tax consequences to the Company or the
Person to whom such Rights Certificates would be issued
and (ii) no Rights Certificates shall be
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issued if, and to the extent that, appropriate
adjustment shall otherwise have been made in lieu of
the issuance thereof.
20. Section 23 of the Rights Agreement is hereby amended by deleting
the last sentence of Subsection (a) and all of Subsection (b) of such Section
and then adding the following at the end of Subsection (a):
"The redemption of the Rights by the Board of Directors may
be made effective at such time, on such basis and with
such conditions as the Board of Directors in its sole
discretion may establish."
21. Section 23 of the Rights Agreement is hereby amended by
relettering Subparagraphs (c) and (d) as Subparagraphs (b) and (c),
respectively.
22. Section 23(c) (new Section 23(b)) of the Rights Agreement is
hereby amended (i) by inserting the words "or, when appropriate, immediately
upon the time or satisfaction of such conditions as the Board of Directors
may have established," after the word "Agent" in the fourth line of such
Section, and (ii) by inserting the words "the Rights Agent or, prior to the
Distribution Date, on the registry books of" after the word "books of" in the
fifth line from the bottom of such Section.
23. Section 23(d) (new Section 23(c)) of the Rights Agreement is
hereby amended by inserting the words "and Section 24 hereof" after the words
"Section 23" in the fourth line of such Section
24. Section 25 of the Rights Agreement is hereby amended (i) by
inserting the words "at any time after the Distribution Date" after the words
"shall propose" in the second line of the first full paragraph of such
Section, (ii) by deleting the numeral "25" in the twenty-seventh line of the
first full paragraph of such Section and substituting in place thereof the
numeral "26", (iii) by deleting the numeral "24" in the third line from the
bottom of the first full paragraph of such Section and substituting in place
thereof the numeral "25", and (iv) by deleting the numeral "25" in the fifth
line of the second full paragraph of such Section and substituting in place
thereof the numeral "26".
25. Section 27 of the Rights Agreement is hereby amended by deleting
Section 27 and substituting in place thereof the following:
"Section 27. SUPPLEMENTS AND AMENDMENTS. The
Company may from time to time supplement or amend
this Agreement without the approval of any holders
of Right Certificates in order (a) to cure any
ambiguity, (b) to correct or supplement any
provision contained herein which may be defective
or inconsistent with any
<PAGE>
other provisions herein, (c) to shorten or lengthen any time
period hereunder (including without limitation to extend the
Final Expiration Date), (d) increase or decrease the
Purchase Price, or (e) to change or supplement the
provisions hereunder in any manner which the Company may
deem necessary or desirable which shall not adversely affect
the interests of the holders of Right Certificates (other
than an Acquiring Person or an Affiliate or Associate of an
Acquiring Person); PROVIDED, HOWEVER, that from and after
such time as any Person becomes an Acquiring person, this
Agreement shall not be amended in any manner which would
adversely affect the interests of the holders of Rights;
provided further that this Agreement may not be supplemented
or amended to lengthen pursuant to clause (c) of this
sentence, (A) the time period relating to the when the
Rights may be redeemed at such time as the Rights are not
then redeemable, or (B) any other time period unless such
lengthening is for the purpose of protecting, enhancing or
clarifying the rights of, and/or the benefits to, the
holders of the rights; provided further that the Company
shall have the right to make any changes unilaterally
necessary to facilitate the appointment of a successor
Rights agent, which such changes shall be set forth in a
writing by the Company or by the Company and such successor
Rights Agent. Without limiting the foregoing, the Company
may at any time prior to such time as any Person becomes an
Acquiring Person amend this Agreement to lower the threshold
set forth in Section 1(a) hereof from 15% to not less than
the greater of (i) any percentage greater than the largest
percentage of the Voting Power of the Company then known by
the Company to be beneficially owned by any Person (other
than the Company, any Subsidiary of the Company, or any
employee benefit plan or compensation arrangement of the
Company or any Subsidiary of the Company, and any entity
holding securities of the Company to the extent organized,
appointed or established by the Company or any such
Subsidiary for or pursuant
<PAGE>
to the terms of any such employee benefit plan or
compensation arrangement) together with all Affiliates or
Associates of such Person and (ii) 10%. Upon the delivery
of a certificate from an appropriate officer of the Company
which states that the proposed supplement or amendment is in
compliance with the terms of this Section 27, the Rights
Agent shall execute such supplement or amendment.
In all other respects, except as herein stated, the Rights Agreement
shall remain in full force and effect.
This Amendment No. 2 may be executed in any number of counterparts,
each of which shall constitute an original, which such counterparts shall
together constitute but one and the same instrument. Terms not defined herein
shall, unless the context otherwise requires, have the meanings assigned to such
terms in the Rights Agreement.
[signatures on next page]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
2 to Rights Agreement to be duly executed, effective as of the date first above
written.
INTERIM SERVICES INC. CHASEMELLON
SHAREHOLDER
SERVICES, L.L.C.
By:
------------------------------
By: /s/ John B. Smith
------------------------------
John B. Smith
Secretary and General Counsel
<PAGE>
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
AMONG
INTERIM SERVICES INC.,
VARIOUS SUBSIDIARIES THEREOF,
THE LENDERS PARTY HERETO,
NATIONSBANK, N.A.,
AS DOCUMENTATION AGENT,
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS ADMINISTRATIVE AGENT
DATED AS OF JANUARY 15, 1997
Arranged by
FIRST CHICAGO CAPITAL MARKETS, INC.
<PAGE>
TABLE OF CONTENTS
ARTICLE I DEFINITIONS 1
ARTICLE II THE CREDITS 12
2.1 Description of the Credits 12
2.1.1 Available Facilities 12
2.1.2 Allocation among Borrowing Entities 12
2.2 Swing Line Loans 12
2.2.1 Swing Line Request 12
2.2.2 Making of Swing Line Loans 13
2.2.3 Swing Line Note 13
2.2.4 Repayment of Swing Line Loans 13
2.3 Advances 13
2.3.1 Commitment 13
2.3.2 Ratable Loans; Types of Advances 14
2.3.3 Minimum Amount of Each Advance 14
2.3.4 Applicable Margin, etc 14
2.3.5 Method of Selecting Types and Interest Periods for
New Advances 15
2.3.6 Conversion and Continuation of Outstanding Advances 15
2.4 Method of Borrowing 16
2.5 Fees 16
2.5.1 Facility Fee 16
2.5.2 Administrative Agent Fees 16
2.6 Reductions and Increases in Aggregate Commitment 17
2.6.1 Reductions in Aggregate Commitment 17
2.6.2 Increases in Aggregate Commitment 17
2.7 Principal Payments 17
2.7.1 Optional Prepayments 17
2.7.2 Currency Fluctuations 18
2.7.3 Termination 18
2.8 Changes in Interest Rate, etc 18
2.9 Rates Applicable After Default 18
2.10 Method of Payment 19
2.10.1 General 19
2.10.2 Currency of Payment 19
2.11 Notes; Telephonic Notices 19
2.12 Interest Payment Dates; Interest and Fee Basis 20
2.13 Notification by the Administrative Agent 20
2.14 Lending Installations 20
2.15 Non-Receipt of Funds by the Administrative Agent 20
2.16 Withholding Tax Exemption 21
2.17 Facility Letters of Credit 21
2.17.1 Obligation to Issue 21
2.17.2 Conditions for Issuance 21
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2.17.3 Procedure for Issuance 22
2.17.4 Payment of Reimbursement Obligations;
Duties of Issuer 23
2.17.5 Participation 24
2.17.6 Compensation for Facility Letters of Credit 26
2.17.7 Letter of Credit Collateral Account 26
2.18 Designation of Borrowing Subsidiaries 26
ARTICLE III - CHANGE IN CIRCUMSTANCES 26
3.1 Taxes 26
3.2 Yield Protection 28
3.3 Changes in Capital Adequacy Regulations 28
3.4 Availability of Eurocurrency Advances 29
3.5 Funding Indemnification 29
3.6 Mitigation of Additional Costs or Adverse Circumstances 29
3.7 Lender Statements; Survival of Indemnity 30
3.8 Market Disruption 30
ARTICLE IV - CONDITIONS PRECEDENT 30
4.1 Effectiveness 30
4.2 Initial Advance to Each Borrowing Subsidiary 31
4.3 Each Credit Extension 32
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF THE BORROWER 33
5.1 Corporate Existence and Standing 33
5.2 Authorization and Validity 33
5.3 No Conflict; Government Consent 33
5.4 Financial Statements 33
5.5 Material Adverse Change 34
5.6 Taxes 34
5.7 Litigation and Contingent Obligations 34
5.8 Subsidiaries 34
5.9 ERISA 34
5.10 Accuracy of Information 34
5.11 Regulation U 34
5.12 Material Agreements 35
5.13 Compliance With Laws 35
5.14 Ownership of Properties 35
5.15 Investment Company Act 35
5.16 Public Utility Holding Company Act 35
5.17 Insurance 35
ARTICLE VI- REPRESENTATIONS AND WARRANTIES OF BORROWING SUBSIDIARIES 35
6.1 Corporate Existence and Standing 35
6.2 Authorization and Validity 36
6.3 No Conflict; Government Consent 36
ii
<PAGE>
6.4 Filing 36
6.5 No Immunity 36
6.6 Regulation U 37
ARTICLE VII - COVENANTS 37
7.1 Financial Reporting 37
7.2 Use of Proceeds 38
7.3 Notice of Default 38
7.4 Conduct of Business; New Active Subsidiaries 38
7.5 Taxes 39
7.6 Insurance 39
7.7 Compliance with Laws 39
7.8 Maintenance of Properties 39
7.9 Inspection 39
7.10 Dividends 39
7.11 Merger 39
7.12 Sale of Assets 40
7.13 Sale of Accounts 40
7.14 Investments and Acquisitions 40
7.15 Liens 41
7.16 Affiliates 42
7.17 Financial Covenants 42
7.17.1 Leverage Ratio 42
7.17.2 Net Worth 42
7.18 Pledge of Stock of Foreign Subsidiaries 42
7.19 Limitation on Foreign Subsidiaries 43
7.20 Payroll Accounts 43
ARTICLE VIII - DEFAULTS 43
ARTICLE IX - ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES 45
9.1 Acceleration 45
9.2 Amendments 46
9.3 Preservation of Rights 47
ARTICLE X - GENERAL PROVISIONS 47
10.1 Survival of Representations 47
10.2 Governmental Regulation 47
10.3 Taxes 47
10.4 Headings 47
10.5 Entire Agreement 47
10.6 Several Obligations; Benefits of this Agreement 47
10.7 Expenses; Indemnification 48
10.8 Numbers of Documents 48
10.9 Accounting 48
10.10 Severability of Provisions 48
iii
<PAGE>
10.11 Nonliability of Lenders 48
10.12 Confidentiality 48
10.13 CHOICE OF LAW 49
10.14 CONSENT TO JURISDICTION 49
10.15 WAIVER OF JURY TRIAL 49
10.16 New Credit Facilities 49
10.17 Language 50
ARTICLE XI - THE ADMINISTRATIVE AGENT 50
11.1 Appointment 50
11.2 Powers 50
11.3 General Immunity 50
11.4 No Responsibility for Loans, Recitals, etc 50
11.5 Action on Instructions of Lenders 51
11.6 Employment of Agents and Counsel 51
11.7 Reliance on Documents; Counsel 51
11.8 Administrative Agent's Reimbursement and Indemnification 51
11.9 Rights as a Lender 51
11.10 Lender Credit Decision 52
11.11 Successor Administrative Agent 52
11.12 Documentation Agent; Co-Agents 52
ARTICLE XII - SETOFF; RATABLE PAYMENTS 53
12.1 Setoff 53
12.2 Ratable Payments 53
ARTICLE XIII - BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS 53
13.1 Successors and Assigns 53
13.2 Participations 54
13.2.1 Permitted Participants; Effect 54
13.2.2 Voting Rights 54
13.2.3 Benefit of Setoff 54
13.3 Assignments 54
13.3.1 Permitted Assignments 54
13.3.2 Effect; Effective Date 55
13.4 Dissemination of Information 55
13.5 Tax Treatment 55
ARTICLE XIV - NOTICES 55
14.1 Giving Notice 55
14.2 Change of Address 56
14.3 Notices to and by Borrowing Subsidiaries 56
ARTICLE XV - BORROWER GUARANTY OF BORROWING SUBSIDIARY OBLIGATIONS 56
15.1 Direct Obligations 56
iv
<PAGE>
15.2 Obligations Unconditional 56
15.3 Discharge Only Upon Payment in Full; Reinstatement in
Certain Circumstances 57
15.4 Waiver 57
15.5 Stay of Acceleration 58
15.6 Payments 58
15.7 Delay of Subrogation 58
v
<PAGE>
EXHIBITS
EXHIBIT "A-1" - FORM OF NOTE
EXHIBIT "A-2" - FORM OF SWING LINE NOTE
EXHIBIT "B" - FORM OF OPINION OF COUNSEL TO THE BORROWER
EXHIBIT "C" - COMPLIANCE CERTIFICATE
EXHIBIT "D" - LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
EXHIBIT "E" - ASSIGNMENT AGREEMENT
EXHIBIT "F" - FORM OF AMENDMENT FOR AN INCREASED OR NEW COMMITMENT
EXHIBIT "G" - FORM OF PLEDGE AGREEMENT
EXHIBIT "H" - FORM OF ASSUMPTION LETTER
EXHIBIT "I" - FORM OF LETTER OF CREDIT REQUEST
SCHEDULES
SCHEDULE "1" - COMMITMENTS AND PERCENTAGES
SCHEDULE "2" - SUBSIDIARIES AND OTHER INVESTMENTS
SCHEDULE "3" - LIENS
SCHEDULE "4" - CONTINGENT OBLIGATIONS
SCHEDULE "5" - ASSOCIATED COSTS RATE
vi
<PAGE>
INTERIM SERVICES INC.
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
This Agreement, dated as of January 15, 1997, is among Interim Services
Inc., the Borrowing Subsidiaries, the Lenders, NationsBank, N.A., as
Documentation Agent, and The First National Bank of Chicago, as Administrative
Agent.
W I T N E S S E T H:
WHEREAS, the Borrower, The First National Bank of Chicago, individually and
as Agent, and certain banks named therein have entered into that certain Amended
and Restated Credit Agreement, dated as of June 2, 1995 (as amended from time to
time prior to the date hereof, the "Existing Agreement"), pursuant to which the
banks party thereto agreed to make available to the Borrower revolving loans in
an aggregate principal amount and on terms and conditions more fully described
therein (the "Existing Credit Facilities"); and
WHEREAS, the Borrower and the Lenders desire to restructure the Existing
Credit Facilities so as to amend various provisions of the Existing Agreement;
and
WHEREAS, pursuant to the terms of this Agreement, on the Effective Date,
(i) the Existing Credit Facilities shall be replaced in their entirety by the
credit facilities described herein (the "New Credit Facilities"), (ii) all loans
and other obligations of the Borrower outstanding as of such date under the
Existing Credit Facilities shall be deemed to be loans and obligations
outstanding under the New Credit Facilities, and (iii) all provisions of this
Agreement not theretofore in effect shall become effective;
NOW, THEREFORE, in consideration of the undertakings set forth herein and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
<PAGE>
I
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which
the Borrower or any of its Subsidiaries (i) acquires any going business or
all or substantially all of the assets of any firm, corporation or division
thereof, whether through purchase of assets, merger or otherwise or (ii)
directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power
for the election of directors (other than securities having such power only
by reason of the happening of a contingency) or a majority (by percentage or
voting power) of the outstanding partnership interests of a partnership or
other equity interests in any other entity.
"Active Subsidiary" means a Subsidiary of the Borrower that is then doing
business of any kind.
"Administrative Agent" means The First National Bank of Chicago in its
capacity as administrative agent for the Lenders pursuant to Article XI, and not
in its individual capacity as a Lender, and any successor Administrative Agent
appointed pursuant to Article XI.
"Administrative Agent's Domestic Office" means the Administrative Agent's
office at One First National Plaza, Chicago, Illinois, USA 60670, or such other
office as the Administrative Agent may designate from time to time by notice to
the other parties hereto.
"Administrative Agent's London Office" means the Administrative Agent's
office at Mail Suite 5000, First Chicago House, 90 Long Acre, London, WC2E 9RB,
England, or such other office as the Administrative Agent may designate from
time to time by notice to the other parties hereto.
"Advance" means a borrowing hereunder consisting of the aggregate amount of
the several Loans made by the Lenders to the same Borrowing Entity of the same
Type and, in the case of Eurocurrency Advances, in the same Eurocurrency and for
the same Interest Period.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means, as of any date, the aggregate of the Lenders'
then-current Commitments under this Agreement, as reduced or increased from time
to time in accordance with Section 2.6, but in no event shall the Aggregate
Commitment exceed $300,000,000 without the approval of the Borrower, the
Administrative Agent and all of the Lenders. The Aggregate Commitment as of the
date of this Agreement is $200,000,000, as shown on Schedule "1".
2
<PAGE>
"Agreement" means this second amended and restated credit agreement, as it
may be amended or modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
that used in preparing the December 29, 1995 financial statements referred to in
Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Corporate Base Rate for such day and (ii) the sum
of Federal Funds Effective Rate for such day plus 1/2% per annum.
"Alternate Base Rate Advance" means an Advance, denominated in Dollars,
which bears interest at the Alternate Base Rate.
"Alternate Base Rate Loan" means a Loan, denominated in Dollars, which
bears interest at the Alternate Base Rate.
"Applicable Margin" means, at any date of determination thereof with
respect to any Eurocurrency Advance, the rate per annum for such Eurocurrency
Advance calculated in accordance with the terms of Section 2.3.4.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Officer" means any of the President/Chief Executive Officer,
Chief Financial Officer, Financial Vice President, Treasurer or any Senior Vice
President of the Borrower, acting singly, or any two Vice Presidents of the
Borrower, acting jointly.
"Borrower" means Interim Services Inc., a Delaware corporation, and its
successors.
"Borrowing Date" means a date on which an Advance or a Swing Line Loan is
made hereunder.
"Borrowing Entities" means the Borrower and each Borrowing Subsidiary.
"Borrowing Notice" is defined in Section 2.3.5.
"Borrowing Subsidiary" means any Subsidiary of the Borrower which has been
designated as a Borrowing Subsidiary pursuant to Section 2.18.
"Borrowing Subsidiary Obligations" means, with respect to any Borrowing
Subsidiary, any and all amounts payable by such Borrowing Subsidiary under or in
respect of this Agreement or any Note issued by such Borrowing Subsidiary.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurocurrency Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and New York for the conduct of
substantially all of their commercial lending activities and on which dealings
in
3
<PAGE>
United States dollars are carried on in the London interbank market and (ii)
for all other purposes, a day (other than a Saturday or Sunday) on which
banks generally are open in Chicago for the conduct of substantially all of
their commercial lending activities.
"Capitalized Lease" of a Person means any lease of Property by such Person
as lessee which would be capitalized on a balance sheet of such Person prepared
in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Change in Control" means the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of 20% or more of the outstanding shares of voting stock of the
Borrower.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of such Lender to make
Loans, and to participate in Swing Line Loans and Facility Letters of Credit, in
an aggregate Dollar Equivalent amount not exceeding its Percentage of the
Aggregate Commitment.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, or take-or-pay contract.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower or any of its Subsidiaries, are treated as a
single employer under Section 414 of the Code.
"Conversion/Continuation Notice" is defined in Section 2.3.6.
"Corporate Base Rate" means a rate per annum equal to the corporate base
rate of interest announced by First Chicago from time to time, changing when and
as said corporate base rate changes.
"Default" means an event described in Article VIII.
"Dollar" and "$" mean United States Dollars.
"Dollar Equivalent" means, with respect to any amount denominated in a
Foreign Currency, the Dollar equivalent amount of such Foreign Currency
calculated on the basis of the arithmetical mean of the
4
<PAGE>
buy and sell spot rates of exchange of the Administrative Agent for such
Foreign Currency in the London market at 11:00 a.m., London time, two
Business Days prior to the date on which such amount is to be determined.
"Domestic Subsidiary" means any Subsidiary other than a Foreign Subsidiary.
"EBITDA" means, for any period, earnings before interest expense, income
taxes, depreciation expense and amortization expense, all determined on a
consolidated basis for the Borrower and its Subsidiaries; PROVIDED that, with
respect to any Acquisition which is treated as a "purchase," EBITDA for the four
fiscal quarters following such Acquisition shall include the results of the
operations of the Person or assets so acquired (which results shall be
determined on an historical pro forma basis in form and substance satisfactory
to the Required Lenders so long as the Borrower has furnished to the Lenders
financial information acceptable to the Required Lenders with respect to the
Person or assets so acquired).
"Effective Date" is defined in Section 4.1.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurocurrency" means, subject to Section 3.8, (i) Dollars, (ii) Canadian
dollars, German marks, Netherlands guilders, Japanese yen, Belgian francs,
French francs and British pounds sterling, so long as any such currency is one
(A) which is freely transferable and convertible into Dollars and (B) in which
deposits are customarily offered to banks in the London interbank market, and
(iii) any other currency (A) which is freely transferable and convertible into
Dollars, (B) in which deposits are customarily offered to banks in the London
interbank market, (C) which the Borrower requests the Administrative Agent to
include as a Eurocurrency hereunder and (D) which is acceptable to each Lender.
"Eurocurrency Advance" means an Advance which bears interest at a
Eurocurrency Rate requested by the Borrower pursuant to Section 2.3.
"Eurocurrency Base Rate" means, with respect to a Eurocurrency Advance for
the relevant Interest Period, the rate determined by the Administrative Agent to
be the rate at which deposits in the applicable Eurocurrency are offered by
First Chicago to first-class banks in the London interbank market at
approximately 11 a.m. (London time) two Business Days prior to the first day of
such Interest Period, in the approximate amount of First Chicago's relevant
Eurocurrency Loan and having a maturity approximately equal to such Interest
Period.
"Eurocurrency Loan" means a Loan which bears interest at a Eurocurrency
Rate requested by the Borrower pursuant to Section 2.3.
"Eurocurrency Rate" means, with respect to a Eurocurrency Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurocurrency
Base Rate applicable to such Interest Period, divided by (b) one minus the
Reserve Requirement (expressed as a decimal) applicable to such Interest Period,
plus (ii) the Applicable Margin. The Eurocurrency Rate shall be rounded to the
next higher multiple of 1/16 of 1% if the rate is not such a multiple.
5
<PAGE>
"Eurodollar Advance" means a Eurocurrency Advance denominated in Dollars.
"Existing Agreement" is defined in the preamble to this Agreement.
"Existing Credit Facilities" is defined in the preamble to this Agreement.
"Facility Fee Rate" means, at any date of determination, the rate per annum
calculating in accordance with Section 2.3.4.
"Facility Letter of Credit" means an irrevocable standby Letter of Credit
issued by the Issuer pursuant to Section 2.17.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not
a Business Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations at approximately 10
a.m. (Chicago time) on such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by the Administrative Agent in its sole discretion.
"First Chicago" means The First National Bank of Chicago in its individual
capacity, and its successors.
"Foreign Currency" means any Eurocurrency other than Dollars.
"Foreign Currency Advance" means any Advance in a Foreign Currency.
"Foreign Currency Loan" means any Loan in a Foreign Currency.
"Foreign Subsidiary" means any Subsidiary (other than Spectrum) which (i)
is organized under the laws of a jurisdiction other than the United States of
America or a state thereof and (ii) conducts substantially all of its business
and operations outside of the United States of America.
"Governmental Agency" means any government, foreign or domestic, or any
state, department or other political subdivision thereof, or governmental body,
agency, authority, department or commission (including without limitation any
taxing authority or political subdivision) or instrumentality (including without
limitation any court or tribunal) exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government and any
corporation, partnership or other entity, directly or indirectly owned by or
subject to the control of any of the foregoing.
"Guarantor Subsidiary" means each Subsidiary which is a party to the
Guaranty.
"Guaranty" means that certain Third Amended and Restated Guaranty dated as
of January 15, 1997 executed by each of Interim Accounting Personnel, Inc.,
Interim Assisted Care, Inc., Interim Financial Corporation, Interim HealthCare
Inc., Interim HealthCare of New York Inc., Interim Legal Services Inc., Interim
Personnel Inc., Interim Physicians, Inc., Interim Temporary Personnel Inc., Rich
Field Agency, Inc.,
6
<PAGE>
Interim Technology Inc., Interim Real Estate Solutions Inc., Cornell Computer
Corp., Spectrum Financial Corporation, Interim Services (Europe) Inc. and
Interim Occupational Health Inc. (and such other Subsidiaries which may
become party thereto pursuant to a joinder agreement acceptable to the
Administrative Agent) in favor of the Administrative Agent and the Lender
Parties (as defined therein), as it may be amended or modified and in effect
from time to time.
"Inactive Subsidiary" means a Subsidiary of the Borrower that is not an
Active Subsidiary.
"Indebtedness" of a Person means (without duplication) such Person's (i)
obligations for borrowed money, (ii) obligations representing the deferred
purchase price of Property or services (other than accounts payable arising in
the ordinary course of such Person's business payable on terms customary in the
trade), (iii) obligations, whether or not assumed, secured by Liens or payable
out of the proceeds or production from property now or hereafter owned or
acquired by such Person, (iv) obligations which are evidenced by notes,
acceptances, or other instruments, (v) Capitalized Lease Obligations, (vi) lease
obligations under leases entered into by such Person upon such Person's sale or
transfer of any of its Property in order to concurrently lease as lessee such or
similar Property, (vii) net liabilities of such Person under Rate Hedging
Agreements, (viii) obligations, whether matured or contingent, in respect of
Letters of Credit issued for the account of such Person, and (ix) Contingent
Obligations.
"Interest Period" means, with respect to a Eurocurrency Advance, a period
of one, two, three or six months commencing on a Business Day selected by the
Borrower pursuant to this Agreement. Such Interest Period shall end on (but
exclude) the day which corresponds numerically to such date one, two, three or
six months thereafter, provided, however, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such
Interest Period shall end on the last Business Day of such next, second, third
or sixth succeeding month. If an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than commission,
travel and similar advances to officers and employees made in the ordinary
course of business), extension of credit (other than accounts receivable arising
in the ordinary course of business on terms customary in the trade), deposit
account or contribution of capital by such Person to any other Person or any
investment in, or purchase or other acquisition of, the stock, partnership
interests, notes, debentures or other securities of any other Person made by
such Person.
"Issuance Date" is defined in Section 2.17.3(a).
"Issuance Notice" is defined in Section 2.17.3(c).
"Issuer" means First Chicago in its capacity as issuer of Facility Letters
of Credit.
"L/C Fee Percentage" means, at any date of determination, the rate per
annum calculated in accordance with the terms of Section 2.3.4.
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<PAGE>
"Lenders" means the lending institutions listed on the signature pages of
this Agreement or which become parties hereto pursuant to Section 2.6.2 or 13.3
and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the
Administrative Agent, any office, branch, subsidiary or affiliate of such Lender
or the Administrative Agent.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Letter of Credit Collateral Account" is defined in Section 2.17.7.
"Letter of Credit Obligations" means, at any time, all liabilities, whether
actual or contingent, of the Borrower with respect to Facility Letters of
Credit, including (a) Reimbursement Obligations and (b) the aggregate undrawn
face amount of all outstanding Facility Letters of Credit.
"Letter of Credit Request" is defined in Section 2.17.3(a).
"Leverage Ratio" means, at any time, the ratio of (i) Total Debt to (ii)
EBITDA for the period of four fiscal quarters ending on the last day of the most
recently-ended fiscal quarter of the Borrower, all determined on a consolidated
basis for the Borrower and its Subsidiaries.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever intended as or having the effect of a lien (including, without
limitation, the interest of a vendor or lessor under any conditional sale,
Capitalized Lease or other title retention agreement).
"Loan" means, with respect to a Lender, a loan made by such Lender
hereunder as part of an Advance (and, in the case of the Swing Line Bank, also
means any Swing Line Loan).
"Loan Documents" means this Agreement, the Notes, the Guaranty and each
Pledge Agreement.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents to
which it is a party, or (iii) the validity or enforceability of any of the Loan
Documents or the rights or remedies of the Administrative Agent or the Lenders
thereunder.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Net Income" means, for any period, the net income (or loss) of the
Borrower and its Subsidiaries on a consolidated basis for such period taken as a
single accounting period determined in conformity with Agreement Accounting
Principles; PROVIDED, HOWEVER, that to the extent reported as a separate item on
the
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<PAGE>
Borrower's financial statements delivered pursuant to Section 7.1, there
shall be excluded (i) the income (or loss) of any Affiliate of the Borrower
or other Person (other than a Subsidiary of the Borrower) in which any Person
(other than the Borrower or any of its Subsidiaries) has a joint interest,
except to the extent of the amount of dividends or other distributions
actually paid to the Borrower, or any of its Subsidiaries by such Affiliate
or other Person during such period and (ii) the income (or loss) of any
Person accrued prior to the date such Person becomes a Subsidiary of the
Borrower or is merged into or consolidated with the Borrower or any of its
Subsidiaries or that Person's assets are acquired by the Borrower or any of
its Subsidiaries.
"Net Worth" means the aggregate amount of shareholders equity as determined
from a consolidated balance sheet of the Borrower and its Subsidiaries, prepared
in accordance with Agreement Accounting Principles; PROVIDED that the amount of
any foreign currency translation adjustment shall be excluded for purposes of
determining Net Worth.
"New Credit Facilities" is defined in the preamble to this Agreement.
"Note" means (a) a promissory note in substantially the form of Exhibit
"A-1" hereto, with appropriate insertions, duly executed and delivered to
Administrative Agent by a Borrowing Entity for the account of a Lender and
payable to the order of such Lender in the amount of its Commitment, including
any amendment, modification, renewal or replacement of such promissory note, and
(b) the Swing Line Note.
"Notice of Assignment" is defined in Section 13.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Notes, all Letter of Credit Obligations, all accrued and
unpaid fees and all expenses, reimbursements, indemnities and other
obligations of any Borrowing Entity to any Lender, the Administrative Agent
or any indemnified party hereunder arising under the Loan Documents.
"Participants" is defined in Section 13.2.1.
"Payment Date" means the last day of each March, June, September and
December.
"Payroll Account" means a bank account maintained by the Borrower or any
Subsidiary solely for the purpose of paying salary, bonuses and similar items to
employees.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Percentage" means, for each Lender, the percentage set forth opposite its
name on Schedule "1" attached hereto, as such percentage (and such schedule) may
be modified from time to time pursuant to the terms hereof, including but not
limited to the provisions of Section 2.6.2 or 13.3.2.
"Person" means any natural person, corporation, firm, joint venture,
limited liability company, partnership, association, enterprise, trust or other
entity or organization, or any Governmental Agency.
9
<PAGE>
"Plan" means an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Pledge Agreement" means a pledge agreement between the Borrower or a
Domestic Subsidiary and the Administrative Agent pursuant to which 65% of the
stock of one or more Foreign Subsidiaries is pledged to the Administrative Agent
to secure the Obligations (and any obligations to any Lender or any affiliate
thereof arising under a Rate Hedging Agreement). A Pledge Agreement shall be in
the form of Exhibit "G" or in such other form as is reasonably acceptable to the
Administrative Agent for the stock being pledged thereunder.
"Property" of a Person means any and all property, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets owned, leased or
operated by such Person.
"Purchasers" is defined in Section 13.3.1.
"Rate Hedging Agreement" means any agreement, device or arrangement
designed to protect at least one of the parties thereto from fluctuations in
interest rates, exchange rates or forward rates applicable to such party's
assets, liabilities or exchange transactions, including, but not limited to,
dollar-denominated or cross-currency interest rate exchange agreements, forward
currency exchange agreements, interest rate collar agreements, forward rate
currency or interest rate options, puts, calls or warranties.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Reimbursement Obligations" means at any time the aggregate amount of the
Obligations of the Borrower to the Issuer, the Lenders and the Administrative
Agent in respect of all Unreimbursed Amounts and any other disbursement made by
the Issuer, a Lender or the Administrative Agent under or in respect of any
Facility Letter of Credit.
"Rentals" of a Person means the aggregate fixed amounts payable by such
Person under any lease of Property having an original term (including any
required renewals or any renewals at the option of the lessor or lessee) of one
year or more, but does not include any amounts payable under Capitalized Leases
of such Person.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided, however, that a failure to meet the
minimum funding
10
<PAGE>
standard of Section 412 of the Code and of Section 302 of ERISA shall be a
Reportable Event regardless of the issuance of any such waiver of the notice
requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least 66 2/3%
of the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding at least 66 2/3% of the aggregate unpaid Dollar
Equivalent principal amount of the outstanding Loans (it being understood that
if any Swing Line Loan is outstanding, each Lender shall be deemed to hold its
Percentage thereof).
"Reserve Requirement" means, with respect to any Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Spectrum" means Spectrum Insurance Company, Ltd., a Cayman Islands
corporation.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, association, joint venture or similar business
organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the Borrower
and its Subsidiaries, Property which (i) represents more than 10% of the
consolidated assets of the Borrower and its Subsidiaries as would be shown in
the consolidated financial statements of the Borrower and its Subsidiaries as
at the beginning of the twelve-month period ending with the month in which
such determination is made, or (ii) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the Borrower and
its Subsidiaries as reflected in the financial statements referred to in
clause (i) above.
"Swing Line Bank" means First Chicago in its capacity as swing line lender
hereunder.
"Swing Line Commitment" means the obligation of the Swing Line Bank to make
Swing Line Loans up to a maximum of $5,000,000 at any one time outstanding.
"Swing Line Loan" means a Loan made available to the Borrower by the Swing
Line Bank pursuant to Section 2.2 hereof.
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<PAGE>
"Swing Line Note" means a promissory note, in substantially the form of
Exhibit "A-2" hereto, duly executed by the Borrower and payable to the order of
the Swing Line Bank in the amount of the Swing Line Commitment, including any
amendment, modification, renewal or replacement of such note.
"Termination Date" means January 15, 2002.
"Total Debt" means all Indebtedness of the Borrower and its Subsidiaries on
a consolidated basis.
"Total Outstandings" means at any time an amount equal to the sum of the
aggregate principal Dollar Equivalent amount of all outstanding Advances plus
the amount of all Letter of Credit Obligations plus the aggregate principal
amount of all Swing Line Loans.
"Transferee" is defined in Section 13.4.
"Type" means, with respect to any Loan or Advance, its nature as an
Alternate Base Rate Advance or Loan or a Eurocurrency Advance or Loan.
"Unfunded Liabilities" means the amount (if any) by which the present value
of all vested nonforfeitable benefits under all Single Employer Plans exceeds
the fair market value of all Plan assets allocable to such benefits, all
determined as of the then most recent valuation date for such Plans.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"Unreimbursed Amount" is defined in Section 2.17.5(b).
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of the
outstanding voting securities of which shall at the time be owned or controlled,
directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries
of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of
such Person, or (ii) any partnership, association, joint venture or similar
business organization 100% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
12
<PAGE>
II
THE CREDITS
-----------
II.1. DESCRIPTION OF THE CREDITS.
II.1.1. AVAILABLE FACILITIES. Upon the terms and subject to
the conditions set forth in this Agreement, the Lenders hereby grant to the
Borrowing Entities a revolving credit facility pursuant to which: (i) each
Lender severally agrees to make Loans to the Borrowing Entities in accordance
with Section 2.3; (ii) the Issuer agrees to issue, and each Lender agrees to
participate in, Facility Letters of Credit for the account of the Borrowing
Entities in accordance with Section 2.17; and (iii) the Swing Line Bank
agrees to make Swing Line Loans in an amount not exceeding the Swing Line
Commitment in accordance with Section 2.2; PROVIDED that in no event may the
aggregate Total Outstandings exceed the Aggregate Commitment. The revolving
credit facility shall be available from the date of this Agreement to the
Termination Date, and during such period the Borrowing Entities may borrow,
repay and reborrow from time to time.
II.1.2. ALLOCATION AMONG BORROWING ENTITIES. The Borrowing
Entities understand and agree that (i) subject to the terms of this
Agreement, the Lenders and the Issuer will honor requests for Borrowings and
the issuance of Facility Letters of Credit in the order received by the
Administrative Agent, and (ii) as a result, one or more of the Borrowing
Entities may be unable to borrow or increase Borrowings hereunder, or obtain
Facility Letters of Credit hereunder, if other Borrowing Entities have
already borrowed or obtained Facility Letters of Credit hereunder in amounts
which have caused the Total Outstandings to equal the Aggregate Commitment.
II.2. SWING LINE LOANS. Subject to the terms and conditions
of the Agreement (including but not limited to the limitations set forth in
Section 2.1), the Swing Line Bank agrees to make the Swing Line Loans to the
Borrower in accordance with this Section 2.2 up to the amount of the Swing
Line Commitment. Amounts borrowed under this Section 2.2 may be borrowed,
repaid and reborrowed to, but not including, the Termination Date. All
outstanding Swing Line Loans shall be paid in full on the Termination Date.
II.2.1. SWING LINE REQUEST. The Borrower may request a Swing
Line Loan from the Swing Line Bank on any Business Day before the Termination
Date by giving the Administrative Agent and the Swing Line Bank notice by
12:00 noon (Chicago time) (or such later time as the Borrower, the Swing Line
Bank and the Administrative Agent may agree) on such Borrowing Date
specifying the aggregate amount of such Swing Line Loan, which shall be an
amount not less than $100,000. The Administrative Agent shall promptly notify
each Lender of such request.
II.2.2. MAKING OF SWING LINE LOANS. The Swing Line Bank shall,
no later than 3:00 p.m. on such Borrowing Date, make the funds for such Swing
Line Loan available to the Borrower at the Agent's Domestic Office or at such
other place as indicated in written money transfer instructions from the
Borrower in form and substance satisfactory to the Swing Line Bank.
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<PAGE>
II.2.3. SWING LINE NOTE. The Swing Line Loans shall be
evidenced by the Swing Line Note and each Swing Line Loan shall be paid in
full by the Borrower on or before the fifth Business Day after the Borrowing
Date for such Swing Line Loan.
II.2.4. REPAYMENT OF SWING LINE LOANS. The Borrower may at any
time pay, without penalty or premium, all outstanding Swing Line Loans, or,
in a minimum amount of $100,000, any portion of the outstanding Swing Line
Loans upon notice to the Administrative Agent and the Swing Line Bank. In
addition, the Administrative Agent shall: (i) at any time at the request of
the Swing Line Bank and (ii) on the fifth Business Day after the Borrowing
Date for such Swing Line Loan, require the Lenders (including the Swing Line
Bank) to make an Alternate Base Rate Advance in an amount up to the amount of
Swing Line Loans outstanding on such date for the purpose of repaying Swing
Line Loans; PROVIDED, HOWEVER, that the obligation of each Lender to make
such Advance is subject to the condition that the Swing Line Bank believed in
good faith that all conditions under Section 4.3 were satisfied at the time
the Swing Line Loan was made. If the Swing Line Bank receives notice from
any Lender that a condition under Section 4.3 has not been satisfied, no
Swing Line Loans shall be made until (a) such notice is withdrawn by such
Lender or (b) the Required Lenders have waived satisfaction of any such
condition. The Lenders shall deliver the proceeds of such Advance to the
Administrative Agent by 12:00 noon (Chicago time) on the applicable Borrowing
Date for application to the Swing Line Bank's outstanding Swing Line Loans.
Subject to the proviso contained in the first sentence of this Section 2.2.4,
each Lender's obligation to make available its Percentage of the Advance
referred to in this Section shall be absolute and unconditional and shall not
be affected by any circumstance, including without limitation, (i) any
set-off, counterclaim, recoupment, defense or other right which such Lender
may have against the Swing Line Bank, or anyone else, (ii) the occurrence or
continuance of a Default or Unmatured Default, (iii) any adverse change in
the condition (financial or otherwise) of the Borrower or (iv) any other
circumstance, happening or event whatsoever. If for any reason a Lender does
not make available its Percentage of the foregoing Advance, such Lender shall
be deemed to have unconditionally and irrevocably purchased from the Swing
Line Bank, without recourse or warranty, an undivided interest and
participation in each Swing Line Loan then being repaid, equal to its
Percentage of all such Swing Line Loans being repaid, so long as such
purchase would not cause such Lender to exceed its Commitment. If any
portion of any amount paid (or deemed paid) to the Administrative Agent
should be recovered by or on behalf of the Borrower from the Administrative
Agent in bankruptcy, otherwise, the loss of the amount so recovered shall be
shared ratably among all Lenders.
II.3. ADVANCES.
II.3.1. COMMITMENT. From and including the date of this
Agreement and prior to the Termination Date, each Lender severally agrees, on
the terms and conditions set forth in this Agreement, to make Loans to the
Borrowing Entities from time to time in Dollar Equivalent amounts which,
together with such Lender's Percentage of the outstanding Letter of Credit
Obligations and of the outstanding Swing Line Loans, will not exceed in the
aggregate at any time outstanding the amount of its Commitment. The
Commitments to lend hereunder shall expire on the Termination Date.
II.3.2. RATABLE LOANS; TYPES OF ADVANCES. Each Advance
hereunder shall consist of Loans made from the several Lenders ratably in
proportion to the ratio that their respective Commitments bear to the
Aggregate Commitment. The Advances may be Alternate Base Rate Advances or
Eurocurrency Advances, or a combination thereof, selected by the Borrowing
Entities in accordance with Sections 2.3.5
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<PAGE>
and 2.3.6; PROVIDED, HOWEVER, that there shall not be more than 12
Eurocurrency Advances outstanding at any one time.
II.3.3. MINIMUM AMOUNT OF EACH ADVANCE. Each Advance shall be
in the minimum Dollar Equivalent amount of $5,000,000 (and, with respect to
Eurocurrency Advances, in multiples of $500,000 or of 100,000 units of the
applicable Foreign Currency); PROVIDED, HOWEVER, that any Alternate Base Rate
Advance may be in the amount of the unused Aggregate Commitment.
II.3.4. APPLICABLE MARGIN, ETC. The Applicable Margin set
forth below with respect to each Eurocurrency Advance, and the L/C Fee
Percentage and the Facility Fee Rate, shall be subject to adjustment (upwards
or downwards, as appropriate) based on the Borrower's Status as at the end of
each fiscal quarter in accordance with the table set forth below. The
Borrower's Status as at the last day of each fiscal quarter shall be
determined from the then most recent annual or quarterly financial statements
of the Borrower (the "Financials"). The adjustment, if any, to the Applicable
Margin, the L/C Fee Percentage and the Facility Fee Rate shall be effective
five days after the Administrative Agent has received the Financials. In the
event that the Borrower shall at any time fail to furnish to the Lenders the
Financials within the time limitations specified by Section 7.1, then the
Borrower's Status shall be Level IV Status from the date of such failure
until such Financials are so delivered. Notwithstanding anything to the
contrary contained herein, the Borrower's Status as of the Effective Date
shall be deemed to be Level I Status and shall be adjusted as set forth above
effective five days after the Administrative Agent receives the Borrower's
annual financial statements for its year ended December 27, 1996.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
LEVEL I LEVEL II LEVEL III LEVEL IV
STATUS STATUS STATUS STATUS
<S> <C> <C> <C> <C>
APPLICABLE MARGIN AND .17% .20% .275% .45%
L/C FEE PERCENTAGE
FACILITY FEE RATE .08% .10% .125% .15%
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
For purposes of the foregoing, the Borrower's Status will be determined based on
the following definitions:
"Level I Status" exists at any date if, as of the last day of the fiscal
quarter of the Borrower referred to in the Financials, the Leverage Ratio is
less than 1.00 to 1.
"Level II Status" exists at any date if, as of the last day of the fiscal
quarter of the Borrower referred to in the Financials, the Leverage Ratio is
equal to or greater than 1.00 to 1 but less than 2.00 to 1.
"Level III Status" exists at any date if, as of the last day of the fiscal
quarter of the Borrower referred to in the Financials, the Leverage Ratio is
equal to or greater than 2.00 to 1 but less than 3.00 to 1.
"Level IV Status" exists at any date if the requirements necessary to
achieve Level I Status, Level II Status or Level III Status shall not have been
satisfied.
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<PAGE>
II.3.5. METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR NEW
ADVANCES. The applicable Borrowing Entity shall give the Administrative Agent
irrevocable notice (a "Borrowing Notice") at the Administrative Agent's
Domestic Office for (a) any Advance denominated in Dollars not later than (x)
10:00 a.m. (Chicago time) on the Borrowing Date, in the case of an Alternate
Base Rate Advance, and (y) 12:00 noon (Chicago time) at least three Business
Days before the Borrowing Date, in the case of a Eurodollar Advance, and (b)
any Foreign Currency Advance not later than 10:00 a.m. (Chicago time) at the
Administrative Agent's Domestic Office at least three Business Days before
the Borrowing Date of such Foreign Currency Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the name of the Borrowing Entity,
(iii) the aggregate amount of such Advance,
(iv) the Type of Advance selected, and
(v) in the case of each Eurocurrency Advance, the Eurocurrency and
the Interest Period applicable thereto.
II.3.6. CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES.
Alternate Base Rate Advances shall continue as Alternate Base Rate Advances
unless and until such Alternate Base Rate Advances are converted into
Eurodollar Advances. Each Eurocurrency Advance shall continue as a
Eurocurrency Advance until the end of the then applicable Interest Period
therefor, at which time, unless such Eurocurrency Advance is paid in full or
the applicable Borrowing Entity shall have given the Administrative Agent a
Conversion/Continuation Notice requesting that such Eurocurrency Advance
continue as a Eurocurrency Advance in the same Eurocurrency for the same or
another Interest Period (a) in the case of a Eurodollar Advance, such
Eurodollar Advance shall automatically be converted into an Alternate Base
Rate Advance, and (b) in the case of a Foreign Currency Advance, such Foreign
Currency Advance shall automatically be continued for a new Interest Period
of one month (commencing on the last day of the expiring Interest Period).
Subject to the terms of Section 2.3.3, any Borrowing Entity may elect from
time to time to convert all or any part of an Alternate Base Rate Advance
into a Eurodollar Advance. The applicable Borrowing Entity shall give the
Administrative Agent irrevocable notice (a "Conversion/Continuation Notice")
(a) of each conversion of an Alternate Base Rate Advance or continuation of a
Eurodollar Advance, which notice shall be sent to the Administrative Agent's
Domestic Office not later than 12:00 noon (Chicago time) at least three
Business Days prior to the date of the requested conversion or continuation
and (b) of each continuation of a Foreign Currency Advance, which notice
shall be sent to the Administrative Agent's Domestic Office not later than
10:00 a.m. (Chicago time) at least three Business Days prior to the date of
the requested continuation, specifying in each case:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation;
(ii) the aggregate amount, Eurocurrency and Type of the Advance which
is to be converted or continued; and
16
<PAGE>
(iii) the amount and Type(s) of Advance(s) into which such Advance is
to be converted or continued and, in the case of a conversion
into or continuation of a Eurocurrency Advance, the duration of
the Interest Period applicable thereto.
Notwithstanding the foregoing provisions of this Section 2.3.6, no Advance shall
be continued as or converted into a Eurocurrency Advance if, after giving effect
to such continuation or conversion, the Total Outstandings would exceed the
Aggregate Commitment.
II.4. METHOD OF BORROWING. In the case of Foreign Currency
Advances, not later than 2:00 p.m. (London time) on each Borrowing Date, each
Lender shall make available its Foreign Currency Loan in funds immediately
available in London, in the Foreign Currency selected by the applicable
Borrowing Entity, to the Administrative Agent at the Administrative Agent's
London Office or at any other Lending Installation of the Administrative
Agent specified in writing by the Administrative Agent. In the case of all
other Advances, not later than 12:00 noon (Chicago time) on each Borrowing
Date, each Lender shall make available its Loan in funds immediately
available in Chicago, in Dollars, to the Administrative Agent's Domestic
Office or at any other Lending Installation of the Administrative Agent
specified in writing by the Administrative Agent. The Administrative Agent
will (i) make the funds so received from the Lenders in Foreign Currencies
available to the applicable Borrowing Entity at the Administrative Agent's
London Office and (ii) deposit the funds so received from the Lenders in
Dollars in the Borrower's account number 5228824 maintained with First
Chicago or will make such funds available as directed in writing by an
Authorized Officer. Notwithstanding the foregoing provisions of this Section
2.4, to the extent that a Loan made by a Lender matures on the Borrowing Date
of a requested Loan to the same Borrowing Entity in the same Eurocurrency,
such Lender shall apply the proceeds of the Loan it is then making to the
repayment of principal of the maturing Loan.
II.5. FEES. The Borrower agrees to pay the following fees:
II.5.1. FACILITY FEE. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender, for the period from the
date hereof to and including the Termination Date, a facility fee equal to
the product of (i) such Lender's Commitment times (ii) the Facility Fee Rate,
payable on each Payment Date hereafter and on the Termination Date or on the
effective date of any termination of the obligations of the Lenders to make
Loans hereunder.
II.5.2. ADMINISTRATIVE AGENT FEES. The Borrower agrees to pay
certain fees to the Administrative Agent on the dates and in the amounts set
forth in that certain fee letter between the Borrower and the Administrative
Agent dated November 7, 1996, as it may be amended from time to time.
II.6. REDUCTIONS AND INCREASES IN AGGREGATE COMMITMENT.
II.6.1. REDUCTIONS IN AGGREGATE COMMITMENT. The Borrower may
permanently reduce the Aggregate Commitment in whole, or in part ratably
among the Lenders in a minimum aggregate amount of $10,000,000, upon at least
five Business Days' written notice to the Administrative Agent, which notice
shall specify the amount of any such reduction; PROVIDED, HOWEVER, that the
amount of the Aggregate Commitment may not be reduced below the Total
Outstandings.
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II.6.2. INCREASES IN AGGREGATE COMMITMENT.
(i) INCREASES TO AGGREGATE COMMITMENT. The Borrower shall have the
right to increase the Aggregate Commitment by obtaining additional Commitments,
either from one or more of the Lenders or another lending institution provided
that (A) the Administrative Agent has approved the identity of any such new
Lender, such approval not to be unreasonably withheld, (B) any such new Lender
assumes all of the rights and obligations of a "Lender" hereunder, and (C) the
procedure described in clause (ii) has been complied with, provided further that
the Aggregate Commitment shall not at any time exceed $300,000,000 without the
approval of the Administrative Agent and all of the Lenders.
(ii) PROCEDURE FOR INCREASES AND ADDITION OF NEW LENDERS. This
Agreement permits certain increases in a Lender's Commitment and the admission
of new Lenders providing new Commitments without any consent or approval from
the other Lenders. Any amendment hereto for such an increase or addition shall
be in the form attached hereto as Exhibit "F" and shall only require the written
signatures of the Administrative Agent, the Borrower and the Lender(s) being
added or increasing their Commitment, subject only to the approval of all
Lenders if any such increase would cause the Aggregate Commitment to exceed
$300,000,000. In addition, within a reasonable time after the effective date of
any increase, the Administrative Agent shall, and is hereby authorized and
directed to, revise Schedule "1" reflecting such increase and shall distribute
such revised Schedule to each of the Lenders and the Borrower, whereupon such
revised Schedule shall replace the old Schedule and become part of this
Agreement.
II.7. PRINCIPAL PAYMENTS.
II.7.1. OPTIONAL PREPAYMENTS. Any Borrowing Entity may from
time to time prepay, without penalty or premium, any outstanding Advance to
such Borrowing Entity; PROVIDED that:
(a) the applicable Borrowing Entity shall notify the Administrative
Agent of such prepayment not later than (i) the Business Day preceding such
prepayment, in the case of an Alternate Base Rate Advance, (ii) 12:00 noon
(Chicago time) at least three Business Days prior to the date of such
prepayment, in the case of a Eurodollar Advance, or (iii) 12:00 noon
(Chicago time) at least four Business Days prior to such prepayment, in the
case of a Foreign Currency Advance, specifying in each case the Advance to
be prepaid and the date and amount of such prepayment;
(b) any prepayment of an Alternate Base Rate Advance shall be in a
minimum amount of $500,000 or a larger integral multiple of $100,000;
(c) any prepayment of a Eurocurrency Advance shall be in a minimum
Dollar Equivalent amount of $5,000,000 (and in an integral multiple of
$500,000 or 100,000 units of the applicable Foreign Currency);
(d) after giving effect to any partial prepayment of a Eurocurrency
Advance, the amount of such Advance shall be in compliance with Section
2.3.3; and
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(e) any prepayment of a Eurocurrency Advance on a day other than the
last day of an Interest Period therefor shall be subject to Section 3.5.
II.7.2. CURRENCY FLUCTUATIONS. If at any time the
Administrative Agent shall determine that the Total Outstandings (and the
Administrative Agent shall calculate the Total Outstandings upon the request
of any Lender) are greater than 101% of the Aggregate Commitment then in
effect, one or more of the Borrowing Entities shall, upon one Business Day's
written notice to the Borrower from the Administrative Agent, prepay an
aggregate principal amount of Advances such that the Total Outstandings do
not exceed the Aggregate Commitment then in effect.
II.7.3. TERMINATION. All outstanding Advances and all other
unpaid Obligations shall be paid in full by the Borrowing Entities on the
Termination Date.
II.8. CHANGES IN INTEREST RATE, ETC. Each Alternate Base Rate
Advance shall bear interest on the outstanding principal amount thereof, for
each day from and including the date such Advance is made or is converted
from a Eurodollar Advance into an Alternate Base Rate Advance pursuant to
Section 2.3.6 to but excluding the date it becomes due or is converted into a
Eurodollar Advance pursuant to Section 2.3.6, at a rate per annum equal to
the Alternate Base Rate for each such day. Each Swing Line Loan shall bear
interest on the outstanding principal amount thereof, from and including the
date such Loan is made to but excluding the date it becomes due, at a rate
per annum equal to the Alternate Base Rate for each such day. Changes in the
rate of interest on that portion of any Advance maintained as an Alternate
Base Rate Advance and on each Swing Line Loan will take effect simultaneously
with each change in the Alternate Base Rate. Each Eurocurrency Advance shall
bear interest from and including the first day of the Interest Period
applicable thereto to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such Interest Period.
No Interest Period may end after the Termination Date.
II.9. RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything to the
contrary contained in Section 2.3.5 or 2.3.6, during the continuance of a
Default under Section 8.2, 8.6 or 8.7 (and during the continuance of any other
Default or Unmatured Default the Required Lenders may, at their option, by
notice to the Borrower, declare that) no Advance may be made as, converted into
or continued as a Eurodollar Advance. During the continuance of a Default under
Section 8.2, 8.6 or 8.7 (and during the continuance of any other Default the
Required Lenders may, at their option, by notice to the Borrower, declare that)
(i) each Eurocurrency Advance shall bear interest for the remainder of the
applicable Interest Period at the rate otherwise applicable to such Interest
Period plus 2% per annum and (ii) each Alternate Base Rate Advance and Swing
Line Loan shall bear interest at a rate per annum equal to the Alternate Base
Rate plus 2% per annum.
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II.10 METHOD OF PAYMENT.
II.10.1 GENERAL. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds and in the applicable currency to the Administrative Agent at
(a) in the case of payments in Dollars, the Administrative Agent's Domestic
Office, and (b) in the case of payments in any other currency, the
Administrative Agent's London Office or, in each case, at any other Lending
Installation of the Administrative Agent specified in writing by the
Administrative Agent to the applicable Borrowing Entity. All such payments
shall be made by noon (local time) on the date when due and shall be applied
ratably by the Administrative Agent among the Lenders according to the amount
due to each Lender. Each payment delivered to the Administrative Agent for
the account of any Lender shall be delivered promptly by the Administrative
Agent to such Lender in the same type of funds that the Administrative Agent
received at such Lender's address specified pursuant to Article XIV or at any
Lending Installation specified in a notice received by the Administrative
Agent from such Lender. The Administrative Agent is hereby authorized to
charge any account of the applicable Borrowing Entity maintained with First
Chicago for each payment of principal, interest and fees as it becomes due
hereunder.
II.10.2 CURRENCY OF PAYMENT. All payments of principal of and
interest on any Advance or any other Obligations hereunder shall be made by
the applicable Borrowing Entity in the currency borrowed or otherwise payable
(the "Specified Currency") in the manner and at the address (the "Specified
Place") specified in Section 2.10.1. Payment of the Obligations shall not be
discharged by an amount paid in another currency or in another place, whether
pursuant to a judgment or otherwise, to the extent that the amount so paid on
conversion to the Specified Currency and transfer to the Specified Place
under normal banking procedures does not yield the amount of the Specified
Currency due at the Specified Place. If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum due hereunder in the
Specified Currency into another currency (the "Judgment Currency"), the rate
of exchange which shall be applied shall be that at which, in accordance with
normal banking procedures, the Administrative Agent could purchase the
Specified Currency with that amount of the Judgment Currency on the Business
Day next preceding that on which such judgment is rendered. The obligation
of the applicable Borrowing Entity in respect of any such sum due from it to
the Administrative Agent or any Lender hereunder (an "Entitled Person")
shall, notwithstanding the rate of exchange actually applied in rendering
such judgment, be discharged only to the extent that on the Business Day
following receipt by such Entitled Person of any sum adjudged to be due
hereunder or under the Notes in the Judgment Currency, such Entitled Person
may in accordance with normal banking procedures purchase and transfer to the
Specified Place the Specified Currency with the amount of the Judgment
Currency so adjudged to be due; and the Borrowing Entities, on a joint and
several basis, hereby, as a separate Obligation and notwithstanding any such
judgment, agree to indemnify such Entitled Person against, and to pay such
Entitled Person on demand, in the Specified Currency, any difference between
the sum originally due to such Entitled Person in the Specified Currency and
the amount of the Specified Currency so purchased and transferred.
II.11 NOTES; TELEPHONIC NOTICES. Each Lender is hereby authorized to
record the principal amount of each of its Loans and each repayment on the
schedule attached to the Note issued by the applicable Borrowing Entity,
provided, however, that the failure to so record shall not affect the
obligations of such Borrowing Entity under such Note. Each Borrowing Entity
hereby authorizes the Lenders and the Administrative Agent to extend, convert
or continue Advances, effect selections of Types of Advances and
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to transfer funds, and the Issuer to issue Facility Letters of Credit, based
on telephonic notices made by any person or persons the Administrative Agent
or any Lender in good faith believes to be acting on behalf of such Borrowing
Entity. Each Borrowing Entity agrees to deliver promptly to the
Administrative Agent, if requested by the Administrative Agent or any Lender,
a written confirmation of each telephonic notice given by such Borrowing
Entity. If the written confirmation differs in any material respect from the
action taken by the Administrative Agent and the Lenders, the records of the
Administrative Agent and the Lenders shall govern absent manifest error.
II.12 INTEREST PAYMENT DATES; INTEREST AND FEE BASIS. Interest
accrued on each Alternate Base Rate Advance shall be payable on each Payment
Date, commencing with the first such date to occur after the date hereof, on
any date on which such Alternate Base Rate Advance is prepaid due to
acceleration, and at maturity. Interest accrued on each Eurocurrency Advance
shall be payable on the last day of each applicable Interest Period, on any
date on which such Eurocurrency Advance is prepaid, whether by acceleration
or otherwise, and at maturity. Interest accrued on each Eurocurrency Advance
having an Interest Period longer than three months shall also be payable on
the last day of each three-month interval during such Interest Period.
Interest and fees shall be calculated for actual days elapsed on the basis of
a 360-day year; PROVIDED, HOWEVER, that (i) interest on Foreign Currency
Advances denominated in British pounds sterling or Belgian francs shall be
calculated for actual days elapsed on the basis of a 365-day year, and (ii)
at the same time interest is payable on Foreign Currency Advances denominated
in British pounds sterling, the additional costs referred to in Schedule "5"
shall also be payable. Interest shall be payable for the day an Advance is
made but not for the day of any payment on the amount paid if payment is
received prior to noon (local time) at the place of payment. If any payment
of principal of or interest on an Advance shall become due on a day which is
not a Business Day, such payment shall be made on the next succeeding
Business Day and, in the case of a principal payment, such extension of time
shall be included in computing interest in connection with such payment.
II.13 NOTIFICATION BY THE ADMINISTRATIVE AGENT. Promptly after receipt
thereof, the Administrative Agent will notify each Lender of the contents of
each Aggregate Commitment reduction notice, Borrowing Notice,
Conversion/Continuation Notice, Letter of Credit Request, Issuance Notice and
repayment notice received by it hereunder. The Administrative Agent will notify
each applicable Lender of the interest rate applicable to each Eurocurrency
Advance promptly upon determination of such interest rate and will give each
Lender prompt notice of each change in the Alternate Base Rate.
II.14 LENDING INSTALLATIONS. Each Lender may book its Loans and
participations in Facility Letters of Credit at any Lending Installation
selected by such Lender and may change its Lending Installation from time to
time. All terms of this Agreement shall apply to any such Lending Installation
and the Notes shall be deemed held by each Lender for the benefit of such
Lending Installation. Each Lender may, by written or telex notice to the
Administrative Agent and the Borrower, designate a Lending Installation through
which Loans will be made by it and for whose account Loan payments are to be
made.
II.15 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. Unless a
Borrowing Entity or a Lender, as the case may be, notifies the Administrative
Agent prior to the date on which it is scheduled to make payment to the
Administrative Agent of (i) in the case of a Lender, the proceeds of a Loan
or an Unreimbursed Amount or (ii) in the case of a Borrowing Entity, a
payment of principal, interest or fees to the Administrative Agent for the
account of the Lenders, that it does not intend to make such payment, the
Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but
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shall not be obligated to, make the amount of such payment available to the
intended recipient in reliance upon such assumption. If such Lender or
Borrowing Entity, as the case may be, has not in fact made such payment to
the Administrative Agent, the recipient of such payment shall, on demand by
the Administrative Agent, repay to the Administrative Agent the amount so
made available together with interest thereon in respect of each day during
the period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender,
the Federal Funds Effective Rate for such day or (ii) in the case of payment
by a Borrowing Entity, the interest rate applicable to the relevant Loan (or,
in the case of fees, the Alternate Base Rate).
II.16 WITHHOLDING TAX EXEMPTION. At least five Business Days prior to
the first date on which interest or fees are payable hereunder for the
account of any Lender, each Lender that is not incorporated under the laws of
the United States of America, or a state thereof, agrees that it will deliver
to each of the Borrower and the Administrative Agent two duly completed
copies of United States Internal Revenue Service Form 1001 or 4224 (or a
successor form), certifying in either case that such Lender is entitled to
receive payments under this Agreement and the Notes without deduction or
withholding of any United States federal income taxes. Each Lender which so
delivers a Form 1001 or 4224 further undertakes to deliver to each of the
Borrower and the Administrative Agent two additional copies of such form (or
a successor form) on or before the date that such form expires (currently,
three successive calendar years for Form 1001 and one calendar year for Form
4224) or becomes obsolete or after the occurrence of any event requiring a
change in the most recent forms so delivered by it, and such amendments
thereto or extensions or renewals thereof as may be reasonably requested by
the Borrower or the Administrative Agent, in each case certifying that such
Lender is entitled to receive payments under this Agreement and the Notes
without deduction or withholding of any United States federal income taxes,
unless an event (including without limitation any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which
would prevent such Lender from duly completing and delivering any such form
with respect to it and such Lender advises the Borrower and the
Administrative Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax.
II.17 FACILITY LETTERS OF CREDIT.
II.17.1 OBLIGATION TO ISSUE. Subject to the terms and
conditions of this Agreement and in reliance upon the representations and
warranties of the Borrower set forth herein, the Issuer hereby agrees to
issue upon the request of and for the account of the Borrower, through such
of the Issuer's Lending Installations or Affiliates as the Issuer and the
Borrower may mutually agree, one or more Facility Letters of Credit in
accordance with this Section 2.17, from time to time during the period
commencing on the Effective Date and ending on the Business Day prior to the
Termination Date.
II.17.2 CONDITIONS FOR ISSUANCE. In addition to being subject
to the satisfaction of the conditions contained in Section 4.3, the
obligation of the Issuer to issue any Facility Letter of Credit is subject to
the satisfaction in full of the following conditions:
(a) the aggregate maximum amount then available for drawing under
Facility Letters of Credit issued by the Issuer, after giving effect to the
Facility Letter of Credit requested hereunder, shall not exceed any limit
imposed by law or regulation upon the Issuer;
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(b) after giving effect to the requested issuance of any Facility
Letter of Credit, the Letter of Credit Obligations shall not exceed
$50,000,000;
(c) after giving effect to the requested issuance of any Facility
Letter of Credit, the Total Outstandings shall not exceed the Aggregate
Commitment as then in effect;
(d) the requested Facility Letter of Credit shall be denominated and
payable in Dollars and shall have an expiration date not later than the
earlier of (x) the Business Day prior to the Termination Date and (y) one
year after its date of issuance;
(e) the Borrower shall have delivered to the Issuer at such times and
in such manner as the Issuer may reasonably prescribe such documents and
materials as may be required pursuant to the terms of the proposed Facility
Letter of Credit, and the proposed Facility Letter of Credit shall be
satisfactory to the Issuer as to form and content; and
(f) as of the date of issuance, no order, judgment or decree of any
court, arbitrator or Governmental Agency shall purport by its terms to
enjoin or restrain the Issuer from issuing the Facility Letter of Credit
and no law, rule or regulation applicable to the Issuer and no request or
directive (whether or not having the force of law) from any Governmental
Agency with jurisdiction over the Issuer shall prohibit or request that the
Issuer refrain from the issuance of Letters of Credit generally or the
issuance of such Facility Letter of Credit.
II.17.3 PROCEDURE FOR ISSUANCE.
(a) The Borrower shall give the Issuer at least five Business Days'
prior written notice of any requested issuance of a Facility Letter of Credit
(any such notice, which shall be substantially in the form of Exhibit "I," a
"Letter of Credit Request"). Such notice shall specify:
(1) the stated amount of the Facility Letter of Credit requested
(which shall not be less than $500,000);
(2) the effective date (which shall be a Business Day) of
issuance of such requested Facility Letter of Credit (the "Issuance
Date");
(3) the date on which such requested Facility Letter of Credit
is to expire (which shall be a Business Day and shall comply with the
provisions of Section 2.17.2(d));
(4) the purpose for which such Facility Letter of Credit is to
be issued; and
(5) the Person for whose benefit the requested Facility Letter
of Credit is to be issued.
At the time a Letter of Credit Request is made, the Borrower shall also provide
the Administrative Agent and the Issuer with a copy of the form of the Facility
Letter of Credit it is requesting be issued. Such Letter of Credit Request, to
be effective, must be received by the Issuer and the Administrative Agent not
later
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than 2:00 p.m. (Chicago time) on the last Business Day on which such Letter of
Credit Request can be given under this Section 2.17.3(a).
(b) Subject to the terms and conditions of this Section 2.17 and
provided that the applicable conditions set forth in Section 4.3 hereof have
been satisfied, the Issuer shall, on the Issuance Date, issue a Facility Letter
of Credit on behalf of the Borrower in accordance with the Issuer's usual and
customary business practices unless the Issuer has actually received (i) written
notice from the Borrower specifically revoking the Letter of Credit Request with
respect to such Facility Letter of Credit, (ii) written notice from a Lender,
which complies with the provisions of Section 2.17.5(a) or (iii) written or
telephonic notice from the Administrative Agent stating that the issuance of
such Facility Letter of Credit would violate Section 2.17.2.
(c) The Issuer shall give the Administrative Agent and the Borrower
written notice, or telephonic notice confirmed promptly in writing, of the
issuance of a Facility Letter of Credit (an "Issuance Notice").
(d) The Issuer shall not extend or amend any Facility Letter of
Credit or allow a Facility Letter of Credit to be automatically extended unless
the requirements of this Section 2.17.3 are met as though a new Facility Letter
of Credit were being requested and issued.
II.17.4 PAYMENT OF REIMBURSEMENT OBLIGATIONS; DUTIES OF ISSUER.
(a) (i) The Issuer shall promptly notify the Borrower and the
Administrative Agent of any draw under a Facility Letter of Credit and the
Borrower shall reimburse the Issuer in accordance with Section 2.17.4(c) and
(ii) any Reimbursement Obligation shall bear interest from the date of any draw
under such Facility Letter of Credit until payment in full is received by the
Issuer at (A) the Alternate Base Rate until the Business Day after payment of
such draw is made by the Issuer and (B) the Alternate Base Rate plus 2%
thereafter.
(b) Any action taken or omitted to be taken by the Issuer under or in
connection with any Facility Letter of Credit, if taken or omitted in the
absence of willful misconduct or gross negligence, shall not put the Issuer
under any resulting liability to any Lender or, assuming that the Issuer has
complied with the procedures specified in Section 2.17.3, all conditions to the
issuance of a Facility Letter of Credit have been satisfied and any such Lender
has not given a notice contemplated by Section 2.17.5(a) that continues in full
force and effect, relieve any such Lender of its obligations hereunder to the
Issuer. In determining whether to pay under any Facility Letter of Credit, the
Issuer shall have no obligation other than to confirm that any documents
required to be delivered under such Facility Letter of Credit appear to have
been delivered in compliance, and that they appear to comply on their face, with
the requirements of such Facility Letter of Credit.
(c) The Borrower agrees to pay to the Issuer the amount of all
Reimbursement Obligations, interest and other amounts payable to the Issuer
under or in connection with any Facility Letter of Credit immediately when due
(and in any event shall reimburse the Issuer for drawings under a Facility
Letter of Credit no later than the next Business Day after notice of payment by
the Issuer), irrespective of any claim, set-off, defense or other right which
the Borrower or any Subsidiary may have at any time against the Issuer
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or any other Person, under all circumstances including, without limitation,
any of the following circumstances:
(1) any lack of validity or enforceability of this Agreement or
any of the other Loan Documents;
(2) the existence of any claim, setoff, defense or other right
which the Borrower or any Subsidiary may have at any time against a
beneficiary named in a Facility Letter of Credit or any transferee of
any Facility Letter of Credit (or any Person for whom any such
transferee may be acting), the Administrative Agent, the Issuer, any
Lender, or any other Person, whether in connection with this
Agreement, any Facility Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any
underlying transactions between the Borrower or any Subsidiary and the
beneficiary named in any Facility Letter of Credit):
(3) any draft, certificate or any other document presented under
any Facility Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect (except to the extent any such
invalidity or insufficiency is found in a final judgment of a court of
competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Issuer);
(4) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents; or
(5) the occurrence of any Default or Unmatured Default.
(d) As among the Borrower, the Issuer, the Administrative Agent and
the Lenders, the Borrower assumes all risks of the acts and omissions of, or
misuse of the Facility Letters of Credit by, the respective beneficiaries of the
Facility Letters of Credit (except such as are found in a final judgment by a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Issuer). In furtherance and not in limitation of the
foregoing, the Issuers, the Administrative Agent and the Lenders shall not be
responsible (absent gross negligence or willful misconduct in connection
therewith, as determined by the final judgment of a court of competent
jurisdiction) for (i) the forms, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection with the
application for and issuance of any Facility Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Facility Letter
of Credit or the rights or benefits thereunder or proceeds thereof, in whole or
in part, which may prove to be invalid or ineffective for any reasons; (iii)
failure of the beneficiary of a Facility Letter of Credit to comply fully with
conditions required in order to draw upon such Facility Letter of Credit (iv)
errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise; (v) errors in
interpretation of technical terms; (vi) misapplication by the beneficiary of a
Facility Letter of Credit of the proceeds of any drawing under such Facility
Letter of Credit; or (viii) any consequences arising from causes beyond the
control of the Issuer, the Administrative Agent or any Lender.
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II.17.5 PARTICIPATION.
(a) Immediately upon issuance by the Issuer of any Facility Letter of
Credit in accordance with the procedures set forth in Section 2.17.3, each
Lender shall be deemed to have irrevocably and unconditionally purchased and
received from the Issuer, without recourse or warranty, an undivided interest
and participation equal to its Percentage of such Facility Letter of Credit
(including, without limitation, all rights and obligations of the Issuer with
respect thereof) and any security therefor or guaranty pertaining thereto;
PROVIDED, HOWEVER, that a Letter of Credit issued by the Issuer shall not be
deemed to be a Facility Letter of Credit for purposes of this Agreement if the
Administrative Agent and the Issuer shall have received written notice from any
Lender on or before the Business Day prior to the date of the issuance of such
Letter of Credit that Issuer receives such a notice, it shall have no further
obligation to issue any Facility Letter of Credit until such notice is withdrawn
by such Lender or its receives a notice from the Administrative Agent that such
condition has been effectively waived in accordance with the provisions of this
Agreement.
(b) In the event that the Issuer makes any payment under any
Facility Letter of Credit and the Borrower shall not have repaid such amount
to the Issuer pursuant to Section 2.17.4 (the "Unreimbursed Amount"), the
Issuer shall promptly notify the Administrative Agent, which shall promptly
notify each Lender, of such failure, and each Lender shall promptly and
unconditionally pay to the Administrative Agent for the account of the Issuer
the amount of such Lender's Percentage of the Unreimbursed Amount. The
failure of any Lender to make available to the Administrative Agent its
Percentage of the Unreimbursed Amount shall not relieve any other Lender of
its obligation hereunder to make available to the Administrative Agent its
Percentage of the Unreimbursed Amount on the date such payment is to be made,
but no Lender shall be responsible for the failure of any other Lender to
make available to the Administrative Agent its Percentage of the Unreimbursed
Amount on the date such payment is to be made.
(c) Whenever the Issuer receives a payment on account of a
Reimbursement Obligation, including any interest thereon, it shall promptly pay
to the Administrative Agent, and the Administrative Agent shall promptly pay to
each Lender which has funded its participating interest therein, an amount equal
to such Lender's Percentage thereof.
(d) Upon the request of the Administrative Agent or any Lender, the
Issuer shall furnish to the Administrative Agent or such Lender copies of any
Facility Letter of Credit and such other documentation as may reasonably be
requested by the Administrative Agent or such Lender.
(e) The obligations of a Lender to make payments to the
Administrative Agent for the account of the Issuer with respect to a Facility
Letter of Credit shall be absolute, unconditional and irrevocable, not subject
to any counterclaim, set-off, qualification or exception whatsoever and shall be
made in accordance with the terms and conditions of this Agreement under all
circumstances.
(f) In the event any payment by the Borrower received by the Issuer
with respect to a Facility Letter of Credit and distributed by the
Administrative Agent to the Lenders on account of their participations is
thereafter set aside, avoided or recovered from the Issuer in connection with
any receivership, liquidation, reorganization or bankruptcy proceeding, each
Lender which received such distribution shall, upon demand by the Issuer,
contribute such Lender's Percentage of the amount set aside,
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avoided or recovered together with interest at the rate required to be paid by
the Issuer upon the amount required to be repaid by it.
II.17.6 COMPENSATION FOR FACILITY LETTERS OF CREDIT.
(a) The Borrower shall pay to the Administrative Agent for the
ratable account of the Lenders, based upon the Lenders' respective Percentages,
a fee with respect to each Facility Letter of Credit, for the period from the
Issuance Date thereof to and including the final expiration date thereof, in a
per annum amount equal to the product of (A) the average daily undrawn amount of
such Facility Letter of Credit times (B) the L/C Fee Percentage. Such fee shall
be due and payable in arrears on each Payment Date and, to the extent any such
fees are then due and unpaid, on the Termination Date. Promptly upon its
receipt of such fee, the Administrative Agent shall remit to each Lender its
portion thereof.
(b) The Borrower shall pay to the Issuer issuance fees for any
Facility Letter of Credit solely for the Issuer's own account in an amount in
accordance with the Issuer's standard fee schedule or such other amount to which
the Issuer and the Borrower may agree in writing. In addition, the Borrower
shall pay to the Issuer the Issuer's reasonable out-of-pocket costs of issuing
and servicing Facility Letters of Credit.
II.17.7 LETTER OF CREDIT COLLATERAL ACCOUNT. From and after
the occurrence and during the continuance of a Default, the Borrower hereby
agrees that it will maintain a special collateral account (the "Letter of
Credit Collateral Account") at the Administrative Agent's Domestic Office, in
the name of the Borrower but under the sole dominion and control of the
Administrative Agent, for the benefit of the Lenders, and in which the
Borrower shall have no interest other than as set forth in Section 9.1. In
addition to the foregoing, the Borrower hereby grants to the Administrative
Agent, for the benefit of the Lenders, a security interest in and to the
Letter of Credit Collateral Account and any funds that may hereafter be on
deposit in such account.
II.18 DESIGNATION OF BORROWING SUBSIDIARIES. The Borrower may from time
to time designate any Foreign Subsidiary of the Borrower as a "Borrowing
Subsidiary" hereunder by causing such Foreign Subsidiary to execute and deliver
a duly completed Assumption Letter to the Administrative Agent, with the written
consent of the Borrower at the foot thereof. Upon such execution, delivery and
consent such Foreign Subsidiary shall for all purposes be a party hereto as a
Borrowing Subsidiary as fully as if it had executed and delivered this
Agreement. So long as the principal of and interest on all Advances made to any
Borrowing Subsidiary under this Agreement shall have been paid in full and all
other obligations of such Borrowing Subsidiary shall have been fully performed,
such Borrowing Subsidiary may, by not less than five Business Days' prior notice
to the Administrative Agent (which shall promptly notify the Lenders thereof),
terminate its status as a "Borrowing Subsidiary" hereunder.
III
CHANGE IN CIRCUMSTANCES
III.1 TAXES.
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(a) PAYMENTS TO BE FREE AND CLEAR. All sums payable by any Borrowing
Entity whether in respect of principal, interest, fees or otherwise shall be
paid without deduction for any present and future taxes, levies, imposts,
deductions, charges or withholdings imposed by any country, any Governmental
Agency thereof or therein, any jurisdiction from which any or all such payments
are made and any political subdivision or taxing authority thereof or therein
(collectively, "Taxes"), which amounts shall be paid by such Borrowing Entity as
provided in Section 3.1(b). Each Borrowing Entity will pay each Lender the
amounts necessary such that the net amount of the principal, interest, fees or
other sums received and retained by each Lender is not less than the amount
payable under this Agreement.
(b) GROSSING-UP OF PAYMENTS. If, after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation thereof, or the compliance of any Lender therewith,
(a) requires any Borrowing Entity or any other Person to make any deduction or
withholding on account of any such Tax or other amount from any sum paid or
expressed to be payable by any Borrowing Entity to any Lender under this
Agreement; or (b) requires any party to this Agreement (or any Person on its
behalf) other than any Borrowing Entity to make any deduction or withholding
from, or (other than on account of tax on the overall net income of that party)
any payment on or calculated by reference to the amount of, any such sum
received or receivable by any Lender under this Agreement:
(i) the applicable Borrowing Entity shall notify the Administrative
Agent of any such requirement or any change in any such
requirement as soon as such Borrowing Entity becomes aware of it:
(ii) the applicable Borrowing Entity shall pay any such Tax or other
amount before the date on which penalties attached thereto become
due and payable, such payment to be made (if the liability to pay
is imposed on such Borrowing Entity) for its own account or (if
such liability is imposed on any other party to this Agreement)
on behalf of and in the name of such other party;
(iii) the sum payable by any Borrowing Entity in respect of which the
relevant deduction, withholding or payment is required shall
(except, in the case of any such payment, to the extent that the
amount thereof is not ascertainable when such sum is paid) be
increased to the extent necessary to ensure that, after the
making of such deduction, withholding or payment, such party
receives on the due date and retains (free from any liability in
respect of any such deduction, withholding or payment) a sum
equal to that which it would have received and retained had no
such deduction, withholding or payment been required or made; and
(iv) within thirty (30) days after payment of any sum from which any
Borrowing Entity is required by law to make any deduction or
withholding, and within thirty (30) days after the due date of
payment of any Tax or other amount which it is required by
Section 3.1(b)(ii) to pay, it shall deliver to the Administrative
Agent all such certified documents and other evidence as to the
making of such deduction, withholding or payment as (a) are
satisfactory to the other affected parties as proof of such
deduction, withholding or payment and of the remittance thereof
to the relevant taxing or other authority and (b) are required by
any such
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party to enable it to claim a tax credit with respect to such
deduction, withholding or payment.
III.2 YIELD PROTECTION. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law), or any interpretation thereof, or the compliance
of any Lender therewith,
(i) subjects any Lender or any applicable Lending Installation to any
tax, duty, charge or withholding on or from payments due from any
Borrowing Entity (excluding taxation of the overall net income of
any Lender or applicable Lending Installation), or changes the
basis of taxation of payments to any Lender in respect of its
Loans or other amounts due it hereunder, or
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation
(other than reserves and assessments taken into account in
determining the interest rate applicable to Eurocurrency
Advances), or
(iii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation of
making, funding or maintaining loans or letters of credit (or
participations therein) or reduces any amount receivable by any
Lender or any applicable Lending Installation in connection with
loans or letters of credit (or participations therein), or
requires any Lender or any applicable Lending Installation to make
any payment calculated by reference to the amount of loans or
letters of credit (or participations therein) held or interest
received by it, by an amount deemed material by such Lender,
then, within 15 days of demand by such Lender, the applicable Borrowing Entities
shall pay such Lender that portion of such increased expense incurred or
reduction in an amount received which such Lender determines is attributable to
making, funding and maintaining its Loans, its Facility Letters of Credit (or
participations therein) and its Commitment.
III.3 CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender
determines the amount of capital required or expected to be maintained by
such Lender, any Lending Installation of such Lender or any corporation
controlling such Lender is increased as a result of a Change, then, within 15
days of demand by such Lender, the Borrower shall pay such Lender the amount
necessary to compensate for any shortfall in the rate of return on the portion
of such increased capital which such Lender determines is attributable to this
Agreement, its Loans, its Facility Letters of Credit (or participations therein)
or its obligation to make Loans and issue (or participate in) Facility
Letters of Credit hereunder (after taking into account such Lender's policies
as to capital adequacy). "Change" means (i) any change after the date of
this Agreement in the Risk-Based Capital Guidelines or (ii) any adoption of
or change in any other law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or not having the force
of law) after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or any Lending Installation
or any corporation controlling any Lender. "Risk-Based Capital Guidelines"
means (i) the risk-based capital guidelines in effect in the United States on
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the date of this Agreement, including transition rules, and (ii) the
corresponding capital regulations promulgated by regulatory authorities
outside the United States implementing the July 1988 report of the Basle
Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted
prior to the date of this Agreement.
III.4 AVAILABILITY OF EUROCURRENCY ADVANCES. If (a) any Lender
determines that maintenance of any of its Eurocurrency Loans at a suitable
Lending Installation would violate any applicable law, rule, regulation, or
directive, whether or not having the force of law, or (b) the Required
Lenders determine that (i) deposits in the relevant Eurocurrency of a type
and maturity appropriate to match fund Eurocurrency Loans are not available
or (ii) the interest rate applicable to a Eurocurrency Advance does not
accurately reflect the cost of making or maintaining such Eurocurrency
Advance, then so long as such circumstances shall continue, the Borrowing
Entities may not request, convert into or continue any applicable
Eurocurrency Advance (and, in the case of clause (a) above, if so required by
the applicable law, rule, regulation or directive, the applicable Borrowing
Entity shall repay each applicable Eurocurrency Loan).
III.5 FUNDING INDEMNIFICATION. If any payment of a Eurocurrency
Advance occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment or otherwise, or a
Eurocurrency Advance is not made on the date specified by the applicable
Borrowing Entity for any reason other than default by the Lenders, the
applicable Borrowing Entity will indemnify each Lender for any loss or cost
incurred by it resulting therefrom, including, without limitation, any loss
or cost in liquidating or employing deposits acquired to fund or maintain
such Eurocurrency Advance.
III.6 MITIGATION OF ADDITIONAL COSTS OR ADVERSE CIRCUMSTANCES. If, in
respect of any Lender, circumstances arise which would or would upon the giving
of notice result in:
(a) an increase in the liability of any Borrowing Entity to such
Lender under Section 3.1, 3.2 or 3.3,
(b) the unavailability of a Eurocurrency Advance under Section 3.4 or
(c) a Lender being incapable of receiving payments without deduction
or withholding of United States federal income tax;
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Borrowing Entities under any of the Sections referred to
above in this Section 3.6, such Lender shall promptly upon becoming aware of the
same notify the Administrative Agent thereof and shall, in consultation with the
Administrative Agent and the Borrower and to the extent that it can do so
without disadvantaging itself, take such reasonable steps as may be reasonably
open to it to mitigate the effects of such circumstances (including, without
limitation, the designation of an alternate Lending Installation or the transfer
of its Loans to another Lending Installation). If and so long as a Lender has
been unable to take, or has not taken, steps acceptable to the Borrower to
mitigate the effect of the circumstances in question, such Lender shall be
obliged, at the request of the Borrower, to assign all its rights and
obligations hereunder to another Person nominated by the Borrower with the
approval of the Administrative Agent (which shall not be unreasonably withheld)
and willing to participate in the facility in place of such Lender; PROVIDED
THAT such Person satisfies all of the requirements of this Agreement including,
but not limited to, providing the forms required by Sections 2.16
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and 13.3.2. Notwithstanding any such assignment, the obligations of the
Borrowing Entities under Sections 3.1, 3.2, 3.3 and 10.7 shall survive any such
assignment and be enforceable by such Lender.
III.7 LENDER STATEMENTS; SURVIVAL OF INDEMNITY. Each Lender shall
deliver a written statement of such Lender as to the amount due, if any,
under Section 3.1, 3.2, 3.3 or 3.5. Such written statement shall set forth
in reasonable detail the calculations upon which such Lender determined such
amount and shall be final, conclusive and binding on the Borrowing Entities
in the absence of manifest error. Determination of amounts payable under
such Sections in connection with a Eurocurrency Loan shall be calculated as
though each Lender funded its Eurocurrency Loan through the purchase of a
deposit of the Eurocurrency, type and maturity corresponding to the deposit
used as a reference in determining the Eurocurrency Rate applicable to such
Loan, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement shall be payable on
demand after receipt by the applicable Borrowing Entity of the written
statement. The obligations of the Borrowing Entities under Sections 3.1,
3.2, 3.3 and 3.5 shall survive payment of the Obligations and termination of
this Agreement.
III.8 MARKET DISRUPTION. Notwithstanding the satisfaction of all
conditions referred to in Article IV with respect to any Foreign Currency
Advance, if there shall occur on or prior to the date of such Advance any
change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which would in the
reasonable opinion of the Administrative Agent or Lenders which are to make
20% or more of the principal amount of such Advance make it impracticable for
the Foreign Currency Loans comprising such Advance to be denominated in the
Eurocurrency specified by the applicable Borrowing Entity, then the
Administrative Agent shall forthwith give notice thereof to the Borrowing
Entities and the Lenders, and such Loans shall not be denominated in such
Eurocurrency but shall be made on such Borrowing Date to the Borrower in
Dollars in an aggregate principal amount equal to the Dollar Equivalent of
the aggregate principal amount specified in the related Borrowing Notice as
Alternate Base Rate Loans, unless the Borrower notifies the Administrative
Agent at least one Business Day before such date that it elects not to borrow
on such date.
IV
CONDITIONS PRECEDENT
IV.1 EFFECTIVENESS. The Lenders shall not be required to make the
initial Advance hereunder, the Swing Line Bank shall not be required to make
any Swing Line Loan, the Issuer shall not be required to issue any Facility
Letter of Credit and this Agreement shall not become effective unless the
Borrower has furnished to the Administrative Agent, with sufficient copies
for the Lenders, the following items (and the date upon which all such items
shall have been so furnished is referred to as the "Effective Date"):
(i) Copies of a certificate of good standing of the Borrower and each
Guarantor Subsidiary, certified by the appropriate governmental
officer in their respective jurisdictions of incorporation.
(ii) Certificates, executed by the Secretary or Assistant Secretary of
the Borrower and each Guarantor Subsidiary, attaching true and
correct copies of (i) their respective articles of incorporation
and by-laws and (ii) their respective Board of Directors'
resolutions (and
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resolutions of other bodies, if any are deemed necessary by
counsel for any Lender) authorizing the execution of the Loan
Documents to be executed by such entity.
(iii) Incumbency certificates, executed by the Secretary or Assistant
Secretary of the Borrower and each Guarantor Subsidiary, which
shall identify by name and title and bear the signature of the
officers of such entity authorized to sign the Loan Documents to
which such entity is a party and, in the case of the Borrower, to
request borrowings and Facility Letters of Credit hereunder, upon
which certificates the Administrative Agent and the Lenders shall
be entitled to rely until informed of any change in writing by
the Borrower or the applicable Subsidiary, as the case may be.
(iv) A certificate, signed by the chief financial officer or financial
vice president of the Borrower, stating that on Effective Date no
Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of internal counsel to the Borrower and the
Guarantor Subsidiaries, addressed to the Lenders in substantially
the form of Exhibit "B" hereto.
(vi) Notes issued by the Borrower payable to the order of each of the
Lenders (including the Swing Line Note payable to the order of
the Swing Line Bank).
(vii) Written money transfer instructions, in substantially the form of
Exhibit "D" hereto, addressed to the Administrative Agent and
signed by an Authorized Officer on behalf of the Borrower,
together with such other related money transfer authorizations as
the Administrative Agent may have reasonably requested.
(viii) The insurance certificate described in Section 5.17.
(ix) The Guaranty executed by each of the Guarantor Subsidiaries.
(x) A compliance certificate substantially in the form of Exhibit "C"
hereto completed as of the Effective Date (except that the
calculation of EBITDA therein shall be as of the last day of the
most recently-completed fiscal quarter).
(xi) Such other documents as any Lender or its counsel may have
reasonably requested.
IV.2 INITIAL ADVANCE TO EACH BORROWING SUBSIDIARY. No Lender shall be
required to make any Advance to a Borrowing Subsidiary unless such Borrowing
Subsidiary has furnished to the Administrative Agent, with sufficient copies for
the Lenders, the following items:
(i) Copies of the articles of incorporation or similar organizational
documents of such Borrowing Subsidiary, together with all
amendments, and a certificate of good standing (if available),
both certified by the appropriate governmental officer in its
jurisdiction of incorporation.
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(ii) Copies, certified by an appropriate officer or director of such
Borrowing Subsidiary, of its by-laws or similar organizational
documents and of its Board of Directors' resolutions (and
resolutions of other bodies, if any are deemed necessary by
counsel for any Lender) authorizing the execution of the Loan
Documents to which such Borrowing Subsidiary is a party.
(iii) An incumbency certificate, executed by an appropriate officer or
director of such Borrowing Subsidiary, which shall identify by
name and title and bear the signature of the officers or
directors of such Borrowing Subsidiary authorized to sign the
Loan Documents and to request Loans hereunder, upon which
certificate the Administrative Agent and the Lenders shall be
entitled to rely until informed of any change in writing by such
Borrowing Subsidiary.
(iv) A written opinion of counsel to such Borrowing Subsidiary,
addressed to the Lenders, in form and substance satisfactory to
the Administrative Agent.
(v) Notes issued by such Borrowing Subsidiary to the order of each of
the Lenders.
(vi) Written money transfer instructions, in substantially the form of
Exhibit "D" hereto, addressed to the Administrative Agent on
behalf of such Borrowing Subsidiary and signed by an Authorized
Officer, together with such other related money transfer
authorizations as the Administrative Agent may have reasonably
requested.
(vii) Such other documents as any Lender or its counsel may have
reasonably requested.
IV.3 EACH CREDIT EXTENSION. No Lender shall be required to make any
Advance, the Swing Line Bank shall not be required to make any Swing Line Loan,
and the Issuer shall not be required to issue any Facility Letter of Credit
unless on the applicable Borrowing Date or Issuance Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties of the Borrower contained in
Article V are true and correct as of such Borrowing Date or
Issuance Date except to the extent any such representation or
warranty is stated to relate solely to an earlier date, in which
case such representation or warranty shall be true and correct on
and as of such earlier date (other than the representations and
warranties made under Sections 5.4 and 5.5, which shall be deemed
to refer to the most recent annual audited financial statements
furnished to the Lenders pursuant to Section 7.1(i) hereof).
(iii) If such Advance is requested by a Borrowing Subsidiary, the
representations and warranties of such Borrowing Subsidiary
contained in Article VI are true and correct as of such Borrowing
Date except to the extent any such representation or warranty is
stated to relate solely to the earlier date, in which case such
representation or warranty shall be true and correct on and as of
such earlier date.
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(iv) All legal matters incident to the making of such Advance shall be
satisfactory to the Lenders and their counsel.
Each Borrowing Notice with respect to an Advance, each request for a Swing
Line Loan and each Letter of Credit Request with respect to a Facility Letter of
Credit shall constitute a representation and warranty by the Borrower that the
conditions contained in Sections 4.3(i) and (ii) have been satisfied and, if
applicable, by the applicable Borrowing Subsidiary that the conditions contained
in Sections 4.3(i) and (iii) have been satisfied. Any Lender may require, a
duly completed compliance certificate in substantially the form of Exhibit "C"
hereto, dated as of the day preceding the applicable Borrowing Date or Issuance
Date, as a condition to the making of an Advance or the issuance of a Facility
Letter of Credit.
V
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
The Borrower represents and warrants to the Lenders that:
V.1 CORPORATE EXISTENCE AND STANDING. Each of the Borrower and its
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation and has all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted, except to the extent that failure to be in good
standing or to have any requisite authority could not reasonably be expected
to have a Material Adverse Effect.
V.2 AUTHORIZATION AND VALIDITY. The Borrower has the corporate
power and authority and legal right to execute and deliver the Loan Documents
to which it is a party and to perform its obligations thereunder. The
execution and delivery by the Borrower of the Loan Documents to which it is a
party and the performance of its obligations thereunder have been duly
authorized by proper corporate proceedings, and such Loan Documents
constitute legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally.
V.3 NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and
delivery by the Borrower of the Loan Documents to which it is a party, nor
the consummation of the transactions therein contemplated, nor compliance
with the provisions thereof will violate any law, rule, regulation, order,
writ, judgment, injunction, decree or award binding on the Borrower or any of
its Subsidiaries or the Borrower's or any Subsidiary's articles of
incorporation or by-laws or the provisions of any indenture, instrument or
agreement to which the Borrower or any of its Subsidiaries is a party or is
subject, or by which it, or its Property, is bound, or conflict with or
constitute a default thereunder, or result in the creation or imposition of
any Lien in, of or on the Property of the Borrower or a Subsidiary pursuant
to the terms of any such indenture, instrument or agreement. No order,
consent, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, any Governmental Agency is
required to authorize, or is required in connection with the execution,
delivery and performance of, or the legality, validity, binding effect or
enforceability of, any of the Loan Documents.
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V.4 FINANCIAL STATEMENTS. The December 29, 1995 and the September
27, 1996 consolidated financial statements of the Borrower and its
Subsidiaries heretofore delivered to the Lenders were prepared in accordance
with generally accepted accounting principles in effect on the dates such
statements were prepared and fairly present the consolidated financial
condition and operations of the Borrower and its Subsidiaries at such dates
and the consolidated results of their operations for the periods then ended,
subject to normal year-end adjustments in the case of September 30, 1996
statements.
V.5 MATERIAL ADVERSE CHANGE. Since December 29, 1995, there has
been no change in the business, Property, prospects, condition (financial or
otherwise) or results of operations of the Borrower and its Subsidiaries
which has had or could reasonably be expected to have a Material Adverse
Effect.
V.6 TAXES. The Borrower and its Subsidiaries have filed all United
States federal tax returns and all other material tax returns which are
required to be filed and have paid (or made arrangements for the timely
payment of) all taxes due pursuant to said returns or pursuant to any
assessment received by the Borrower or any of its Subsidiaries, except such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided. The United States income tax returns of the
Borrower and its Subsidiaries have not been audited by the Internal Revenue
Service. No tax liens have been filed and no claims are being asserted with
respect to any such taxes (other than liens and claims in respect of state
taxes which do not exceed in the aggregate $500,000). The charges, accruals
and reserves on the books of the Borrower and its Subsidiaries in respect of
any taxes or other governmental charges are adequate.
V.7 LITIGATION AND CONTINGENT OBLIGATIONS. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their officers, threatened against or affecting the
Borrower or any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect. The Borrower has no material contingent obligations
not provided for or disclosed in the financial statements referred to in Section
5.4 or listed on Schedule "4" hereto.
V.8 SUBSIDIARIES. Schedule "2" hereto contains an accurate list of
all of the presently existing Subsidiaries of the Borrower, setting forth
their respective jurisdictions of incorporation, the percentage of their
respective capital stock owned by the Borrower or other Subsidiaries and
whether such Subsidiary is an Active Subsidiary or an Inactive Subsidiary.
All of the issued and outstanding shares of capital stock of such
Subsidiaries have been duly authorized and issued and are fully paid and
non-assessable.
V.9 ERISA. There are no Unfunded Liabilities for any Single
Employer Plans. Neither the Borrower nor any other member of the Controlled
Group has incurred, or is reasonably expected to incur, any withdrawal
liability to Multiemployer Plans. Each Plan complies in all material
respects with all applicable requirements of law and regulations, no
Reportable Event has occurred with respect to any Plan, neither the Borrower
nor any other members of the Controlled Group has withdrawn from any Plan or
initiated steps to do so, and no steps have been taken to reorganize or
terminate any Plan.
V.10 ACCURACY OF INFORMATION. No information, exhibit or report
furnished by the Borrower or any of its Subsidiaries to the Administrative
Agent or to any Lender in connection with the negotiation of, or compliance
with, the Loan Documents contained any material misstatement of fact or
omitted to state a material fact or any fact necessary to make the statements
contained therein not misleading.
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V.11 REGULATION U. Margin stock (as defined in Regulation U)
constitutes less than 25% of those assets of the Borrower and its
Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder.
V.12 MATERIAL AGREEMENTS. Neither the Borrower nor any Subsidiary
is a party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in (i) any agreement to which it is a party, which
default could reasonably be expected to have a Material Adverse Effect or
(ii) any agreement or instrument evidencing or governing Indebtedness.
V.13 COMPLIANCE WITH LAWS. The Borrower and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any Governmental Agency having jurisdiction over the conduct
of their respective businesses or the ownership of their respective Property,
except as permitted under clauses (a) and (b) of Section 7.7. Neither the
Borrower nor any Subsidiary has received any notice to the effect that its
operations are not in material compliance with any of the requirements of
applicable federal, state and local environmental, health and safety statutes
and regulations or the subject of any federal or state investigation
evaluating whether any remedial action is needed to respond to a release of
any toxic or hazardous waste or substance into the environment, which
non-compliance or remedial action could reasonably be expected to have a
Material Adverse Effect.
V.14 OWNERSHIP OF PROPERTIES. Except as set forth on Schedule "3"
hereto, on the date of this Agreement, the Borrower and its Subsidiaries will
have good title, free of all Liens other than those permitted by Section
7.15, to all of the Property and assets reflected in the financial statements
as owned by it.
V.15 INVESTMENT COMPANY ACT. Neither the Borrower nor any Subsidiary
thereof is an "investment company" or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
V.16 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Borrower nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
V.17 INSURANCE. The certificate signed by the President or Chief
Financial Officer of the Borrower, that attests to the existence and adequacy
of, and summarizes, the property and casualty insurance program carried by
the Borrower and in effect as of the Effective Date and that has been
furnished by the Borrower to the Administrative Agent and the Lenders, is
complete and accurate.
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VI
REPRESENTATIONS AND WARRANTIES OF BORROWING SUBSIDIARIES
Each Borrowing Subsidiary represents and warrants to the Lenders that:
VI.1 CORPORATE EXISTENCE AND STANDING. Such Borrowing Subsidiary
and each of its Subsidiaries is a corporation duly incorporated, validly
existing and, to the extent the concept of good standing is recognized in the
jurisdiction of its incorporation, in good standing under the laws of its
jurisdiction of incorporation and has all requisite authority to conduct its
business in each jurisdiction in which its business is conducted, except to
the extent that failure to be in good standing or to have any requisite
authority could not reasonably be expected to have a Material Adverse Effect.
VI.2 AUTHORIZATION AND VALIDITY. Such Borrowing Subsidiary has the
corporate power and authority and legal right to execute and deliver the Loan
Documents to which it is a party and to perform its obligations thereunder. The
execution and delivery by such Borrowing Subsidiary of the Loan Documents to
which it is a party and the performance of its obligations thereunder have been
duly authorized by proper corporate proceedings, and the Loan Documents to which
it is a party constitute legal, valid and binding obligations of such Borrowing
Subsidiary enforceable against such Borrowing Subsidiary in accordance with
their terms, except as enforceability may be limited by bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights generally.
VI.3 NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and
delivery by such Borrowing Subsidiary of the Loan Documents to which it is a
party, nor the consummation of the transactions therein contemplated, nor
compliance with the provisions thereof will violate any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding on
such Borrowing Subsidiary or any of its Subsidiaries or such Borrowing
Subsidiary's or any of its Subsidiary's certificate or articles of
incorporation or by-laws or the provisions of any indenture, instrument or
agreement to which such Borrowing Subsidiary or any of its Subsidiaries is a
party or is subject, or by which it, or its Property, is bound, or conflict
with or constitute a default thereunder, or result in the creation or
imposition of any Lien in, of or on the Property of such Borrowing Subsidiary
or any of its Subsidiaries pursuant to the terms of any such indenture,
instrument or agreement. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with,
or exemption by, any Governmental Agency is required to authorize, or is
required in connection with the execution, delivery and performance of, or
the legality, validity, binding effect or enforceability of, any of the Loan
Documents.
VI.4 FILING. To ensure the enforceability or admissibility in
evidence of this Agreement and the Notes issued by such Borrowing Subsidiary
in such Borrowing Subsidiary's country or organization or incorporation and
country which is its principal place of business (each, a "Subject Country"),
it is not necessary that this Agreement or such Notes or any other documents
be filed or recorded with any court or other authority in any Subject Country
or that any stamp or similar tax be paid in respect of this Agreement or such
Notes. The qualification by any Lender or the Administrative Agent for
admission to do business under the laws of any Subject Country does not
constitute a condition to, and the failure to so qualify does not affect, the
exercise by any Lender or the Administrative Agent of any right, privilege,
or remedy afforded to any Lender or the Administrative Agent in connection
with the Loan Documents or the enforcement of any such right, privilege, or
remedy. The performance by any Lender or the Administrative
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Agent of any action required or permitted under the Loan Documents will not
violate any law or regulation of any Subject Country or any political
subdivision thereof or result in any tax liability or other unfavorable
consequence to such party pursuant to the laws of any such Subject Country or
political subdivision or taxing authority thereof or any rule or regulation
of any federation or organization or similar entity of which such Subject
Country is a member.
VI.5 NO IMMUNITY. Neither such Borrowing Subsidiary nor any of its
assets is entitled to immunity from suit, execution, attachment or other
legal process. Such Borrowing Subsidiary's execution and delivery of the Loan
Documents to which it is a party constitute, and the exercise of its rights
and performance of and compliance with its obligations under such Loan
Documents will constitute, private and commercial acts done and performed for
private and commercial purposes.
VI.6 REGULATION U. Margin stock (as defined in Regulation U)
constitutes less than 25% of those assets of such Borrowing Subsidiary and
its Subsidiaries which are subject to any limitation on sale, pledge, or
other restriction hereunder.
VII
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
VII.1 FINANCIAL REPORTING. The Borrower will maintain, for itself
and each Subsidiary which is then conducting business, a system of accounting
established and administered in accordance with generally accepted accounting
principles, and furnish to the Lenders:
(i) Within 110 days after the close of each of its fiscal years, an
unqualified audit report certified by independent certified public
accountants, acceptable to the Lenders, prepared in accordance with
Agreement Accounting Principles on a consolidated basis for itself and
the Subsidiaries, including balance sheets as of the end of such
period, related profit and loss statements, statements of changes in
stockholders equity, and a statement of cash flows (the delivery of
which may be satisfied by delivery of the Borrower's annual report on
Form 10-K filed with the Securities and Exchange Commission for such
fiscal year, which report includes such financial statements),
accompanied by any management letter prepared by said accountants.
(ii) Within 60 days after the close of the first three quarterly periods of
each of its fiscal years, for itself and the Subsidiaries,
consolidated unaudited balance sheets as at the close of each such
period and consolidated profit and loss statements and a statement of
cash flows for the period from the beginning of such fiscal year to
the end of such quarter (the delivery of which may be satisfied by
delivery of the Borrower's quarterly report on Form 10-Q filed with
the Securities and Exchange Commission for such fiscal quarter, which
report includes such financial statements), all certified by its chief
financial officer.
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(iii) Together with the financial statements required hereunder, a
compliance certificate in substantially the form of Exhibit "C" hereto
signed by an Authorized Officer showing the calculations necessary to
determine compliance with this Agreement and stating that no Default
or Unmatured Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof.
(iv) Promptly upon the creation or acquisition of any Single Employer Plan,
notice of such creation or acquisition; and thereafter, so long as any
Single Employer Plan exists, within 270 days after the close of each
fiscal year, a statement of the Unfunded Liabilities of each Single
Employer Plan, certified as correct by an actuary enrolled under
ERISA.
(v) As soon as possible and in any event within 10 days after the Borrower
knows that any Reportable Event has occurred with respect to any Plan,
a statement, signed by the chief financial officer of the Borrower,
describing said Reportable Event and the action which the Borrower
proposes to take with respect thereto.
(vi) As soon as possible and in any event within 10 days after receipt by
the Borrower, a copy of (a) any notice or claim to the effect that the
Borrower or any of its Subsidiaries is or may be liable to any Person
as a result of the release by the Borrower, any of its Subsidiaries,
or any other Person of any toxic or hazardous waste or substance into
the environment, and (b) any notice alleging any violation of any
federal, state or local environmental, health or safety law or
regulation by the Borrower or any of its Subsidiaries, which, in
either case, could reasonably be expected to have a Material Adverse
Effect.
(vii) Promptly upon the furnishing thereof to the shareholders of the
Borrower or the Securities and Exchange Commission, copies of all
financial statements, registration statements, reports and proxy
statements so furnished.
(viii) Such other information (including non-financial information) as the
Administrative Agent or any Lender may from time to time reasonably
request.
VII.2 USE OF PROCEEDS. The Borrower will, and will cause each
Subsidiary to, use the proceeds of the Advances and other credit extensions
hereunder to refinance certain existing indebtedness, for general corporate
purposes and to repay outstanding Obligations. The Borrower will not, nor
will it permit any Subsidiary to, use any of the proceeds of the Advances to
purchase or carry any "margin stock" (as defined in Regulation U).
VII.3 NOTICE OF DEFAULT. The Borrower will, and will cause each
Subsidiary to, give prompt notice in writing to the Lenders of the occurrence
of any Default or Unmatured Default and of any other development, financial
or otherwise, which could reasonably be expected to have a Material Adverse
Effect.
VII.4 CONDUCT OF BUSINESS; NEW ACTIVE SUBSIDIARIES. The Borrower
will, and will cause each Active Subsidiary to, carry on and conduct its
business in substantially the same manner and in substantially the same
fields of enterprise as it is presently conducted and to do all things
necessary to remain duly incorporated, validly existing and in good standing
as a domestic corporation in its jurisdiction of incorporation and maintain
all requisite authority to conduct its business in each jurisdiction in which
its
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business is conducted. The Borrower will cause each Active Subsidiary (other
than Spectrum and any Foreign Subsidiary) to be a party to the Guaranty; it
being understood that any newly-formed Active Subsidiary, or any Inactive
Subsidiary which is to become an Active Subsidiary, shall (unless it is a
Foreign Subsidiary): (a) become a party to the Guaranty (by execution of an
agreement in form and substance satisfactory to the Administrative Agent) and
(b) deliver to the Administrative Agent (in form and substance satisfactory
to the Administrative Agent) the items listed in Section 4.1(i), (ii), (iii)
and (v) (which are the items that would have been required to be delivered if
such Subsidiary had been a Guarantor Subsidiary as of the Effective Date),
whereupon the Borrower shall deliver to the Lenders a revised Schedule "2"
showing the addition of such newly-formed Active Subsidiary or the change
from Inactive Subsidiary to Active Subsidiary, and such revised Schedule
shall replace the old Schedule and shall be deemed to have become part of
this Agreement.
VII.5 TAXES. The Borrower will, and will cause each Subsidiary to,
pay when due all taxes, assessments and governmental charges and levies upon
it or its income, profits or Property, except those which are being contested
in good faith by appropriate proceedings and with respect to which adequate
reserves have been set aside.
VII.6 INSURANCE. The Borrower will, and will cause each Subsidiary
to, maintain self-insurance, or insurance with financially sound and
reputable insurance companies, on all their Property in such amounts and
covering such risks as is consistent with sound business practice, and the
Borrower will furnish to any Lender upon request full information as to the
insurance maintained.
VII.7 COMPLIANCE WITH LAWS. The Borrower will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject, except (a)
such as may be contested in good faith or as to which a bona fide dispute exists
(and which, in each case, could not reasonably be expected to result in any
material fine, penalty, forfeiture or other liability) and (b) noncompliance
which in the aggregate could not reasonably be expected to result in material
liability to the Borrower and its Subsidiaries or otherwise result in a Material
Adverse Effect.
VII.8 MAINTENANCE OF PROPERTIES. The Borrower will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition, and make all necessary
and proper repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times.
VII.9 INSPECTION. The Borrower will, and will cause each Subsidiary to,
permit the Lenders, by their respective representatives and agents, to inspect
any of the Property, corporate books and financial records of the Borrower and
each Subsidiary, to examine and make copies of the books of accounts and other
financial records of the Borrower and each Subsidiary, and to discuss the
affairs, finances and accounts of the Borrower and each Subsidiary with, and to
be advised as to the same by, their respective officers at such reasonable times
and intervals as the Lenders may designate.
VII.10 DIVIDENDS. At any time after a Default, pursuant to Section
8.2, has occurred and is continuing, the Borrower will not, nor will it
permit any Subsidiary to, declare any dividends (or pay any dividends which
were not declared or permitted to be declared hereunder) on its capital stock
(other than dividends payable in its own capital stock) or redeem, repurchase
or otherwise acquire or retire any of its
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capital stock at any time outstanding, except that any Subsidiary may declare
and pay dividends to the Borrower or to a Wholly-Owned Subsidiary.
VII.11 MERGER. The Borrower will not, nor will it permit any
Subsidiary to, merge or consolidate with or into any other Person, except (a)
any merger or consolidation of a Subsidiary with or into the Borrower or a
Wholly-Owned Subsidiary and (b) pursuant to an Acquisition permitted by
Section 7.14(b), provided that the survivor of any merger or consolidation
permitted by this clause (b) shall be (i) in the case of any transaction
involving the Borrower, the Borrower, and (b) in the case of any other
transaction, a Subsidiary.
VII.12 SALE OF ASSETS. The Borrower will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property to any other
Person except for (i) sales of inventory in the ordinary course of business and
(ii) leases, sales or other dispositions of its Property that, together with all
other Property of the Borrower and its Subsidiaries previously leased, sold or
disposed of (other than inventory in the ordinary course of business) as
permitted by this Section during the twelve-month period ending with the month
in which any such lease, sale or other disposition occurs, do not constitute a
Substantial Portion of the Property of the Borrower and its Subsidiaries.
VII.13 SALE OF ACCOUNTS. The Borrower will not, nor will it permit any
Subsidiary to, sell or otherwise dispose of any notes receivable or accounts
receivable, with or without recourse; provided that the Borrower and its
Domestic Subsidiaries may sell or transfer receivables to each other
VII.14 INVESTMENTS AND ACQUISITIONS. The Borrower will not, nor will it
permit any Subsidiary to:
(a) Make or suffer to exist any Investments (including without
limitation, loans and advances to, and other Investments in, Subsidiaries),
or commitments therefor, or become or remain a partner in any partnership
or joint venture, except:
(i) obligations maturing in not more than one year issued, or
fully guaranteed, by the United States of America.
(ii) commercial paper maturing in not more than 270 days rated
A-2 or better by Standard and Poor's Corporation ("S&P") or
P-2 or better by Moody's Investors Service, Inc.
("Moody's").
(iii) demand deposit accounts maintained in the ordinary course of
business.
(iv) certificates of deposit issued by and time deposits with
commercial banks (whether domestic or foreign) having
capital and surplus in excess of $100,000,000.
(v) any repurchase agreement with a term of one year or less
which (x) is entered into with any Lender or any other
commercial bank of the stature referred to in clause (iv)
above and (y) is secured by a perfected Lien in any
obligation of the type described in clause (i), (ii) or (iv)
above (and that has a market value at the time such
repurchase agreement is entered into of not less than 100%
of the repurchase obligation of the other party to such
agreement).
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(vi) money market preferred stock of companies listed on the S&P
500 and having a long-term debt rating of A- or better by
S&P or A3 or better by Moody's, and short-term (one-year or
less) debt instruments, so long as the underlying obligor
has a short-term debt rating of A-2 (or MIG-2) or better by
S&P or P-2 (or MIG-2) or better by Moody's.
(vii) Investments in money market funds that invest primarily in
items described in clauses (i), (ii), (iv), (v) and (vi)
above.
(viii) participations in short-term loans to any corporation (other
than the Company or any subsidiary thereof) organized under
the United States of America and rated at least A-2 by S&P
or P-2 by Moody's.
(ix) Investments in the capital stock of Active Subsidiaries;
PROVIDED that after giving effect thereto the Borrower is in
compliance with Section 7.19.
(x) Investments in existence on the date hereof (but not
including loans and advances to licensees and franchisees)
and described in Schedule "2" hereto.
(xi) loans and advances to any Active Subsidiary; PROVIDED that
the aggregate amount of all loans and advances by the
Borrower and its Domestic Subsidiaries to Foreign
Subsidiaries shall not at any time exceed a Dollar
Equivalent amount equal to 15% of Net Worth.
(xii) Investments by the Borrower in Spectrum at any time;
PROVIDED that, after giving effect to such Investments,
Spectrum's total assets are less than 5% of Net Worth.
(xiii) Investments by Spectrum.
(xiv) other Investments in Affiliates, licensees and
franchisees; PROVIDED, HOWEVER, that the aggregate amount
of all Investments permitted solely by this clause does
not at any time exceed $30,000,000 (it being understood
that any such Investment which passes through more than
one entity shall be counted only once in determining
compliance herewith).
(b) Make any Acquisition, except for an Acquisition: (i) for
which the board of directors of the Person being acquired has approved the
terms of the Acquisition and (ii) where the Person (or assets) being
acquired is in (or are to be used in) substantially the same line of
business as the Borrower and (iii) for which, if the purchase price
(including assumed liabilities) is greater than $50,000,000, the Borrower
has first provided the Administrative Agent (which will promptly deliver
copies thereof to the Lenders) with (a) financial information with respect
to the entity or assets to be acquired (including historical financial
statements, pro-forma statements after giving effect to the Acquisition and
projections) and (b) a description of the entity or assets to be acquired,
the products thereof, markets served and customer concentrations. Upon the
consummation of any
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Acquisition permitted hereunder, the Borrower may deliver to the Lenders a
revised Schedule "2" listing its new Subsidiary, if any, and such revised
Schedule shall replace the old Schedule and shall be deemed to have become
part of this Agreement.
VII.15 LIENS. The Borrower will not, nor will it permit any Subsidiary
to, create, incur, or suffer to exist any Lien in, of or on the Property of the
Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or
levies on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are
being contested in good faith and by appropriate proceedings
and for which adequate reserves in accordance with generally
accepted principles of accounting shall have been set aside
on its books.
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of
obligations not more than 60 days past due.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a
nature generally existing with respect to properties of a
similar character and which do not in any material way
affect the marketability of the same or interfere with the
use
thereof in the business of the Borrower or the Subsidiaries.
(v) Liens arising under one or more Pledge Agreements.
(vi) Other Liens securing obligations not exceeding 10% of the
consolidated assets of the Borrower and its Subsidiaries.
VII.16 AFFILIATES. The Borrower will not, and will not permit any
Subsidiary to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate (other than the Borrower or another Subsidiary)
except in the ordinary course of business and pursuant to the reasonable
requirements of the Borrower's or such Subsidiary's business and upon fair and
reasonable terms no less favorable to the Borrower or such Subsidiary than the
Borrower or such Subsidiary would obtain in a comparable arms-length
transaction.
VII.7 FINANCIAL COVENANTS.
VII.17.1 LEVERAGE RATIO. The Borrower shall maintain, on a
consolidated basis, at all times a Leverage Ratio not exceeding 3.5 to 1.0.
VII.17.2 NET WORTH. The Borrower shall maintain, on a
consolidated basis, at all times Net Worth of not less than the sum of (i)
$375,000,000 plus (ii) 50% of the Borrower's quarterly Net
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Income, if positive, for each fiscal quarter ending after September 27, 1996
PLUS (iii) the aggregate net proceeds of any equity offering (including net
proceeds under any stock option or executive compensation plan) received by
the Borrower after the date of this Agreement.
VII.18 PLEDGE OF STOCK OF FOREIGN SUBSIDIARIES. The Borrower will,
and will cause each applicable Subsidiary to, take such actions as are
necessary or as the Administrative Agent or the Required Lenders may from
time to time request to ensure that the Obligations are secured by a
perfected Lien on 65% of each class of the capital stock of each Foreign
Subsidiary (other than a Foreign Subsidiary which is a Wholly-Owned
Subsidiary of a Foreign Subsidiary); it being understood that promptly upon
the creation or acquisition of any new Foreign Subsidiary (other than a
Foreign Subsidiary which is a Wholly-Owned Subsidiary of a Foreign
Subsidiary), the Borrower will, or will cause the applicable Domestic
Subsidiary to, (a) execute and deliver a Pledge Agreement (in form and
substance satisfactory to the Administrative Agent) pledging such stock and
(b) deliver to the Administrative Agent an opinion of appropriate counsel
confirming the effectiveness of such pledge and such other matters as the
Administrative Agent or the Required Lenders may reasonably request,
whereupon the Borrower shall deliver to the Lenders a revised Schedule "2"
showing the addition of such Foreign Subsidiary, and such revised Schedule
shall replace the old Schedule and shall be deemed to have become a part of
this Agreement. Notwithstanding the foregoing provisions of this Section
7.18, the Borrower will not be required to (or to cause the applicable
Domestic Subsidiary to) complete the pledge of the stock of (x) Interim
Technology (UK) Limited until February 21, 1997 or (y) the first-tier
Subsidiaries of the Borrower in the Netherlands (or their successors) until
May 29, 1997; it being understood that failure of any of such pledges to be
completed by the applicable date shall constitute a breach of this Agreement.
VII.19 LIMITATION ON FOREIGN SUBSIDIARIES. The Borrower will not at
any time permit more than 25% of the total consolidated assets of the
Borrower and its Subsidiaries to be owned by, or more than 25% of the
consolidated revenues of the Borrower and its Subsidiaries in any fiscal year
to be generated by, Foreign Subsidiaries.
VII.20 PAYROLL ACCOUNTS. Not at any time permit the aggregate amount
of all funds in Payroll Accounts to exceed 110% of the aggregate amount of
salary, bonuses and similar items reasonably expected to be paid to employees
of the Company and its Subsidiaries during the ten days following such time.
VIII
DEFAULTS
The occurrence of any one or more of the following events shall constitute
a Default:
VIII.1 Any representation or warranty made or deemed made by or on
behalf of the Borrower or any of its Subsidiaries to the Lenders or the
Administrative Agent under or in connection with this Agreement, any Loan,
any Facility Letter of Credit, or any certificate or information delivered in
connection with this Agreement or any other Loan Document shall be materially
false on the date as of which made.
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VIII.2 Nonpayment of principal of any Note when due; nonpayment of any
Reimbursement Obligation when due; or nonpayment of interest upon any Note or of
any facility fee or other obligation under any of the Loan Documents within five
days after the same becomes due.
VIII.3 The breach by the Borrower of the second sentence of Section
7.2 or the second sentence of Section 7.18 or any of the terms or provisions
of Section 7.10, 7.11, 7.12, 7.13, 7.14, 7.15, 7.17 or 7.19.
VIII.4 The breach by any Borrowing Entity (other than a breach which
constitutes a Default under Section 8.1, 8.2 or 8.3) of any of the terms or
provisions of this Agreement which is not remedied within thirty days after the
earlier to occur of (i) written notice from the Administrative Agent or any
Lender or (ii) the date such Borrowing Entity becomes aware of any such breach.
VIII.5 Failure of the Borrower or any of its Subsidiaries to pay any
Indebtedness in excess of $10,000,000 in the aggregate when due; or the default
by the Borrower or any of its Subsidiaries in the performance of any term,
provision or condition contained in any agreement under which any Indebtedness
in excess of $10,000,000 in the aggregate was created or is governed, or any
other event shall occur or condition exist, the effect of which is to cause, or
to permit the holder or holders of such Indebtedness to cause, such Indebtedness
to become due prior to its stated maturity; or any Indebtedness in excess of
$10,000,000 in the aggregate of the Borrower or any of its Subsidiaries shall be
declared to be due and payable or required to be prepaid (other than by a
regularly scheduled payment) prior to the stated maturity thereof; or the
Borrower or any of its Subsidiaries shall not pay, or admit in writing its
inability to pay, its debts generally as they become due.
VIII.6 The Borrower or any of its Subsidiaries shall (i) have an order
for relief entered with respect to it under the Federal bankruptcy laws as
now or hereafter in effect, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or
similar official for it or any Substantial Portion of its Property, (iv)
institute any proceeding seeking an order for relief under the Federal
bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a
bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief
of debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any corporate
action to authorize or effect any of the foregoing actions set forth in this
Section 8.6 or (vi) fail to contest in good faith any appointment or
proceeding described in Section 8.7.
VIII.7 Without the application, approval or consent of the Borrower or
any of its Subsidiaries, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any of its Subsidiaries or
any of its Property which constitutes a Substantial Portion, or a proceeding
described in Section 8.6(iv) shall be instituted against the Borrower or any
of its Subsidiaries and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of 60 consecutive
days.
VIII.8 The Borrower or any of its Subsidiaries shall fail within 30
days to pay, bond or otherwise discharge any judgment or order for the
payment of money in excess of $10,000,000, which is not stayed on appeal or
otherwise being appropriately contested in good faith.
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VIII.9 There are any Unfunded Liabilities for any Single Employer
Plan or any Reportable Event shall occur in connection with any Plan.
VIII.10 The Borrower or any other member of the Controlled Group
shall have been notified by the sponsor of a Multiemployer Plan that it has
incurred withdrawal liability to such Multiemployer Plan.
VIII.11 The Borrower or any other member of the Controlled Group
shall have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the other
members of the Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years of each such Multiemployer Plan immediately preceding
the plan year in which the reorganization or termination occurs.
VIII.12 The Borrower or any of its Subsidiaries shall be the subject
of any proceeding or investigation pertaining to the release by the Borrower
or any of its Subsidiaries, or any other Person, of any toxic or hazardous
waste or substance into the environment, or any violation of any federal,
state or local environmental, health or safety law or regulation, which, in
either case, could reasonably be expected to have a Material Adverse Effect.
VIII.13 Any Change in Control shall occur.
VIII.14 The Guaranty shall fail to remain in full force or effect or
any action shall be taken to discontinue or to assert the invalidity or
unenforceability of the Guaranty, or any guarantor shall fail to comply with
any of the terms or provisions of the Guaranty, or any guarantor denies that
it has any further liability under the Guaranty, or gives notice to such
effect.
VIII.15 Article XV shall fail to remain in full force or effect or
any action shall be taken to discontinue or assert the invalidity or
unenforceability of the guaranty contained therein, or the Borrower shall
deny that it has any further liability thereunder, or shall give notice to
such effect.
VIII.16 Any Pledge Agreement shall fail to remain in full force or
effect or any action shall be taken to discontinue or assert the invalidity
or unenforceability of any Pledge Agreement, or the pledgor thereunder shall
fail to comply with any of the terms or provisions of any Pledge Agreement or
shall deny that it has any further liability under any Pledge Agreement or
shall give notice to such effect.
IX
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
IX.1 ACCELERATION. If any Default described in Section 8.6 or 8.7
occurs with respect to any Borrowing Entity, the obligations of the Lenders
to make Loans and of the Issuer to issue Facility Letters of Credit shall
automatically terminate and the Obligations shall immediately become due and
payable without any election or action on the part of the Administrative
Agent or any Lender. If any other Default occurs
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and is continuing, the Required Lenders may terminate or suspend the
obligations of the Lenders to make Loans and of the Issuer to issue Facility
Letters of Credit, or declare the Obligations to be due and payable, or both,
whereupon the Obligations shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which each
Borrowing Entity hereby expressly waives. In addition to the foregoing,
following the occurrence and during the continuance of a Default, so long as
any Facility Letter of Credit has not been fully drawn and has not been
cancelled or expired by its terms, upon demand by the Administrative Agent
the Borrower shall deposit in the Letter of Credit Collateral Account cash in
an amount equal to the aggregate undrawn face amount of all outstanding
Facility Letters of Credit and all fees and other amounts due or which may
become due with respect thereto. The Borrower shall have no control over
funds in the Letter of Credit Collateral Account, which funds shall be
invested by the Administrative Agent from time to time in its discretion in
certificates of deposit of First Chicago having a maturity not exceeding
thirty days, so long as the Borrower has provided the Administrative Agent
with such documents as the Administrative Agent shall have requested in order
to perfect a security interest in such certificates of deposit. Such funds
shall be promptly applied by the Administrative Agent to reimburse the Issuer
for drafts drawn from time to time under the Facility Letters of Credit.
Such funds, if any, remaining in the Letter of Credit Collateral Account
following the payment of all Obligations in full shall, unless the
Administrative Agent is otherwise directed by a court of competent
jurisdiction, be promptly paid over to the Borrower.
If, within 14 days after acceleration of the maturity of the Obligations
or termination of the obligations of the Lenders to make Loans and of the
Issuer to issue Facility Letters of Credit as a result of any Default (other
than any Default as described in Section 8.6 or 8.7 with respect to a
Borrowing Entity) and before any judgment or decree for the payment of the
Obligations due shall have been obtained or entered, the Required Lenders (in
their sole discretion) shall so direct, the Administrative Agent shall, by
notice to the Borrower, rescind and annul such acceleration and/or
termination.
IX.2 AMENDMENTS. Subject to the provisions of this Article IX,
the Required Lenders (or the Administrative Agent with the consent in writing
of the Required Lenders) and the Borrowing Entities may enter into agreements
supplemental hereto for the purpose of adding or modifying any provisions to
the Loan Documents or changing in any manner the rights of the Lenders or the
Borrowing Entities hereunder or waiving any Default hereunder; PROVIDED,
HOWEVER, that no such supplemental agreement shall, without the consent of
each Lender:
(i) Extend the maturity of any Loan or Note or forgive all or any
portion of the principal amount thereof, or reduce the rate or
extend the time of payment of interest or fees thereon.
(ii) Reduce the percentage specified in the definition of Required
Lenders.
(iii) Extend the Termination Date, or reduce the amount or extend the
payment date for the payments required under Section 2.7.3, or
(except pursuant to Section 2.6.2) increase the amount of the
Commitment of any Lender hereunder, or permit any Borrowing
Entity to assign its rights under this Agreement.
(iv) Amend this Section 9.2 or Article XV.
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(v) Increase the maximum drawable amount or extend the expiration
date of any outstanding Facility Letter of Credit (except
as expressly permitted by its terms and in accordance with
Section 2.17) or reduce the principal amount of or extend the
time of payment of any Reimbursement Obligation or fee
associated with any Facility Letter of Credit.
(vi) Release any guarantor of any of the Obligations or any of the
collateral (if any).
No amendment of any provision of this Agreement relating to (i) the
Administrative Agent shall be effective without the written consent of the
Administrative Agent, (ii) the Swing Line Bank shall be effective without the
written consent of the Swing Line Bank and (iii) the Issuer shall be
effective without the written consent of the Issuer. The Administrative
Agent may waive payment of the fee required under Section 2.5.2 without
obtaining the consent of any other party to this Agreement.
IX.3 PRESERVATION OF RIGHTS. No delay or omission of the Lenders
or the Administrative Agent to exercise any right under the Loan Documents
shall impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of a Loan or the issuance of a Facility
Letter of Credit notwithstanding the existence of a Default or the inability
of any Borrowing Entity to satisfy the conditions precedent to such Loan or
Facility Letter of Credit shall not constitute any waiver or acquiescence.
Any single or partial exercise of any such right shall not preclude other or
further exercise thereof or the exercise of any other right, and no waiver,
amendment or other variation of the terms, conditions or provisions of the
Loan Documents whatsoever shall be valid unless in writing signed by the
Lenders required pursuant to Section 9.2, and then only to the extent in such
writing specifically set forth. All remedies contained in the Loan Documents
or by law afforded shall be cumulative and all shall be available to the
Administrative Agent and the Lenders until the Obligations have been paid in
full.
X
GENERAL PROVISIONS
X.1 SURVIVAL OF REPRESENTATIONS. All representations and
warranties of the Borrowing Entities contained in this Agreement shall
survive delivery of the Notes and the making of the Loans and the issuance of
the Facility Letters of Credit herein contemplated.
X.2 GOVERNMENTAL REGULATION. Anything contained in this
Agreement to the contrary notwithstanding, no Lender shall be obligated to
extend credit to any Borrowing Entity in violation of any limitation or
prohibition provided by any applicable statute or regulation.
X.3 TAXES. Any taxes (excluding federal income taxes on the
overall net income of any Lender) or other similar assessments or charges
made by any Governmental Agency in respect of the Loan Documents shall be
paid by the relevant Borrowing Entity, together with interest and penalties,
if any.
X.4 HEADINGS. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any
of the provisions of the Loan Documents.
X.5 ENTIRE AGREEMENT. The Loan Documents embody the entire
agreement and understanding among the Borrowing Entities, the Administrative
Agent and the Lenders and supersede all prior
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agreements and understandings among the Borrowing Entities, the
Administrative Agent and the Lenders relating to the subject matter thereof.
X.6 SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The
respective obligations of the Lenders hereunder are several and not joint and
no Lender shall be the partner or agent of any other (except to the extent to
which the Administrative Agent is authorized to act as such). The failure of
any Lender to perform any of its obligations hereunder shall not relieve any
other Lender from any of its obligations hereunder. This Agreement shall not
be construed so as to confer any right or benefit upon any Person other than
the parties to this Agreement and their respective successors and assigns.
X.7 EXPENSES; INDEMNIFICATION. The Borrowing Entities shall
reimburse the Administrative Agent for any costs, internal charges and
out-of-pocket expenses (including attorneys' fees and time charges of
attorneys for the Administrative Agent, which attorneys may be employees of
the Administrative Agent) paid or incurred by the Administrative Agent in
connection with the preparation, negotiation, execution, delivery, review,
amendment, modification, and administration of the Loan Documents. The
Borrowing Entities also agree to reimburse the Administrative Agent and the
Lenders for any costs, internal charges and out-of-pocket expenses (including
attorneys' fees and time charges of attorneys for the Administrative Agent
and the Lenders, which attorneys may be employees of the Administrative Agent
or the Lenders) paid or incurred by the Administrative Agent or any Lender in
connection with the collection and enforcement of the Loan Documents. The
Borrowing Entities further agree to indemnify the Administrative Agent and
each Lender, its directors, officers and employees against all losses,
claims, damages, penalties, judgments, liabilities and expenses (including,
without limitation, all expenses of litigation or preparation therefor
whether or not the Administrative Agent or any Lender is a party thereto)
which any of them may pay or incur arising out of or relating to this
Agreement, the other Loan Documents, the transactions contemplated hereby or
the direct or indirect application or proposed application of the proceeds of
any Loan hereunder. The obligations of the Borrowing Entities under this
Section shall survive the termination of this Agreement.
X.8 NUMBERS OF DOCUMENTS. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Administrative
Agent with sufficient counterparts so that the Administrative Agent may
furnish one to each of the Lenders.
X.9 ACCOUNTING. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement
Accounting Principles, except that any calculation or determination which is
to be made on a consolidated basis shall be made for the Borrower and all its
Subsidiaries, including those Subsidiaries, if any, which are unconsolidated
on the Borrower's audited financial statements.
X.10 SEVERABILITY OF PROVISIONS. Any provision in any Loan
Document that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable,
or invalid without affecting the remaining provisions in that jurisdiction or
the operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are
declared to be severable.
X.11 NONLIABILITY OF LENDERS. The relationship between the
Borrowing Entities and the Lenders and the Administrative Agent shall be
solely that of borrower and lender. Neither the Administrative Agent
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nor any Lender shall have any fiduciary responsibilities to any Borrowing
Entity. Neither the Administrative Agent nor any Lender undertakes any
responsibility to any Borrowing Entity to review or inform such Borrowing
Entity of any matter in connection with any phase of such Borrowing Entity's
business or operations.
X.12 CONFIDENTIALITY. Each Lender agrees to hold any confidential
information which it may receive from any Borrowing Entity pursuant to this
Agreement in confidence, except for disclosure (i) to other Lenders and their
respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to that Lender or to a Transferee, (iii) to regulatory
officials, (iv) to any Person as requested pursuant to or as required by law,
regulation, or legal process, (v) to any Person in connection with any legal
proceeding to which that Lender is a party, and (vi) permitted by Section
13.4.
X.13 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE
OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
X.14 CONSENT TO JURISDICTION. EACH BORROWING ENTITY HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND EACH
BORROWING ENTITY HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE
OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH
COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST ANY BORROWING
ENTITY IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
ANY BORROWING ENTITY AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY
AFFILIATE OF THE ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
X.15 WAIVER OF JURY TRIAL. THE BORROWING ENTITIES, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY WAIVE TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED
THEREUNDER.
X.16 NEW CREDIT FACILITIES. The Borrower, the Administrative
Agent, and the Lenders agree that on the Effective Date the following
transactions shall be deemed to occur automatically, without further action
by any party thereto:
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(a) The Existing Credit Facilities shall be replaced by the
New Credit Facilities and the Existing Agreement shall be deemed to be
amended and restated in its entirety in the form of this Agreement; and
(b) All Indebtedness, liabilities and obligations
outstanding under the Existing Agreement and the promissory notes
delivered thereunder shall, to the extent not paid on the Effective
Date, be deemed to be Obligations outstanding hereunder. Each Lender
party to the Existing Agreement shall, promptly after receipt of its
Notes hereunder, return to the Borrower the promissory notes received
by it in connection with the Existing Agreement.
The Borrower, the Administrative Agent, and the Lenders agree that (i) all
terms and conditions of the Existing Agreement which are amended and restated
by this Agreement shall remain effective until such amendment and restatement
becomes effective hereunder, and (ii) the representations, warranties and
covenants set forth herein shall become effective concurrently with the
occurrence of the Effective Date.
X.17 LANGUAGE. The Loan Documents and all notices,
communications, opinions and other documents to be furnished by or on behalf
of any Borrowing Entity pursuant to the Loan Documents shall be in the
English language or, in the case of any notices, communications, opinions or
other documents submitted in another language, accompanied by a certified
English translation thereof, and in the event of any conflict between the
English text and such other text of any such document, the English text shall
prevail.
XI
THE ADMINISTRATIVE AGENT
XI.1 APPOINTMENT. The First National Bank of Chicago is hereby appointed
Administrative Agent hereunder and under each other Loan Document, and each
of the Lenders irrevocably authorizes the Administrative Agent to act as the
agent of such Lender. The Administrative Agent agrees to act as such upon
the express conditions contained in this Article XI. The Administrative
Agent shall not have a fiduciary relationship in respect of any Borrowing
Entity or any Lender by reason of this Agreement.
XI.2 POWERS. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers
as are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan
Documents to be taken by the Administrative Agent.
XI.3 GENERAL IMMUNITY. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to any Borrowing
Entity, the Lenders or any Lender for any action taken or omitted to be taken
by it or them hereunder or under any other Loan Document or in connection
herewith or therewith except for its or their own gross negligence or willful
misconduct.
XI.4 NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into,
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or verify (i) any statement, warranty or representation made in connection
with any Loan Document or any borrowing hereunder; (ii) the performance or
observance of any of the covenants or agreements of any obligor under any
Loan Document, including, without limitation, any agreement by an obligor to
furnish information directly to each Lender; (iii) the satisfaction of any
condition specified in Article IV, except receipt of items required to be
delivered to the Administrative Agent; or (iv) the validity, effectiveness or
genuineness of any Loan Document or any other instrument or writing furnished
in connection therewith. The Administrative Agent shall have no duty to
disclose to the Lenders information that is not required to be furnished by a
Borrowing Entity to the Administrative Agent at such time, but is voluntarily
furnished by a Borrowing Entity to the Administrative Agent (either in its
capacity as Administrative Agent or in its individual capacity).
XI.5 ACTION ON INSTRUCTIONS OF LENDERS. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders, and such instructions and any
action taken or failure to act pursuant thereto shall be binding on all of
the Lenders and on all holders of Notes. The Administrative Agent shall be
fully justified in failing or refusing to take any action hereunder and under
any other Loan Document unless it shall first be indemnified to its
satisfaction by the Lenders pro rata against any and all liability, cost and
expense that it may incur by reason of taking or continuing to take any such
action.
XI.6 EMPLOYMENT OF AGENTS AND COUNSEL. The Administrative Agent may
execute any of its duties as Administrative Agent hereunder and under any
other Loan Document by or through employees, agents, and attorneys-in-fact
and shall not be answerable to the Lenders, except as to money or securities
received by it or its authorized agents, for the default or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall be entitled to advice of counsel concerning all
matters pertaining to the agency hereby created and its duties hereunder and
under any other Loan Document.
XI.7 RELIANCE ON DOCUMENTS; COUNSEL. The Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit,
letter, telegram, statement, paper or document believed by it to be genuine
and correct and to have been signed or sent by the proper person or persons,
and, in respect to legal matters, upon the opinion of counsel selected by the
Administrative Agent, which counsel may be employees of the Administrative
Agent.
XI.8 ADMINISTRATIVE AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Commitments (i) for any amounts not reimbursed
by a Borrowing Entity for which the Administrative Agent is entitled to
reimbursement by such Borrowing Entity under the Loan Documents, (ii) for any
other expenses incurred by the Administrative Agent on behalf of the Lenders
in connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent in any way relating
to or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents,
provided that no Lender shall be liable for any of the foregoing to the
extent they
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arise from the gross negligence or willful misconduct of the Administrative
Agent. The obligations of the Lenders under this Section 11.8 shall survive
payment of the Obligations and termination of this Agreement.
XI.9 RIGHTS AS A LENDER. In the event the Administrative Agent is a
Lender, the Administrative Agent shall have the same rights and powers
hereunder and under any other Loan Document as any Lender and may exercise
the same as though it were not the Administrative Agent, and the term
"Lender" or "Lenders" shall, at any time when the Administrative Agent is a
Lender, unless the context otherwise indicates, include the Administrative
Agent in its individual capacity. The Administrative Agent may accept
deposits from, lend money to, and generally engage in any kind of trust,
debt, equity or other transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with the Borrower or any of its
Subsidiaries in which the Borrower or such Subsidiary is not restricted
hereby from engaging with any other Person. The Administrative Agent, in its
individual capacity, is not obligated to remain a Lender; PROVIDED that at
any time that the Administrative Agent is not a Lender, the Administrative
Agent agrees to resign in accordance with Section 11.11 upon the request of
the Borrower or the Required Lenders so long as arrangements are made to
replace First Chicago (or the institution then acting as Administrative
Agent) as Issuer and Swing Line Bank concurrently with the effectiveness of
such resignation.
XI.10 LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on the financial statements prepared by the Borrower and
such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement and the other
Loan Documents. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents.
XI.11 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign at anytime by giving written notice thereof to the Lenders and the
Borrowing Entities, such resignation to be effective upon the appointment of
a successor Administrative Agent or, if no successor Administrative Agent has
been appointed, forty-five days after the retiring Administrative Agent gives
notice of its intention to resign. Upon any such resignation, the Required
Lenders shall have the right to appoint (with, so long as no Default or
Unmatured Default has occurred and is continuing, the consent of the
Borrower, which consent shall not be unreasonably withheld), on behalf of the
Borrowing Entities and the Lenders, a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders within thirty days after the resigning Administrative Agent's giving
notice of its intention to resign, then the resigning Administrative Agent
may appoint, on behalf of the Borrowing Entities and the Lenders, a successor
Administrative Agent. If the Administrative Agent has resigned and no
successor Administrative Agent has been appointed, the Lenders may perform
all the duties of the Administrative Agent hereunder and the Borrowing
Entities shall make all payments in respect of the Obligations to the
applicable Lender and for all other purposes shall deal directly with the
Lenders. No successor Administrative Agent shall be deemed to be appointed
hereunder until such successor Administrative Agent has accepted the
appointment. Any such successor Administrative Agent shall be a commercial
bank having capital and retained earnings of at least $50,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the
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resigning Administrative Agent. Upon the effectiveness of the resignation of
the Administrative Agent, the resigning Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan
Documents. After the effectiveness of the resignation of an Administrative
Agent, the provisions of this Article XI shall continue in effect for the
benefit of such Administrative Agent in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative Agent
hereunder and under the other Loan Documents.
XI.12 DOCUMENTATION AGENT; CO-AGENTS. None of the Lenders identified in
this Agreement or any other Loan Document as the "Documentation Agent" or as
a "Co-Agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement or any other Loan Document other
than those applicable to all Lenders as such. Each Lender acknowledges that
it has not relied, and will not rely, on any of the Lenders so identified in
deciding to enter into this Agreement or any other Loan Document or in taking
or refraining from taking any action hereunder or thereunder or pursuant
hereto or thereto.
XII
SETOFF; RATABLE PAYMENTS
XII.1 SETOFF. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default or Unmatured Default occurs and is continuing, any
and all deposits (including all account balances, whether provisional or
final and whether or not collected or available, but excluding deposits in
accounts which have been designated by the Borrower to the applicable Lender
as Payroll Accounts) and any other Indebtedness at any time held or owing by
any Lender to or for the credit or account of any Borrowing Entity may be
offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part hereof, shall then be due.
XII.2 RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise,
has payment made to it upon its share of any Advance (other than payments
received pursuant to Section 3.1, 3.2, 3.3 or 3.5) or its participation in
any Facility Letter of Credit in a greater proportion than that received by
any other Lender, such Lender agrees, promptly upon demand, to purchase a
portion of the Loans comprising that Advance or of the participations in
Facility Letters of Credit held by the other Lenders so that after such
purchase each Lender will hold its ratable proportion of Loans comprising
that Advance or participations in the Facility Letters of Credit. If any
Lender, whether in connection with setoff or amounts which might be subject
to setoff or otherwise, receives collateral or other protection for its
Obligations or such amounts which may be subject to setoff, such Lender
agrees, promptly upon demand, to take such action necessary such that all
Lenders share in the benefits of such collateral ratably in proportion to
their Loans and Facility Letters of Credit. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments
shall be made.
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XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
XIII.1 SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowing
Entities, the Lenders, the Issuer and the Administrative Agent and their
respective successors and assigns, except that (i) no Borrowing Entity shall
have the right to assign its rights or obligations under the Loan Documents
and (ii) any assignment by any Lender must be made in compliance with Section
13.3. Notwithstanding clause (ii) of this Section, any Lender may at any
time, without the consent of any Borrowing Entity, the Issuer or the
Administrative Agent, assign all or any portion of its rights under this
Agreement and its Notes to a Federal Reserve Bank; PROVIDED, HOWEVER, that no
such assignment shall release the transferor Lender from its obligations
hereunder. The Administrative Agent may treat the payee of any Note as the
owner thereof for all purposes hereof unless and until such payee complies
with Section 13.3 in the case of an assignment thereof or, in the case of any
other transfer, a written notice of the transfer is filed with the
Administrative Agent. Any assignee or transferee of a Note agrees by
acceptance thereof to be bound by all the terms and provisions of the Loan
Documents. Any request, authority or consent of any Person, who at the time
of making such request or giving such authority or consent is the holder of
any Note, shall be conclusive and binding on any subsequent holder,
transferee or assignee of such Note or of any Note or Notes issued in
exchange therefor.
XIII.2 PARTICIPATIONS.
XIII.2.1 PERMITTED PARTICIPANTS; EFFECT. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at any
time sell to one or more banks or other entities ("Participants")
participating interests in any Loan owing to such Lender, any Note held by
such Lender, any Commitment of such Lender or any other interest of such
Lender under the Loan Documents. In the event of any such sale by a Lender
of participating interests to a Participant, such Lender's obligations under
the Loan Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, such Lender shall remain the holder of any such Note for all
purposes under the Loan Documents, all amounts payable by the Borrowing
Entities under this Agreement shall be determined as if such Lender had not
sold such participating interests, and the Borrowing Entities and the
Administrative Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under the Loan
Documents.
XIII.2.2 VOTING RIGHTS. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification
or waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Loan, Facility Letter of Credit or
Commitment in which such Participant has an interest which forgives
principal, interest or fees or reduces the interest rate or fees payable with
respect to any such Loan, Facility Letter of Credit or Commitment, postpones
any date fixed for any regularly-scheduled payment of principal of, or
interest or fees on, any such Loan, Letter of Credit Obligation or
Commitment, releases any guarantor of any such Loan or releases any of the
collateral, if any, securing any such Loan, Letter of Credit Obligation or
Commitment.
XIII.2.3 BENEFIT OF SETOFF. The Borrowing Entities agree that each
Participant shall be deemed to have the right of setoff provided in Section
12.1 in respect of its participating interest in amounts
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owing under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the Loan
Documents, provided that each Lender shall retain the right of setoff
provided in Section 12.1 with respect to the amount of participating
interests sold to each Participant. The Lenders agree to share with each
Participant, and each Participant, by exercising the right of setoff provided
in Section 12.1, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such amounts to be shared in
accordance with Section 12.2 as if each Participant were a Lender.
XIII.3 ASSIGNMENTS.
XIII.3.1 PERMITTED ASSIGNMENTS. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time
assign to one or more banks or other entities ("Purchasers") all or any part
of its rights and obligations under the Loan Documents; PROVIDED, HOWEVER,
that any such assignment shall be in a minimum amount of $5,000,000; and
PROVIDED, FURTHER, that any Lender which is assigning less than all of its
rights and obligations hereunder shall retain a Commitment of at least
$10,000,000. Such assignment shall be substantially in the form of Exhibit
"E" hereto or in such other form as may be agreed to by the parties thereto.
The consent of the Borrower and the Administrative Agent shall be required
prior to an assignment becoming effective with respect to a Purchaser which
is not a Lender or an Affiliate thereof; PROVIDED, HOWEVER, that if a Default
has occurred and is continuing, the consent of the Borrower shall not be
required. Such consent shall not be unreasonably withheld.
XIII.3.2 EFFECT; EFFECTIVE DATE. Upon (i) delivery to the
Administrative Agent of a notice of assignment, substantially in the form
attached as Annex "I" to Exhibit "E" hereto (a "Notice of Assignment"),
together with any consents required by Section 13.3.1, and (ii) payment of a
$3,000 fee to the Administrative Agent for processing such assignment, such
assignment shall become effective on the effective date specified in such
Notice of Assignment. The Notice of Assignment shall contain a
representation by the Purchaser to the effect that none of the consideration
used to make the purchase of the Commitment and or rights and obligations
under the applicable assignment agreement are "plan assets" as defined under
ERISA and that the rights and interests of the Purchaser in and under the
Loan Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser shall for all purposes be a
Lender party to this Agreement and any other Loan Document executed by the
Lenders and shall have all the rights and obligations of a Lender under the
Loan Documents, to the same extent as if it were an original party hereto,
and no further consent or action by any Borrowing Entity, any Lender or the
Administrative Agent shall be required to release the transferor Lender with
respect to the percentage of the Aggregate Commitment assigned to such
Purchaser. Upon the consummation of any assignment pursuant to this Section
13.3.2 to a Purchaser which is not already a Lender, the transferor Lender,
the Administrative Agent and the Borrowing Entities shall make appropriate
arrangements so that new Notes are issued to such Purchaser. In addition,
within a reasonable time after the effective date of any assignment, the
Administrative Agent shall, and is hereby authorized and directed to, revise
Schedule "1" reflecting the revised Percentages of each of the Lenders and
shall distribute such revised Schedule "1" to each of the Lenders and the
Borrower and such revised Schedule "1" shall replace the old Schedule "1" and
become part of this Agreement.
XIII.4 DISSEMINATION OF INFORMATION. The Borrowing Entities authorize
each Lender to disclose to any Participant or Purchaser or any other Person
acquiring an interest in the Loan Documents by operation
56
<PAGE>
of law (each a "Transferee") and any prospective Transferee any and all
information in such Lender's possession concerning the creditworthiness of
the Borrower and its Subsidiaries.
XIII.5 TAX TREATMENT. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the
transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of Section 2.16.
XIV
NOTICES
XIV.1 GIVING NOTICE. Except as otherwise permitted by Section 2.11 with
respect to borrowing notices, all notices and other communications provided
to any party hereto under this Agreement or any other Loan Document shall be
in writing or by telex or by facsimile and addressed or delivered to such
party at its address set forth below its signature hereto or at such other
address as may be designated by such party in a notice to the other parties;
PROVIDED that any notices and communications to NationsBank, N.A. shall be as
follows: (i) all original documentation shall be directed to NationsBank,
NC1-001-1503, 101 North Tryon, Charlotte, North Carolina 28255, Attention:
Corporate Credit Support, with a copy to NationsBank, N.A. at its address set
forth below its signature hereto, or at such other address to be designated
by it in a notice to the other parties; and (ii) any notice or communication
regarding other credit matters shall be directed to NationsBank, N.A. at its
address set forth below its signature hereto or at such other address as may
be designated by it in a notice to the other parties. Any notice, if mailed
or delivered by courier or overnight delivery service and properly addressed
with postage or delivery fees prepaid, shall be deemed given when received;
any notice, if transmitted by telex or facsimile, shall be deemed given when
transmitted (answerback confirmed in the case of telexes).
XIV.2 CHANGE OF ADDRESS. Any Borrowing Entity, the Administrative Agent
and any Lender may each change the address for service of notice upon it by a
notice in writing to the other parties hereto.
XIV.3 NOTICES TO AND BY BORROWING SUBSIDIARIES. Any notice to be given
to any Borrowing Subsidiary may be given to the Borrower (and shall
conclusively be deemed to have been received by such Borrowing Subsidiary
when received, or deemed received, by the Borrower). Each Borrowing
Subsidiary agrees that the Borrower may give notices hereunder on behalf of
such Borrowing Subsidiary, and that any such notice given by the Borrower on
behalf of such Borrowing Subsidiary shall be binding upon such Borrowing
Subsidiary.
XV
BORROWER GUARANTY OF BORROWING SUBSIDIARY OBLIGATIONS
XV.1 DIRECT OBLIGATIONS. The Borrower hereby unconditionally and
irrevocably affirms to the Lenders its direct liability for, and guarantees
to the Lenders, the due and punctual payment of the Borrowing Subsidiary
Obligations, including, but not limited to, the due and punctual payment of
principal
57
<PAGE>
of and interest on the Notes issued by each Borrowing Subsidiary, and
punctual payment of all other sums now or hereafter owed by each Borrowing
Subsidiary under this Agreement and each Note issued by such Borrowing
Subsidiary as and when the same shall become due (whether by acceleration or
otherwise) and according to the terms hereof and thereof. In case of failure
by any Borrowing Subsidiary punctually to pay any Borrowing Subsidiary
Obligation, the Borrower hereby unconditionally agrees to cause such payment
to be made punctually as and when the same shall become due and payable,
whether at maturity or by declaration or otherwise, and as if such payment
were made by the Borrowing Subsidiary.
XV.2 OBLIGATIONS UNCONDITIONAL. The obligations of the Borrower under
this Article XV shall be irrevocable, unconditional and absolute and, without
limiting the generality of the foregoing, shall not be released, discharged
or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of any Borrowing Subsidiary hereunder or under
any Note issued by such Borrowing Subsidiary, by operation of law or
otherwise;
(b) any modification or amendment of or supplement to any Loan
Document;
(c) any compromise, settlement, modification, amendment, waiver,
release, non-perfection or invalidity of or to any direct or indirect
security, guarantee or other liability of any third party with respect
to any Borrowing Subsidiary Obligation;
(d) any change in the corporate existence, structure, or ownership
of, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting, any Borrowing Subsidiary or its assets or any
resulting release or discharge of any Borrowing Subsidiary Obligation;
(e) the existence of any claim, set-off or other right which the
Borrower may have at any time against any Borrowing Subsidiary, the
Administrative Agent, any Lender or any other Person, whether or not
arising in connection with this Agreement, PROVIDED, HOWEVER, that nothing
herein shall prevent the assertion of any such claim by separate suit or
compulsory counterclaim;
(f) any invalidity or unenforceability relating to or against any
Borrowing Subsidiary for any reason of any Loan Document, or any provision
of applicable law or regulation purporting to prohibit the payment by any
Borrowing Subsidiary of the principal of or interest on any Note issued by
such Borrowing Subsidiary or any other amount payable by any Borrowing
Subsidiary under this Agreement; or
(g) any other act or omission to act or delay of any kind by any
Borrowing Subsidiary, the Administrative Agent, any Lender or any other
Person or any other circumstance whatsoever that might, but for the
provisions of this paragraph, constitute a legal or equitable discharge of
the obligations of the Borrower under this Article XV.
XV.3 DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN CERTAIN
CIRCUMSTANCES. The Borrower's obligations under this Article XV shall remain
in full force and effect until the Aggregate Commitment has expired or is
terminated and the principal of and interest on the Notes and all other
58
<PAGE>
Obligations payable under the Loan Documents shall have been paid in full.
If at any time any payment of the principal of or interest on any Note issued
by any Borrowing Subsidiary or any other amount payable by any Borrowing
Subsidiary under any Loan Document is rescinded or must be otherwise restored
or returned upon the insolvency, bankruptcy or reorganization of any
Borrowing Subsidiary or otherwise, the Borrower's obligations under this
Article XV with respect to such payment shall be reinstated at such time as
though such payment had become due but had not been made at such time. This
Section 15.3 shall survive the termination of this Agreement and the payment
in full of the Obligations.
XV.4 WAIVER. The Borrower irrevocably waives acceptance hereof,
presentment, demand, protest and any notice not provided for herein, as well
as any requirement that at any time any action be taken by any Person against
any Borrowing Subsidiary or any other Person. The Borrower waives any
benefit of the collateral, if any, which may from time to time secure the
Obligations or any part thereof and authorizes the Administrative Agent or
the Lenders to take any action, or exercise any remedy with respect thereto,
which the Administrative Agent or the Lenders in its or their sole discretion
shall determine, without notice to the Borrower. In the event the Lenders in
their sole discretion elect to give notice of any action with respect to the
collateral, if any, securing the Obligations or any part thereof, ten days'
written notice mailed to the Borrower by certified mail at the address shown
hereon shall be deemed reasonable notice of any matter contained in such
notice.
XV.5 STAY OF ACCELERATION. If acceleration of the time for payment of
any amount payable by any Borrowing Subsidiary under any of the Loan
Documents is stayed upon the insolvency, bankruptcy or reorganization of any
Borrowing Subsidiary, all such amounts otherwise subject to acceleration
under the terms of this Agreement shall nonetheless be payable by the
Borrower hereunder forthwith on demand by the Administrative Agent.
XV.6 PAYMENTS. All payments to be made by the Borrower pursuant to this
Article XV shall be made at the times and in the manner and in the currency
prescribed for payments in this Agreement.
XV.7 DELAY OF SUBROGATION. Until the Borrower's Obligations under this
Article XV have been paid in full and terminated, the Borrower shall not
exercise any right of subrogation with respect to payments made by the
Borrower pursuant to this Article XV.
XVI
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Administrative Agent and the Lenders and each party has notified the
Administrative Agent by telex or telephone, that it has taken such action.
59
<PAGE>
IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative
Agent have executed this Agreement as of the date first above written.
By: /s/ Shanon Allen
---------------------------------------
Print Name: Shanon Allen
-------------------------------
Title: Assistant Treasurer
------------------------------------
2050 Spectrum Boulevard
Fort Lauderdale, FL 33309
Phone: (954) 351-8244
Fax: (954) 489-6085
Attention: Shannon Allen
THE FIRST NATIONAL BANK OF CHICAGO,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT
AND AS ISSUER
By: /s/ James Heinz
-----------------------------------------
Print Name: James Heinz
---------------------------------
Title: Vice President
--------------------------------------
One First National Plaza
Chicago, Illinois 60670
Phone: (312) 732-7343
Fax: (312) 732-3885
Attention: James Heinz
60
<PAGE>
NATIONSBANK, N.A.,
INDIVIDUALLY AND AS DOCUMENTATION AGENT
By: /s/ Andrew Airheart
---------------------------------------
Print Name: Andrew Airheart
-------------------------------
Title: Sr. Vice President
------------------------------------
Corporate Banking
100 Southeast Second Street, 14th
Floor
Miami, Florida 33131
Phone: (305) 533-2428
Fax: (305) 533-2437
Attention: Maria Conroy
61
<PAGE>
BANK OF AMERICA ILLINOIS
By: /s/ Laurens F. Schaad, Jr.
----------------------------------------
Print Name: Laurens F. Schaad, Jr.
--------------------------------
Title: Vice President
-------------------------------------
1230 Peachtree Street
Suite 3800
Atlanta, Georgia 30309
Phone: (404) 249-6915
Fax: (404) 249-6938
Attention: Laurens F. Schaad, Jr.
62
<PAGE>
THE FUJI BANK, LIMITED,
By: /s/ Masa Kobayashi
----------------------------------------
Name Printed: Masa Kobayashi
------------------------------
Title:
-------------------------------------
Two World Trade Center Place, 79th
Floor
New York, New York 10048
Phone: (212) 898-2085
Attention: Masa Kobayashi
63
<PAGE>
ABN AMRO BANK N.V.
BY ABN AMRO NORTH AMERICA, INC.,
AS AGENT
By: /s/ Deborah Day Orozco
----------------------------------------
Print Name: Deborah Day Orozco
--------------------------------
Title: Vice President
-------------------------------------
By: /s/ Richard Lavinia
----------------------------------------
Print Name: Richard Lavinia
--------------------------------
Title: Group Vice President
-------------------------------------
200 S. Biscayne Blvd., 22nd Floor
Miami, Florida 33131
Phone: (305) 579-9760
Fax: (305) 372-2397
Attention: Deborah Day Orozco
64
<PAGE>
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ Jeffrey Hwang
----------------------------------------
Print Name: Jeffrey Hwang
--------------------------------
Title: Vice President
-------------------------------------
60 Wall Street
New York, New York 10260-0060
Phone: (212) 648-6503
Fax: (212) 648-5014
Attention: Jeffrey Hwang
65
<PAGE>
BARNETT BANK, N.A.
By: /s/ Michael Cooney
----------------------------------------
Print Name: Michael Cooney
--------------------------------
Title: Vice President
-------------------------------------
One East Broward Boulevard
4th Floor
Fort Lauderdale, Florida 33301
Phone: (954) 765-1675
Fax: (954) 765-1663
Attention: Michael Cooney, Vice President
66
<PAGE>
EXHIBIT "A-1"
FORM OF NOTE
_________,
___________________, a _____________ (the "Borrowing Entity"), promises to
pay to the order of ___________ (the "Lender") the aggregate unpaid principal
amount of all Loans made by the Lender to the Borrowing Entity pursuant to the
Second Amended and Restated Credit Agreement (as the same may be amended,
supplemented or otherwise modified from time to time, the "Agreement")
hereinafter referred to, in immediately available funds in the currency and at
the place specified pursuant to the Agreement, together with interest on the
unpaid principal amount hereof at the rates and on the dates set forth in the
Agreement. The Borrower shall pay the principal of and accrued and unpaid
interest on all Loans in full on the Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date, currency and amount of each Loan and the date and amount of each
principal payment hereunder, PROVIDED, HOWEVER, that any failure to so record
shall not affect the Borrowing Entity's obligations under any Loan Document.
This Note is one of the Notes issued pursuant to, and is entitled to the
benefits of, the Second Amended and Restated Credit Agreement, dated as of
January 15, 1997 among [the Borrowing Entity, various Borrowing Subsidiaries
thereof] [Interim Services Inc., various Borrowing Subsidiaries thereof
(including the Borrowing Entity)], NationsBank, N.A., individually and as
Documentation Agent, The First National Bank of Chicago, individually and as
Administrative Agent, and the lenders named therein, including the Lender, to
which Agreement, as it may be amended from time to time, reference is hereby
made for a statement of the terms and conditions governing this Note, including
the terms and conditions under which this Note may be prepaid or its maturity
date accelerated. Capitalized terms used herein and not otherwise defined
herein are used with the meanings attributed to them in the Agreement. This
Note shall be governed by the internal laws (and not the law of conflicts) of
the State of Illinois.
[INTERIM SERVICES INC./BORROWING SUBSIDIARY]
By:________________________________________
Title:____________________________________
<PAGE>
STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
The foregoing note was executed before me this ________ day of
_____________, ____, by _____________________________________________, a
____________________________ of _________________________, on behalf of said
corporation.
___________________________________
My Commission Expires:__________
2
<PAGE>
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF _____________________
DATED _________, ____
Currency and
Principal Maturity Principal
Amount of Interest Amount Unpaid
Date of Loan Period Paid Balance
- ---- ------------- ----------- --------- -------
3
<PAGE>
EXHIBIT "A-2"
FORM OF
SWING LINE NOTE
$5,000,000 January 15, 1997
INTERIM SERVICES INC., a Delaware corporation (the "Borrower"), promises to
pay to the order of The First National Bank of Chicago (the "Swing Line Bank")
the lesser of the principal sum of Five Million Dollars or the aggregate unpaid
principal amount of all Swing Line Loans made by the Lender to the Borrower
pursuant to Section 2.2 of the Second Amended and Restated Credit Agreement (as
amended or otherwise modified from time to time, the "Agreement") hereinafter
referred to, in immediately available funds at the main office of The First
National Bank of Chicago in Chicago, Illinois, as Administrative Agent, together
with interest on the unpaid principal amount hereof at the rates and on the
dates set forth in the Agreement. The Borrower shall pay the principal of and
accrued and unpaid interest on the Swing Line Loans in full on the Termination
Date.
The Swing Line Bank shall, and is hereby authorized to, record on the
schedule attached hereto, or to otherwise record in accordance with its usual
practice, the date and amount of each Swing Line Loan and the date and amount of
each principal payment hereunder.
This Swing Line Note is one of the Notes issued pursuant to, and is
entitled to the benefits of, the Second Amended and Restated Credit Agreement,
dated as of January 15, 1997 among the Borrower, various Borrowing Subsidiaries
thereof, NationsBank, N.A., as Documentation Agent, The First National Bank of
Chicago, as Administrative Agent, and the lenders named therein, including the
Swing Line Bank, to which Agreement, as it may be amended or otherwise modified
from time to time, reference is hereby made for a statement of the terms and
conditions governing this Swing Line Note, including the terms and conditions
under which this Swing Line Note may be prepaid or its maturity date
accelerated. Capitalized terms used herein and not otherwise defined herein are
used with the meanings attributed to them in the Agreement.
____________________________________________
By:_________________________________________
Print Name:_________________________________
Title:______________________________________
<PAGE>
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
SWING LINE NOTE OF INTERIM SERVICES INC.
DATED JANUARY 15, 1997
Principal Principal
Amount Maturity Amount Unpaid
Date of Loan Date Paid Balance
- ---- --------- -------- ---------- -------
2
<PAGE>
EXHIBIT "B"
FORM OF OPINION
OF COUNSEL TO THE BORROWER
January __, 1997
The Administrative Agent and the Lenders who are parties to the
Credit Agreement described below.
Gentlemen/Ladies:
I am counsel for Interim Services Inc. (the "Borrower") and each of its
Subsidiaries, and have represented (i) the Borrower in connection with its
execution and delivery of the Second Amended and Restated Credit Agreement
among the Borrower, various Borrowing Subsidiaries thereof, NationsBank,
N.A., as Documentation Agent, The First National Bank of Chicago, as
Administrative Agent, and the Lenders named therein, providing for Advances
in an aggregate principal amount not exceeding $200,000,000 (subject to
increases up to $300,000,000) at any one time outstanding and dated as of
January 15, 1997 (the "Agreement") and (ii) the Guarantor Subsidiaries in
connection with their execution and delivery of the Guaranty. All
capitalized terms used in this opinion and not otherwise defined shall have
the meanings attributed to them in the Agreement.
I have examined executed originals or copies, certified or otherwise
identified to my satisfaction, of (i) certificates of the Secretary of State
of the states in which the Borrower and the Guarantor Subsidiaries are
incorporated, attesting to the continued corporate existence and good
standing of the Borrower and the Guarantor Subsidiaries, (ii) the Loan
Documents and (iii) such corporate records of the Borrower and the Guarantor
Subsidiaries and such agreements, instruments and documents, including
certificates of public officials, as I have deemed necessary as a basis for
the opinions expressed herein.
Based upon the foregoing, it is my opinion that:
l. Each of the Borrower and each Guarantor Subsidiary is a corporation
duly incorporated, validly existing and in good standing under the laws of
its jurisdiction of incorporation and has all requisite authority to conduct
its business in each jurisdiction in which its business is conducted.
2. The execution and delivery of the Loan Documents by the Borrower and
the Guarantor Subsidiaries and the performance by the Borrower and the
Guarantor Subsidiaries of their respective obligations thereunder have been
duly authorized by all necessary corporate action and proceedings on the part
of the Borrower and the Guarantor Subsidiaries and will not:
(a) require any consent of the Borrower's or any Guarantor
Subsidiary's shareholders;
(b) violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Borrower or any Guarantor
Subsidiary or the Borrower's or any Guarantor Subsidiary's articles of
incorporation or by-laws or any indenture, instrument or agreement binding
upon the Borrower or any Guarantor Subsidiary; or
<PAGE>
(c) result in, or require, the creation or imposition of any Lien
pursuant to the
provisions of any indenture, instrument or agreement binding upon the
Borrower or any provisions Guarantor Subsidiary.
3. The Agreement and the Notes issued by the Borrower have been duly
executed and delivered by the Borrower and constitute legal, valid and
binding obligations of the Borrower enforceable in accordance with their
terms except to the extent the enforcement thereof may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and subject also to the availability of equitable
remedies if equitable remedies are sought.
4. The Guaranty has been duly executed and delivered by each Guarantor
Subsidiary and the Guaranty constitutes the legal, valid and binding
obligation of each Guarantor Subsidiary enforceable in accordance with its
terms except to the extent the enforcement thereof may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and subject also to the availability of equitable
remedies if equitable remedies are sought.
5. There is no litigation or proceeding against the Borrower or any of
its Subsidiaries which, if adversely determined, could reasonably be expected
to have a Material Adverse Effect.
6. No approval, authorization, consent, adjudication or order of any
Governmental Agency, which has not been obtained by the Borrower or any
Guarantor Subsidiary, is required to be obtained by the Borrower or any
Guarantor Subsidiary in connection with the execution and delivery of the
Loan Documents, the borrowings under the Agreement or the payment by the
Borrower or any Guarantor Subsidiary of any of the Obligations.
The opinion expressed herein is limited by, subject to and based upon the
following assumptions, exceptions, qualifications and limitations:
a) My opinion in paragraph 1 as to good standing is based upon the
applicable Good Standing Certificates.
b) This opinion is limited to the laws of the State of Florida, the
General Corporation Law of the State of Delaware and the Federal laws of
the United States of America. In rendering my opinion as to the legality,
validity, binding effect and enforceability of any Loan Document, I have
assumed that such Loan Document is governed by the laws of the State of
Florida notwithstanding the parties' selection of Illinois law as the
governing law. In making such assumption, I do not imply that the Florida
courts would not give effect to the selection of Illinois law as the
governing law of the Loan Documents.
c) This opinion is limited to the matters stated herein and no opinion is
implied or may be inferred beyond the matters expressly stated.
d) This opinion is as of the date hereof, and I assume no obligation to
update or supplement this opinion to reflect any facts or circumstances
which may hereafter come to my attention or any changes in law which may
hereafter occur.
2
<PAGE>
This opinion is being delivered to you pursuant to Section 4.1(v) of the
Agreement and may be relied upon by the Administrative Agent, the Lenders and
their permitted assignees. Without my prior written consent, this opinion
may not be relied upon by any other person or quoted in whole or in part or
otherwise referred to in any legal opinion, report or other document.
Very truly yours,
________________________________________
3
<PAGE>
EXHIBIT "C"
COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to the Second Amended and
Restated Credit Agreement dated as of January 15, 1997 (as amended, modified,
renewed or extended from time to time, the "Agreement") among the Borrower,
various Borrowing Subsidiaries thereof, the lenders party thereto, NationsBank,
N.A., as Documentation Agent, and The First National Bank of Chicago, as
Administrative Agent. Unless otherwise defined herein, capitalized terms used
in this Compliance Certificate have the meanings ascribed thereto in the
Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _____________________ of the Borrower;
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the Borrower and its Subsidiaries during the accounting period
covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I have
no knowledge of, the existence of any condition or event which constitutes a
Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and computations
evidencing the Borrower's compliance with certain covenants of the Agreement,
all of which data and computations are true, complete and correct, and Schedule
II attached hereto sets forth the determination of the interest rate to be paid
for Advances commencing five days following the delivery hereof.
Described below are the exceptions, if any, to paragraph 3 by listing, in
detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
4
<PAGE>
The foregoing certifications, together with the computations set forth in
Schedule I and Schedule II hereto and the financial statements delivered with
this Certificate in support hereof, are made and delivered this ____ day of
_____________ , _____.
-------------------------------
Name Printed:
------------------
2
<PAGE>
[SAMPLE]
SCHEDULE I TO COMPLIANCE CERTIFICATE
Schedule of Compliance as of with
Provisions of _______ and ________ of
the Agreement
3
<PAGE>
EXHIBIT "D"
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To The First National Bank of Chicago,
as Administrative Agent (the "Administrative Agent") under the Credit Agreement
Described Below.
Re: Second Amended and Restated Credit Agreement, dated as of January 15, 1997
(as the same may be amended or modified, the "Credit Agreement"), among
Interim Services Inc. (the "Borrower"), various Borrowing Subsidiaries
thereof, NationsBank, N.A., as Documentation Agent, The First National Bank
of Chicago, as Administrative Agent, and the Lenders named therein Terms
used herein and not otherwise defined shall have the meanings assigned
thereto in the Credit Agreement.
The Administrative Agent is specifically authorized and directed to act
upon the following standing money transfer instructions with respect to the
proceeds of Advances or other extensions of credit from time to time until
receipt by the Administrative Agent of a specific written revocation of such
instructions by [Name of Borrowing Entity] (the "Borrowing Entity"), provided,
however, that the Administrative Agent may otherwise transfer funds as hereafter
directed in writing by the Borrowing Entity in accordance with Section 14.1 of
the Credit Agreement or based on any telephonic notice made in accordance with
Section 2.11 of the Credit Agreement.
Facility Identification Number(s)
---------------------------------
Customer/Account Name
-----------------------------------------------------
Transfer Funds To
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
For Account No.
-----------------------------------------------------------
Reference/Attention To
----------------------------------------------------
Authorized Officer (Customer Representative) Date ____________________
- -------------------------------------------- -------------------------
(Please Print) Signature
Bank Officer Name Date ____________________
- -------------------------------------------- -------------------------
(Please Print) Signature
(DELIVER COMPLETED FORM TO CREDIT SUPPORT STAFF FOR IMMEDIATE PROCESSING)
<PAGE>
EXHIBIT "E"
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
_________________________ (the "Assignor") and __________________ (the
"Assignee") is dated as of ________________ , _____ . The parties hereto agree
as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit Agreement
(which, as it may be amended, modified, renewed or extended from time to time
is herein called the "Credit Agreement") described in Item 1 of Schedule 1
attached hereto ("Schedule 1"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings attributed to them in the
Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the
Assignor, an interest in and to the Assignor's rights and obligations under
the Credit Agreement such that after giving effect to such assignment the
Assignee shall have purchased pursuant to this Assignment Agreement the
percentage interest specified in Item 3 of Schedule 1 of all outstanding
rights and obligations under the Credit Agreement relating to the facilities
listed in Item 3 of Schedule 1 and the other Loan Documents. The aggregate
Commitment (or Loans and participations in Facility Letters of Credit and
Swing Line Loans, if the applicable Commitment has been terminated) purchased
by the Assignee hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement
(the "Effective Date") shall be the later of the date specified in Item 5 of
Schedule 1 or two Business Days (or such shorter period agreed to by the
Administrative Agent) after a Notice of Assignment substantially in the form
of Annex "I" attached hereto has been delivered to the Administrative Agent.
Such Notice of Assignment must include any consents required to be delivered
to the Administrative Agent by Section 13.3.1 of the Credit Agreement. In no
event will the Effective Date occur if the payments required to be made by
the Assignee to the Assignor on the Effective Date under Sections 4 and 5
hereof are not made on the proposed Effective Date. The Assignor will notify
the Assignee of the proposed Effective Date no later than the Business Day
prior to the proposed Effective Date. As of the Effective Date, (i) the
Assignee shall have the rights and obligations of a Lender under the Loan
Documents with respect to the rights and obligations assigned to the Assignee
hereunder and (ii) the Assignor shall relinquish its rights and be released
from its corresponding obligations under the Loan Documents with respect to
the rights and obligations assigned to the Assignee hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Administrative Agent all payments of
principal, interest and fees with respect to the interest assigned hereby.
The Assignee shall advance funds directly to the Administrative Agent with
respect to all Loans and reimbursement payments made on or after the
Effective Date with respect to the interest assigned hereby. [In
consideration for the sale and assignment of Loans hereunder, (i) the
Assignee shall pay the Assignor, on the Effective Date, an amount equal to
the principal amount of the portion of all Alternate Base Rate Loans assigned
to the Assignee hereunder and (ii) with respect to each Eurocurrency Loan
made by the Assignor and assigned to the Assignee hereunder which is
outstanding on the Effective Date, (a) on the last day of the Interest Period
therefor or (b) on such earlier date agreed to by the Assignor
<PAGE>
and the Assignee or (c) on the date on which any such Eurocurrency Loan
becomes due, by acceleration or otherwise (the date as described in the
foregoing clauses (a), (b) or (c) being hereinafter referred to as the
"Payment Date"), the Assignee shall pay the Assignor an amount equal to the
principal amount of the portion of such Eurocurrency Loan assigned to the
Assignee which is outstanding on the Payment Date. If the Assignor and the
Assignee agree that the Payment Date for such Eurocurrency Loan shall be the
Effective Date, they shall agree to the interest rate applicable to the
portion of such Loan assigned hereunder for the period from the Effective
Date to the end of the existing Interest Period applicable to such
Eurocurrency Loan (the "Agreed Interest Rate") and any interest received by
the Assignee in excess of the Agreed Interest Rate shall be remitted to the
Assignor. In the event interest for the period from the Effective Date to
but not including the Payment Date is not paid by the applicable Borrowing
Entity with respect to any Eurocurrency Loan sold by the Assignor to the
Assignee hereunder, the Assignee shall pay to the Assignor interest for such
period on the portion of such Eurocurrency Loan sold by the Assignor to the
Assignee hereunder at the applicable rate provided by the Credit Agreement.
In the event a prepayment of any Eurocurrency Loan which is existing on the
Payment Date and assigned by the Assignor to the Assignee hereunder occurs
after the Payment Date but before the end of the Interest Period applicable
to such Eurocurrency Loan, the Assignee shall remit to the Assignor the
excess of the prepayment penalty paid with respect to the portion of such
Eurocurrency Loan assigned to the Assignee hereunder over the amount which
would have been paid if such prepayment penalty was calculated based on the
Agreed Interest Rate. The Assignee will also promptly remit to the Assignor
(i) any principal payments received from the Administrative Agent with
respect to Eurocurrency Loans prior to the Payment Date and (ii) any amounts
of interest on Loans and fees received from the Administrative Agent which
relate to the portion of the Loans assigned to the Assignee hereunder for
periods prior to the Effective Date, in the case of Alternate Base Rate
Loans, or the Payment Date, in the case of Eurocurrency Loans, and not
previously paid by the Assignee to the Assignor.]* In the event that either
party hereto receives any payment to which the other party hereto is entitled
under this Assignment Agreement, then the party receiving such amount shall
promptly remit it to the other party hereto.
5. FEES PAYABLE BY THE ASSIGNEE. The Assignee shall pay to the Assignor
a fee on each day on which a payment of interest or facility fees is made
under the Credit Agreement with respect to the amounts assigned to the
Assignee hereunder (other than a payment of interest or facility fees for the
period prior to the Effective Date or, in the case of Eurocurrency Loans, the
Payment Date, which the Assignee is obligated to deliver to the Assignor
pursuant to Section 4 hereof). The amount of such fee shall be the
difference between (i) the interest or fee, as applicable, paid with respect
to the amounts assigned to the Assignee hereunder and (ii) the interest or
fee, as applicable, which would have been paid with respect to the amounts
assigned to the Assignee hereunder if each interest rate was ___ of 1% less
than the interest rate paid by the applicable Borrowing Entity or if the
facility fee was ___ of 1% less than the facility fee paid by the Borrower,
as applicable. In addition, the Assignee agrees to pay ___ % of the
recordation fee required to be paid to the Administrative Agent in connection
with this Assignment Agreement.
* Each Assignor may insert its standard payment provisions in lieu of the
payment terms included in this Exhibit.
2
<PAGE>
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. It
is understood and agreed that the assignment and assumption hereunder are
made without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither the Assignor
nor any of its officers, directors, employees, agents or attorneys shall be
responsible for (i) the due execution, legality, validity,
enforceability, genuineness, sufficiency or collectability of any Loan
Document, including without limitation, documents granting the Assignor and
the other Lenders a security interest in assets of any Borrowing Entity or
any guarantor, (ii) any representation, warranty or statement made in or in
connection with any of the Loan Documents, (iii) the financial condition or
creditworthiness of any Borrowing Entity or any guarantor, (iv) the
performance of or compliance with any of the terms or provisions of any of
the Loan Documents, (v) inspecting any of the Property, books or records of
any Borrowing Entity, (vi) the validity, enforceability, perfection,
priority, condition, value or sufficiency of any collateral securing or
purporting to secure the Obligations or (vii) any mistake, error of judgment,
or action taken or omitted to be taken in connection with the Loans, the
Facility Letters of Credit or the Loan Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements requested by the Assignee and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment Agreement, (ii) agrees that it will,
independently and without reliance upon the Administrative Agent, the Issuer,
the Assignor or any other Lender and based on such documents and information
at it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Loan Documents, (iii)
appoints and authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers under the Loan Documents as are
delegated to the Administrative Agent by the terms thereof, together with
such powers as are reasonably incidental thereto, (iv) agrees that it will
perform in accordance with their terms all of the obligations which by the
terms of the Loan Documents are required to be performed by it as a Lender,
(v) agrees that its payment instructions and notice instructions are as set
forth in the attachment to Schedule 1, (vi) confirms that none of the funds,
monies, assets or other consideration being used to make the purchase and
assumption hereunder are "plan assets" as defined under ERISA and that its
rights, benefits and interests in and under the Loan Documents will not be
"plan assets" under ERISA, [and (vii) attaches the forms prescribed by the
Internal Revenue Service of the United States certifying that the Assignee
is entitled to receive payments under the Loan Documents without deduction
or withholding of any United States federal income taxes].*
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the
Assignor in connection with or arising in any manner from the Assignee's
non-performance of the obligations assumed under this Assignment Agreement.
*to be inserted if the Assignee is not incorporated under the laws of the United
States, or a state thereof.
3
<PAGE>
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
have the right pursuant to Section 13.3.1 of the Credit Agreement to assign
the rights which are assigned to the Assignee hereunder to any entity or
person, provided that (i) any such subsequent assignment does not violate any
of the terms and conditions of the Loan Documents or any law, rule,
regulation, order, writ, judgment, injunction or decree and that any consent
required under the terms of the Loan Documents has been obtained and (ii)
unless the prior written consent of the Assignor is obtained, the Assignee is
not thereby released from its obligations to the Assignor hereunder, if any
remain unsatisfied, including, without limitation, its obligations under
[Sections 4, 5 and 8] hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the
Aggregate Commitment occurs between the date of this Assignment Agreement and
the Effective Date, the percentage interest specified in Item 3 of Schedule 1
shall remain the same, but the dollar amount purchased shall be recalculated
based on the reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice
of Assignment embody the entire agreement and understanding between the
parties hereto and supersede all prior agreements and understandings between
the parties hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Illinois.
13. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall
be the addresses set forth in the attachment to Schedule 1.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above
written.
[NAME OF ASSIGNOR]
By:
------------------------------------
Title:
------------------------------------
------------------------------------
------------------------------------
[NAME OF ASSIGNEE]
By:
------------------------------------
Title:
------------------------------------
------------------------------------
------------------------------------
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<PAGE>
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement: Second Amended and Restated
Credit Agreement dated as of January 15, 1997 among Interim Services Inc.,
various Borrowing Subsidiaries thereof, the Lenders party thereto,
NationsBank, N.A., as Documentation Agent, and The First National Bank of
Chicago, as Administrative Agent
2. Date of Assignment Agreement: _____________, ___
3. Amounts (As of Date of Item 2 above):
FACILITY
--------
a. Total of Commitments
(Loans and participations
in Facility Letters of Credit
and Swing Line Loans)* under
Credit Agreement $________
b. Assignee's Percentage
of the Facility purchased
under the Assignment
Agreement** ________%
c. Amount of Assigned Share in
the Facility purchased under
the Assignment
Agreement $________
4. Assignee's aggregate Commitment
(Loans and participations in
Facility Letters of Credit and
Swing Line Loans)* purchased
under the Assignment Agreement: $________
5. Proposed Effective Date: ___________
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
----------------------- ----------------------
Title: Title:
-------------------- -------------------
* If a Commitment has been terminated, insert outstanding Loans and
participations in Facility Letters of Credit and Swing Line Loans in place
of Commitment.
** Percentage taken to 10 decimal places.
<PAGE>
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address for the Assignor and the Assignee
<PAGE>
ANNEX "I"
to Assignment Agreement
NOTICE
OF ASSIGNMENT
-----------------, -----
To: Interim Services Inc.*
__________________________________
__________________________________
The First National Bank of Chicago
__________________________________
__________________________________
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to the Credit Agreement (the "Credit Agreement") described
in Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized terms
used herein and not otherwise defined herein shall have the meanings
attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and delivered to
the Borrower and the Administrative Agent pursuant to Section 13.3.2 of the
Credit Agreement.
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of ___________, _____ (the "Assignment"), pursuant to
which, among other things, the Assignor has sold, assigned, delegated and
transferred to the Assignee, and the Assignee has purchased, accepted and
assumed from the Assignor, the percentage interest specified in Item 3 of
Schedule 1 of all outstandings, rights and obligations under the Credit
Agreement relating to the facilities listed in Item 3 of Schedule 1. The
Effective Date of the Assignment shall be the later of the date specified in
Item 5 of Schedule 1 or two Business Days (or such shorter period as agreed
to by the Administrative Agent) after this Notice of Assignment and any
consents and fees required by Sections 13.3.1 and 13.3.2 of the Credit
Agreement have been delivered to the Administrative Agent, provided that the
Effective Date shall not occur if any condition precedent agreed to by the
Assignor and the Assignee has not been satisfied.
4. The Assignor and the Assignee hereby give to the Borrower and the
Administrative Agent notice of the assignment and delegation referred to herein.
The Assignor will confer with the
- ----------------
* To be included only if consent must be obtained pursuant to Section 13.3.1
of the Credit Agreement.
<PAGE>
Administrative Agent before the date specified in Item 5 of Schedule 1 to
determine if the Assignment Agreement will become effective on such date
pursuant to Section 3 hereof, and will confer with the Administrative Agent
to determine the Effective Date pursuant to Section 3 hereof if it occurs
thereafter. The Assignor shall notify the Administrative Agent if the
Assignment Agreement does not become effective on any proposed Effective Date
as a result of the failure to satisfy the conditions precedent agreed to by
the Assignor and the Assignee. At the request of the Administrative Agent,
the Assignor will give the Administrative Agent written confirmation of the
satisfaction of the conditions precedent.
5. The Assignor or the Assignee shall pay to the Administrative Agent on
or before the Effective Date the processing fee of $3,000 required by Section
13.3.2 of the Credit Agreement.
6. [The Assignor and the Assignee request and direct that the
Administrative Agent prepare and cause the Borrowing Entities to execute and
deliver new Notes to the Assignee]. [The Assignor agrees to deliver to the
Administrative Agent the Notes received by it from the Borrowing Entities.]
7. The Assignee advises the Administrative Agent that notice and
payment instructions are set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of the funds,
monies, assets or other consideration being used to make the purchase
pursuant to the Assignment are "plan assets" as defined under ERISA and that
its rights, benefits, and interests in and under the Loan Documents will not
be "plan assets" under ERISA.
9. The Assignee authorizes the Administrative Agent to act as its
agent under the Loan Documents in accordance with the terms thereof. The
Assignee acknowledges that the Administrative Agent has no duty to supply
information with respect to any Borrowing Entity or the Loan Documents to the
Assignee until the Assignee becomes a party to the Credit Agreement.*
NAME OF ASSIGNOR NAME OF ASSIGNEE
By: By:
------------------------- ----------------------------
Title: Title:
---------------------- -------------------------
ACKNOWLEDGED AND CONSENTED TO ACKNOWLEDGED AND CONSENTED TO
BY THE FIRST NATIONAL BANK BY INTERIM SERVICES INC.**
OF CHICAGO
By: By:
------------------------- ---------------------------
Title: Title:
---------------------- -------------------------
[Attach photocopy of Schedule 1 to Assignment]
*May be eliminated if Assignee is a party to the Credit Agreement prior to the
Effective Date.
- ------------------
* May be eliminated if Assignee is a party to the Credit Agreement prior
to the Effective Date.
** To be included only if consent must be obtained pursuant to Section
13.3.1 of the Credit Agreement.
8
<PAGE>
EXHIBIT "F"
FORM OF AMENDMENT FOR AN INCREASED OR NEW COMMITMENT
This AMENDMENT is made as of the ___ day of ______________, ____ by and
among Interim Services Inc. (the "Borrower"), NationsBank, N.A., as
Documentation Agent, The First National Bank of Chicago, as Administrative
Agent under the "Credit Agreement" (as defined below) (the "Administrative
Agent") and ________________________ (the "Supplemental Lender").
The Borrower, the Administrative Agent and certain other Lenders, as
described therein, are parties to a Second Amended and Restated Credit
Agreement dated as of January 15, 1997 (the "Credit Agreement"). All terms
used herein and not otherwise defined shall have the same meaning given to
them in the Credit Agreement.
Pursuant to Section 2.6.2 of the Credit Agreement, the Borrower has the
right to increase the Aggregate Commitment by obtaining additional
Commitments upon satisfaction of certain conditions, and this Amendment
requires only the signature of the Borrower, the Administrative Agent and the
Supplemental Lender so long as the Aggregate Commitment is not increased
above $300,000,000.
The Supplemental Lender is either (a) an existing Lender which is
increasing its Commitment or (b) a new Lender which is a lending institution
whose identity the Administrative Agent will approve by its signature below.
In consideration of the foregoing, such Supplemental Lender, from and
after the date hereof shall have a Commitment of $________________, resulting
in a new Aggregate Commitment of $_________________ as of the date hereof,
and if it is a new Lender, the Supplemental Lender hereby assumes all of the
rights and obligations of a Lender under the Credit Agreement.
If the Supplemental Lender is a new Lender, the Borrowing Entities have
executed and delivered to the Supplemental Lender as of the date hereof new
Notes in the form attached to the Credit Agreement to evidence the Loans by
the Supplemental Lender.
<PAGE>
IN WITNESS WHEREOF, the Administrative Agent, the Borrower and the
Supplemental Lender have executed this Amendment as of the date shown above.
INTERIM SERVICES INC.
By:_______________________________________
Its_______________________________________
[SUPPLEMENTAL LENDER]
By:_______________________________________
Its_______________________________________
THE FIRST NATIONAL BANK OF CHICAGO, as Administrative
Agent
By:_______________________________________
Its_______________________________________
2
<PAGE>
EXHIBIT "G"
FORM OF
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement") dated as of __________________,
_____ is between Interim Services, Inc., a Delaware corporation (the
"Pledgor"), and THE FIRST NATIONAL BANK OF CHICAGO in its capacity as
administrative agent for the Lenders referred to below (in such capacity, the
"Administrative Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to a Credit Agreement dated January 15, 1997 (as
amended or otherwise modified from time, the "Credit Agreement") among the
Pledgor, various financial institutions (such financial institutions,
together with their respective successors and assigns, collectively the
"Lenders" and individually each a "Lender") and the Administrative Agent, the
Lenders have agreed to make loans to, and to issue letters of credit for the
account of, the Pledgor and certain of its subsidiaries from time to time;
WHEREAS, the Pledgor has unconditionally guaranteed the full and
punctual payment of all obligations of its subsidiaries under or in
connection with the Credit Agreement; and
WHEREAS, it is a condition precedent to the making of loans and the
issuance of letters of credit under the Credit Agreement that the Pledgor
execute and deliver this Agreement;
NOW, THEREFORE, for and in consideration of any loan, advance or other
financial accommodation heretofore or hereafter made to the Pledgor or any of
its subsidiaries under or in connection with the Credit Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. When used herein, the following terms have the
following meanings (such meanings to be applicable to both the singular and
plural forms of such terms):
COLLATERAL - see SECTION 2.
DEFAULT means the occurrence of any of the following events: (a) any
Unmatured Default (as defined in the Credit Agreement) under Section
8.2, 8.6 or 8.7 of the Credit Agreement; (b) any Default (as defined
in the Credit Agreement); or (c) any warranty of the Pledgor herein is
untrue or misleading in any material respect and, as a result thereof,
the Administrative Agent's security interest in any of the Collateral
is not perfected or any right or remedy of the Administrative Agent
with respect to any of the Collateral is materially impaired or
otherwise materially adversely affected.
HEDGING AGREEMENT means any Rate Hedging Agreement (as defined in the
Credit Agreement) entered into by the Pledgor with any Lender or any
affiliate of a Lender in connection with Loans (as defined in the
Credit Agreement) under the Credit Agreement.
ISSUER means the issuer of any of the shares of stock or other
securities representing all or any of the Collateral.
LENDER PARTIES means the Administrative Agent, each Lender and any
affiliate of a Lender which is a party to a Hedging Agreement.
<PAGE>
LIABILITIES means all obligations (monetary or otherwise) of the
Pledgor or any Subsidiary Guarantor, howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent, now or
hereafter existing, or due or to become due, which arise out of or in
connection with the Credit Agreement, the Notes, this Agreement, any
other Loan Document, any Hedging Agreement or any document or
instrument executed in connection therewith, including, without
limitation, all reimbursement obligations in respect of the Facility
Letters of Credit (as defined in the Credit Agreement) and all
obligations arising under Article XV of the Credit Agreement.
LOAN DOCUMENT has the meaning assigned to such term in the Credit
Agreement.
SUBSIDIARY GUARANTOR has the meaning assigned to such term in the
Credit Agreement.
2. PLEDGE. As security for the payment of all Liabilities, the
Pledgor hereby pledges to the Administrative Agent for the benefit of the
Administrative Agent and the Lender Parties, and grants to the Administrative
Agent for the benefit of the Administrative Agent and the Lender Parties a
continuing security interest in, all of the following:
A. All of the shares of stock and other securities described in SCHEDULE
I hereto, all of the certificates and/or instruments representing such
shares of stock and other securities, and all cash, securities,
dividends, rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of such shares or other securities;
B. All additional shares of stock of any of the Issuers listed in
SCHEDULE I hereto at any time and from time to time acquired by the
Pledgor in any manner, all of the certificates representing such
additional shares, and all cash, securities, dividends, rights and
other property at any time and from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all
of such shares;
C. All other property hereafter delivered to the Administrative Agent in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such property,
and all cash, securities, interest, dividends, rights and other
property at any time and from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all
thereof; and
D. All products and proceeds of all of the foregoing.
All of the foregoing are herein collectively called the "Collateral".
The Pledgor agrees to deliver to the Administrative Agent, promptly upon
receipt and in due form for transfer (i.e., endorsed in blank or accompanied
by stock or bond powers executed in blank), any Collateral (other than
dividends which the Pledgor is entitled to receive and retain pursuant to
SECTION 5 hereof) which may at any time or from time to time come into the
possession or control of the Pledgor; and prior to the delivery thereof to
the Administrative Agent, such Collateral shall be held by the Pledgor
separate and apart from its other property and in express trust for the
Administrative Agent.
2
<PAGE>
3. WARRANTIES; FURTHER ASSURANCES. The Pledgor warrants to the
Administrative Agent and each Lender Party that: (a) the Pledgor is (or at
the time of any future delivery, pledge, assignment or transfer thereof will
be) the legal and equitable owner of the Collateral free and clear of all
liens, security interests and encumbrances of every description whatsoever
other than the security interest created hereunder; (b) the pledge and
delivery of the Collateral pursuant to this Agreement will create a valid
perfected security interest in the Collateral in favor of the Administrative
Agent; (c) all shares of stock referred to in SCHEDULE I hereto are duly
authorized, validly issued, fully paid and non-assessable; (d) as to each
Issuer whose name appears in SCHEDULE I hereto, the Collateral represents on
the date hereof not less than the applicable percentage (as shown in SCHEDULE
I hereto) of the total shares of capital stock issued and outstanding of such
Issuer; and (e) the information contained in SCHEDULE I hereto is true and
accurate in all respects.
So long as any of the Liabilities shall be outstanding or any commitment
shall exist on the part of any Lender Party with respect to the creation of
any Liabilities, the Pledgor (i) shall not, without the express prior written
consent of the Administrative Agent, sell, assign, exchange, pledge or
otherwise transfer, encumber, or grant any option, warrant or other right to
purchase the stock of any Issuer which is pledged hereunder, or otherwise
diminish or impair any of its rights in, to or under any of the Collateral;
(ii) shall execute such Uniform Commercial Code financing statements and
other documents (and pay the costs of filing and recording or re-filing and
re-recording the same in all public offices reasonably deemed necessary or
appropriate by the Administrative Agent) and do such other acts and things,
all as the Administrative Agent may from time to time reasonably request, to
establish and maintain a valid, perfected security interest in the Collateral
(free of all other liens, claims and rights of third parties whatsoever) to
secure the performance and payment of the Liabilities; (iii) will execute and
deliver to the Administrative Agent such stock powers and similar documents
relating to the Collateral, satisfactory in form and substance to the
Administrative Agent, as the Administrative Agent may reasonably request; and
(iv) will furnish the Administrative Agent or any Lender Party such
information concerning the Collateral as the Administrative Agent or such
Lender Party may from time to time reasonably request, and will permit the
Administrative Agent or any Lender Party or any designee of the
Administrative Agent or any Lender Party, from time to time at reasonable
times and on reasonable notice (or at any time without notice during the
existence of a Default), to inspect, audit and make copies of and extracts
from all records and all other papers in the possession of the Pledgor which
pertain to the Collateral, and will, upon request of the Administrative Agent
at any time when a Default has occurred and is continuing, deliver to the
Administrative Agent all of such records and papers.
4. HOLDING IN NAME OF ADMINISTRATIVE AGENT, ETC. The Administrative
Agent may from time to time after the occurrence and during the continuance
of a Default, without notice to the Pledgor, take all or any of the following
actions: (a) transfer all or any part of the Collateral into the name of the
Administrative Agent or any nominee or sub-agent for the Administrative
Agent, with or without disclosing that such Collateral is subject to the lien
and security interest hereunder, (b) appoint one or more sub-agents or
nominees for the purpose of retaining physical possession of the Collateral,
(c) notify the parties obligated on any of the Collateral to make payment to
the Administrative Agent of any amounts due or to become due thereunder, (d)
endorse any checks, drafts or other writings in the name of the Pledgor to
allow collection of the Collateral, (e) enforce collection of any of the
Collateral by suit or otherwise, and surrender, release or exchange all or
any part thereof, or compromise or renew for any period (whether or not
longer than the original period) any obligations of any nature of any party
with respect thereto, and (f) take control of any proceeds of the Collateral.
3
<PAGE>
5. VOTING RIGHTS, DIVIDENDS, ETC. (a) Notwithstanding certain
provisions of SECTION 4 hereof, so long as the Administrative Agent has not
given the notice referred to in PARAGRAPH (b) below:
A. The Pledgor shall be entitled to exercise any and all voting or
consensual rights and powers and stock purchase or subscription
rights (but any such exercise by the Pledgor of stock purchase or
subscription rights may be made only from funds of the Pledgor not
comprising part of the Collateral) relating or pertaining to the
Collateral or any part thereof for any purpose; PROVIDED, HOWEVER,
that the Pledgor agrees that it will not exercise any such right or
power in any manner which would have a material adverse effect on
the value of the Collateral or any part thereof.
B. The Pledgor shall be entitled to receive and retain any and all
lawful dividends payable in respect of the Collateral which are
paid in cash by any Issuer if such dividends are permitted by
the Credit Agreement, but all dividends and distributions in
respect of the Collateral or any part thereof made in shares of
stock or other property or representing any return of capital,
whether resulting from a subdivision, combination or
reclassification of Collateral or any part thereof or received in
exchange for Collateral or any part thereof or as a result of any
merger, consolidation, acquisition or other exchange of assets to
which any Issuer may be a party or otherwise or as a result of any
exercise of any stock purchase or subscription right, shall be and
become part of the Collateral hereunder and, if received by the
Pledgor, shall be forthwith delivered to the Administrative Agent
in due form for transfer (i.e., endorsed in blank or accompanied by
stock or bond powers executed in blank) to be held for the purposes
of this Agreement.
C. The Administrative Agent shall execute and deliver, or cause to be
executed and delivered, to the Pledgor all such proxies, powers of
attorney, dividend orders and other instruments as the Pledgor may
request for the purpose of enabling the Pledgor to exercise the
rights and powers which it is entitled to exercise pursuant to
CLAUSE (A) above and to receive the dividends which it is authorized
to retain pursuant to CLAUSE (B) above.
(b) Upon notice from the Administrative Agent during the existence of a
Default, and so long as the same shall be continuing, all rights and powers
which the Pledgor is entitled to exercise pursuant to SECTION 5(a)(A) hereof,
and all rights of the Pledgor to receive and retain dividends pursuant to
SECTION 5(a)(B) hereof, shall forthwith cease, and all such rights and powers
shall thereupon become vested in the Administrative Agent which shall have,
during the continuance of such Default, the sole and exclusive authority to
exercise such rights and powers and to receive such dividends. Any and all
money and other property paid over to or received by the Administrative Agent
pursuant to this PARAGRAPH (b) shall be retained by the Administrative Agent
as additional Collateral hereunder and applied in accordance with the
provisions hereof.
6. REMEDIES. Whenever a Default exists, the Administrative Agent may
exercise from time to time any rights and remedies available to it under the
Uniform Commercial Code as in effect in Illinois or otherwise available to
it. Without limiting the foregoing, whenever a Default exists the
Administrative Agent (a) may, to the fullest extent permitted by applicable
law, without notice, advertisement, hearing or process of law of any kind,
(i) sell any or all of the Collateral, free of all rights and claims of the
Pledgor therein and thereto, at any public or private sale or brokers' board
and (ii) bid for and purchase any or all of the Collateral at any such public
sale and (b) shall have the right, for and in the name, place and stead of
the Pledgor, to execute endorsements, assignments, stock powers and other
instruments of conveyance or
4
<PAGE>
transfer with respect to all or any of the Collateral. The Pledgor hereby
expressly waives, to the fullest extent permitted by applicable law, any and
all notices, advertisements, hearings or process of law in connection with
the exercise by the Administrative Agent of any of its rights and remedies
during the continuance of a Default. Any notification of intended
disposition of any of the Collateral shall be deemed reasonably and properly
given if given at least ten (10) days before such disposition. Any proceeds
of any of the Collateral may be applied by the Administrative Agent to the
payment of expenses in connection with the Collateral, including, without
limitation, reasonable attorneys' fees and legal expenses, and any balance of
such proceeds may be applied by the Administrative Agent toward the payment
of such of the Liabilities, and in such order of application, as the
Administrative Agent may from time to time elect (and, after payment in full
of all Liabilities, any excess shall be delivered to the Pledgor or as a
court of competent jurisdiction shall direct).
The Administrative Agent is hereby authorized to comply with any
limitation or restriction in connection with any sale of Collateral as it may
be advised by counsel is necessary in order to (a) avoid any violation of
applicable law (including, without limitation, compliance with such
procedures as may restrict the number of prospective bidders or purchasers
and/or further restrict such prospective bidders or purchasers to persons or
entities who will represent and agree that they are purchasing for their own
account for investment and not with a view to the distribution or resale of
such Collateral) or (b) obtain any required approval of the sale or of the
purchase by any governmental regulatory authority or official, and the
Pledgor agrees that such compliance shall not result in such sale being
considered or deemed not to have been made in a commercially reasonable
manner and that the Administrative Agent shall not be liable or accountable
to the Pledgor for any discount allowed by reason of the fact that such
Collateral is sold in compliance with any such limitation or restriction.
7. GENERAL. The Administrative Agent shall be deemed to have
exercised reasonable care in the custody and preservation of the Collateral
if it takes such action for that purpose as the Pledgor shall request in
writing, but failure of the Administrative Agent to comply with any such
request shall not of itself be deemed a failure to exercise reasonable care,
and no failure of the Administrative Agent to preserve or protect any rights
with respect to the Collateral against prior parties, or to do any act with
respect to preservation of the Collateral not so requested by the Pledgor,
shall be deemed a failure to exercise reasonable care in the custody or
preservation of any Collateral.
No delay on the part of the Administrative Agent in exercising any
right, power or remedy shall operate as a waiver thereof, and no single or
partial exercise of any such right, power or remedy shall preclude any other
or further exercise thereof, or the exercise of any other right, power or
remedy. No amendment, modification or waiver of, or consent with respect to,
any provision of this Agreement shall be effective unless the same shall be
in writing and signed and delivered by the Administrative Agent, and then
such amendment, modification, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
All obligations of the Pledgor and all rights, powers and remedies of
the Administrative Agent and the Lender Parties expressed herein are in
addition to all other rights, powers and remedies possessed by them,
including, without limitation, those provided by applicable law or in any
other written instrument or agreement relating to any of the Liabilities or
any security therefor.
5
<PAGE>
This Agreement has been delivered at Chicago, Illinois, and shall be
construed in accordance with and governed by the internal laws of the State
of Illinois. Wherever possible each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid
under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
This Agreement shall be binding upon the Pledgor and the Administrative
Agent and their respective successors and assigns, and shall inure to the
benefit of the Pledgor and the Administrative Agent and the successors and
assigns of the Administrative Agent.
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, and each such counterpart
shall be deemed an original but all such counterparts shall together
constitute but one and the same Agreement.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND
MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED,
HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER
PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS
OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND.
THE PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF
THE COURTS OF THE STATE OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION
AS SET FORTH ABOVE. THE PLEDGOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE
OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, TO THE ADDRESS OF THE PLEDGOR
SPECIFIED IN, OR PURSUANT TO, THE CREDIT AGREEMENT, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF ILLINOIS. THE PLEDGOR HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH OF THE PLEDGOR, THE ADMINISTRATIVE AGENT AND (BY ACCEPTING THE
BENEFITS HEREOF) EACH LENDER PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS
AGREEMENT, ANY NOTE, ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP
EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
6
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
as of the day and year first written above.
INTERIM SERVICES, INC.
Address:
By: __________________________
2050 Spectrum Boulevard Name: __________________________
Fort Lauderdale, FL 33309 Title: _______________________
Attention: Shannon Allen
Facsimile: (954) 489-6085
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
Address:
By: __________________________
One First National Plaza Name: __________________________
Chicago, Illinois 60670 Title: _______________________
Attention: __________
Facsimile: (312) 732-______
<PAGE>
SCHEDULE I
TO PLEDGE AGREEMENT
STOCK
PLEDGED SHARES
NO. OF AS % OF TOTAL TOTAL SHARES
CERTIFICATE PLEDGED SHARES ISSUED OF ISSUER
ISSUER NO. SHARES AND OUTSTANDING OUTSTANDING
- ------ ----------- ------- --------------- ------------
8
<PAGE>
EXHIBIT "H"
FORM OF
ASSUMPTION LETTER
[Date]
To the Administrative Agent and
the Lenders party to the Credit
Agreement referred to below
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Credit Agreement
dated as of January 15, 1997 among Interim Services Inc. (the "Borrower"),
the Borrowing Subsidiaries from time to time party thereto, the financial
institutions from time to time party thereto as Lenders, NationsBank, N.A.,
as Documentation Agent, and The First National Bank of Chicago, as
Administrative Agent (as amended, restated or otherwise modified from time to
time, the "Credit Agreement"). Terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The undersigned, ______________________ (the "Subsidiary"), a
_________________ corporation and a Subsidiary of the Borrower, proposes to
become a "Borrowing Subsidiary" under the Credit Agreement, and accordingly
hereby agrees that from the date hereof until the payment in full of the
principal of and interest on all Advances made to it under the Credit
Agreement and performance of all of its other obligations thereunder, and
termination of its status as a "Borrowing Subsidiary" as provided below, it
shall perform, comply with and be bound by each of the provisions of the
Credit Agreement which are stated to apply to a "Borrowing Subsidiary" or a
"Borrowing Entity". In addition, the Subsidiary hereby represents and
warrants that: (i) each of the representations and warranties set forth in
Article VI of the Credit Agreement is true and correct with respect to the
Subsidiary as of the date hereof and (ii) it has heretofore received a true
and correct copy of the Credit Agreement (including any amendments thereto,
modifications thereof or waivers thereunder) as in effect on the date hereof.
So long as the principal of and interest on all Advances made to the
Subsidiary under the Credit Agreement shall have been paid in full and all
other obligations of the Subsidiary under the Credit Agreement shall have
been fully performed, the Subsidiary may, by not less than five Business
Days' prior notice to the Administrative Agent, terminate its status as a
"Borrowing Subsidiary."
Without limiting the provisions of Section 10.14 of the Credit
Agreement, the Subsidiary irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any United States
federal or Illinois state court sitting in Chicago, Illinois, and any
appellate court from any thereof, in any action or proceeding arising out of
or relating to this Assumption Letter, the Credit Agreement or any other Loan
Document or for recognition or enforcement of any judgment relating thereto,
and the Subsidiary irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be
<PAGE>
heard and determined in any such court. The Subsidiary agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Assumption Letter shall affect any
right that any Lender or the Administrative Agent may otherwise have to bring
any action or proceeding relating to this Assumption Letter, the Credit
Agreement or any other Loan Document in the courts of any jurisdiction.
This Assumption Letter shall be governed by, and construed in accordance
with, the internal laws (and not the law of conflicts) of the State of
Illinois, United States of America, but giving effect the federal laws of the
United States applicable to national banks.
IN WITNESS WHEREOF, the Subsidiary has duly executed and delivered this
Assumption Letter as of the date and year first above written.
[NAME OF BORROWING SUBSIDIARY]
By________________
Name:
Title:
Consented to:
INTERIM SERVICES INC.
By___________________
Name:
Title:
2
<PAGE>
EXHIBIT "I"
FORM OF LETTER OF CREDIT REQUEST
The First National Bank of Chicago
One First National Plaza
Suite ______
Chicago, Illinois 60670
Attention:__________________________
____________________________________
Phone: (312)________________________
Fax: (312)________________________
The Undersigned, Interim Services Inc. (the "Borrower"), refers to the
Second Amended and Restated Credit Agreement dated as of January 15, 1997 (as
amended, modified, extended or restated from time to time, the "Credit
Agreement"), among the Borrower, various Borrowing Subsidiaries thereof, the
Lenders party thereto, NationsBank, N.A., as Documentation Agent, and The
First National Bank of Chicago, as Administrative Agent.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement.
The Borrower hereby gives you notice pursuant to Section 2.17.3(a) of
the Credit Agreement that it requests a Facility Letter of Credit, and in
that connection sets forth below the terms on which such Facility Letter of
Credit is to be issued:
(A) Stated Amount (not less than $500,000)___________________________________
(B) Issuance Date (must be a Business Day)___________________________________
(C) Expiration Date (see Section 2.17.2(d))__________________________________
(D) Purpose__________________________________________________________________
(E) Beneficiary______________________________________________________________
<PAGE>
The delivery of this Letter of Credit Request is irrevocable and shall
be delivered to the Issuer and Agent no later than 2:00 p.m. (Chicago time)
at least five Business Days before the Issuance Date. This Letter of Credit
Request (whether given in writing or telephonically) shall also constitute a
representation and warranty as more fully described in Section 4.3 of the
Credit Agreement.
Very truly yours,
INTERIM SERVICES INC.
By:_____________________________________________
Title:__________________________________________
2
<PAGE>
SCHEDULE "1"
COMMITMENTS AND PERCENTAGES
Lender Commitment Percentage
- ------ ----------- ----------
THE FIRST NATIONAL BANK OF CHICAGO $40,000,000 20.0%
NATIONSBANK, N.A. $35,000,000 17.5%
BANK OF AMERICA ILLINOIS $30,000,000 15.0%
THE FUJI BANK, LIMITED $30,000,000 15.0%
ABN AMRO BANK N.V. $25,000,000 12.5%
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK $25,000,000 12.5%
BARNETT BANK, N.A. $15,000,000 7.5%
- ------------------ ------------ ----------
TOTAL $200,000,000 100.0%
<PAGE>
SCHEDULE "2"
<PAGE>
SCHEDULE "3"
LIENS
(See Sections 5.14 and 7.15)
No liens, except as permitted by Section 7.15
<PAGE>
SCHEDULE "4"
<PAGE>
SCHEDULE "5"
ASSOCIATED COSTS RATE
1. For the purposes of this Agreement, the cost of compliance with existing
requirements of the Bank of England in respect of Advances denominated in
British pounds sterling will be calculated by the Administrative Agent in
relation to each Advance on the basis of rates existing on the first day of
the Interest Period in respect of such Advance and, if such Interest Period
exceeds three months, at three calendar monthly intervals from the first day
of such Interest Period during its duration in accordance with the following
formula:
AB + C(B - E) + D(B - F) = ___ PER CENT, PER ANNUM
100 - (A + D)
Where:
A is the percentage of eligible liabilities which the Administrative
Agent is from time to time required to maintain as an interest free
cash deposit with the Bank of England to comply with cash ratio
requirements.
B is the percentage rate per annum at which sterling deposits are
offered by the Administrative Agent, in accordance with its normal
practice, for a period equal to (i) the Interest Period (or, as the
case may be, remainder of such Interest Period) in respect of the
relevant Advance or (ii) three months, whichever is the shorter, to a
leading bank in the London Interbank Market at or about 11:00 a.m. in
a sum approximately equal to the amount of such Advance.
C is the percentage of eligible liabilities which the Administrative
Agent is from time to time required by the Bank of England to maintain
as secured money with members of the London Discount Market
Association ("LDMA") and/or as secured call money with money brokers
and gilt edged market makers.
D is the percentage of eligible liabilities which the Administrative
Agent is required from time to time to maintain as interest bearing
special deposits with the Bank of England.
E is the percentage rate per annum at which members of the LDMA are
offered sterling deposits in a sum approximately equal to the amount
of the relevant Advance as a callable fixture from the Administrative
Agent for such period as determined in accordance with B above at or
about 11:00 a.m.
F is the percentage rate per annum payable by the Bank of England to the
Administrative Agent on interest bearing special deposits.
2. For the purposes of this Schedule "eligible liabilities" and "special
deposits" shall bear the meanings ascribed to them from time to time by the
Bank of England.
3. The percentages used in A, C and D above shall be those required to be
maintained on the first day of the relevant period as determined in
accordance with B above.
<PAGE>
4. In application of the above formula, A, B, C, D, E and F will be included
in the formula as figures and not as percentages e.g., if A is 0.5 per cent,
and B is 12 per cent, AB will be calculated as 0.5 x 12 and not as 0.5 per
cent. x 12 per cent.
5. Calculations will be made on the basis of a 365 day year (or, if market
practice differs, in accordance with market practice).
6. A negative result obtained by subtracting E from B or F from B shall be
taken as zero.
7. Additional amounts calculated in accordance with this Schedule are
payable on the last day of the Interest Period to which they relate.
8. The determination of the Associated Costs Rate in relation to any period
shall, in the absence of manifest error, be conclusive and binding on all of
the parties hereto.
9. The Administrative Agent may from time to time, after consultation with
the Borrower and the Lenders, determine and notify to all the parties hereto
any amendments or variations which are required to be made to the formula set
out above in order to comply with any requirements from time to time imposed
by the Bank of England in relation to Advances denominated in sterling
(including without limitation, any requirements relating to sterling primary
liquidity) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all of the parties hereto.
2
<PAGE>
CREDIT AGREEMENT
by and among
INTERIM SERVICES INC.,
THE BORROWING SUBSIDIARIES,
as Borrowers
and
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent,
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Documentation Agent,
and
THE BANKS PARTIES THERETO
May 1, 1997
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. . . . . . . . . . . . . . . . . . . . . . 2
1.2 Other Interpretive Provisions. . . . . . . . . . . . . . . . . . . 30
1.3 Accounting Principles. . . . . . . . . . . . . . . . . . . . . . . 30
1.4 Currency Equivalents Generally . . . . . . . . . . . . . . . . . . 31
ARTICLE II
THE CREDITS
2.1 Amounts and Terms of Commitments; Joint and Several Liability. . . 32
2.2 Loan Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2.3 Procedure for Syndicated Borrowing.. . . . . . . . . . . . . . . . 35
2.4 Conversion and Continuation Elections - Syndicated Loans.. . . . . 37
2.5 Utilization of Revolving Commitments in Offshore Currencies. . . . 38
2.6 Bid Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . 39
2.7 Procedure for Bid Borrowings.. . . . . . . . . . . . . . . . . . . 40
2.8 Voluntary Termination or Reduction of Revolving Commitments. . . 43
2.9 Optional and Mandatory Prepayments; Mandatory Reductions of
Commitments. . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
2.10 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . 45
2.11 Currency Exchange Fluctuations . . . . . . . . . . . . . . . . . . 45
2.12 Repayment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
2.13 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
2.14 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
2.15 Computation of Fees and Interest . . . . . . . . . . . . . . . . . 48
2.16 Payments by the Companies. . . . . . . . . . . . . . . . . . . . . 49
2.17 Payments by the Banks to the Agent . . . . . . . . . . . . . . . . 49
2.18 Sharing of Payments Etc. . . . . . . . . . . . . . . . . . . . . . 50
2.19 Swing Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
2.20 Designation of Borrowing Subsidiaries. . . . . . . . . . . . . 52
ARTICLE III
THE LETTERS OF CREDIT
3.1 The Letter of Credit Facilities. . . . . . . . . . . . . . . . . . 53
3.2 Issuance, Amendment and Renewal of Letters of Credit . . . . . . . 54
ii
<PAGE>
3.3 Risk Participations, Drawings and Reimbursements . . . . . . . . . 55
3.4 Repayment of Participations. . . . . . . . . . . . . . . . . . . . 57
3.5 Role of the Issuing Bank . . . . . . . . . . . . . . . . . . . . . 57
3.6 Obligations Absolute . . . . . . . . . . . . . . . . . . . . . . . 58
3.7 Cash Collateral Pledge . . . . . . . . . . . . . . . . . . . . . . 59
3.8 Letter of Credit Fees. . . . . . . . . . . . . . . . . . . . . . . 59
3.9 Uniform Customs and Practice . . . . . . . . . . . . . . . . . . . 60
ARTICLE IV
INTERIM NOTE GUARANTEE
4.1 Interim Notes Guarantee. . . . . . . . . . . . . . . . . . . . . . 61
4.2 Risk Participation, Advances and Reimbursements. . . . . . . . . . 61
4.3 Repayment of Participations. . . . . . . . . . . . . . . . . . . . 62
4.4 Role of NationsBank. . . . . . . . . . . . . . . . . . . . . . . . 63
4.5 Obligations Absolute . . . . . . . . . . . . . . . . . . . . . . . 63
4.6 Cash Collateral Pledge . . . . . . . . . . . . . . . . . . . . . . 64
4.7 Interim Note Guarantee Fees. . . . . . . . . . . . . . . . . . . . 65
ARTICLE V
TAXES, YIELD PROTECTION AND ILLEGALITY
5.1 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
5.2 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
5.3 Increased Costs and Reduction of Return. . . . . . . . . . . . . . 68
5.4 Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . . 69
5.5 Inability to Determine Rates . . . . . . . . . . . . . . . . . . . 69
5.6 Replacement Banks. . . . . . . . . . . . . . . . . . . . . . . . . 70
5.7 Mitigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
5.8 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE VI
CONDITIONS PRECEDENT
6.1 Conditions to Execution of Agreement . . . . . . . . . . . . . . . 72
6.2 Condition of Extension of Credit to Borrowing Subsidiary . . . . . 73
6.3 Conditions to All Credit Extensions. . . . . . . . . . . . . . . . 74
6.4 Supplements to Schedules . . . . . . . . . . . . . . . . . . . . . 75
iii
<PAGE>
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1 Existence and Power. . . . . . . . . . . . . . . . . . . . . . . . 76
7.2 Authorization; No Contravention. . . . . . . . . . . . . . . . . . 76
7.3 Governmental Authorization . . . . . . . . . . . . . . . . . . . . 76
7.4 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . 76
7.5 Litigation: Labor Controversies. . . . . . . . . . . . . . . . . . 77
7.6 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
7.7 Use of Proceeds; Margin Regulations. . . . . . . . . . . . . . . . 77
7.8 Title to Properties. . . . . . . . . . . . . . . . . . . . . . . . 77
7.9 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
7.10 Financial Condition. . . . . . . . . . . . . . . . . . . . . . . . 78
7.11 Support Documents. . . . . . . . . . . . . . . . . . . . . . . . . 79
7.12 Copyrights, Patents, Trademarks and Licenses, etc. . . . . . . . . 79
7.13 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
7.14 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
7.15 ERISA Compliance . . . . . . . . . . . . . . . . . . . . . . . . . 80
7.16 Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . 81
7.17 Regulated Entities . . . . . . . . . . . . . . . . . . . . . . . . 81
7.18 No Burdensome Restrictions . . . . . . . . . . . . . . . . . . . . 81
7.19 Full Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . 81
7.20 Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
7.21 Certain Agreements Paid in Full. . . . . . . . . . . . . . . . . . 81
ARTICLE VIII
AFFIRMATIVE COVENANTS
8.1 Financial Information, Reports, Notices, etc . . . . . . . . . . . 82
8.2 Compliance with Laws, etc. . . . . . . . . . . . . . . . . . . . . 84
8.3 Maintenance of Properties. . . . . . . . . . . . . . . . . . . . . 84
8.4 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
8.5 Books and Records. . . . . . . . . . . . . . . . . . . . . . . . . 85
8.6 Maintenance of Existence, etc. . . . . . . . . . . . . . . . . . . 85
8.7 Additional Support Documents . . . . . . . . . . . . . . . . . . . 85
8.8 Compliance with ERISA. . . . . . . . . . . . . . . . . . . . . . . 86
8.9 Release of Pledge or Guaranty. . . . . . . . . . . . . . . . . . . 86
8.10 Swap Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . 86
8.11 Acquisition of Minority Interest . . . . . . . . . . . . . . . . . 87
8.12 Re-registration of Michael Page. . . . . . . . . . . . . . . . . . 87
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ARTICLE IX
NEGATIVE COVENANTS
9.1 Business Activities. . . . . . . . . . . . . . . . . . . . . . . . 88
9.2 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
9.3 Financial Condition. . . . . . . . . . . . . . . . . . . . . . . . 89
9.4 Investments. . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
9.5 Restricted Payments, etc . . . . . . . . . . . . . . . . . . . . . 90
9.6 Consolidation Merger, etc. . . . . . . . . . . . . . . . . . . . . 91
9.7 Asset Dispositions, etc. . . . . . . . . . . . . . . . . . . . . . 92
9.8 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . 92
9.9 Negative Pledges, Restrictive Agreements, etc. . . . . . . . . . . 92
9.10 Subsidiaries' Voting Share . . . . . . . . . . . . . . . . . . . . 93
9.11 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
9.12 Limitation on Indebtedness . . . . . . . . . . . . . . . . . . . . 93
9.13 Change Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . 93
ARTICLE X
EVENTS OF DEFAULT
10.1 Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . 94
10.2 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
10.3 Rights Not Exclusive . . . . . . . . . . . . . . . . . . . . . . . 97
ARTICLE XI
THE AGENT
11.1 Appointment and Authorization; "Agent" . . . . . . . . . . . . . . 98
11.2 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . 98
11.3 Liability of Agent . . . . . . . . . . . . . . . . . . . . . . . . 98
11.4 Reliance by Agent. . . . . . . . . . . . . . . . . . . . . . . . . 99
11.5 Notice of Default. . . . . . . . . . . . . . . . . . . . . . . . . 99
11.6 Credit Decision. . . . . . . . . . . . . . . . . . . . . . . . . . 100
11.7 Indemnification of Agent . . . . . . . . . . . . . . . . . . . . . 100
11.8 Agent in Individual Capacity . . . . . . . . . . . . . . . . . . . 101
11.9 Successor Agent and Successor Issuing Bank . . . . . . . . . . . . 101
11.10 Security Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 101
11.11 Dutch Pledge Agreements. . . . . . . . . . . . . . . . . . . . . . 102
11.12 Documentation Agent. . . . . . . . . . . . . . . . . . . . . . . . 102
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ARTICLE XII
MISCELLANEOUS
12.1 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . 103
12.2 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
12.3 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . 104
12.4 Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . 104
12.5 Company Indemnification. . . . . . . . . . . . . . . . . . . . . . 105
12.6 Marshalling; Payments Set Aside. . . . . . . . . . . . . . . . . . 106
12.7 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . 106
12.8 Assignments, Participations, etc . . . . . . . . . . . . . . . . . 106
12.9 Designated Bidders . . . . . . . . . . . . . . . . . . . . . . . . 108
12.10 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . 108
12.11 Set-off. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
12.12 Notification of Addresses of Lending Offices, Etc. . . . . . . . . 110
12.13 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
12.14 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
12.15 No Third Parties Benefited . . . . . . . . . . . . . . . . . . . . 110
12.16 Governing Law and Jurisdiction . . . . . . . . . . . . . . . . . . 110
12.17 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . 111
12.18 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 111
12.19 Judgment Currency. . . . . . . . . . . . . . . . . . . . . . . . . 111
12.20 Economic and Monetary Union in the European Community. . . . . . . 111
EXHIBIT A FORM OF BID LOAN NOTE. . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B COMPLIANCE CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . B-1
EXHIBIT C DESIGNATION AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . C-1
EXHIBIT D FORM OF LOAN NOTE
INSTRUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-1
EXHIBIT E INVITATION FOR COMPETITIVE BID . . . . . . . . . . . . . . . . . . E-1
EXHIBIT F IRREVOCABLE NOTICE OF SYNDICATED ACTIVITY. . . . . . . . . . . . . F-1
EXHIBIT G FORM OF REVOLVING LOAN NOTE. . . . . . . . . . . . . . . . . . . . G-1
EXHIBIT H FORM OF SWING LINE NOTE. . . . . . . . . . . . . . . . . . . . . . H-1
EXHIBIT I FORM OF TERM LOAN NOTE . . . . . . . . . . . . . . . . . . . . . . I-1
EXHIBIT J COMPETITIVE BID REQUEST. . . . . . . . . . . . . . . . . . . . . . J-1
EXHIBIT K COMPETITIVE BID. . . . . . . . . . . . . . . . . . . . . . . . . . K-1
EXHIBIT L FORM OF SWING LINE BORROWING NOTICE. . . . . . . . . . . . . . . . L-1
EXHIBIT M FORM OF ASSUMPTION LETTER. . . . . . . . . . . . . . . . . . . . . M-1
EXHIBIT N FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT. . . . . . . . . . . . N-1
SCHEDULE I PRICING GRID
SCHEDULE II PLEDGORS AND PLEDGED INTERESTS
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SCHEDULE III REQUIRED PRINCIPAL INSTALLMENT AMOUNTS
AND PAYMENT DATES OF TERM LOAN
SCHEDULE IV SUBSIDIARIES
SCHEDULE 1.1 EXISTING LETTERS OF CREDIT
SCHEDULE 2.1 COMMITMENTS
SCHEDULE 7.5 LITIGATION
SCHEDULE 7.10 ADDITIONAL LIABILITIES
SCHEDULE 7.12 LITIGATION REGARDING PATENTS, TRADEMARKS, ETC.
SCHEDULE 7.13 SUBSIDIARIES
SCHEDULE 7.15 ERISA MATTERS
SCHEDULE 9.4(a) EXISTING INVESTMENTS
SCHEDULE 9.9 RESTRICTIVE AGREEMENTS
SCHEDULE 9.12 EXISTING INDEBTEDNESS
SCHEDULE 12.2 OFFSHORE AND DOMESTIC LENDING OFFICES
ADDRESSES FOR NOTICE
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CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of May 1, 1997, among INTERIM
SERVICES INC., a Delaware corporation (the "Borrower"), the BORROWING
SUBSIDIARIES parties hereto both as of the date hereof or pursuant to SECTION
2.20 (herein each a "Company" and collectively, the "Companies"), the several
financial institutions from time to time party to this Agreement
(collectively, the "Banks"; individually, a "Bank"), The First National Bank
of Chicago, as documentation agent for the Banks (in such capacity, the
"Documentation Agent"), and NationsBank, N.A., as agent for the Banks (in
such capacity, the "Agent").
WHEREAS, Interim (UK), a Subsidiary of the Borrower, has made a tender
offer for all of the issued and outstanding stock of Michael Page Group PLC;
and
WHEREAS, the Borrower is currently indebted to certain banks under an
Existing Credit Agreement (as herein defined), which provides for revolving
loans of up to $20,000,000 with a letter of credit sublimit (the "Existing
Credit Agreement") which loans are evidenced by promissory notes (the
"Existing Notes"); and
WHEREAS, the Companies have requested that the Banks make available to
them (i) a revolving loan facility of $400,000,000 with a letter of credit
sublimit of $50,000,000, a note guaranty facility of approximately
$27,000,000 and a swing line facility sublimit of $40,000,000, and (ii) a
term loan of $275,000,000, the proceeds of the facilities to be used to (w)
fund the acquisition of up to 100% of the common voting shares of Michael
Page Group PLC, (x) repay certain existing indebtedness under the Existing
Credit Agreement and other facilities, (y) pay acquisition costs in
connection with such acquisition and (z) provide working capital and for
general corporate purposes of the Companies and certain Subsidiaries; and
WHEREAS, the Banks have agreed to make available to the Companies, to
the extent provided herein, a multicurrency revolving credit facility upon
the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS
1.1 CERTAIN DEFINED TERMS. The following terms have the following
meanings:
"Absolute Rate" has the meaning specified in SECTION 2.7(c).
"Acquisition" means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the
acquisition of all or substantially all of the assets of a Person, or of
any business or division of a Person, (b) the acquisition of in excess of
50% of the capital stock, partnership interests, membership interests or
equity of any Person, or otherwise causing any Person to become a
Subsidiary, or (c) a merger or consolidation or any other combination with
another Person (other than a Person that is a Subsidiary immediately prior
to giving effect to such combination) provided that the applicable Company
or a Subsidiary is the surviving entity.
"Active Subsidiary" means a Subsidiary of the Borrower that is then
doing business of any kind;
"Affiliate" means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common
control with, such Person. A Person shall be deemed to control another
Person if the controlling Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of
the other Person, whether through the ownership of voting securities,
membership interests, by contract, or otherwise.
"Agent" means NationsBank in its capacity as agent for the Banks
hereunder, and any successor agent arising under SECTION 11.9.
"Agent-Related Persons" means the Agent and any successor agent
arising under SECTION 11.9, together with their respective Affiliates
(including in the case of NationsBank, the Arranger), and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Agent's Payment Office" means (i) in respect of payments in Dollars,
the address for payments set forth on SCHEDULE 12.2 or such other address
as the Agent may from time to time specify in accordance with SECTION 12.2,
and (ii) in the case of payments in any Offshore Currency, such address as
the Agent may from time to time specify in accordance with SECTION 12.2.
"Aggregate Assumed Interest" means the aggregate amount of interest
which would be payable on the Interim Notes from the date of determination
to the stated maturity of
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the Interim Notes assuming a rate of interest for the remaining term of the
Interim Notes to be that rate of interest in effect on the Interim Notes on
such date of determination;
"Agreement" means this Credit Agreement, as amended, modified or
supplemented from time to time.
"Alternate Currency" has the meaning specified in SECTION 2.5(b).
"Applicable Currency" means, as to any particular payment or Loan,
Dollars or the Offshore Currency in which it is denominated or is payable.
"Applicable Fee Percentage" means, at any time, the rate set forth on
SCHEDULE I under the column "Applicable Fee Percentage" for the level
applicable at such time in accordance with the provisions of SECTION
2.15(d).
"Applicable Margin" means
(i) with respect to Base Rate Loans, 0%;
(ii) with respect to Offshore Rate Loans, at any time, the rate
set forth on SCHEDULE I under the column "Applicable Margin" for the
level applicable at such time in accordance with the provisions of
SECTION 2.15(d).
"Arranger" means NationsBanc Capital Markets, Inc. and its successors.
"Assignee" has the meaning specified in SUBSECTION 12.8(a).
"Associated Costs" means a rate per annum equal to the arithmetic mean
of the percentage rates applicable to the Offshore Currency Lending Office
of the relevant Bank according to the following formula:
Associated Costs BY + L(Y-X) + S(Y-Z)
per annum = DIVIDED BY
100 - (B+S)
where:
B = The percentage of such Bank's eligible liabilities required, on
the first day of the Relevant Period, to be held in a
non-interest-bearing deposit account with the Bank of England
pursuant to the cash ratio requirements of the Bank of England.
Y = The interest rate at which Sterling deposits in an amount
comparable to the aggregate principal amount of the relevant Loan
are offered by such Bank to leading banks in the London interbank
market at or about 11:00 a.m.
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<PAGE>
(London time) on the first day of the Relevant Period for a
period comparable to the Relevant Period.
L = The average percentage of eligible liabilities which the Bank of
England, as at the first day of the Relevant Period, requires
such Bank to maintain as secured money with members of the London
Discount Market Association and/or as secured call money with
those money brokers and gilt-edged primary market makers
recognized by the Bank of England.
X = The rate at which secured Sterling deposits in an amount
comparable to the aggregate principal amount of the relevant Loan
may be placed by such Bank with members of the London Discount
Market Association and/or as secured call money with money
brokers and gilt-edged primary market makers at or about 11:00
a.m. (London time) on the first day of the Relevant Period for a
period comparable to the Relevant Period.
S = The percentage of such Bank's eligible liabilities required on
the first day of the relevant Interest Period to be placed as a
special deposit with the Bank of England.
Z = The percentage interest rate per annum payable by the Bank of
England on special deposits or, if lower, Y.
(a) For the purposes of this definition:
(i) "eligible liabilities" and "special deposits" shall have the
meanings ascribed to them from time to time by the Bank of England;
and
(ii) "Relevant Period" means, if the Interest Period with respect
to the relevant Loan is three months or less, the duration of such
Interest Period or, if such Interest Period is longer than three
months, each period of three months and any necessary shorter period
in such Interest Period.
(b) In the application of the above formula, B, Y, L, X, S and Z will
be included in the formula as decimal fractions and not as percentages,
e.g. if B = 0.5% and Y = 15%, BY will be calculated as 0.5 x 15 and not as
0.5% x 15%.
(c) Associated Costs shall be computed by the applicable Bank on the
first day of each Relevant Period, and shall, if necessary, be rounded
upward to the nearest 1/10,000 of 1%. If there is more than one Relevant
Period comprised in the relevant Interest Period, then the Associated Costs
for that Interest Period shall be the weighted average of the amounts so
computed for the Relevant Periods comprised in that Interest Period.
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(d) Calculations will be made on the basis of a year of 365 days.
The "Associated Costs" shall be increased by an amount which the
applicable Bank shall determine from time to time to be necessary to
compensate such Bank for the cost or loss to it of complying with any
liquidity, monetary control or prudential requirements of The Bank of
England existing from time to time.
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel.
"Bank" has the meaning specified in the introductory clause hereto.
"Base Rate" means, for any day, the higher of (a) 0.50% per annum
above the latest Federal Funds Rate, or (b) the rate of interest in effect
for such day as publicly announced from time to time by NationsBank in
Charlotte, North Carolina, as its "prime rate." (The "prime rate" is a
rate set by NationsBank based upon various factors including NationsBank's
costs and desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate.) Any change in the prime
rate announced by NationsBank shall take effect at the opening of business
on the day specified in the public announcement of such change.
"Base Rate Loan" means a Revolving Loan, Swing Line Loan, Term Loan,
Interim Note Borrowing or L/C Advance that bears interest based on the Base
Rate.
"Bid Borrowing" means a Borrowing hereunder consisting of one or more
Bid Loans made to the Companies on the same day by one or more Banks or
Designated Bidders.
"Bid Loan" means a Revolving Loan by a Bank or a Designated Bidder to
one or more of the Companies under SECTION 2.6.
"Bid Loan Bank" means, in respect of any Bid Loan, the Bank or a
Designated Bidder making such Bid Loan to the Companies.
"Bid Loan Note" means a note substantially in the form of EXHIBIT A
and delivered to a Bank pursuant to SECTION 2.2.
"Borrowing" means a borrowing hereunder consisting of (i) Bid Loans or
Revolving Loans of the same Type and in the same Applicable Currency made
to a Company on the same day by the Banks under SECTION 2.1(a) or (in the
case of Bid Borrowings) Bid Loan Banks under SECTIONS 2.6 AND 2.7, and, in
the case of Offshore Rate Loans, having the same Interest Period, (ii)
Swing Line Loans under SECTION 2.19, (iii) Term Loans of the same Type and
in Dollars made to a Company on the same day by the
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<PAGE>
Banks under SECTION 2.1(b) and, in the case of Offshore Rate Loans, having
the same Interest Period. A Borrowing may be a Revolving Borrowing or a
Swing Line Borrowing or a Bid Borrowing or a Term Borrowing.
"Borrowing Date" means any date on which a Borrowing occurs under
SECTION 2.3, SECTION 2.7, SECTION 2.19 or SECTION 2.20.
"Borrowing Subsidiary" means any Subsidiary of the Borrower which has
been designated pursuant to SECTION 2.20.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks in New York City or Charlotte, North Carolina
are authorized or required by law to close and (i) with respect to
disbursements and payments in Dollars, a day on which dealings are carried
on in the applicable offshore Dollar interbank market, and (ii) with
respect to any disbursements and payments in and calculations pertaining to
any Offshore Currency Loan, a day on which commercial banks are open for
foreign exchange business in London, England, and on which dealings in the
relevant Offshore Currency are carried on in the applicable offshore
foreign exchange interbank market in which disbursement of or payment in
such Offshore Currency will be made or received hereunder.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any other
law, rule or regulation, whether or not having the force of law, in each
case, regarding capital adequacy of any bank or of any corporation
controlling a bank.
"Capital Expenditures" means, for any period, the sum of the aggregate
amount of all expenditures of the Borrower and its Subsidiaries for fixed
or capital assets made during such period, other than by reason of an
Acquisition, which, in accordance with GAAP, would be classified as capital
expenditures.
"Cash Account Agreement" means the Cash Account Agreement delivered by
each Company in favor of the Agent relating to the cash collateralization
of the L/C Obligations and Interim Note Obligations, as the same may be
amended or otherwise modified from time to time.
"Cash Collateralize" means to pledge and deposit with or deliver to
the Agent, for the benefit of the Agent, the Issuing Bank, NationsBank and
the Banks, as collateral for the L/C Obligations or Interim Note
Obligations, or both, cash or deposit account balances pursuant to
documentation in form and substance reasonably satisfactory to the Agent,
the Issuing Bank and NationsBank. Derivatives of such term shall have
corresponding meanings. The Companies hereby grant the Agent, for the
benefit of the Agent, the Issuing Bank, NationsBank and the Banks, a
security interest in all such cash and deposit
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<PAGE>
account balances. Cash collateral shall be maintained in blocked, interest
bearing deposit accounts at NationsBank.
"Cash Equivalent Investment" means, at any time:
(a) any evidence of Indebtedness, maturing not more than one year
after such time, issued or guaranteed by the government of a country ("OECD
Country") which is a member of the Organization for Economic Cooperation
and Development or any agency thereof;
(b) commercial paper, maturing not more than nine months from the
date of issue, which is issued by
(i) a corporation (other than an Affiliate of the Companies)
organized under the laws of any state of the United States or of the
District of Columbia and rated A-2, or better, by Standard & Poor's
Ratings Services or P-2, or better, by Moody's Investors Service,
Inc., or
(ii) any Bank (or its holding company);
(c) any certificate of deposit or bankers acceptance, maturing not
more than one year after such time, which is issued by either
(i) a commercial banking institution that is a member of the
Federal Reserve System or an applicable central bank of an OECD
Country and has a combined capital and surplus and undivided profits
of not less than $500,000,000, or
(ii) any Bank;
(d) any repurchase agreement entered into with any Bank (or other
commercial banking institution of the stature referred to in clause (c)(i))
which
(i) is secured by a fully perfected security interest in any
obligation of the type described in any of clauses (a) through (c);
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 Bank (or other commercial banking institution) thereunder; or
(e) money market preferred stock of companies listed on the S&P 500
and having a long-term debt rating of A- or better by S&P or A3 or better
by Moody's, AND short-term (one-year or less) debt instruments, so long as
the underlying obligor has a
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<PAGE>
short-term debt rating of A-2 (or MIG-2) or better by S&P or P-2 (or MIG-2)
or better by Moody's;
(f) Investments in money market funds that invest primarily in items
described in clauses (a), (b), (c), (d) and (e) above;
(g) participations in short-term loans to any corporation (other than
the Company or any Subsidiary) organized under the United States of America
and rated at least A-2 by S&P or P-2 by Moody's;
"Change in Control" means (i) the acquisition by any Person, or two or
more Persons acting in concert, of beneficial ownership (within the meaning
of Rule 13d-3 of the Securities and Exchange Commission under the Exchange
Act) of 20% or more of the outstanding shares of voting stock of the
Borrower or (ii) during any period of up to 12 consecutive months,
commencing on the Closing Date, individuals who at the beginning of such
12-month period were directors of the Borrower shall cease for any reason
(other than the death, disability or retirement of an officer of the
Borrower that is serving as a director at such time so long as another
officer of the Borrower replaces such Person as a director) to constitute a
majority of the Board of Directors of the Borrower.
"Closing Date" means the date on which this Agreement and the Notes
are executed and delivered to the Bank.
"Code" means the Internal Revenue Code of 1986, as amended, and
regulations promulgated thereunder.
"Commitment", as to each Bank, means the sum of such Bank's Revolving
Commitment and Term Loan Commitment.
"Company" and "Companies" has the meaning specified in the
introductory clause hereto.
"Competitive Bid" means an offer by a Bank or a Designated Bidder to
make a Bid Loan in accordance with SECTION 2.7(c).
"Competitive Bid Request" has the meaning specified in SECTION 2.7(a).
"Compliance Certificate" means a certificate substantially in the form
of EXHIBIT B.
"Consolidated EBITDA" means, for any four quarter period, Consolidated
Net Income plus Consolidated Interest Expense, income taxes, depreciation
expense and amortization expense, all determined on a consolidated basis
for the Borrower and its Subsidiaries; PROVIDED that, with respect to any
Acquisition which is treated as a "purchase," Consolidated EBITDA,
beginning with the fiscal quarter during which such
8
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Acquisition occurs, shall include the results of the operations of the
Person or assets so acquired (which results shall be determined on an
historical pro forma basis in form and substance satisfactory to the
Required Lenders so long as the Borrower has furnished to the Lenders
financial information acceptable to the Required Lenders with respect to
the Person or assets so acquired).
"Consolidated Fixed Charge Coverage Ratio" means with respect to the
Borrower and its Subsidiaries, on a consolidated basis, for any period of
four consecutive fiscal quarters, the ratio of
(i) the amount of
(A) Consolidated EBITDA for such period, minus
(B) the sum of (1) gains for such period on the sale of assets
outside the ordinary course of business (excluding gains on the sale
of assets previously on operating leases) plus (2) Capital
Expenditures allocable to such period;
to
(ii) the sum of
(A) Consolidated Interest Expense (including amounts
attributable to interest under any Permitted Receivables
Securitization) for such period, plus
(B) dividends for such period, plus
(C) required principal payments during such four quarter period.
"Consolidated Interest Expense" means, with respect to any period of
computation thereof, the gross interest expense of the Borrower and its
Subsidiaries (net of interest income of not to exceed $500,000), including,
without limitation (i) the amortization of debt discounts, (ii) the
amortization of all fees (including, without limitation, fees payable in
respect of Rate Hedging Obligations) payable in connection with the
incurrence of Indebtedness to the extent included in interest expense and
(iii) the portion of any liabilities incurred in connection with Capital
Leases allocable to interest expense, all determined on a consolidated
basis in accordance with GAAP applied on a Consistent Basis; provided,
however, in the case of the occurrence of an Acquisition, there shall be
included in Consolidated Interest Expense for the first four consecutive
fiscal quarters ending after the date of such Acquisition an amount which
shall be determined by multiplying that portion of the cost of Acquisition
which represents Indebtedness, whether incurred, assumed or acquired, times
the interest rate applicable to such Indebtedness which is in effect on the
date of determination (i) for the fiscal quarter during which such
Acquisition occurs by
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four, (ii) for the two full fiscal quarters following the date of such
Acquisition by two, and (iii) for the three full fiscal quarters following
the date of such Acquisition by 4/3's.
"Consolidated Net Income" means, for any period ending on the date for
which computation thereof is being made, the gross revenues from operations
of the Borrower and the Subsidiaries (including payments received by the
Borrower and the Guarantors of (i) interest income, and (ii) dividends and
distributions made in the ordinary course of their business by Persons in
which investment is permitted pursuant to this Agreement and not related to
an extraordinary event), less all operating and non-operating expenses of
the Borrower and its Subsidiaries including taxes on income, all determined
on a consolidated basis in accordance with GAAP applied on a Consistent
Basis; but excluding (for all purposes other than compliance with SECTION
9.3(ii)) hereof as income: (i) net gains on the sale, conversion or other
disposition of capital assets, (ii) net gains on the acquisition,
retirement, sale or other disposition of capital stock and other securities
of the Borrower or its Subsidiaries, (iii) net gains on the collection of
proceeds of life insurance policies, (iv) any write-up of any asset, and
(v) any other net gain or credit of an extraordinary nature as determined
in accordance with GAAP applied on a Consistent Basis.
"Consolidated Net Worth" means the aggregate amount of shareholders
equity as determined from a consolidated balance sheet of the Borrower and
its Subsidiaries, prepared in accordance with GAAP; PROVIDED that the
amount of any cumulative translation adjustment shall be excluded for
purposes of determining Consolidated Net Worth.
"Consolidated Total Leverage Ratio" means, with respect to the
Borrower and its Subsidiaries, on a consolidated basis, for any consecutive
four quarter period, the ratio of Total Indebtedness as at the end of such
period to Consolidated EBITDA for such period.
"Contingent Obligation" 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 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 shares of any other Person. The amount of any Person's obligation
under any Contingent Obligation shall (subject to any limitation set forth
therein) be deemed to be the outstanding principal amount (or maximum
principal amount, if larger) of the Indebtedness guaranteed thereby.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or
agreement to which such Person is a party or by which it or any of its
property is bound.
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"Conversion/Continuation Date" means any date on which, under SECTION
2.4, a Company (a) converts Syndicated Loans of one Type to another Type,
or (b) continues as Syndicated Loans of the same Type, but with a new
Interest Period, Syndicated Loans having Interest Periods expiring on such
date.
"Credit Extension" means and includes (a) the making of any Syndicated
Loans and Bid Loans and Swing Line Loans hereunder, (b) the issuance of the
Interim Note Guarantee and the making of any payment pursuant thereto, and
(c) the Issuance of any Letters of Credit hereunder.
"Default" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise
remedied during such time) constitute an Event of Default.
"Designated Bidder" means an Affiliate of a Bank that is an entity
described in clause (a) or (b) of the definition of "Eligible Assignee" and
that has become a party hereto pursuant to SECTION 12.9.
"Designation Agreement" means an agreement in substantially the form
of EXHIBIT C.
"Documentation Agent" means The First National Bank of Chicago in its
capacity as documentation agent for the Banks hereunder, and any successor
documentation agent thereto.
"Dollars", "dollars" and "$" each mean lawful money of the United
States.
"Dollar Equivalent Amount" means (a) the amount denominated in
Dollars, and (b) as to any amount denominated in an Offshore Currency, the
equivalent amount in Dollars as determined by the Agent on the basis of the
Spot Rate for the purchase of Dollars with such Offshore Currency.
"Effective Date" means the date designated by a Company pursuant to an
Irrevocable Notice of Syndicated Activity that has been received by the
Agent pursuant to SECTION 6.3 and on which date all conditions precedent
set forth in SECTION 6.1 are satisfied.
"Eligible Assignee" means (a) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $500,000,000; (b) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having a combined capital
and surplus of at least $500,000,000, provided that such bank is acting
through a branch or agency located in the country in which it is organized
or another country which is also
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<PAGE>
a member of the OECD; and (c) a Person that is primarily engaged in the
business of commercial banking and that is (i) a Subsidiary of a Bank,
(ii) a Subsidiary of a Person of which a Bank is a Subsidiary, or (iii)
a Person of which a Bank is a Subsidiary.
"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or
injury to the environment
"Environmental Laws" means all federal, state, local or foreign laws,
statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any
Governmental Authorities, in each case relating to environmental, health,
safety and land use matters.
"Equipment" means all equipment of whatever kind or nature now owned
or hereafter acquired by a Person, including, without limitation, all
machinery, vehicles, tools, furniture, furnishings, office machines and
equipment, material handling equipment, forklifts, conveyors, machine
systems, computers and all other goods used with all accessories, parts and
additions noted or hereafter affixed thereto or used in connection
therewith.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with any Company within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code
for purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by any Company or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001 (a) (2) of ERISA) or a
cessation of operations which is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by any Company or
any ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of
intent to terminate, the treatment of a Plan amendment as a termination
under Section 4041 or 4041A of ERISA, or the commencement of proceedings by
the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or
condition which might reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon any
Company or any ERISA Affiliate.
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"Eurocurrency Reserve Percentage" has the meaning specified in the
definition of "Offshore Rate".
"Event of Default" means any of the events or circumstances specified
in SECTION 10.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and regulations promulgated thereunder.
"Existing Credit Agreement" means the Amended and Restated Credit
Agreement dated as of January 15, 1997 among Interim Services Inc., Various
Subsidiaries Thereto, The Lenders Party Thereto, NationsBank, N.A., as
Documentation Agent and The First National Bank of Chicago, as
Administrative Agent.
"Existing Letters of Credit" means the letters of credit described on
SCHEDULE 1.1.
"Existing Notes" has the meaning specified in the introductory clause
hereto.
"Facility L/C" means any standby letter of credit issued by an Issuing
Bank pursuant to SECTION 3.1(a) and the Existing Letters of Credit.
"Facility L/C Obligations" means at any time the sum of (a) the
aggregate undrawn amount of all Facility L/Cs then outstanding, plus (b)
the amount of all unreimbursed drawings under Facility L/Cs, including an
L/C Borrowing in respect of a Facility L/C.
"Fair Market Value" means, with respect to any capital stock or other
ownership interests issued or given by the Borrower or any Subsidiary in
connection with an Acquisition, (i) in the case of capital stock that is
Common Stock and such Common Stock is then designated as a national market
system security by the National Association of Securities Dealers, Inc.
("NASDAQ") or is listed on a national securities exchange, the average of
the last reported bid and ask quotations or prices reported thereon for
Common Stock or such other value as may be ascribed to the Common Stock in
a definitive merger or acquisition agreement provided such value is
determined according to customary methods for like transactions and is
approved (to the extent required by Borrower's charter or bylaws) by the
Borrower's board of directors or (ii) in the case of capital stock that is
not Common Stock or in the event that Common Stock is not so designated on
NASDAQ or listed on such national exchange, or in the case of any other
ownership interests, the determination of the fair market value thereof in
good faith by a majority or disinterested members of the board of directors
of the Borrower or such Subsidiary, in each case effective as of the close
of business on the Business Day immediately preceding the closing date of
such Acquisition.
"FDIC" means the Federal Deposit Insurance Corporation and any
Governmental Authority succeeding to any of its principal functions.
13
<PAGE>
"Federal Funds Rate" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including
any such successor, "H.l5(519)") on the preceding Business Day opposite the
caption "Federal Funds (Effective)"; or, if for any relevant day such rate
is not so published on any such preceding Business Day, the rate for such
day will be the arithmetic mean as determined by the Agent of the rates for
the last transaction in overnight Federal funds arranged prior to 9:00 a.m.
(New York City time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the Agent.
"Fee Letters" has the meaning specified in SECTION 2.14(a).
"First Chicago" means the First National Bank of Chicago in its
individual capacity, and its successors.
"Foreign Subsidiary" means any Subsidiary (other than Spectrum) which
(i) is organized under the laws of a jurisdiction other than the United
States or a state thereof and (ii) conducts substantially all of its
business and operations outside the United States.
"FRB" means the Board of Governors of the Federal Reserve System, and
any Governmental Authority succeeding to any of its principal functions.
"Further Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges (including, without limitation, net income taxes and franchise
taxes), and all liabilities with respect thereto, imposed by any
jurisdiction on account of amounts payable or paid pursuant to SECTION 5.1.
"FX Trading Office" means the NationsBank Foreign Exchange Trading
Desk in Charlotte, North Carolina, or such other office or source of
information as the Agent may designate with the concurrence of the
Companies.
"GAAP" means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants
and statements and pronouncements of the Financial Accounting Standards
Board (or agencies with similar functions of comparable stature and
authority within the U.S. accounting profession), which are applicable to
the circumstances, subject to the provisions of SECTION 1.3.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary
or regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
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"Guarantor" means each of Interim Accounting Personnel, Inc., Interim
Assisted Care, Inc., Interim Financial Corporation, Interim HealthCare
Inc., Interim HealthCare of New York Inc., Interim Legal Services Inc.,
Interim Personnel Inc., Interim Physicians, Inc., Interim Temporary
Personnel Inc., Rich Field Agency, Inc., Interim Technology Inc., Interim
Real Estate Solutions Inc., Cornell Computer Corp., Spectrum Financial
Corporation, Interim Acquisition Corporation and Interim Occupational
Health Inc.(and such other Subsidiaries which may become a Guarantor).
"Guaranty" means a Guaranty in the form reasonably acceptable to the
Agent and the Banks executed by every Guarantor, as the same may be amended
or otherwise modified from time to time.
"Honor Date" has the meaning specified in Section 3.3(b).
"IBOR" has the meaning specified in the definition of "Offshore Rate".
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant or, if applicable, any
chartered accountants as to any financial statement of any Company or any
Subsidiary, any qualification or exception to such opinion or certification
(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
any Company to be in default of any of its obligations under SECTION 9.3.
"Inactive Subsidiary" means a Subsidiary of the Borrower that is not
an Active Subsidiary.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(b) all obligations, contingent or otherwise, relative to the face
amount of all letters of credit (other than letters of credit supporting
trade payables in the ordinary course of business), whether or not drawn,
and banker's acceptances issued for the account of such Person (it being
understood that, to the extent an undrawn letter of credit supports
15
<PAGE>
another obligation consisting of Indebtedness, in calculating aggregate
Indebtedness only such other obligation shall be included);
(c) all obligations of such Person as lessee under leases which have
been or should be, in accordance with GAAP, recorded as capitalized lease
liabilities;
(d) net liabilities of such Person under all Swap Contracts;
(e) 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 (other than obligations under employment contracts,
restrictive covenants or similar arrangements or trade payables in the
ordinary course of business), and indebtedness (excluding prepaid interest
thereon) secured by a Lien on property owned or being purchased 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;
(f) liabilities in accordance with GAAP of such Person with respect
to lease paper sold by such Person or any other Persons;
(g) all Contingent Obligations of such Person in respect of any of
the foregoing whether such Person or another Person is the principal
obligor in respect thereof;
(h) all amounts outstanding under Permitted Receivables
Securitizations; and
(i) the aggregate amount of liabilities (including obligations to
purchase or repurchase or other Contingent Obligations) arising under tax
retention operating leases.
"Indemnified Liabilities" has the meaning specified in SECTION 12.5.
"Indemnified Person" has the meaning specified in SECTION 12.5.
"Insolvency Proceeding" means, with respect to any Person, (a) any
case, action or proceeding with respect to such Person before any competent
court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
administrative receivership, administration, winding-up or relief of
debtors, or (b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial
portion of its creditors; undertaken under U.S. Federal, State or foreign
law.
"Interest Payment Date" means, as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and, as
to any Base Rate Loan, the last Business Day of each calendar quarter and
each date such Loan is converted into
16
<PAGE>
another Type of Loan; provided, however, that if any Interest Period for
an Offshore Rate Loan or Bid Loan exceeds three months, the dates that
fall at three month intervals after the beginning, and prior to the end,
of such Interest Period are also Interest Payment Dates.
"Interest Period" means, (a) as to any Offshore Rate Loan, the period
commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which such Loan is converted into or
continued as an Offshore Rate Loan, and ending on the date one, two, three
or six months thereafter as selected by a Company in its Irrevocable Notice
of Syndicated Activity (or such other period of time, not to exceed 12
months, as the Agent shall, following reasonable prior notice from a
Company, with the consent of all Banks, elect to make available); and (b)
as to any Bid Loan, a period of not less than seven days and not more than
365 days as selected by the Company in the applicable Competitive Bid
Request; provided that:
(i) if any Interest Period would otherwise end on a day that is
not a Business Day, that Interest Period shall be extended to the
following Business Day unless, in the case of an Offshore Rate Loan,
the result of such extension would be to carry such Interest Period
into another calendar month, in which event such Interest Period shall
end on the preceding Business Day;
(ii) any Interest Period pertaining to an Offshore Rate Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day
of the calendar month at the end of such Interest Period;
(iii) each Interest Period for any Term Loan shall end on the
last Business Day of a calendar month; and
(iv) no Interest Period for any Loan shall extend beyond the date
stated in clause (a) of the definition of "Termination Date".
"Interim (Europe)" means Interim Services (Europe) Inc., a Delaware
corporation and wholly-owned Subsidiary of the Borrower and which entity is
a Borrowing Subsidiary.
"Interim (UK)" means Interim Services (UK) PLC, a public liability
company incorporated in England and Wales (Registered Number 3310225) and
wholly-owned Subsidiary of Interim (Europe) and which entity is a Borrowing
Subsidiary.
"Interim Note Advance" means each Bank's participation in any Interim
Note Borrowing in accordance with its Pro Rata Share;
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"Interim Note Borrowing" means an extension of credit resulting from a
payment under the Interim Note Guaranty which shall not have been
reimbursed on the date when made or converted into an appropriate
Borrowing;
"Interim Note Commitments" means the commitment of NationsBank to
guaranty, and the commitment of the Banks severally to participate in, the
Interim Note Guarantee, in an aggregate amount not to exceed on any date
the amount of the Interim Note Obligations;
"Interim Note Guarantee" means the guaranty of payment by NationsBank
arising under the Interim Note Instrument the terms of which are set forth
in Schedule IV to the Interim Note Instrument;
"Interim Note Instrument" means the Loan Note Instrument dated May 1,
1997 between Interim (UK) and NationsBank, N.A. constituting up to
L12,500,000 Floating Rate Guaranteed Unlisted Unsecured Loan Notes 2002, a
copy of which is attached hereto substantially in the form of EXHIBIT D,
pursuant to which (a) Interim (UK) has issued the Interim Notes evidencing
its obligation to pay the purchase price of shares of capital stock of
Michael Page together with interest and (b) NationsBank has guaranteed
payment of such amount;
"Interim Note Obligations" means at any time the Dollar Equivalent
Amount of the sum of (a) the aggregate unpaid principal amount of Interim
Notes, plus (b) the Aggregate Assumed Interest, plus (c) the amount of
unreimbursed payments made by NationsBank pursuant to the Interim Note
Guarantee;
"Interim Note Related Documents" means the Interim Note Instrument and
any documents relating to the Interim Note Guarantee;
"Interim Notes" means the Floating Rate Guaranteed Unlisted Unsecured
Loan Notes 2002 in the original principal amount of approximately
L12,500,000 issued pursuant to the Loan Note Instrument the form of which
is set forth in Schedule I to the Loan Note Instrument;
"Inventory" means all inventory of whatever kind or nature of a Person
and wherever located, including, without limitation, all goods held for
sale or lease or furnished or to be furnished under contracts, and any raw
materials, work in process or finished goods, and all goods and materials
used or consumed in such Person's business, including, without limitation,
those goods identified as equipment on operating leases, machine inventory
and parts and supplies inventory.
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<PAGE>
"Investment" means, relative to any Person,
(a) any loan or advance made by such Person to any other Person
(excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business);
(b) any Contingent Obligation of such Person; and
(c) any ownership or similar interest 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 without
adjustment by reason of the financial condition of such other Person) 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.
"Invitation for Competitive Bids" means a solicitation for Competitive
Bids, substantially in the form of EXHIBIT E.
"Irrevocable Notice of Syndicated Activity" means a notice in
substantially the form of EXHIBIT F.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
"Issuance Date" has the meaning specified in SECTION 3.1(a).
"Issue" means, with respect to any Letter of Credit, to issue or to
extend the expiry of, or to renew or increase the amount of, such Letter of
Credit; and the terms "Issued," "Issuing" and "Issuance" have corresponding
meanings.
"Issuing Bank" means NationsBank, and in the case of the Existing
Letters of Credit, First Chicago and Comerica Bank, or, upon the request of
the Companies with the consent of the Agent, another Bank, in its capacity
as issuer of one or more Letters of Credit hereunder, together with any
successor letter of credit issuer arising under SECTION 11.1(b) or SECTION
11.9.
"Judgment Currency" has the meaning specified in SECTION 12.19.
"L/C Advance" means each Bank's participation in any L/C Borrowing in
accordance with its Pro Rata Share.
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<PAGE>
"L/C Amendment Application" means an application form for amendment of
outstanding Letters of Credit as shall at any time be in use at the Issuing
Bank, as the Issuing Bank shall request.
"L/C Application" means an application for Issuances of standby or
commercial documentary letters of credit in such form as shall at any time be
in use at the Issuing Bank, shall be consistent with the terms of this Credit
Agreement and shall be agreed to by the Company applying for the applicable
Letter of Credit.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which shall not have been reimbursed on the date
when made or converted into an appropriate Borrowing.
"L/C Commitment" means the commitment of the Issuing Bank to Issue, and
the commitment of the Banks severally to participate in, Letters of Credit
from time to time Issued or outstanding under ARTICLE III, in an aggregate
amount not to exceed on any date in the case of Letters of Credit the amount
of $50,000,000, as the same shall be reduced as a result of a reduction in
the L/C Commitment pursuant to SECTION 2.8; provided that the L/C Commitment
is a part of the combined Revolving Commitments, rather than a separate,
independent commitment and shall not at any time exceed the combined
Revolving Commitments.
"L/C Obligations" means at any time the sum of (a) the aggregate undrawn
amount of all Letters of Credit then outstanding, plus (b) the amount of all
unreimbursed drawings under all Letters of Credit, including all outstanding
L/C Borrowings.
"L/C-Related Documents" means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document relating
to any Letter of Credit, including any of the Issuing Bank's standard form
documents for letter of credit issuances.
"Lending Office" means, as to any Bank, the office or offices of such
Bank specified as its "Lending Office", "Domestic Lending Office", "Offshore
Lending Office" or "Offshore Currency Lending Office", as the case may be, on
SCHEDULE 12.2, or such other office or offices as such Bank may from time to
time notify the Companies and the Agent.
"Letters of Credit" means any standby letter of credit issued by the
Issuing Bank pursuant to SECTION 3.1(a) and the Existing Letters of Credit.
"Lien" means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance, lien
(statutory or other) or preferential arrangement of any kind or nature
whatsoever in respect of any property (including those created by, arising
under or evidenced by any conditional sale or other title retention
agreement), the interest of a lessor under a capital lease, or any
financing
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<PAGE>
lease having substantially the same economic effect as any of the foregoing,
or the filing of any financing statement naming the owner of the asset to
which such lien relates as debtor, under the Uniform Commercial Code or any
comparable law and any contingent or other agreement to provide any of the
foregoing, but not including the interest of a lessor under an operating
lease.
"Loan" means an extension of credit to a Company under ARTICLE II,
ARTICLE III or ARTICLE IV, and may be a Revolving Loan, Swing Line Loan, Bid
Loan, Term Loan, L/C Advance or Interim Note Advance.
"Loan Documents" means this Agreement, any Notes, the Support Documents,
the Fee Letters, the L/C-Related Documents, and all other documents delivered
to the Agent or any Bank in connection with the transactions contemplated by
this Agreement.
"Margin Stock" means "margin stock" as such term is defined in
Regulation G, T, U or X of the FRB.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, condition
(financial or otherwise) or prospects of the Borrower and its Subsidiaries
taken as a whole, (b) a material impairment of the ability of any Company or
any Subsidiary to perform under any Loan Document or to avoid or cure, as
applicable, any Event of Default, or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability against any Company or
any Subsidiary of any Loan Document.
"Michael Page" means Michael Page Group PLC, a public liability company
incorporated in England and Wales (Registered Number 2245324).
"Minimum Tranche" means in respect of Loans comprising part of the same
Borrowing, or to be converted or continued under SECTION 2.4, (a) in the case
of Base Rate Loans and Offshore Rate Loans in Dollars, $10,000,000 or any
multiple of $1,000,000 in excess thereof, or (as to Revolving Borrowings) the
aggregate amount of the then unused Revolving Commitments, and (b) in the
case of Offshore Currency Loans, a multiple of 100,000 units of the
Applicable Currency in excess of the Dollar Equivalent Amount (calculated by
the Agent as of the date of receipt of the relevant Irrevocable Notice of
Committed Activity) of $10,000,000 or (as to Revolving Commitments) the
aggregate amount of the then unused Revolving Commitments.
"Multiemployer Plan" means a "multiemployer plan", within the meaning of
SECTION 4001 (a) (3) of ERISA, to which any Company or any ERISA Affiliate
makes, is making, or is obligated to make contributions or, during the
preceding three calendar years, has made, or been obligated to make,
contributions.
"NationsBank" means NationsBank, N.A., a national banking association.
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"Net Issuance Proceeds" means with respect to the issuance and sale of
any Indebtedness (including the consummation of any Permitted Receivables
Securitization) of the Borrower or any Subsidiary, the principal amount of
such Indebtedness, less any costs of issuance and any original issue discount.
"Net Proceeds" means with respect to the sale, lease, transfer or other
disposition of assets of the Borrower or any Subsidiary (including sales of
equity interests in the Borrower or a Subsidiary to a Person other than the
Borrower or its Subsidiaries), the cash proceeds from such sale, less
expenses of such sale, any taxes actually paid or payable as a result of such
sale and any secured Indebtedness required to be repaid in connection with
such sale.
"Notes" means the Revolving Loan Notes, Term Loan Notes, Swing Line Note
and the Bid Loan Notes.
"Obligations" means, collectively, all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document and the
Interim Note Obligations owing by any Company to any Bank, any Designated
Bidder, the Agent, or any Indemnified Person, or arising under any Swap
Contract between any Company and any Bank or the Agent, in any case, whether
direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising.
"Offshore Currency" means pounds sterling at any time, and with the
consent of all the Banks such other currency that is at such time freely
traded in offshore interbank foreign exchange markets and is freely
transferable and freely convertible into Dollars and such currency is readily
available to the Banks and is an Alternate Currency.
"Offshore Currency Lending Office" means the office of a Bank from which
Offshore Currency Loans are to be made as set forth in SCHEDULE 12.2.
"Offshore Currency Loan" means any Offshore Rate Loan denominated in an
Offshore Currency.
"Offshore Rate" means, for any Interest Period, with respect to Offshore
Rate Loans comprising part of the same Borrowing, the rate of interest per
annum (rounded upward to the next 1/100th of 1%) determined by the Agent as
follows:
IBOR
-------------------------------
Offshore Rate = 1 - Eurocurrency Reserve Percentage
The Offshore Rate shall be adjusted automatically as to all Offshore
Rate Loans then outstanding as of the effective date of any change in
the Eurocurrency Reserve Percentage.
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"Eurocurrency Reserve Percentage" means for any day for any Interest
Period the maximum reserve percentage (expressed as a decimal, rounded
upward to the next 1/100th of 1%) in effect on such day (whether or
not applicable to any Bank) under regulations issued from time to time
by the FRB for determining the maximum reserve requirement (including
any emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as
"Eurocurrency liabilities"); and
"IBOR" means for any Interest Period with respect to Offshore Rate
Loans comprising part of the same Borrowing, the rate of interest per
annum (rounded upward to the next 1/32nd of 1%) determined by the
Agent as the rate at which deposits in the Applicable Currency in the
approximate amount of NationsBank's Offshore Rate Loan for such
Interest Period would be offered by NationsBank (at such office as may
be selected for such purpose by the Agent), to major banks in the
offshore interbank eurocurrency market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
"Offshore Rate Loan" means a Syndicated Loan that bears interest based
on the Offshore Rate.
"Organization Documents" means, for any corporation, the certificate or
articles of incorporation, memorandum of association, articles of
association, the bylaws, or other similar organizational documents, any
certificate of determination or instrument relating to the rights of
preferred shareholders of such corporation, any shareholder rights agreement,
and all applicable resolutions of the board of directors (or any committee
thereof) of such corporation adopting, supplementing or modifying any of the
foregoing and, for any entity other than a corporation, the equivalent of the
foregoing, including the partnership agreement (or comparable agreement) of
any partnership.
"Original Currency" has the meaning specified in SECTION 12.19.
"Other Taxes" means any present or future stamp, court or documentary
taxes or any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect to,
this Agreement or any other Loan Documents.
"Overnight Rate" means, for any day, the rate of interest per annum at
which overnight deposits in the Applicable Currency, in an amount
approximately equal to the amount with respect to which such rate is being
determined, would be offered for such day by NationsBank to major banks in
the London interbank market.
"Participant" has the meaning specified in SECTION 12.8(d).
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"Payroll Account" means a bank account maintained by the Borrower or any
Subsidiary solely for the purpose of paying salary, bonuses and similar items
to employees.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a pension plan (as defined in SECTION 3(2) of
ERISA) subject to Title IV of ERISA which any Company sponsors or maintains,
or to which it makes, is making, or is obligated to make contributions, or in
the case of a multiple employer plan (as described in SECTION 4064(a) of
ERISA) has made contributions at any time during the immediately preceding
five plan years.
"Permitted Receivables Securitization" means limited recourse or
nonrecourse sales and assignments of accounts receivable of the Borrower or
its Subsidiaries to one or more special purpose entities, in connection with
the issuance of obligations by such special purpose entities secured by such
accounts, the proceeds of the issuance of which obligations shall be made
available to the Borrower or its Subsidiaries at such rates of advance, and
the obligations issued by such special purpose entities shall be in such
amount or amounts, bear such rate or rates of interest, and be subject to
such customary terms and conditions, all as shall be reasonably acceptable to
the Required Banks; PROVIDED, HOWEVER, that the maximum face amount of sold
accounts receivable which may be outstanding at any time is $100,000,000.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in SECTION 3(3) of
ERISA) which a Company sponsors or maintains or to which a Company makes, is
making, or is obligated to make contributions and includes any Pension Plan,
other than a Plan maintained outside the United States primarily for the
benefit of persons who are not U.S. residents.
"Pledge Agreements" means, collectively, the pledge agreements of
certain Companies and Guarantors, which Companies and Guarantors as of the
Closing Date are described in SCHEDULE II, in form reasonably satisfactory to
the Agent and the Banks pursuant to which there is pledged to the Agent for
the benefit of the Banks the ownership interest in those Subsidiaries
described in SCHEDULE II, and such other Subsidiaries as may be required by
SECTION 8.7.
"Pro Forma Historical Statements" means the pro forma consolidated
financial statements (including balance sheets and income and cash flow
statements) of the Borrower
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and its Subsidiaries for the fiscal year ended December 31, 1996, giving
historical pro forma effect to the acquisition of the Michael Page.
"Pro Forma Projections" means the pro forma consolidated financial
statement projections of the Borrower and its Subsidiaries for each of the
fiscal years ending December 31, 1997 through December 31, 2002, giving
effect to the acquisition of Michael Page, in form and detail satisfactory to
the Agent.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, and whether tangible or intangible.
"Pro Rata Share" means, as to any Bank at any time, the percentage
equivalent (expressed as a decimal, rounded to the ninth decimal place) at
such time of such Bank's Commitment divided by the combined Commitments of
all Banks.
"Ratable Reduction of Term Loans" means the application of amounts to
reduce pro rata each unpaid installment of the Term Loan as described on
SCHEDULE III.
"Reduction Date" has the meaning specified in SECTION 2.9(d).
"Reportable Event" means any of the events set forth in SECTION 4043(c)
of ERISA or the regulations thereunder, other than any such event for which
the 30-day notice requirement under ERISA has been waived in regulations
issued by the PBGC.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or final, nonappealable determination of
an arbitrator or of a Governmental Authority, in each case applicable to or
binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Required Banks" means (a) any time prior to the Termination Date (or
such earlier date as the Commitments shall terminate in accordance with the
terms hereof), or after the Termination Date (or such earlier date as the
Commitments shall terminate in accordance with the terms hereof) if no Loans
are outstanding, Banks then holding at least 51% of the Commitments, and (b)
otherwise, Banks then holding at least 51% of the Loans. For purposes of
this definition, (i) each Bank shall be deemed to hold all outstanding Bid
Loans of such Bank's Designated Bidder and (ii) each Bank shall be deemed to
hold its Pro Rata Share of all Swing Line Outstandings, unless it shall have
failed to pay to NationsBank its Pro Rata Share thereof after demand therefor
in accordance with the terms of SECTION 2.19 OR 2.20, in which case the Pro
Rata Share of such Bank in all Swing Line Outstandings shall be deemed to be
held by NationsBank.
"Responsible Officer" means, with respect to any Company, the
principal executive officers, the president or the Assistant Treasurer or
equivalent representatives of such Company, or any other officer or
equivalent representative having substantially the same
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authority and responsibility; or, with respect to compliance with financial
covenants, the chief financial officer, the treasurer or Assistant Treasurer
of such Company, or any other officer or representative having substantially
the same authority and responsibility.
"Revolving Borrowing" means a Borrowing hereunder consisting of
Revolving Loans made on the same day by the Banks ratably according to their
respective Pro Rata Shares and, in the case of Offshore Rate Loans, having
the same Interest Periods.
"Revolving Commitment", as to each Bank, has the meaning specified in
SECTION 2.1(a).
"Revolving Loan" has the meaning specified in SECTION 2.1(a) and may
be an Offshore Rate Loan or a Base Rate Loan (each, a "Type" of Revolving
Loan).
"Revolving Loan Note" means a note substantially in the form of
EXHIBIT G and delivered to a Bank pursuant to SECTION 2.2.
"Revolving Loan Outstandings" means the sum of outstanding principal
amounts of Revolving Loans, Bid Loans, L/C Obligations, Interim Note
Obligations and Swing Line Outstandings.
"Same Day Funds" means (i) with respect to disbursements and payments in
Dollars, immediately available funds, and (ii) with respect to disbursements
and payments in an Offshore Currency, same day or other funds as may be
determined by the Agent to be customary in the place of disbursement or
payment for the settlement of international banking transactions in the
relevant Offshore Currency.
"Spectrum" means Spectrum Insurance Company, Ltd., a Cayman Islands
corporation.
"Spot Rate" for a currency means the rate quoted (expressed as a
decimal, rounded to the fourth decimal place) to the Agent as the spot rate
for the purchase of such currency with another currency through the FX
Trading Office at approximately 11:00 a.m. (Charlotte time) on the date two
Business Days prior to the date as of which the foreign exchange settlement
is made.
"Stock Consideration" means, with respect to an Acquisition, the Fair
Market Value of all capital stock or other ownership interests of the
Borrower or any Subsidiary issued or given in connection with such
Acquisition.
"Subordinated Indebtedness" means collectively Indebtedness of a Company
subordinated to the Obligations in form and substance (including terms and
conditions) satisfactory to the Required Banks.
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"Subsidiary" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business
entity of which more than 50% of the voting stock, membership interests or
other equity interests (in the case of Persons other than corporations), is
owned or controlled directly or indirectly by such Person, or one or more of
the Subsidiaries of such Person, or a combination thereof. Unless the context
otherwise clearly requires, references herein to a "Subsidiary" refer to a
Subsidiary of the Borrower.
"Support Documents" means, collectively, (i) the Cash Account Agreement,
Guaranties and Pledge Agreements and all other cash collateralization
agreements, guaranties and pledges, and other instruments or agreements in
favor of the Banks or the Agent for the benefit of the Banks now or hereafter
delivered by the applicable Company, Guarantor or other Subsidiary to the
Banks or the Agent pursuant to or in connection with the transactions
contemplated hereby, and all documents now or hereafter filed under
applicable law by the applicable Company, Guarantor or other Subsidiary in
favor of the Banks or the Agent for the benefit of the Banks as secured
party, and (ii) any amendments, supplements, modifications, renewals,
replacements, consolidations, substitutions and extensions of any of the
foregoing.
"Swap Contract" means any agreement, whether or not in writing, relating
to any transaction that is a rate swap, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap or option,
bond, note or bill option, interest rate option, forward foreign exchange
transaction, cap, collar or floor transaction, currency swap, cross-currency
rate swap, swaption, currency option or any other, similar transaction
(including any option to enter into any of the foregoing) or any combination
of the foregoing, and, unless the context otherwise clearly requires, any
master agreement relating to or governing any or all of the foregoing.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or
after the date such Swap Contracts have been closed out and termination
value(s) determined in accordance therewith, such termination value(s), and
(b) for any date prior to the date referenced in clause (a) the amount(s)
determined as the mark-to-market value(s) for such Swap Contracts, as
determined by the applicable Company based upon one or more mid-market or
other readily available quotations provided by any recognized dealer in such
Swap Contracts (which may include any Bank).
"Swing Line" means the revolving line of credit established by
NationsBank in favor of the Companies pursuant to SECTION 2.19.
"Swing Line Borrowing" means a Borrowing under the Swing Line.
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"Swing Line Borrowing Notice" means a notice substantially in the form
of EXHIBIT L.
"Swing Line Loans" means loans made by NationsBank to the Companies
pursuant to SECTION 2.19.
"Swing Line Note" means the promissory note of the Companies evidencing
Swing Line Loans executed and delivered to NationsBank as provided in
SECTION 2.19 substantially in the form of EXHIBIT H.
"Swing Line Outstandings" means, as of any date of determination, the
aggregate principal amount of all Swing Line Loans then outstanding.
"Swing Line Participation" means, with respect to any Bank (other than
NationsBank) and a Swing Line Loan, the extension of credit represented by
the participation of such Bank in the liability owed to NationsBank in
respect of such Swing Line Loan.
"Syndicated Borrowing" means either or both a Revolving Borrowing or a
Term Borrowing.
"Syndicated Loan" means either or both a Revolving Loan or a Term
Loan.
"Taxes" means any and all present or future taxes, levies, assessments,
imposts, duties, deductions, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of each Bank,
Designated Bidder and the Agent, respectively, taxes imposed on or measured
by its net income by the jurisdiction (or any political subdivision thereof)
under the laws of which such Bank, Designated Bidder or the Agent, as the
case may be, is organized or maintains a Lending Office for purposes of this
Agreement.
"Term Borrowing" means a Borrowing hereunder consisting of Term Loans
made on the same day by the Banks ratably according to their respective Pro
Rata Shares and, in the case of Offshore Rate Loans, having the same Interest
Periods.
"Term Loan" has the meaning specified in SECTION 2.1(b) and may be an
Offshore Rate Loan or a Base Rate Loan (each, a "Type" of Term Loan).
"Term Loan Commitment", as to each Bank, has the meaning specified in
SECTION 2.1(b).
"Term Loan Note" means a note substantially in the form of EXHIBIT I
and delivered to each Bank pursuant to SECTION 2.2.
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"Term Loan Outstandings" means the sum of the outstanding principal
amount of Term Loans.
"Termination Date" means the earlier to occur of:
(a) May 1, 2003, and
(b) (i) in the case of Revolving Loans, Bid Loans, Swing Line Loans,
Interim Note Guarantee and Letters of Credit, the date on which the
Revolving Commitments terminate and all the monetary Obligations, other
than Obligations arising in respect of Term Loans (and obligations in the
nature of continuing indemnities or for fees and disbursements of third
parties not yet invoiced to an obligor), have been paid in full in
accordance with the provisions of this Agreement; and
(ii) in the case of Term Loans, the date on which the Term Loan
Commitments terminate and all monetary Obligations, other than Obligations
arising in respect of Revolving Loans, Bid Loans, Interim Note Guarantee and
Letters of Credit (and obligations in the nature of continuing indemnities or
for fees and disbursements of third parties not yet invoiced to an obligor),
have been paid in full in accordance with the provisions of this Agreement;
and
(c) the occurrence of a Default or an Event of Default.
"Total Indebtedness" means, at any time, all Indebtedness of the
Borrower and its Subsidiaries on a consolidated basis at such time.
"Total Offshore Currency Sublimit" means, with respect to the
principal amount of Loans outstanding in Offshore Currencies, the Dollar
Equivalent Amount of $305,000,000.
"Type" has the meaning specified in the definition of "Revolving Loan"
and "Term Loan".
"Unfunded Pension Liability" means the excess of a Plan's benefit
liabilities under SECTION 4001(a)(16) of ERISA, over the current value of
that Plan's assets, determined in accordance with the assumptions used for
funding that Plan pursuant to SECTION 412 of the Code for the applicable
plan year.
"United States" and "U.S." each means the United States of America.
"Valuation Date" has the meaning specified in SECTION 2.5(a).
<PAGE>
1.2 OTHER INTERPRETIVE PROVISIONS.
(a) The meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar words refer to
this Agreement as a whole and not to any particular provision of this Agreement;
and subsection, Section, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments, documents,
agreements, certificates, indentures, notices and other writings, however
evidenced.
(ii) The term "including" is not limiting and means "including without
limitation."
(iii) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including"; the words
"to" and "until" each mean "to but excluding", and the word "through" means
"to and including."
(iv) The term "property" means Property.
(v) The term "Charlotte time" means the time of day as of any
determination thereof in Charlotte, North Carolina.
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document, and
(ii) references to any statute or regulation are to be construed as
including all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting the statute or regulation.
(e) The captions and headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of this Agreement.
1.3 ACCOUNTING PRINCIPLES.
(a) Unless the context otherwise clearly requires, all accounting terms
not expressly defined herein shall be construed, and all financial computations
required under this Agreement shall be made, in accordance with GAAP,
consistently applied as utilized by the Companies. If any change after the
Closing Date in GAAP as in effect on the Closing Date shall result in a change
in any calculation required to determine compliance with any provision contained
in this Agreement, the Companies and the Required Banks will negotiate in good
faith to amend such
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provision in a manner to reflect such change such that the determination of
compliance with such provision shall yield the same substantive result as
would have obtained prior to such change in GAAP. Until such an amendment is
entered into, covenants shall be calculated in accordance with GAAP as in
effect immediately preceding such change.
(b) References herein to "fiscal year" and "fiscal quarter" refer to such
fiscal periods of the Companies.
1.4 CURRENCY EQUIVALENTS GENERALLY. For all purposes of this Agreement
(but not for purposes of the preparation of any financial statements delivered
pursuant hereto), the equivalent in any Offshore Currency or other currency of
an amount in Dollars, and the equivalent in Dollars of an amount in any Offshore
Currency or other currency, shall be determined as set forth in the definition
of Dollar Equivalent Amount.
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ARTICLE II
THE CREDITS
2.1 AMOUNTS AND TERMS OF COMMITMENTS; JOINT AND SEVERAL LIABILITY.
(a) Each Bank severally agrees, on the terms and conditions set forth
herein, to make loans in Applicable Currencies to the Companies (each such
loan, a "Revolving Loan") from time to time on any Business Day during the
period from the Effective Date to the Termination Date (or such earlier date
as the Revolving Commitments of all Banks shall terminate in accordance with
the terms hereof), in an aggregate Dollar Equivalent Amount of principal not
to exceed at any time outstanding the amount set forth on SCHEDULE 2.1 under
the heading "Revolving Commitment" (such amount as the same may be reduced
under SECTION 2.8 or 2.9(d) or (f) or changed as a result of one or more
assignments under SECTION 12.8, such Bank's "Revolving Commitment");
provided, however, that, after giving effect to any Revolving Borrowings and
all L/C Obligations, Interim Note Obligations, Bid Borrowings and Swing Line
Outstandings, the aggregate Dollar Equivalent Amount of the principal of all
Revolving Loan Outstandings as determined pursuant to SECTION 2.5 shall not
at any time exceed the combined Revolving Commitments. Each Revolving Loan
will be made to one of the Companies. Within the limits of each Bank's
Revolving Commitment, and subject to the other terms and conditions hereof,
the Companies may borrow under this SECTION 2.1(a), prepay under SECTION 2.9
and SECTION 2.11 and reborrow under this SECTION 2.1 (a). Such Revolving
Loans may be Offshore Rate Loans or Base Rate Loans, except that all Base
Rate Loans shall be in Dollars and, after giving effect to all Revolving Loan
Outstandings in Offshore Currencies, and, after giving effect to all Term
Loan Outstandings in Offshore Currencies, subject to SECTION 2.11(b), the
Dollar Equivalent Amount of all Revolving Loan Outstandings and Term Loan
Outstandings in Offshore Currencies shall not exceed the Total Offshore
Currency Sublimit.
(b) Each Bank severally agrees, on the terms and conditions set forth
herein, to make loans (each such loan, a "Term Loan") within 14 days of the
Effective Date, to the Borrower and Interim (Europe) in Dollars in an
aggregate amount of principal not to exceed the amount set forth on SCHEDULE
2.1 under the heading "Term Loan Commitment" (such amount as the same may be
reduced under SECTION 2.9 or changed as a result of one or more assignments
under SECTION 11.8, such Bank's "Term Loan Commitment"). Term Loans may be
Offshore Rate Loans or Base Rate Loans, except that all Loans shall be in
Dollars.
(c) Notwithstanding anything contained in this SECTION 2.1 to the
contrary, unless all the Banks shall agree otherwise pursuant to SECTION 2.5(b),
all Loans under this SECTION 2.1 shall be in Dollars except for a Loan to
Interim (UK) on the Effective Date in pounds sterling (as an Offshore Currency)
in a Dollar Equivalent Amount of $285,075,000 (such Loan, together with any
outstanding amount thereof, including continuations pursuant to SECTION 2.4,
herein called the "Interim (UK) Pound Loan"). Any portion of the Interim (UK)
Pound Loan which is repaid may only be reborrowed in Dollars. All payments of
the principal amount of the Interim (UK) Pound Loan shall be in pounds sterling.
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(d) Notwithstanding any other provision of this Agreement, each Company
shall be jointly and severally liable as primary obligor and not merely as
surety for repayment of all Obligations arising under the Loan Documents. Such
joint and several liability shall apply to each Company regardless of whether
(i) any Loan was only requested by or made to another Company or the proceeds of
any Loan were used only by another Company, (ii) any Letter of Credit was Issued
on the application of another Company, (iii) the Interim Note Guarantee was
entered into for the account of Interim (UK), (iv) any interest rate election
was made only by another Company, or (v) any indemnification obligation or any
other obligation arose only as a result of the actions of another Company;
provided the liability of each of the Companies other than the Borrower under
this Agreement, the Notes and the other Loan Documents shall be limited to the
maximum amount of the Obligations for which such other Company may be liable
without violating any applicable fraudulent conveyance, fraudulent transfer or
comparable laws. Each Company shall retain any right of contribution arising
under applicable law against the other Companies as the result of the
satisfaction of any Obligations; provided, no Company shall assert such right of
contribution against any other Company until the Obligations shall have been
paid in full. Notwithstanding anything herein to the contrary, Interim (UK)
shall be liable hereunder only for Borrowings, including Interim Note Borrowings
and L/C Borrowings, made by it or on its behalf hereunder together with interest
relating thereto and fees and expenses arising hereunder
Without limiting the foregoing provisions of this SECTION 2.1(c), each of
the Companies other than Interim (UK) hereby irrevocably, absolutely and
unconditionally guarantees the full and punctual payment or performance when
due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, of all Obligations of each other Company,
whether owing to the Agent or any Bank. This guarantee constitutes a guaranty
of payment and not of collection. The liability of each of the Companies other
than the Borrower under the immediately preceding two sentences shall be limited
to the maximum amount for which such other Company may be liable without
violating any applicable fraudulent conveyance, fraudulent transfer or
comparable laws.
It is the intention of the parties that with respect to each Company its
obligations hereunder and under the other Loan Documents shall be absolute,
unconditional and irrevocable irrespective of:
(i) any lack of validity, legality or enforceability of this
Agreement, any Note, any other Loan Document as to any other Company or the
Interim Note Instrument.
(ii) the failure of the Agent or any Bank
(A) to enforce any right or remedy against any other Company or
any other Person under the provisions of this Agreement, any Note, any
other Loan Document or otherwise, or
(B) to exercise any right or remedy against any guarantor of, or
collateral securing, any Obligations;
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(iii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other extension,
compromise or renewal of any Obligations;
(iv) any reduction, limitation, impairment or termination of any
Obligations with respect to any other Company or any other Person for any
reason including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to (and each Company hereby waives any
right to or claim of) any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality,
nongenuineness, irregularity, compromise or unenforceability of, or any
other event or occurrence affecting, any Obligations with respect to any
other Company;
(v) any addition, exchange, release, surrender or nonperfection of any
collateral, or any amendment to or waiver or release or addition of, or
consent to departure from, any guaranty, held by the Agent, any Bank or any
holder of any Note securing any of the Obligations; or
(vi) any other circumstance which might otherwise constitute a defense
available to, or a legal or equitable discharge of, any other Company, any
surety or any guarantor.
Each Company agrees that its joint and several liability hereunder 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
be restored by the Agent, any Bank or any holder of any Note, upon the
insolvency, bankruptcy or reorganization of any Company as though such payment
had not been made.
Each Company hereby expressly waives: (a) notice of the Banks' acceptance
of this Agreement; (b) notice of the existence or creation or non-payment of all
or any of the Obligations; (c) presentment, demand, notice of dishonor, protest,
and all other notices whatsoever other than notices expressly provided for in
this Agreement and (d) all diligence in collection or protection of or
realization upon the Obligations or any thereof, any obligation hereunder, or
any security for or guaranty of any of the foregoing.
No delay on any of the Banks' or the Agent's part in the exercise of any
right or remedy shall operate as a waiver thereof, and no single or partial
exercise by any of the Banks or the Agent of any right or remedy shall preclude
any other or further exercise thereof or the exercise of any other right or
remedy. No action of the Agent or any of the Banks permitted hereunder shall in
any way affect or impair any of their rights or any of their obligations to any
of the Companies under this Agreement.
2.2 LOAN ACCOUNTS.
(a) The Loans made by each Bank (including NationsBank as provider of the
Swing Line) or Designated Bidder, the Letters of Credit Issued by the Issuing
Bank and the Interim Note
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Guarantee made by NationsBank shall be evidenced by one or more loan accounts
or records maintained by such Bank, Designated Bidder, Issuing Bank or
NationsBank, as the case may be, in the ordinary course of business. The
loan accounts or records maintained by the Agent, the Issuing Bank, each Bank
or Designated Bidder or NationsBank shall be prima facie evidence of the
amount of the Loans made by the Banks and Designated Bidders to the Companies
and the interest and payments thereon. Any failure to record or any error in
doing so shall not, however, limit, expand or otherwise affect the
obligations of the Companies hereunder.
(b) Upon the request of any Bank or Designated Bidder made through the
Agent, the Loans made by such Bank may be evidenced by one or more Notes, in
addition to loan accounts. Each such Bank or Designated Bidder may, at its
option, endorse on the schedules annexed to its Note(s) the date, amount and
maturity of each Loan made by it and the amount of each payment of principal
made by a Company with respect thereto. Each such Bank and Designated Bidder is
irrevocably authorized by each Company to endorse its Note(s) and each Bank's or
Designated Bidder's record shall be prima facie evidence; provided, however,
that the failure of a Bank or Designated Bidder to make, or an error in making,
a notation thereon with respect to any Loan shall not limit, expand or otherwise
affect the obligations of any Company hereunder or under any such Note to such
Bank or Designated Bidder.
2.3 PROCEDURE FOR SYNDICATED BORROWING.
(a) Each Syndicated Borrowing shall be made upon the borrowing Company's
irrevocable written notice delivered to the Agent in the form of an Irrevocable
Notice of Syndicated Activity (which notice must be received by the Agent prior
to 11:00 a.m. (Charlotte time) in the case of a Base Rate Loan and 12:00 noon
(Charlotte time) in the case of Offshore Rate Loans (i) three Business Days
prior to the requested Borrowing Date, in the case of Offshore Rate Loans
denominated in Dollars or Offshore Currency Loans; (ii) one Business Day prior
to the requested Borrowing Date in the case of a Base Rate Loan to a Foreign
Subsidiary; and (iii) on the same Business Day as a requested Borrowing Date in
the case of Base Rate Loans to other than a Foreign Subsidiary (with settlement
of Base Rate Loans to be made in the United States), specifying:
(A) the Company by which such Syndicated Borrowing is to be
made;
(B) whether such Syndicated Borrowing is a Revolving Borrowing;
(C) the amount of such Syndicated Borrowing, which shall be in
an aggregate amount not less than the applicable Minimum Tranche;
(D) the requested Borrowing Date, which shall be a Business Day;
(E) in the case of a Syndicated Borrowing comprised of Offshore
Currency Loans if permitted hereunder, the Applicable Currency; and
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(F) in the case of a Syndicated Borrowing comprised of Offshore
Rate Loans, the duration of the Interest Period applicable to such
Syndicated Borrowing included in such notice. If the Irrevocable
Notice of Syndicated Activity fails to specify the duration of the
Interest Period for any Syndicated Borrowing comprised of Offshore
Rate Loans, such Interest Period shall be one month.
(b) Upon receipt of an Irrevocable Notice of Syndicated Activity by the
Agent, the Agent shall determine the availability of the Commitments hereunder
as of the date of receipt by the Agent of such Irrevocable Notice of Syndicated
Activity. In the case of the Interim (UK) Pound Loan or any other Offshore
Currency Loan, an indicative Dollar Equivalent Amount of any Syndicated
Borrowing in an Offshore Currency will be determined by the Agent for the
related Borrowing on the Valuation Date therefor in accordance with SECTION
2.5(a). Upon receipt of such Irrevocable Notice of Syndicated Activity, the
Agent will promptly notify each Bank thereof at such Bank's respective
applicable Lending Office and of the amount of such Bank's Pro Rata Share of
such Borrowing. In the case of a Borrowing comprised of Offshore Currency
Loans, such notice will provide the amounts in the Applicable Currency of each
Bank's Pro Rata Share of such Borrowing, and the Agent will, on the Valuation
Date therefor, promptly notify each Bank of the Dollar Equivalent Amount of such
Bank's Pro Rata Share of such Borrowing. In the case of a Revolving Borrowing
comprised of Offshore Currency Loans, if the determination by the Agent of the
Dollar Equivalent Amount of such Revolving Borrowing as described in the
immediately preceding sentence shall result in the Dollar Equivalent Amount of
all Revolving Loan Outstandings plus the proposed Revolving Borrowing being in
excess of the combined Revolving Commitments, then such Borrowing shall be
reduced by the amount necessary to comply with SECTION 2.1(a) regardless of the
Minimum Tranche requirement. For purposes of the immediately preceding
sentences, the Agent shall value the Dollar Equivalent Amount of all Loans,
Letters of Credit and Interim Note Obligations other than the applicable
Borrowing as at the most recent Valuation Date for each Loan or Letter of
Credit.
(c) Each Bank will make the amount of its Pro Rata Share of each
Syndicated Borrowing available to the Agent for the account of the Company
specified in the Irrevocable Notice of Syndicated Activity at the Agent's
Payment Office on the Borrowing Date requested by the applicable Company in Same
Day Funds and in the requested currency (i) in the case of a Borrowing comprised
of Loans in Dollars, by 2:00 p.m. Charlotte time and (ii) in the case of a
Borrowing comprised of Offshore Currency Loans by such time as the Agent may
reasonably specify. The proceeds of all such Loans will then be made available
to the Company specified in the Irrevocable Notice of Syndicated Activity by the
Agent in Same Day Funds by wire transfer in accordance with written instructions
provided to the Agent by such Company of like funds as received by the Agent.
(d) After giving effect to any Syndicated Borrowing, unless the Agent
shall otherwise consent, there may not be more than ten (10) different Interest
Periods in effect in respect of all Syndicated Loans and Bid Loans together then
outstanding.
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2.4 CONVERSION AND CONTINUATION ELECTIONS - SYNDICATED LOANS.
(a) Each Company may, upon irrevocable written notice to the Agent in
accordance with SECTION 2.4(b) with respect to Syndicated Loans made to such
Company:
(i) elect, as of any Business Day, in the case of Base Rate Loans, or
as of the last day of the applicable Interest Period, in the case of
Offshore Rate Loans, to convert any such Loans (or any part thereof in an
amount not less than the Minimum Tranche) into Syndicated Loans of any
other Type; or
(ii) elect, as of the last day of the applicable Interest Period, to
continue any Syndicated Loans having Interest Periods expiring on such day
(or any part thereof in an amount not less than the Minimum Tranche);
provided that Syndicated Loans may not be converted into or continued as
Syndicated Loans in a different currency; and provided further, that if at any
time the aggregate amount of Offshore Rate Loans in respect of any Syndicated
Borrowing is reduced by payment, prepayment, or conversion of part thereof to be
less than $10,000,000, such Offshore Rate Loans, if in Dollars, shall
automatically convert into Base Rate Loans, and on and after such date the right
of such Company to continue such Syndicated Loans as, and convert such
Syndicated Loans into, Offshore Rate Loans shall terminate.
(b) Each Company shall deliver an Irrevocable Notice of Syndicated
Activity to be received by the Agent not later than 11:00 a.m. (Charlotte time)
in the case of Base Rate Loans and 12:00 noon (Charlotte time) in the case of
Offshore Rate Loans, with respect to Syndicated Loans made to such Company, (i)
at least three Business Days in advance of the Conversion/Continuation Date for
the conversion into or continuation of any Offshore Rate Loan; (ii) one Business
Day prior to the requested Borrowing Date in the case of a Base Rate Loan to a
Foreign Subsidiary; and (iii) on the same Business Day as the
Conversion/Continuation Date for the conversion into or continuation of a Base
Rate Loan to other than a Foreign Subsidiary, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Syndicated Loans to be converted or
continued;
(C) whether such Syndicated Loans are Revolving Loans or Term
Loans;
(D) the Type of Syndicated Loans resulting from the proposed
conversion or continuation; and
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(E) other than in the case of conversions into Base Rate Loans,
the duration of the requested Interest Period.
(c) If the Company that has borrowed Offshore Rate Loans in Dollars has
failed to select a new Interest Period to be applicable to such Offshore Rate
Loans in Dollars upon the expiration of any Interest Period applicable to such
Offshore Rate Loans in Dollars on or prior to the third Business Day in advance
of the expiration of the current Interest Period applicable thereto as provided
in SECTION 2.4(b), or if any Event of Default then exists, unless the Required
Banks otherwise agree, such Company shall be deemed to have elected to convert
such Offshore Rate Loans in Dollars into Base Rate Loans effective as of the
expiration date of such Interest Period. If the Company to whom any Offshore
Rate Loans in currencies other than Dollars were made has failed to select a new
Interest Period to be applicable to such Offshore Currency Loans on or prior to
the third Business Day in advance of the expiration date of the current Interest
Period applicable thereto as provided in SECTION 2.4(b), such Company shall be
deemed to have elected to continue such Offshore Currency Loans in the same
currency on the basis of a one month Interest Period.
(d) Upon receipt of an Irrevocable Notice of Syndicated Activity under
SECTION 2.4(b), the Agent will promptly notify each Bank of its receipt of such
Irrevocable Notice of Syndicated Activity, or, if no notice is provided by the
applicable Company, the Agent will promptly notify each Bank of the details of
any automatic conversion. All conversions and continuations shall be made
ratably according to the respective outstanding principal amounts of the
Syndicated Loans with respect to which the notice was given held by each Bank.
(e) Unless the Required Banks otherwise consent, during the continuance of
a Default or an Event of Default, a Company may not elect to have a Syndicated
Loan converted into or continued as an Offshore Rate Loan.
(f) After giving effect to any conversion or continuation of Syndicated
Loans, unless the Agent shall otherwise consent, there may not be more than ten
(10) different Interest Periods in effect for all Syndicated Loans and Bid
Loans.
2.5 UTILIZATION OF REVOLVING COMMITMENTS IN OFFSHORE CURRENCIES. (a) The
Agent will determine the Dollar Equivalent Amount with respect to (i) any
Syndicated Borrowing comprised of Offshore Currency Loans, L/C Obligations or
Interim Note Obligations in Offshore Currencies as of a date two Business Days
prior to the requested Borrowing Date or Issuance Date, respectively, (ii) all
Offshore Currency Loans, Interim Note Obligations and L/C Obligations in
Offshore Currencies then outstanding as at the last Business Day of each
calendar quarter, and (iii) outstanding Offshore Currency Loans as of any date
of redenomination of a Loan in an Applicable Currency into another Applicable
Currency or Dollars pursuant to SECTION 2.5(c) or SECTION 5.5 (each such date
under clauses (i) through (iii) of this SECTION 2.5 a "Valuation Date").
(b) The Companies shall be entitled to request with respect to any given
Syndicated Loan hereunder that it be made in any other lawful currency
constituting a eurocurrency (other
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than Dollars), in addition to the eurocurrencies specified in the definition
of "Offshore Currency" herein, that is approved by all of the Banks and the
Agent, and that in the opinion of all of the Banks and the Agent is at such
time freely traded in the offshore interbank foreign exchange markets and is
freely transferable and freely convertible into Dollars (an "Alternate
Currency"). Unless all of the Banks agree to fund the Loan in the requested
Alternate Currency, such Loan may be funded only in Dollars (each of the
Banks agreeing that the Interim Pound Loan to be made on the Effective Date
may be funded in pounds sterling). No Bank shall be under any obligation to
fund any Loan or Loans in any Alternate Currency, whether or not such
Alternate Currency is freely transferable and freely convertible into
Dollars. Any agreement by the Banks to fund a particular Loan or Loans in an
Alternate Currency shall not create any obligation on the part of any Bank to
fund any subsequent Loan or Loans in that or any other Alternate Currency.
Each Company shall deliver to the Agent any request for designation of an
Alternate Currency in accordance with SECTION 11.2, to be received by the
Agent not later than 12:00 noon (Charlotte time) at least two Business Days
in advance of the date of any Irrevocable Notice of Syndicated Activity
hereunder proposed to be made in such Alternate Currency. Upon receipt of
any such request, the Agent will promptly notify the Banks thereof, and each
Bank shall respond to such request within one Business Day of receipt
thereof. Each Bank may grant or accept such request in its sole discretion.
The Agent shall promptly notify the Companies of the acceptance or rejection
of any such request. The acceptance of any such request may be conditioned,
at the discretion of the Agent, upon such amendments to the procedures for
borrowing with respect to such Alternate Currency as the Agent may require.
If such request is accepted, then the Alternate Currency shall be deemed to
be an "Applicable Currency" for all purposes hereunder with respect to the
Loan for which such request was made.
(c) Notwithstanding anything herein to the contrary, during the
continuance of a Default or Event of Default, all or any part of any outstanding
Offshore Currency Loans shall be redenominated and converted into Base Rate
Loans in Dollars at the end of the existing Interest Period. The Agent shall
promptly notify each Company and each Bank of any such redenomination and
conversion.
2.6 BID BORROWINGS. In addition to Syndicated Borrowings pursuant to
SECTION 2.3, each Bank severally agrees that the Companies may, as set forth in
SECTION 2.7, from time to time request the Banks prior to the Termination Date
to submit offers to make Bid Loans to the Companies; provided, however, that the
Banks may, but shall have no obligation to, submit such offers and the Companies
may, but shall have no obligation to, accept any such offers, and any Bank may
designate one Designated Bidder to make such offers from time to time and, if
such offers are accepted by the Companies, to make such Bid Loans; and provided,
further, that at no time shall (a) the outstanding aggregate principal amount of
all Bid Loans, plus the outstanding aggregate principal amount of all Revolving
Loans, plus the outstanding L/C Obligations, plus the Swing Line Outstandings,
plus the Interim Note Obligations exceed the combined Revolving Commitments; or
(b) the outstanding aggregate principal amount of all Bid Loans exceed
$400,000,000. All Bid Loans shall be in Dollars for settlement in the United
States. The Agent shall notify each Bank not less frequently than quarterly of
the amount of Bid Loans outstanding based on information provided to it from the
Agent.
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2.7 PROCEDURE FOR BID BORROWINGS.
(a) When the Companies wish to request the Banks to submit offers to make
Bid Loans hereunder, they shall transmit to the Agent by telephone call followed
promptly by facsimile transmission a notice with a copy to the Agent in
substantially the form of EXHIBIT J (a "Competitive Bid Request") so as to be
received no later than 11:00 a.m. (Charlotte time) two Business Days prior to
the date of a proposed Bid Borrowing, specifying:
(i) the date of such Bid Borrowing, which shall be a Business Day;
(ii) the aggregate amount of such Bid Borrowing, which shall be a
minimum amount of $10,000,000 or in multiples of $1,000,000 in excess
thereof; and
(iii) the duration of each Interest Period applicable thereto, subject
to the provisions of the definition of "Interest Period" herein.
The Companies may not request or invite Competitive Bids for more than
three Interest Periods in a single Competitive Bid Request and may not request
Competitive Bids more than twice in any period of five consecutive Business
Days.
(b) Upon receipt of a Competitive Bid Request, the Agent will determine
the availability of Bid Borrowings under SECTION 2.6 and the Agent will promptly
send to the Banks and Designated Bidders by facsimile transmission an Invitation
for Competitive Bids. Each Invitation for Competitive Bids transmitted by the
Agent shall constitute an invitation by the Companies to each Bank and
Designated Bidder to submit Competitive Bids offering to make the Bid Loans to
which such Competitive Bid Request relates in accordance with this SECTION 2.7.
(c) (i) Each Bank and Designated Bidder may at its discretion submit a
Competitive Bid containing an offer or offers to make Bid Loans in response to
any Invitation for Competitive Bids. Each Competitive Bid must comply with the
requirements of this SECTION 2.7(c) and must be submitted to the Agent by
facsimile transmission not later than 10:00 a.m. (Charlotte time) on the
proposed Borrowing Date; provided that, Competitive Bids submitted by the Agent
(or any Affiliate of the Agent) in the capacity of a Bank or a Designated Bidder
must be submitted not later than 9:45 a.m. (Charlotte time) on the proposed
Borrowing Date, and the Agent shall notify the Company thereof promptly.
(ii) Each Competitive Bid shall be in substantially the form of EXHIBIT
I, specifying therein:
(A) the proposed Borrowing Date;
(B) the principal amount of each Bid Loan for which such
Competitive Bid is being made, which principal amount (x) may be equal
to or less than
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$400,000,000, (y) must be $5,000,000 or in multiples of
$1,000,000 in excess thereof, and (z) may not exceed the
aggregate principal amount of Bid Loans for which Competitive
Bids were requested;
(C) the Interest Period;
(D) the rate of interest per annum (rounded upward to the next
1/1000th of 1%) (the "Absolute Rate") offered for each Bid Loan; and
(E) the identity of the quoting Bank or Designated Bidder.
A Competitive Bid may contain up to three separate offers by the quoting
Bank or Designated Bidder with respect to each Interest Period specified in
the related Invitation for Competitive Bids.
(iii) Any Competitive Bid shall be disregarded if it:
(A) is not substantially in conformity with EXHIBIT K or does
not specify all of the information required by SUBSECTION (c)(ii) of
this Section;
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth
in the applicable Invitation for Competitive Bids; or
(D) arrives after the time set forth in SECTION 2.7(c)(i).
(iv) Notwithstanding anything to the contrary contained in this Section
2.7(c), a Competitive Bid by a Bank may contain, and will not be
disregarded if it does contain, a restriction on the use of proceeds
thereof related to such Bank's subsidiary exercising powers related to
securities; provided that the Companies shall disregard such Competitive
Bid unless the Companies agree to be bound by such restriction (which
agreement shall be manifested by accepting such Competitive Bid).
(d) Promptly on receipt, but not later than 10:30 a.m. (Charlotte time) on
the proposed Borrowing Date, the Agent shall notify the Companies of the terms
of any Competitive Bid submitted by a Bank or Designated Bidder that is in
accordance with SECTION 2.7(c) or, if no Competitive Bids have been submitted,
the absence of any Competitive Bids. Subject only to the provisions of SECTION
6.3, any Competitive Bid shall be irrevocable.
(e) Not later than 12:00 noon (Charlotte time) on the proposed Borrowing
Date, the Companies shall notify the Agent of their acceptance or non-acceptance
of the Competitive Bids of which they have received notice pursuant to SECTION
2.7(d) or which have been sent to them pursuant to SECTION 2.7(c). The
Companies shall be under no obligation to accept any Competitive
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Bid and may choose to reject all or, subject to the remaining provisions of
this paragraph (e), one or more, Competitive Bids. In the case of
acceptance, such notice shall specify the Bid Loan lenders and their
respective principal amounts and the aggregate amount of Competitive Bids for
each Interest Period that are accepted. The Companies may accept any
Competitive Bid in whole or in part; provided that:
(i) the aggregate principal amount of each Bid Borrowing may not
exceed the applicable amount set forth in the related Competitive Bid
Request;
(ii) the principal amount of each Bid Borrowing must be $1,000,000 or
in any multiple of $500,000 in excess thereof;
(iii) acceptance of Competitive Bids may only be made on the basis of
ascending Absolute Rates within each Interest Period, as the case may be;
and
(iv) the Companies may not accept any Competitive Bid that is described
in SECTION 2.7(c)(iii) (other than to the extent permitted pursuant to
SECTION 2.7(c)(iv)) or that otherwise fails to comply with the requirements
of this Agreement.
(f) If Competitive Bids are made by two or more Banks or Designated
Bidders with the same Absolute Rates for a greater aggregate principal amount
than the amount in respect of which such Competitive Bids are permitted to be
accepted for the related Interest Period, the principal amount of Bid Loans in
respect of which such Competitive Bids are accepted shall be allocated by the
Agent among such Banks or Designated Bidders in proportion to the aggregate
principal amounts of such Competitive Bids. Determination by the Agent of the
amounts of Bid Loans shall be conclusive in the absence of manifest error.
(g) (i) Agent will promptly notify each Bank or Designated Bidder
having submitted a Competitive Bid if its Competitive Bid has been
accepted or not and, if its offer has been accepted, of the amount of
the Bid Loan or Bid Loans to be made on the date of the Bid Borrowing
together with the Absolute Rate or Rates and the Interest Period or the
Interest Periods with respect thereto.
(ii) Each Bank or Designated Bidder which has received notice
pursuant to SECTION 2.7(g)(i) that its Competitive Bid has been accepted
shall, subject to the satisfaction of all conditions precedent, make the
amounts of such Bid Loans available to the Agent for the account of the
Companies by 2:00 p.m. (Charlotte time) on the Borrowing Date.
(iii) Promptly following each Bid Borrowing, the Agent shall notify
each Bank and each Designated Bidder, of the ranges of Competitive Bids
submitted and the highest and lowest Absolute Rates accepted for each
Interest Period requested by the Companies and the aggregate amount
borrowed pursuant to such Bid Borrowing.
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(iv) From time to time, the Companies and the Banks and the Designated
Bidders shall furnish such information to the Agent as the Agent may
request relating to the making of Bid Loans, including the amounts,
Absolute Rates, Borrowing Dates and maturities thereof, for purposes of the
allocation of amounts received from the Companies for payment of all
amounts owing hereunder.
2.8 VOLUNTARY TERMINATION OR REDUCTION OF REVOLVING COMMITMENTS. The
Companies, acting jointly, may, upon not less than five Business Days' prior
notice to the Agent, permanently terminate the Revolving Commitments, or
permanently reduce the Revolving Commitments by (a) an aggregate minimum Dollar
Equivalent Amount of $10,000,000 or any Dollar Equivalent Amount multiple of
$1,000,000 in excess thereof or (b) such other amount as represents the entire
unused amount of Revolving Commitments; unless, after giving effect thereto and
to any prepayments of Revolving Loans made on the effective date thereof, (a)
the Dollar Equivalent Amount of the principal amount of the Revolving Loans, Bid
Loans and Swing Line Outstandings, and the Dollar Equivalent Amount of the L/C
Obligations and Interim Note Obligations then outstanding would exceed the
amount of the combined Revolving Commitments then in effect, or (b) the Dollar
Equivalent Amount of the L/C Obligations then outstanding would exceed the L/C
Commitment. Once reduced in accordance with this Section, the Revolving
Commitments may not be increased. Any reduction of the Revolving Commitments
shall be applied to each Bank according to its Pro Rata Share. All accrued
commitment fees to, but not including, the effective date of any reduction or
termination of Revolving Commitments, shall be paid on the effective date of
such reduction or termination. The Agent shall promptly notify each Bank of the
Agent's receipt of and the contents of any notice received by it pursuant to
this SECTION 2.8.
2.9 OPTIONAL AND MANDATORY PREPAYMENTS; MANDATORY REDUCTIONS OF
COMMITMENTS. (a) Subject to SECTION 5.4, each Company may, at any time or
from time to time, upon notice to the Agent, ratably prepay Syndicated Loans,
L/C Borrowings or Interim Note Borrowings in whole or in part, in the Minimum
Tranche (other than in the case of an L/C Borrowing or Interim Note Borrowing
where there shall be no minimum). The Company prepaying such Loans shall
deliver a notice of prepayment to be received by the Agent not later than
11:00 a.m. (Charlotte time) (i) at least three Business Days in advance of
the prepayment date if the Syndicated Loans to be prepaid are Offshore Rate
Loans, (ii) at least one Business Day in advance of the prepayment date if
the Loans to be prepaid are Base Rate Loans, if settlement is to be made
outside the United States, and (iii) on the prepayment date if the Syndicated
Loans, L/C Borrowings or Interim Note Borrowings to be prepaid are Base Rate
Loans, if settlement is to be made in the United States. Such notice of
prepayment shall specify the date and amount of such prepayment and the
Type(s) of Syndicated Loans, L/C Borrowings or Interim Note Borrowings and
the Applicable Currency to be prepaid. Such notice shall not thereafter be
revocable by the Companies and the Agent will promptly notify each Bank of
its receipt of any such notice, and of such Bank's Pro Rata Share of such
prepayment. If such notice is given by a Company, such Company shall make
such prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein, together with accrued interest to
each such date on the amount prepaid and any amounts required pursuant to
SECTION 5.4.
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(b) Bid Loans may not be voluntarily prepaid, except with the consent of
the Bank holding the applicable Bid Loan and upon payment of any additional
costs associated with such prepayment, such costs to be determined by the Bank
making such Bid Loan.
(c) The Companies shall repay the Term Loans in quarterly installments on
the dates and in the amounts set forth on SCHEDULE III; PROVIDED, HOWEVER, in
the event that on any such payment date the aggregate amount of Term Loans
outstanding shall be less than the amount of the payment required to be made on
such date, then the Companies shall pay in full the remaining outstanding Term
Loan.
(d) The aggregate amount of Revolving Commitments shall be permanently
reduced by (and the Revolving Commitment of each Bank shall be correspondingly
permanently reduced by its Pro Rata Share of) 100% of the maximum amount at any
time outstanding (including each increase from the largest such amount
theretofore outstanding) under each Permitted Receivables Securitization, such
reduction to be effective thirty (30) Business Days following the date of
availability of such Net Issuance Proceeds relating to such Permitted
Receivables Securitization (the "Reduction Date"); on or before the Reduction
Date, (i) a Responsible Officer of the Borrower shall provide to the Agent a
certificate setting forth in reasonable detail the calculations utilized in
computing the amount of such reduction, and (ii) the Companies shall cause
Revolving Loan Outstandings to be repaid or otherwise permanently reduced so
that as of the Reduction Date the Dollar Equivalent Amount of the aggregate
principal amount of Revolving Loan Outstandings shall not exceed the aggregate
Revolving Commitments after giving effect to such reduction.
(e) In addition to the required payments described in SECTIONS 2.9(c) and
(d) the Companies shall make the following mandatory prepayments or reductions
of the Obligations, each such payment to be made to the Agent for the benefit of
the Banks within the time period specified below:
(i) the Companies shall prepay or otherwise permanently reduce Term
Loan Outstandings by application to the next two maturing principal
installments and then to the Ratable Reduction of Term Loans of an amount
equal to 100% of Net Proceeds in excess of the first $10,000,000 of Net
Proceeds (cumulatively from the Closing Date), and if such Net Proceeds to
be applied to Term Loan Outstandings shall be greater than the Dollar
Equivalent Amount of Term Loan Outstandings, then the Revolving Loan
Outstandings shall be reduced by the amount of such excess, each such
prepayment or other reduction to be made within 30 days of receipt of such
proceeds; a Company shall give not less than five (5) Business Days written
notice to the Agent of such prepayment, which notice shall include a
certificate of a Responsible Officer of the Borrower setting forth in
reasonable detail the calculations utilized in computing the amount of such
prepayment or other reduction;
(ii) the Companies shall make prepayments of the Term Loans by
application to the next two maturing principal installments and then to the
Ratable Reduction of Term Loans of an amount equal to 100% of the Net
Issuance Proceeds (other than Net Issuance
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Proceeds arising from Permitted Receivables Securitizations) in
connection with any issuance of Indebtedness, each such prepayment
and any excess over the Term Loan Outstanding to be made within the
time and in the manner and applied as set forth in clause (i) of
this SECTION 2.9(e); and
(iii) if the Consolidated Total Leverage Ratio is greater than
2.50 to 1.00 for the four quarter period most recently ended prior to a
sale of any equity security of the Borrower or a Subsidiary, the Borrower
shall make prepayments of the Term Loans by application to the Ratable
Reduction of Term Loans of an amount equal to 50% of the Net Proceeds
received by the Borrower or any Subsidiary from such sale, each such
prepayment to be made within the time and in the manner set forth in clause
(i) of this SECTION 2.9(e), and if the net proceeds to be applied exceed
the remaining principal balance of the Term Loan then to the reduction of
Revolving Loan Outstandings as provided in SECTION 2.9(e).
(f) The amount of any required installment payment or prepayment or
permanent reduction of Term Loans or Term Loan Outstandings pursuant to SECTION
2.9(d) or (e) shall permanently reduce the Term Loan Commitments. In the event
that the amount of any Net Proceeds which are required to be applied to
prepayment or reduction of Revolving Loan Outstandings exceeds the Dollar
Equivalent Amount of the amount of then outstanding Revolving Loans, such excess
amount shall be retained by the Companies.
(g) Any prepayment under this SECTION 2.9 shall be made together with any
amounts required to be paid in connection with such prepayment under SECTION
5.4.
2.10 USE OF PROCEEDS. (a) The entire amount of the proceeds of the Term
Loan shall be used to purchase voting shares of Michael Page at a price per
share not to exceed L5.50.
(b) The proceeds of Revolving Loans shall be used as follows: (i) up to
[$575,000,000] to purchase or refinance the purchase of the voting shares of
Michael Page at a purchase price per share not to exceed L5.50, (ii) up to
$15,000,000 of expenses associated with the Acquisition of Michael Page, (iii)
repay the Existing Notes and (iv) the balance for working capital purposes.
2.11 CURRENCY EXCHANGE FLUCTUATIONS. (a) If on any Valuation Date the
Agent shall have determined that the aggregate Dollar Equivalent Amount of the
principal amount of all Revolving Loan Outstandings exceeds the combined
Revolving Loan Commitments of the Banks, due to a change in applicable rates of
exchange between Dollars and Offshore Currencies, then the Agent shall give
notice to each Company and upon notice thereof by the Agent to each Company,
each Company agrees to make prepayments, on the Business Day after notice from
the Agent, of Revolving Loans (and if required under SECTION 3.7, Cash
Collateralize outstanding Letters of Credit and the Interim Note Guarantee) such
that, after giving effect to such prepayment or Cash Collateralization, the
aggregate Dollar Equivalent Amount of all Revolving Loan Outstandings (net of
any Cash Collateralization) does not exceed the combined Revolving Commitments,
it being understood that a prepayment in the amount by which the Dollar
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Equivalent Amount of Revolving Loan Outstandings exceeds the combined Revolving
Commitments need not equal or exceed the Minimum Tranche. Any prepayment under
this Section shall be made together with any amounts required pursuant to
SECTION 5.4.
(b) Without limiting the foregoing provisions of this SECTION 2.11, in the
event that the Agent shall determine (in accordance with the valuation
procedures provided for in SECTION 2.5) at any time that the aggregate Dollar
Equivalent Amount of all Revolving Loan Outstandings in Offshore Currencies
shall exceed the Total Offshore Currency Sublimit by an amount in excess of
$10,000,000, then, upon notice thereof by the Agent to each Company, each
Company agrees thereupon to make prepayments, on not later than the third
Business Day after notice from the Agent, of Revolving Loan Outstandings (and if
required under SECTION 3.7, Cash Collateralize outstanding Letters of Credit and
Interim Note Guarantee) such that, after giving effect to such prepayment or
Cash Collateralization, the aggregate Dollar Equivalent Amount of all Revolving
Loan Outstandings (net of any Cash Collateralization) in Offshore Currencies
does not exceed the lesser of Total Offshore Currency Sublimit or the Revolving
Commitments of all Banks, it being understood that (a) a prepayment in the
amount by which the Dollar Equivalent Amount of Revolving Loan Outstandings in
Offshore Currencies exceeds the Total Offshore Currency Sublimit need not equal
or exceed the Minimum Tranche, and (b) no such prepayment shall be required
unless the excess referred to above shall exceed $10,000,000. Any prepayment
under this Section shall be made together with any amounts required pursuant to
SECTION 5.4.
2.12 REPAYMENT. (a) The Companies shall repay to the Banks on the
Termination Date the aggregate principal amount of Loans outstanding on such
date.
(b) The Companies shall repay each Bid Loan on the last day of the
relevant Interest Period.
(c) Each payment (x) required to be made pursuant to SECTION 2.9 which
permanently reduces the Term Loan Commitments or the Revolving Commitments or
(y) required to be made under clause (a) of this SECTION 2.12 shall, if made in
an Offshore Currency, be accompanied by such additional amounts of such Offshore
Currency, or additional Dollars, such that the amount of such Offshore Currency
and Dollars so paid shall in the aggregate equal the Dollar Equivalent Amount
(determined as of such date) of the payment required to be paid on such date.
2.13 INTEREST.
(a) Each Syndicated Loan shall bear interest on the outstanding principal
amount thereof from the applicable Borrowing Date at a rate per annum equal to
the Offshore Rate or the Base Rate, as the case may be (and subject to the
Companies' right to convert to other Types of Loans under SECTION 2.4), plus the
Applicable Margin. Each Bid Loan shall bear interest on the outstanding
principal amount thereof from the relevant Borrowing Date to the last day of the
applicable Interest Period at a rate per annum equal to the Absolute Rate.
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(b) Interest on each Loan shall be paid in arrears on each Interest
Payment Date. Interest shall also be paid on the date of any prepayment of
Loans under SECTION 2.9 OR 2.11 for the portion of the Loans so prepaid and upon
payment (including prepayment) in full thereof and, during the existence of any
Event of Default, interest shall be paid on demand of the Agent at the request
or with the consent of the Required Banks.
(c) Notwithstanding subsection (a) of this Section or any other provision
of the Loan Documents, while any Event of Default exists or after acceleration,
interest shall accrue (after as well as before entry of judgment thereon to the
extent permitted by law) on the principal amount of all outstanding Obligations,
at a rate per annum which is determined by adding 2% per annum to the Applicable
Margin then in effect for such Loans and, in the case of Obligations not subject
to an Applicable Margin, at a rate per annum equal to the Base Rate (or in the
case of Bid Loans, the Absolute Rate) plus 2%.
(d) Anything herein to the contrary notwithstanding, the obligations of
the Companies to any Bank or Designated Bidder hereunder shall be subject to the
limitation that payments of interest shall not be required for any period for
which interest is computed hereunder, to the extent (but only to the extent)
that contracting for or receiving such payment by such Bank or Designated Bidder
would be contrary to the provisions of any law applicable to such Bank or
Designated Bidder limiting the highest rate of interest that may be lawfully
contracted for, charged or received by such Bank or Designated Bidder, and in
such event the Companies shall pay such Bank interest at the highest rate
permitted by applicable law.
2.14 FEES.
(a) ARRANGEMENT AND AGENCY FEES. The Companies jointly and severally
shall pay the fees to the Arranger, NationsBank and the Agent, as required by
the letter agreements ("Fee Letters") between each Company and the Arranger and
the Agent (or an affiliate of the Agent) each dated February 25, 1997, as
amended or supplemented from time to time, or as may otherwise be agreed to in a
separate writing or writings executed by the Companies and the Agent shall pay
to each Bank such amount relating to certain of such fees as previously agreed
to by the Agent and such Bank.
(b) COMMITMENT FEES. The Companies jointly and severally shall pay to the
Agent for the account of each Bank a commitment fee on the sum of (i) the
average daily unused portion of such Bank's Revolving Commitment, computed on a
quarterly basis in arrears on the last Business Day of each calendar quarter
based upon the daily unused amount of the Revolving Commitment by Revolving
Loans for that quarter as calculated by the Agent, equal to the Applicable Fee
Percentage. For each Bank, the amounts outstanding under Bid Loans made by such
Bank (and its Designated Bidder) plus its Pro Rata Share of the Dollar
Equivalent Amount of all L/C Obligations and Interim Note Obligations will also
be subtracted from such Bank's Revolving Commitment in making the calculation of
its commitment fee but in no event shall the commitment fee be less than zero
for any period. Swing Line Loans shall not be deemed to be outstanding for
purposes of calculating fees under this SECTION 2.14. Such commitment fee shall
accrue from the
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date hereof to the Termination Date and shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December
commencing on June 30, 1997 for the quarter (or shorter period, as
applicable) ending the prior Business Day and on the Termination Date;
provided that, in connection with any reduction or termination of Commitments
under SECTION 2.8, the accrued commitment fee calculated for the period
ending on such date shall also be paid on the date of such reduction or
termination, with the following quarterly payment being calculated on the
basis of the period from such reduction or termination date to such quarterly
payment date. The commitment fees provided in this subsection shall accrue
at all times after the date hereof, including at any time during which one or
more conditions in ARTICLE V are not met.
2.15 COMPUTATION OF FEES AND INTEREST.
(a) All computations of interest for Base Rate Loans when the Base Rate is
determined by NationsBank's "prime rate" and for Offshore Currency Loans in
British pounds sterling or Belgian francs shall be made on the basis of a year
of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed. Interest and fees shall accrue during each period
during which interest or such fees are computed from the first day thereof to
the last day thereof.
(b) For purposes of determining utilization of each Bank's Commitment in
order to calculate the commitment fee due under SECTION 2.14(b), the amount of
any outstanding Offshore Currency Loan on any date shall be determined based
upon the Dollar Equivalent Amount as of the most recent Valuation Date with
respect to such Offshore Currency Loan and L/C Obligations.
(c) Each determination of an interest rate or a Dollar Equivalent Amount
by the Agent shall be conclusive and binding on each Company, the Banks and the
Designated Bidders in the absence of manifest error.
(d) The Applicable Margin and the Applicable Fee Percentage shall be
adjusted, to the extent applicable, on the earlier of the first Business Day
next following receipt by the agent of the Compliance Certificate required
pursuant to SECTION 8.1(c) or 60 days (or, in the case of the last calendar
quarter of any year, 110 days) after the end of each calendar quarter, based on
the Consolidated Total Leverage Ratio as of the last day of such calendar
quarter and measured for the four fiscal quarters then ended; it being
understood that if the Borrower fails to deliver the financial statements
required by SECTION 8.1(a) or 8.1(b), as applicable, and the related Compliance
Certificate required by SECTION 8.1(c), by the 60th day (or, if applicable, the
110th day) after any calendar quarter, the Applicable Margin shall be 0.95% and
the Applicable Fee Percentage shall be 0.25% until such financial statements and
Compliance Certificate are delivered. The Applicable Margin shall be 0.75% and
the Applicable Fee Percentage shall be 0.20% until the Business Day next
following the date of receipt by the Agent of the Compliance Certificate and
related financial statements of the Borrower and its Subsidiaries for the fiscal
quarter ending June 30, 1997.
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2.16 PAYMENTS BY THE COMPANIES.
(a) Except as otherwise expressly provided herein, all payments by any
Company shall be made to the Agent for the account of the Banks and the
Designated Bidders, or the Agent, as the case may be, at the Agent's Payment
Office; and with respect to the principal of, interest on, and any other
amounts relating to, any Offshore Currency Loan, shall be made to the Agent
in the Offshore Currency in which such Loan is denominated or payable, and,
with respect to all other amounts payable hereunder, shall be made in
Dollars. Such payments shall be made in Same Day Funds, and (i) in the case
of Offshore Currency payments, no later than such time on the dates specified
herein as may be determined by the Agent to be necessary for such payment to
be credited on such date in accordance with normal banking procedures in the
place of payment, and (ii) in the case of any Dollar payments, no later than
2:00 p.m. (Charlotte time) on the date specified herein. The Agent will
promptly distribute to each Bank and Designated Bidder its Pro Rata Share (or
other applicable share as expressly provided herein) of such amounts, in like
funds as received. Any payment which is received by the Agent later than
2:00 p.m. (Charlotte time), or later than the time specified by the Agent as
provided in clause (i) above (in the case of Offshore Currency payments),
shall be deemed to have been received on the following Business Day and any
applicable interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of "Interest
Period" herein, whenever any payment is due on a day other than a Business
Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of
interest or fees, as the case may be.
(c) Unless the Agent receives notice from a Company prior to the date
on which any payment is due to the Banks that such Company will not make such
payment in full as and when required, the Agent may assume that such Company
has made such payment in full to the Agent on such date in Same Day Funds and
the Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Bank or Designated Bidder on such due date an
amount equal to the amount then due such Bank or Designated Bidder. If and
to the extent a Company has not made such payment in full to the Agent, each
Bank or Designated Bidder shall repay to the Agent on demand such amount
distributed to such Bank or Designated Bidder, together with interest thereon
at the Federal Funds Rate or, in the case of a payment in an Offshore
Currency, the Overnight Rate as determined by the Agent and specified to such
Bank for amounts in such Offshore Currency, for each day from the date such
amount is distributed to such Bank or Designated Bidder until the date repaid.
2.17 PAYMENTS BY THE BANKS TO THE AGENT.
(a) Unless the Agent receives notice from a Bank on or prior to the
Effective Date or, with respect to any Syndicated Borrowing, after the
Effective Date, at least two Business Days prior to the date of such
Borrowing, that such Bank will not make available as and when required
hereunder to the Agent for the account of the applicable Company the amount
of that Bank's Pro Rata Share of such Syndicated Borrowing, the Agent may
assume that each Bank has made such
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amount available to the Agent in Same Day Funds on such Borrowing Date and
the Agent may (but shall not be so required), in reliance upon such
assumption, make available to such Company on such date a corresponding
amount. If and to the extent any Bank shall not have made its full amount
available to the Agent in Same Day Funds and the Agent in such circumstances
has made available to the applicable Company such amount, that Bank shall on
the Business Day following such Borrowing Date make such amount available to
the Agent, together with interest at the Federal Funds Rate or, in the case
of any Syndicated Borrowing consisting of Offshore Currency Loans, the
Overnight Rate specified to such Bank for amounts in such Offshore Currency
plus any reasonable administrative fee charged by the Agent. A notice of the
Agent submitted to any Bank with respect to amounts owing under this SECTION
2.17(a) shall be conclusive, absent manifest error. If such amount is so made
available, such payment to the Agent shall constitute such Bank's Loan on the
applicable Borrowing Date for all purposes of this Agreement. If such amount
is not made available to the Agent on the Business Day following the
applicable Borrowing Date, the Agent will notify each Company of such failure
to fund and, upon demand by the Agent, the Companies shall pay such amount to
the Agent for the Agent's account, together with interest thereon for each
day elapsed since the date of such Syndicated Borrowing, at a rate per annum
equal to the interest rate applicable at the time to the Loans comprising
such Borrowing.
(b) The failure of any Bank to make any Syndicated Loan on any
Borrowing Date shall not relieve any other Bank of any obligation hereunder
to make a Syndicated Loan on such Borrowing Date, but neither the Agent nor
any Bank shall be responsible for the failure of any other Bank to make the
Loan to be made by such other Bank on any Borrowing Date.
2.18 SHARING OF PAYMENTS ETC. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Syndicated Loans
made by it any payment (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) in excess of its ratable share (or
other share contemplated hereunder), such Bank shall immediately (a) notify
the Agent of such fact, and (b) purchase from the other Banks such
participations in the Syndicated Loans made by them as shall be necessary to
cause such purchasing Bank to share the excess payment pro rata with each of
them; provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Bank, such purchase shall to that
extent be rescinded and each other Bank shall repay to the purchasing Bank
the purchase price paid therefor, together with an amount equal to such
paying Bank's ratable share (according to the proportion of (i) the amount of
such paying Bank's required repayment to (ii) the total amount so recovered
from the purchasing Bank) of any interest or other amount paid or payable by
the purchasing Bank in respect of the total amount so recovered. Each
Company agrees that any Bank so purchasing a participation from another Bank
may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off, but subject to SECTION 12.9) with
respect to such participation as fully as if such Bank were the direct
creditor of such Company in the amount of such participation. The Agent will
keep records (which shall be conclusive and binding in the absence of
manifest error) of participations purchased under this Section and will in
each case notify the Banks following any such purchases or repayments.
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2.19 SWING LINE. (a) Notwithstanding any other provision of this
Agreement to the contrary, in order to administer the Revolving Commitments
in an efficient manner and to minimize the transfer of funds between the
Agent and each Bank, NationsBank shall make available Swing Line Loans in
Dollars to each of the Companies, jointly and severally, from the Effective
Date to the Termination Date (or such earlier date as the Revolving
Commitments of all Banks shall have terminated in accordance with the terms
hereof). NationsBank shall not make any Swing Line Loan pursuant hereto (i)
if to the actual knowledge of NationsBank the Companies are not in compliance
with all the conditions to the making of Revolving Loans set forth in this
Agreement, (ii) if after giving effect to such Swing Line Loan, the Swing
Line Outstandings would exceed $40,000,000, or (iii) if after giving effect
to such Swing Line Loan, to the actual knowledge of NationsBank the Dollar
Equivalent Amount of Revolving Loan Outstandings would exceed the aggregate
Revolving Commitments. The Companies may borrow, repay and reborrow under
this SECTION 2.19. Unless notified to the contrary by NationsBank,
borrowings under the Swing Line shall be made in integral multiples of
$100,000, upon written request by telefacsimile transmission, effective upon
receipt, by a Responsible Officer made to NationsBank not later than 1:00
P.M. on the Business Day of the requested borrowing. Each such Swing Line
Borrowing Notice shall specify the amount of the borrowing and the date of
borrowing, and shall be in the form of EXHIBIT L, with appropriate
insertions. Unless notified to the contrary by NationsBank, each repayment
of a Swing Line Loan shall be in an amount which is an integral multiple of
$100,000 or the aggregate amount of all Swing Line Outstandings. If any
Company instructs NationsBank to debit any demand deposit account of such
Company in the amount of any payment with respect to a Swing Line Loan, or
NationsBank otherwise receives repayment, after 1:00 P.M. on a Business Day,
such payment shall be deemed received on the next Business Day.
(b) Swing Line Loans shall bear interest at the Base Rate or at such
other rate or rates as the applicable Company and NationsBank may agree from
time to time, the interest payable on Swing Line Loans is solely for the
account of NationsBank, and all accrued and unpaid interest on Swing Line
Loans shall be payable on the dates and in the manner provided in this
ARTICLE II with respect to interest on Base Rate Loans (except as NationsBank
and the applicable Company may otherwise agree in connection with any
particular Swing Line Loan). The Swing Line Loans shall be evidenced by the
Swing Line Note.
(c) Upon the making of a Swing Line Loan in accordance with this SECTION
2.19, each Bank shall be deemed to have purchased from NationsBank a Swing
Line Participation therein in an amount equal to that Bank's Pro Rata Share
of such Swing Line Loan. For purposes of SECTION 2.1(a), each Swing Line
Loan shall be deemed to utilize the Revolving Commitment of each Bank by an
amount equal to its Pro Rata Share of such Loan. Upon demand made by
NationsBank, each Bank shall, according to its Pro Rata Share of such Swing
Line Loan, promptly provide to NationsBank its purchase price therefor in an
amount equal to its Swing Line Participation and, upon any such demand by
NationsBank, such Swing Line Loan shall without further action be converted
to a Base Rate Loan. Any such payment made by a Bank pursuant to demand of
NationsBank of the purchase price of its Swing Line Participation shall be
deemed (i) provided that the conditions to making Revolving Loans shall be
satisfied, a Base Rate Loan under SECTION 2.1(a) until the Companies convert
such Base Rate Loan in accordance with the terms of SECTION
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2.4, and (ii) in all other cases, the funding by each Bank of the purchase
price of its Swing Line Participation in such Swing Line Loan. The
obligation of each Bank to so provide its purchase price to NationsBank shall
be absolute and unconditional and shall not be affected by the occurrence of
a Default or Event of Default or any other occurrence or event. Upon (and
only upon) receipt by NationsBank of funds from the Companies in repayment of
principal of or interest on Swing Line Loans with respect to which any Bank
has funded the purchase of its participation in accordance with clause (ii)
of the fourth sentence of SECTION 2.19(c), NationsBank will promptly pay over
to the Agent (in the kind of funds so received or applied) for the account of
each such Bank (other than NationsBank) in accordance with their Pro Rata
Shares the aggregate amount of such payment as shall equal the aggregate
amount of the Pro Rata Shares of such payment of each such Bank (other than
NationsBank).
The Companies, at their option and subject to the terms hereof, may
request a Revolving Borrowing pursuant to and of a denomination permitted
under SECTION 2.1(a) in an amount sufficient to repay Swing Line Outstandings
on any date and the Agent shall provide from the proceeds of such Borrowing
to NationsBank the amount necessary to repay such Swing Line Outstandings
(which NationsBank shall then apply to such repayment) and credit any balance
of such Borrowing in immediately available funds in the manner directed by
the Companies. The Swing Line shall continue in effect until the Termination
Date (or such earlier date as the Revolving Commitments of all Banks shall
have terminated in accordance with the terms hereof), at which time all Swing
Line Outstandings and accrued interest thereon shall be due and payable in
full.
2.20 DESIGNATION OF BORROWING SUBSIDIARIES. The Borrower may from time
to time designate any Foreign Subsidiary of the Borrower which has not joined
in the execution of this Agreement as a "Borrowing Subsidiary" hereunder by
causing such Foreign Subsidiary to execute and deliver a duly completed
Assumption Letter in the form attached hereto as EXHIBIT M to the
Administrative Agent, with the written consent of the Borrower at the foot
thereof. Upon such execution, delivery and consent such Foreign Subsidiary
shall for all purposes be a party hereto as a Borrowing Subsidiary as fully
as if it had executed and delivered this Agreement. So long as the principal
of and interest on all Borrowings made to any Borrowing Subsidiary under this
Agreement shall have been paid in full and all other obligations of such
Borrowing Subsidiary shall have been fully performed, such Borrowing
Subsidiary may, by not less than five Business Days' prior notice to the
Administrative Agent (which shall promptly notify the Lenders thereof),
terminate its status as a "Borrowing Subsidiary" hereunder.
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ARTICLE III
THE LETTERS OF CREDIT
3.1 THE LETTER OF CREDIT FACILITIES.
(a) On the terms and conditions set forth herein (i) the Issuing Bank
agrees (A) from time to time on any Business Day during the period from the
Effective Date to the Termination Date (or such earlier date as the Revolving
Commitments of all Banks shall have terminated in accordance with the terms
hereof) to Issue Letters of Credit for the account of a Company, and to amend
or renew Letters of Credit previously issued by it, in accordance with
SECTIONS 3.2(c) and 3.2(d), and (B) to honor drafts drawn under and in strict
compliance with the terms and conditions of Letters of Credit; and (ii) the
Banks severally agree to participate in Letters of Credit Issued for the
account of a Company; provided, that the Issuing Bank shall not be obligated
to Issue, and no Bank shall be obligated to participate in, any Letter of
Credit if, as of the date of Issuance of such Letter of Credit (the "Issuance
Date") (1) the Dollar Equivalent Amount of the Revolving Loan Outstandings
exceeds or would exceed the combined Revolving Commitments minus the Currency
Hedge Utilization, or (2) the Dollar Equivalent Amount of the Effective
Amount of L/C Obligations exceeds or would exceed the L/C Commitment, or (3)
the Dollar Equivalent Amount of all Revolving Loan Outstandings and Term Loan
Outstandings in Offshore Currencies exceeds or would exceed the Total
Offshore Currency Sublimit. Within the foregoing limits, and subject to the
other terms and conditions hereof, a Company's ability to obtain Letters of
Credit shall be fully revolving and, accordingly, a Company may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit which
have expired or which have been drawn upon and reimbursed.
(b) The Issuing Bank is under no obligation to Issue any Letter of
Credit if:
(i) any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain the Issuing
Bank from Issuing such Letter of Credit, or any Requirement of Law
applicable to the Issuing Bank shall prohibit or any request or directive
(whether or not having the force of law) from any Governmental Authority
with jurisdiction over the Issuing Bank shall prohibit, or request that the
Issuing Bank refrain from, the Issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon the Issuing Bank
with respect to such Letter of Credit any restriction, reserve or capital
requirement (for which the Issuing Bank is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose upon the
Issuing Bank any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the Issuing Bank in good faith
deems material to it;
(ii) the Issuing Bank has received written notice from any Bank, the
Agent or a Company, or has actual knowledge, on or prior to the Business
Day prior to the requested date of Issuance of such Letter of Credit, that
one or more of the applicable conditions contained in ARTICLE VI is not
then satisfied;
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(iii) the expiry date of any requested Letter of Credit is more
than one year after the date of Issuance or is after the Termination Date;
(iv) any requested Letter of Credit does not provide for drafts, or
is not otherwise in form and substance acceptable to the Issuing Bank, or
the Issuance of a Letter of Credit shall violate any applicable policies
of the Issuing Bank;
(v) any Letter of Credit is for the purpose of supporting the
issuance of any letter of credit by any other Person; or
(vi) such Letter of Credit is in a face amount less than the Dollar
Equivalent Amount of $1,000,000 (or such other lesser amount as agreed to
by the Issuing Bank) or denominated in a currency other than Dollars or
Offshore Currencies.
3.2 ISSUANCE, AMENDMENT AND RENEWAL OF LETTERS OF CREDIT.
(a) Each Letter of Credit shall be Issued upon the irrevocable written
request of a Company and the Borrower, respectively, received by the Issuing
Bank three Business Days prior to the proposed date of Issuance. Each such
request for Issuance of a Letter of Credit shall be by facsimile, confirmed
immediately in an original writing, in the form of an L/C Application, and
shall specify in form and detail satisfactory to the Issuing Bank: (i) the
Company on the application of which such Letter of Credit is being Issued;
(ii) the Applicable Currency; (iii) the proposed date of Issuance of such
Letter of Credit (which shall be a Business Day); (iv) the face amount of
such Letter of Credit; (v) the expiry date of such Letter of Credit; (vi) the
name and address of the beneficiary thereof; (vii) the documents to be
presented by the beneficiary of such Letter of Credit in case of any drawing
thereunder; (viii) the full text of any certificate to be presented by the
beneficiary in case of any drawing thereunder; and (ix) such other matters as
the Issuing Bank may reasonably require.
(b) Two Business Days prior to the Issuance of any Letter of Credit,
the Issuing Bank shall confirm with the Agent the availability of the
Commitments with respect to such Issuance and that the conditions specified
in ARTICLE VI have been satisfied. Subject to the terms and conditions
hereof, the Issuing Bank shall, on the requested date, Issue a Letter of
Credit for the account of the applicable Company in accordance with the
Issuing Bank's usual and customary business practices.
(c) From time to time while a Letter of Credit is outstanding and prior
to the Termination Date (or such earlier date as the Revolving Commitments of
all Banks shall have terminated in accordance with the terms hereof), the
Issuing Bank shall, upon the written request of a Company (with a copy sent
to the Agent) three Business Days prior to the proposed date of amendment,
amend any Letter of Credit Issued by it. Each such request for amendment of
a Letter of Credit shall be made in writing in the form of an L/C Amendment
Application and shall specify in form and detail satisfactory to the Issuing
Bank: (i) the Letter of Credit to be amended; (ii) the proposed date of
amendment of such Letter of Credit (which shall be a Business Day); (iii)
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the nature of the proposed amendment; and (iv) such other matters as the
Issuing Bank may reasonably require. The Issuing Bank shall be under no
obligation to amend any Letter of Credit if: (A) the Issuing Bank would have
no obligation at such time to Issue such Letter of Credit in its amended form
under the terms of this Agreement; or (B) the beneficiary of such Letter of
Credit does not accept the proposed amendment to such Letter of Credit. The
Agent will promptly notify the Banks of a request of Issuance or renewal or
amendment of a Letter of Credit.
(d) The Issuing Bank and the Banks agree that, while a Letter of Credit
is outstanding and prior to the Termination Date (or such earlier date as the
Revolving Commitments of all Banks shall have terminated in accordance with
the terms hereof), the Issuing Bank shall be entitled to authorize the
automatic renewal of any Letter of Credit Issued by it unless (A) the Issuing
Bank would have no obligation at such time to Issue or amend such Letter of
Credit in its renewed form under the terms of this Agreement; (B) the
beneficiary of such Letter of Credit does not accept the proposed renewal of
such Letter of Credit; or (C) the Issuing Bank receives written request from
a Company (with a copy sent to the Agent) three Business Days prior to the
proposed date of notification of non-renewal, not to renew any Letter of
Credit. Each such request for non-renewal of a Letter of Credit shall be
made in writing and shall specify (i) the Letter of Credit number; (ii) the
beneficiary's name; and (iii) that the Issuing Bank is instructed to notify
the beneficiary of non-renewal.
(e) The Issuing Bank shall deliver to the Agent any notices of
termination or other communications to any Letter of Credit beneficiary or
transferee, and take any other action as necessary or appropriate, at any
time and from time to time, in order to cause the expiry date of such Letter
of Credit to be a date not later than the Termination Date.
(f) This Agreement shall control in the event (and to the extent) of
any conflict with any L/C-Related Document (other than any Letter of Credit).
(g) The Issuing Bank will also deliver to the Agent, concurrently with
or promptly following its delivery of a Letter of Credit, or amendment to or
renewal of a Letter of Credit, to an advising bank or a beneficiary, a true
and complete copy of each such Letter of Credit or amendment to or renewal of
a Letter of Credit.
(h) The Agent shall furnish to each Bank quarterly a summary of
outstanding Letters of Credit.
3.3 RISK PARTICIPATIONS, DRAWINGS AND REIMBURSEMENTS.
(a) Immediately upon the Issuance of each Letter of Credit, each Bank
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Issuing Bank a participation in such Letter of Credit and
each drawing thereunder in an amount equal to the product of (i) the Pro Rata
Share of such Bank, times (ii) the maximum amount available to be drawn under
such Letter of Credit and the amount of such drawing, respectively, in the
currency in which such Letter of Credit is stated. For purposes of SECTION
2.1(a), each Issuance of a Letter
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of Credit shall be deemed to utilize the Revolving Commitment of each Bank by
an amount equal to the amount of such participation.
(b) In the event of any drawing under a Letter of Credit by the
beneficiary or transferee thereof, the Issuing Bank will promptly notify the
Agent and the Companies of the request and of the day on which the Issuing
Bank is to pay the beneficiary (which payment date is not to be less than one
day later). The Companies jointly and severally agree to reimburse the
Issuing Bank prior to 11:00 a.m. (Charlotte time), on each date that any
amount is paid by the Issuing Bank under any Letter of Credit (each such
date, an "Honor Date"), in an amount equal to the Dollar Equivalent Amount,
as determined by the Issuing Bank, such determination to be conclusive absent
manifest error, of the amount so paid by the Issuing Bank. In the event the
Companies fail to reimburse the Issuing Bank for the full amount of any
drawing under any Letter of Credit by 11:00 a.m. (Charlotte time) on the
Honor Date, the Issuing Bank will promptly notify the Agent who will in turn
promptly notify each Bank. Unless notified by the Companies to convert an
unreimbursed drawing into Revolving Loans or, if the Companies request a
conversion of an unreimbursed drawing into Revolving Loans but the
unreimbursed drawing is not converted because of the Companies' failure to
satisfy the conditions set forth in SECTION 6.3 (such unreimbursed drawing
which has not been converted constituting an L/C Borrowing), each Bank will
be deemed to be obligated to make an L/C Advance in Dollars in the full
Dollar Equivalent Amount of each Bank's Pro Rata Share of such L/C Borrowing
and such L/C Advances shall bear interest at a rate per annum equal to the
Base Rate plus 2% per annum. Any notice given by the Issuing Bank or the
Agent pursuant to this SECTION 3.3(b) may be oral if promptly confirmed in
writing (including by facsimile); provided that the lack of such a prompt
confirmation shall not affect the conclusiveness or binding effect of such
notice.
(c) With respect to any unreimbursed drawing that the applicable
Company requests be converted into a Revolving Loan and that satisfies the
conditions set forth in SECTION 6.3, each Bank shall upon any notice make
available to the Agent for the account of the relevant Issuing Bank an amount
in Dollars equal to the Dollar Equivalent Amount (as indicated in such
notice) of the currency in which such Letter of Credit is denominated and in
immediately available funds equal to its Pro Rata Share of the amount of such
drawing, whereupon the participating Banks shall each be deemed to have made
a Revolving Loan consisting of a Base Rate Loan to the Company in that
amount. If any Bank so notified fails to make available to the Agent for the
account of the Issuing Bank the amount of such Bank's Pro Rata Share of the
amount of such drawing by no later than 2:00 p.m. (Charlotte time) on the
Honor Date, then interest shall accrue on such Bank's obligation to make such
payment, from the Honor Date to the date such Bank makes such payment, at a
rate per annum equal to the Federal Funds Rate in effect from time to time
during such period. The Agent shall promptly give notice of the occurrence
of the Honor Date, but failure of the Agent to give any such notice on the
Honor Date or in sufficient time to enable any Bank to effect such payment on
such date shall not relieve such Bank from its obligations under this SECTION
3.3.
(d) Provided that the Issuing Bank has paid a drawing under a Letter of
Credit in accordance with its terms, each Bank's obligation in accordance
with this Agreement to make
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the Revolving Loans or L/C Advances, as contemplated by this SECTION 3.3, as
a result of a drawing under a Letter of Credit, shall be absolute and
unconditional and without recourse to the Issuing Bank and shall not be
affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Bank may have against the
Issuing Bank, the Companies 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 that if
the conditions to making any Loan pursuant to SECTION 6.3 shall not then be
satisfied, each Bank's payment of such amount shall be deemed to constitute
its payment of the purchase price for its participation in the applicable
drawing under the applicable Letter of Credit.
3.4 REPAYMENT OF PARTICIPATIONS. (a) Upon (and only upon) receipt by
the Agent for the account of the Issuing Bank of immediately available funds
from the Companies (i) in reimbursement of any payment made by the Issuing
Bank under the Letter of Credit with respect to which any Bank has paid the
Agent for the account of the Issuing Bank for such Bank's participation in
such Letter of Credit pursuant to SECTION 3.3 or (ii) in payment of interest
thereon, the Agent will pay to such Bank, in the same funds as those received
by the Agent for the account of the Issuing Bank, the amount of such Bank's
Pro Rata Share of such funds, and the Issuing Bank shall receive the amount
of the Pro Rata Share of such funds of any Bank that did not so pay the Agent
for the account of the Issuing Bank.
(b) If the Agent or the Issuing Bank is required at any time to pay to
the Companies, or to a trustee, receiver, liquidator, custodian, or any
official in any Insolvency Proceeding, any portion of the payments made by
the Companies to the Agent for the account of the Issuing Bank pursuant to
SECTION 3.4(a) in reimbursement of a payment made under any Letter of Credit
or interest thereon, each Bank shall, on demand of the Agent, forthwith pay
to the Agent or the Issuing Bank the amount of its Pro Rata Share of any
amounts so paid by the Agent or the Issuing Bank plus interest thereon from
the date such demand is made to the date such amounts are paid by such Bank
to the Agent or the Issuing Bank, at a rate per annum equal to the Federal
Funds Rate in effect from time to time.
3.5 ROLE OF THE ISSUING BANK. (a) Each Bank and the Companies agree
that, in paying any drawing under a Letter of Credit, the Issuing Bank shall
not have any responsibility to obtain any document (other than any sight
draft, certificates and any other documents expressly required by the
applicable Letter of Credit) 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) No Agent-Related Person nor any of the respective correspondents,
participants or assignees of the Issuing Bank shall be liable to any Bank
for: (i) any action taken or omitted in connection herewith at the request or
with the approval of the Required Banks; (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 L/C-Related
Document.
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(c) The Companies hereby assume all risks of the acts or omissions of
any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and shall
not, preclude the Companies' pursuing such rights and remedies as they may
have against the beneficiary or transferee at law or under any other
agreement. No Agent-Related Person, nor any of the respective
correspondents, participants or assignees of the Issuing Bank (including the
Banks), shall be liable or responsible for any of the matters described in
clauses (i) through (vii) of SECTION 3.6; provided, however, anything in such
clauses to the contrary notwithstanding, that the Companies may have a claim
against the Issuing Bank, and the Issuing Bank may be liable to the
Companies, to the extent, but only to the extent, of any direct, as opposed
to consequential or exemplary, damages suffered by the Companies which the
Companies prove were caused by the Issuing Bank's willful misconduct or gross
negligence or the Issuing Bank's willful failure to pay under any Letter of
Credit except as a result of a court order after the presentation to it by
the beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing: (i) the Issuing Bank may accept documents that
appear on their face to be in order, without responsibility for further
investigation; and (ii) the Issuing Bank shall not be responsible for the
validity or sufficiency of any instrument transferring or purporting to
transfer a Letter of Credit or the rights or benefits thereunder or assigning
the proceeds thereof, in whole or in part, in accordance with the terms of
such Letter of Credit which may prove to be invalid or ineffective for any
reason.
3.6 OBLIGATIONS ABSOLUTE. Provided that the Issuing Bank has paid a
drawing under a Letter of Credit in accordance with its terms, the
obligations of the Companies under this Agreement and any L/C-Related
Document to reimburse the Issuing Bank for a drawing under a Letter of
Credit, and to repay any L/C Borrowing and any drawing under a Letter of
Credit converted into any Syndicated Loan or Syndicated Loans, shall be
unconditional and irrevocable, and shall be paid strictly in accordance with
the terms of this Agreement and each such other L/C Related Document under
all circumstances, including the following:
(i) any lack of validity or enforceability of this Agreement or
any L/C-Related Document;
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations of the Companies in respect of
any Letter of Credit or any other amendment or waiver of or any consent to
departure from all or any of the L/C-Related Documents, which have been
previously agreed to by the respective Company;
(iii) the existence of any claim, set-off, defense or other right
that the Companies may have at any time against any beneficiary or any
transferee of any Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the Issuing Bank or any
other Person, whether in connection with this Agreement, the transactions
contemplated hereby or by the L/C-Related Documents or any unrelated
transaction;
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(iv) any draft, demand, certificate or other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any
Letter of Credit;
(v) any payment by the Issuing Bank under any Letter of Credit
against presentation of a draft or certificate that reasonably complies
with the terms of such Letter of Credit; or any payment made by the Issuing
Bank under any Letter of Credit 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,
receiver or other representative of or successor to any beneficiary or any
transferee of any Letter of Credit, including any arising in connection
with any Insolvency Proceeding;
(vi) 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 the Companies in respect of
any Letter of Credit; or
(vii) any other circumstance or happening whatsoever (other than
failure to pay a Letter of Credit in accordance with its terms), 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, the
Companies or a guarantor.
3.7 CASH COLLATERAL PLEDGE. Upon (i) the written request of the Agent,
(A) if the Issuing Bank has honored any full or partial drawing request on
any Letter of Credit and such drawing has resulted in an L/C Borrowing
hereunder, or (B) if, as of the Termination Date (or such earlier date as the
Revolving Commitments shall have terminated in accordance with the terms
hereof), any Letters of Credit may for any reason remain outstanding and
partially or wholly undrawn, or (ii) the occurrence of the circumstances
described in SECTION 2.11 requiring the Companies to Cash Collateralize
Letters of Credit, then the Companies shall immediately Cash Collateralize
the L/C Obligations in an amount equal to such L/C Obligations or in the
amount required under SECTION 2.11. If any Letter of Credit expires without
the application of such Cash Collateral in full, or if all L/C Borrowings
with respect to any Letter of Credit have been paid in full by the Companies,
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 a Letter
of Credit, the Agent shall return to the Companies any cash or deposit
account balances that were used by the Companies to Cash Collateralize such
Letters of Credit pursuant to this SECTION 3.7 and were not applied to L/C
Borrowings.
3.8 LETTER OF CREDIT FEES. (a) The Companies shall pay to the Agent for
the account of each of the Banks a letter of credit fee with respect to the
Letters of Credit equal to the Applicable Margin with respect to the Offshore
Rate Loans times the average daily maximum Dollar Equivalent Amount (computed
based on currency exchange rates in effect as of the most recent Valuation Date)
available to be drawn under the outstanding Letters of Credit computed
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on a quarterly basis in arrears on the last Business Day of each calendar
quarter based upon Letters of Credit outstanding for that quarter as
calculated by the Agent. Such letter of credit fees shall be due and payable
quarterly in arrears on the first Business Day following the calendar quarter
during which Letters of Credit are outstanding, commencing on the first such
quarterly date to occur after the Effective Date, through the Termination
Date (or such later date upon which the outstanding Letters of Credit shall
expire), with the final payment to be made on the Termination Date (or such
later expiration date).
(b) The Companies shall pay to the Agent for the account of the Issuing
Bank a letter of credit fee with respect to the Letters of Credit equal to
1/8th of 1% per annum of the average daily maximum Dollar Equivalent Amount
(computed based on currency exchange rates in effect as of the most recent
Valuation Date) available to be drawn under the outstanding Letters of
Credit, computed on a quarterly basis in arrears on the last Business Day of
each calendar quarter based upon Letters of Credit outstanding for that
quarter as calculated by the Agent. Such letter of credit fees shall be due
and payable quarterly in arrears on the first Business Day following the
calendar quarter during which Letters of Credit are outstanding, commencing
on the first such quarterly date to occur after the Effective Date, through
the Termination Date (or such later date upon which the outstanding Letters
of Credit shall expire), with the final payment to be made on the Termination
Date (or such later expiration date).
(c) The Companies shall pay to the Issuing Bank from time to time on
demand the normal issuance, presentation, amendment and other processing fees,
and other standard costs and charges, of the Issuing Bank relating to Letters of
Credit as from time to time in effect.
3.9 UNIFORM CUSTOMS AND PRACTICE. The Uniform Customs and Practice for
Documentary Credits as published by the International Chamber of Commerce
("UCP") most recently at the time of issuance of any Letter of Credit shall
(unless otherwise expressly provided in the Letters of Credit) apply to the
Letters of Credit.
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ARTICLE IV
INTERIM NOTE GUARANTEE
4.1 INTERIM NOTES GUARANTEE. On the terms and conditions set forth
herein (i) NationsBank agrees on the Closing Date to execute the Interim Note
Instrument containing the Interim Note Guarantee of the Interim Note
Obligations; and (ii) the Banks severally agree to participate in the Interim
Note Guarantee for the account of Interim (UK).
4.2 RISK PARTICIPATION, ADVANCES AND REIMBURSEMENTS.
(a) Immediately upon the execution of the Interim Note Instrument, each
Bank shall be deemed to, and hereby irrevocably and unconditionally agrees
to, purchase from NationsBank a participation in the Interim Note Guarantee
and each payment thereunder in an amount equal to the product of (i) the Pro
Rata Share of such Bank, times (ii) the maximum amount payable under the
Interim Note Guarantee and the amount paid, respectively, in British pounds
sterling. For purposes of SECTION 2.1(a), the execution and delivery of the
Interim Note Instrument shall be deemed to utilize the Revolving Commitment
of each Bank by an amount equal to the amount of such participation.
(b) In the event of any payment pursuant to the Interim Note Guarantee
to the holder of an Interim Note, NationsBank will promptly notify the Agent
and the Companies of the demand and of the day on which NationsBank is to
pay the holder (which payment date is not to be less than one day later).
The Companies jointly and severally agree to reimburse NationsBank prior to
11:00 a.m. (Charlotte time), on each date that any amount is paid by
NationsBank under the Interim Note Guarantee (each such date, a "Payment
Date"), in an amount equal to the Dollar Equivalent Amount, as determined by
NationsBank, of the amount so paid by NationsBank. In the event the
Companies fail to reimburse NationsBank for the full amount of any payment
under the Interim Note Guarantee by 11:00 a.m. (Charlotte time) on the
Payment Date, NationsBank will promptly notify the Agent who will in turn
promptly notify each Bank. Unless notified by the Companies to convert an
unreimbursed payment into Revolving Loans or, if the Companies request a
conversion of an unreimbursed payment into Revolving Loans but the
unreimbursed payment is not converted because of the Companies' failure to
satisfy the conditions set forth in SECTION 6.3, each Bank will be deemed to
be obligated to make an Interim Note Advance in Dollars in the full Dollar
Equivalent Amount of each Bank's Pro Rata Share of such payment and such
Interim Note Advances shall bear interest at a rate per annum equal to the
Base Rate plus 2% per annum. Any notice given by NationsBank or the Agent
pursuant to this SECTION 4.2(b) 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 payment that Interim (Europe)
requests be converted into a Revolving Loan and that satisfies the conditions
set forth in SECTION 6.3, each Bank shall upon any notice make available to the
Agent for the account of NationsBank an amount in Dollars equal to the Dollar
Equivalent Amount (as indicated in such notice) of British pounds
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sterling and in immediately available funds equal to its Pro Rata Share of
the amount of such payment, whereupon the participating Banks shall each be
deemed to have made a Revolving Loan consisting of a Base Rate Loan to
Interim (Europe) in that amount. If any Bank so notified fails to make
available to the Agent for the account of NationsBank the amount of such
Bank's Pro Rata Share of the amount of such payment by no later than 2:00
p.m. (Charlotte time) on the Payment Date, then interest shall accrue on such
Bank's obligation to make such payment, from the Payment Date to the date
such Bank makes such payment, at a rate per annum equal to the Federal Funds
Rate in effect from time to time during such period. The Agent shall promptly
give notice of the occurrence of the Payment Date, but failure of the Agent
to give any such notice on the Payment Date or in sufficient time to enable
any Bank to effect such payment on such date shall not relieve such Bank from
its obligations under this SECTION 4.2.
(d) Provided that NationsBank has made a payment pursuant to the
Interim Note Guarantee substantially in accordance with its terms, each
Bank's obligation in accordance with this Agreement to make the Syndicated
Loans or Interim Note Advances, as contemplated by this SECTION 4.2, as a
result of a payment under the Interim Note Guarantee, shall be absolute and
unconditional and without recourse to NationsBank and shall not be affected
by any circumstance, including (i) any set-off, counterclaim, recoupment,
defense or other right which such Bank may have against the NationsBank, the
Companies 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 that if the
conditions to making any Loan pursuant to SECTION 6.3 shall not then be
satisfied, each Bank's payment of such amount shall be deemed to constitute
its payment of the purchase price for its participation in the applicable
payment under the Interim Note Guarantee.
4.3 REPAYMENT OF PARTICIPATIONS. (a) Upon (and only upon) receipt by
the Agent for the account of NationsBank of immediately available funds from
the Companies (i) in reimbursement of any payment made by NationsBank under
the Interim Note Guarantee with respect to which any Bank has paid the Agent
for the account of NationsBank for such Bank's participation in such Interim
Note Guarantee pursuant to SECTION 4.2 or (ii) in payment of interest
thereon, the Agent will pay to such Bank, in the same funds as those received
by the Agent for the account of NationsBank, the amount of such Bank's Pro
Rata Share of such funds, and NationsBank shall receive the amount of the Pro
Rata Share of such funds of any Bank that did not so pay the Agent for the
account of NationsBank.
(b) If the Agent or NationsBank is required at any time to pay to the
Companies, or to a trustee, receiver, liquidator, custodian, or any official
in any Insolvency Proceeding, any portion of the payments made by the
Companies to the Agent for the account of NationsBank pursuant to SECTION
4.3(a) in reimbursement of a payment made under the Interim Note Guarantee or
interest thereon, each Bank shall, on demand of the Agent, forthwith pay to
the Agent or NationsBank the amount of its Pro Rata Share of any amounts so
paid by the Agent or NationsBank plus interest thereon from the date such
demand is made to the date such amounts
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are paid by such Bank to the Agent or NationsBank, at a rate per annum equal
to the Federal Funds Rate in effect from time to time.
4.4 ROLE OF NATIONSBANK. (a) Each Bank and the Companies agree that,
in making a payment pursuant to the Interim Note Guarantee, NationsBank shall
not have any responsibility to obtain any document (other than written demand
and certificates expressly required by the Interim Note Guarantee) 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) No Agent-Related Person nor any of the respective correspondents,
participants or assignees of NationsBank shall be liable to any Bank for: (i)
any action taken or omitted in connection herewith at the request or with the
approval of the Required Banks; (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 Interim Note
Related Documents.
(c) The Companies hereby assume all risks of the acts or omissions of
any beneficiary or transferee with respect to its use of the Interim Note
Guarantee; provided, however, that this assumption is not intended to, and
shall not, preclude the Companies' pursuing such rights and remedies as they
may have against the beneficiary or transferee at law or under any other
agreement. No Agent-Related Person, nor any of the respective
correspondents, participants or assignees of NationsBank (including the
Banks), shall be liable or responsible for any of the matters described in
clauses (i) through (vii) of SECTION 4.5; provided, however, anything in such
clauses to the contrary notwithstanding, that the Companies may have a claim
against NationsBank, and NationsBank may be liable to the Companies, to the
extent, but only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by the Companies which the Companies prove were
caused by the willful misconduct or gross negligence or willful failure of
NationsBank to pay under the Interim Note Guarantee except as a result of a
court order after the presentation to it by the beneficiary of a written
demand and certificate(s) strictly complying with the terms and conditions of
the Interim Note Guarantee. In furtherance and not in limitation of the
foregoing: (i) NationsBank may accept documents that appear on their face to
be in order, without responsibility for further investigation; and (ii)
NationsBank shall not be responsible for the validity or sufficiency of any
instrument transferring or purporting to transfer an Interim Note or the
rights or benefits thereunder or assigning the proceeds thereof, in whole or
in part, in accordance with the terms of such Interim Note which may prove to
be invalid or ineffective for any reason.
4.5 OBLIGATIONS ABSOLUTE. Provided that NationsBank has made a payment
under the Interim Note Guarantee in accordance with its terms, the
obligations of the Companies under this Agreement and any Interim Note
Related Documents to reimburse NationsBank for a payment under the Interim
Note Guarantee, and to repay any Interim Note Borrowing and any payment under
the Interim Note Guarantee converted into any Revolving Loan or Revolving
Loans, shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement and each such other Interim Note
Related Document under all circumstances, including the following:
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(i) any lack of validity or enforceability of this Agreement or any
Interim Note Related Documents;
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations of the Companies in respect of
the Interim Note Guarantee or any other amendment or waiver of or any
consent to departure from all or any of the Interim Note Related Documents,
which have been previously agreed to by the respective Company;
(iii) the existence of any claim, set-off, defense or other right
that the Companies may have at any time against any beneficiary or any
transferee of any Interim Note Guarantee (or any Person for whom any such
beneficiary or any such transferee may be acting), NationsBank or any other
Person, whether in connection with this Agreement, the transactions
contemplated hereby or by the Interim Note Related Documents or any
unrelated transaction;
(iv) any draft, demand, certificate or other document presented under
the Interim Note Guarantee proving to be forged, fraudulent or invalid 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 payment under the Interim Note
Guarantee;
(v) any payment by NationsBank under the Interim Note Guarantee
pursuant to a demand for payment that reasonably complies with the terms of
the Interim Note Guarantee; or any payment made by NationsBank under the
Interim Note Guarantee 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,
receiver or other representative of or successor to any beneficiary or any
transferee of any Interim Note Guarantee, including any arising in
connection with any Insolvency Proceeding;
(vi) 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 the Companies in respect of
any Interim Note Guarantee; or
(vii) 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, the
Companies or a guarantor.
4.6 CASH COLLATERAL PLEDGE. Upon (i) the request of the Agent, (A) if
NationsBank has honored any full or partial payment request on the Interim Note
Guarantee and such payment has resulted in an Interim Note Borrowing hereunder,
or (B) if, as of the Termination Date (or such earlier date as the Revolving
Commitments shall have terminated in accordance with the terms hereof), the
Interim Note Guarantee may for any reason remain outstanding, or (ii) the
occurrence of the circumstances described in SECTION 2.11 requiring the
Companies to Cash Collateralize, then
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the Companies shall immediately Cash Collateralize the Interim Note Guarantee
Obligations in an amount equal to such Interim Note Guarantee Obligations or
in the amount required under SECTION 2.11. If the Interim Note Guarantee
expires without the application of such Cash Collateral in full, or if all
Interim Note Borrowings with respect to the Interim Note Guarantee have been
paid in full by the Companies, 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 Interim Note Guarantee, the Agent shall return to
the Companies any cash or deposit account balances that were used by the
Companies to Cash Collateralize such Interim Note Guarantee pursuant to this
SECTION 4.6 and were not applied to Interim Note Borrowings.
4.7 INTERIM NOTE GUARANTEE FEES. (a) The Companies shall pay to the
Agent for the account of each of the Banks an Interim Note Guarantee fee with
respect to the Interim Note Guarantee equal to the Applicable Margin with
respect to the Offshore Rate Loans times the Interim Note Obligations
computed on a quarterly basis in arrears on the last Business Day of each
calendar quarter based upon the Interim Note Obligations outstanding for that
quarter as calculated by the Agent. Such Interim Note Guarantee fees shall
be due and payable quarterly in arrears on the first Business Day following
the calendar quarter during which there are Interim Note Obligations,
commencing on the Closing Date through the Termination Date (or such later
date upon which the Interim Note Guarantee shall expire), with the final
payment to be made on the Termination Date (or such later expiration date).
(b) The Companies shall pay to the Agent for the account of NationsBank
a fee with respect to the Interim Note Guarantee equal to 1/8th of 1% per
annum of the average daily Interim Note Obligations (computed based on
currency exchange rates in effect as of the most recent Valuation Date),
computed on a quarterly basis in arrears on the last Business Day of each
calendar quarter based upon Interim Note Obligations outstanding for that
quarter as calculated by the Agent. Such fees shall be due and payable
quarterly in arrears on the first Business Day following the calendar quarter
during which the Interim Note Guarantee remains outstanding, commencing on
the Closing Date, through the Termination Date (or such later date upon which
the Interim Note Guarantee shall expire), with the final payment to be made
on the Termination Date (or such later expiration date).
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ARTICLE V
TAXES, YIELD PROTECTION AND ILLEGALITY
5.1 TAXES.
(a) Any and all payments by any Company to each Bank, each Designated
Bidder or the Agent under this Agreement and any other Loan Document shall be
made free and clear of, and without deduction or withholding for, any Taxes
imposed in any jurisdiction from or through which a payment is made. In
addition, the Companies shall pay all Other Taxes.
(b) If any Company shall be required by law to deduct or withhold any
Taxes, Other Taxes or Further Taxes from or in respect of any sum payable
hereunder to any Bank, any Designated Bidder or the Agent, then:
(i) the sum payable by the Company in respect of which the
relevant deduction or withholding is required shall be increased as
necessary so that, after making all required deductions and withholdings
(including deductions and withholdings applicable to additional sums
payable under this Section), such Bank, such Designated Bidder or the
Agent, as the case may be, receives and retains an amount equal to the
sum it would have received and retained had no such deductions or
withholdings been made;
(ii) such Company shall make such deductions and withholdings;
(iii) such Company shall pay the full amount deducted or withheld
to the relevant taxing authority or other authority in accordance with
applicable law; and
(iv) such Company shall also pay to each Bank, each Designated
Bidder or the Agent for the account of such Bank or Designated Bidder, at
the time interest is paid or, with respect to a cost incurred after such
interest is paid, on request of such Bank after such incurrence, Further
Taxes in the amount that the respective Bank or Designated Bidder
determines in good faith as necessary to preserve the after-tax yield such
Bank or Designated Bidder would have received if such Taxes, Other Taxes or
Further Taxes had not been imposed.
(c) Each Company agrees to indemnify and hold harmless each Bank, each
Designated Bidder or the Agent for the full amount of (i) Taxes, (ii) Other
Taxes, and (iii) Further Taxes in the amount that the respective Bank determines
in good faith as necessary to preserve the after-tax yield such Bank or
Designated Bidder would have received if such Taxes, Other Taxes or Further
Taxes had not been imposed, and any liability (including penalties, interest,
additions to tax and expenses) arising therefrom or with respect thereto,
whether or not such Taxes, Other Taxes or Further Taxes were correctly or
legally asserted; provided, that no Company shall be required to indemnify a
Bank or a Designated Bidder for any such liability which arose because of the
failure of said Bank or Designated Bidder to make a payment for more than thirty
days after such Bank
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or Designated Bidder became aware of the requirement to make such payment.
Payment under this indemnification shall be made within 30 days after the
date the applicable Bank or Designated Bidder or the Agent makes written
demand therefor. Each Bank agrees to give notice within 30 days of becoming
aware of any right to indemnification under this SECTION 5.1(C).
(d) Within 30 days after the date of any payment by any Company of Taxes,
Other Taxes or Further Taxes, such Company shall furnish to each Bank, each
Designated Bidder or the Agent, upon request, the original or a certified copy
of a receipt evidencing payment thereof.
(e) If a Company is required to pay any amount to any Bank, any Designated
Bidder or the Agent pursuant to SECTION 5.1(b) OR SECTION 5.1(c), then such
Bank, such Designated Bidder or the Agent shall use reasonable efforts
(consistent with legal and regulatory restrictions) to change the jurisdiction
of its Lending Office so as to eliminate any such additional payment by such
Company which may thereafter accrue, if such change in the sole, good faith
judgment of such Bank or Designated Bidder is not otherwise disadvantageous to
such Bank or Designated Bidder. Additionally such Bank or Designated Bidder
shall use reasonable efforts consistent with its corporate tax policies to
assist the Companies (for themselves and on behalf of each Guarantor) in
securing any tax credits or refunds which may be available. If any tax credit
or refund is received, send any such refund to the Companies or, as directed by
the Companies to a Guarantor. Any Bank or Designated Bidder requesting
indemnification under subsection (b) or (c) or under any Guarantee shall, at the
request of a Company or a Guarantor, provide a detailed calculation in writing
of the applicable amounts.
5.2 ILLEGALITY.
(a) If any Bank reasonably determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for any Bank or its applicable Lending Office to make any
Offshore Rate Loans (including Offshore Rate Loans in any Applicable Currency),
then, on notice thereof by such Bank to each Company through the Agent, any
obligation of that Bank to make such Offshore Rate Loans shall be suspended
until such Bank notifies the Agent and each Company that the circumstances
giving rise to such determination no longer exist.
(b) If a Bank reasonably determines or any Governmental Authority asserts
that it is unlawful to maintain any Offshore Rate Loan (including, without
limitation, any Offshore Currency Loan in any particular Applicable Currency),
the Companies shall, upon their receipt of notice of such determination and
demand from such Bank (with a copy to the Agent), prepay in full such Offshore
Rate Loan of that Bank then outstanding, together with interest accrued thereon
and amounts required under SECTION 5.4, either on the last day of the Interest
Period thereof, if such Bank may lawfully continue to maintain such Offshore
Rate Loans to such day, or immediately, if such Bank may not lawfully continue
to maintain such Offshore Rate Loan. If any Offshore Rate Loan made to a
Company is required to be so repaid, then with respect to
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Loans in Dollars concurrently with such prepayment, such Company may borrow
from the affected Bank, in the amount of such repayment, a Base Rate Loan.
5.3 INCREASED COSTS AND REDUCTION OF RETURN.
(a) If any Bank reasonably determines that, due to either (i) the
introduction of or any change (other than any change by way of imposition of or
increase in reserve requirements included in the calculation of the Offshore
Rate) in or in the interpretation of any law or regulation or (ii) the
compliance by that Bank with any guideline or request from any central bank or
other Governmental Authority (whether or not having the force of law), there
shall be any increase in the cost to such Bank of agreeing to make or making,
funding or maintaining any Offshore Rate Loans or participating in Letters of
Credit or Interim Note Guarantees, or, in the case of Issuing Bank, any increase
in the cost to Issuing Bank of agreeing to Issue, Issuing or maintaining any
Letter of Credit or of funding any drawing under any Letter of Credit, or, in
the case of NationsBank, any increase in the cost to NationsBank of agreeing to
maintain the Interim Note Guarantee of making payment under the Interim Note
Guarantee, then the Companies shall be liable for, and shall from time to time,
upon demand (with a copy of such demand to be sent to the Agent), pay to such
Bank, additional amounts as are sufficient to compensate such Bank for such
increased costs; provided, that no Company shall be obligated to reimburse any
Bank for any cost incurred pursuant to this Section more than 180 days prior to
notice to the Companies of the incurrence of such cost; except that if any
change or compliance requirement described above shall have a retroactive
application, the Companies shall be obligated to make such reimbursement with
respect to such retroactive effect, if such Bank shall give the Companies notice
thereof within 30 days of such Bank's having notice thereof. At the request of
the Companies, any Bank claiming the right to payment under this subsection
shall provide a certificate in reasonable detail as to the amount of such
payment to the requesting Company.
(b) If any Bank shall have reasonably determined that (i) the introduction
of any Capital Adequacy Regulation, (ii) any change in any Capital Adequacy
Regulation, (iii) any change in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other Governmental Authority
charged with the interpretation or administration thereof, or (iv) compliance by
such Bank (or its Lending Office) or any corporation controlling such Bank with
any Capital Adequacy Regulation, affects or would affect the amount of capital
required or expected to be maintained by such Bank or any corporation
controlling such Bank and (taking into consideration such Bank's or such
corporation's policies with respect to capital adequacy and such Bank's or such
corporation's desired return on capital) shall have determined that the rate of
return on its or such controlling corporation's capital as a consequence of its
Commitment or the Loans made or Letters of Credit Issued or participated in or
Interim Note Guarantee given or participated in by such Bank is reduced to a
level below that which such Bank or such controlling corporation could have
achieved but for the occurrence of such circumstances, then, upon demand of such
Bank to the Companies, the Companies shall pay to such Bank, from time to time
as specified by such Bank, additional amounts sufficient to compensate such Bank
or such controlling corporation for such reduction in rate of return; provided,
that the Companies shall not be obligated to reimburse any Bank for any
reduction on the rate of return on capital pursuant to this
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Section realized more than 180 days prior to notice to the Companies of such
reduction; except that if any change or compliance requirement described
above shall have a retroactive application, the Companies shall be obligated
to make such reimbursement with respect to such retroactive effect, if such
Bank shall give the Companies notice thereof within 30 days of such Bank's
having notice thereof. In calculating any amounts payable hereunder, each
Bank shall use any reasonable method of allocation and attribution that it
shall deem applicable.
(c) Without limiting the foregoing but without duplication for any
Associated Costs reimbursed pursuant to SECTION 5.3(a) OR (b), as to any
Offshore Currency Loans denominated in British pounds sterling, the Companies
will pay the Associated Costs. Any Bank requesting reimbursement under this
SECTION 5.3(c) shall give the Companies written notice, including a detailed
calculation, within 30 days of having notice of the incurrence of any Associated
Costs.
5.4 FUNDING LOSSES. The Companies shall reimburse each Bank and hold each
Bank harmless from any loss or expense which such Bank may sustain or incur as a
consequence of:
(a) the failure of any Company to make on a timely basis any payment of
principal of any Offshore Rate Loan;
(b) the failure of any Company to borrow, continue or convert a Loan after
such Company has given (or is deemed to have given) an Irrevocable Notice of
Syndicated Activity;
(c) the failure of any Company to make any prepayment in accordance with
any notice delivered under SECTION 2.9 or 2.11;
(d) the prepayment (including pursuant to SECTION 2.9 or 2.11) or other
payment (including after acceleration thereof) of an Offshore Rate Loan on a day
that is not the last day of the relevant Interest Period; or
(e) the automatic conversion under SECTION 2.4 of any Offshore Rate Loan
to a Base Rate Loan on a day that is not the last day of the relevant Interest
Period; including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Offshore Rate Loans or from
fees payable to terminate the deposits from which such funds were obtained or
loan charges relating to any Offshore Currency Loans. For purposes of
calculating amounts payable by the Companies to the Banks under this Section and
under SECTION 5.3(a), each Offshore Rate Loan made by a Bank (and each related
reserve, special deposit or similar requirement) shall be conclusively deemed to
have been funded at the IBOR used in determining the Offshore Rate for such
Offshore Rate Loan by a matching deposit or other borrowing in the interbank
eurocurrency market for a comparable amount and for a comparable period, whether
or not such Offshore Rate Loan is in fact so funded.
5.5 INABILITY TO DETERMINE RATES. If the Agent determines that for any
reason adequate and reasonable means do not exist for determining the Offshore
Rate or the Spot Rate for any requested Interest Period with respect to a
proposed Offshore Rate Loan, or the Required Banks
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determine that the Offshore Rate or the Spot Rate applicable pursuant to
SECTION 2.13(a) for any requested Interest Period with respect to a proposed
Offshore Rate Loan does not adequately and fairly reflect the cost to the
Banks of funding such Loan, the Agent will promptly so notify the Companies
and each Bank. Thereafter, the obligation of the Banks to make or convert
into or continue Offshore Rate Loans (including Offshore Rate Loans in any
Applicable Currency) hereunder shall be suspended until the Agent upon the
instruction of the Required Banks revokes such notice in writing. Upon
receipt of such notice, each Company may revoke any Irrevocable Notice of
Syndicated Activity then submitted by it. If such Company does not revoke
such Notice with respect to a Syndicated Loan in Dollars, the Banks shall
make, convert or continue the Syndicated Loans, as proposed by such Company,
in the amount specified in the applicable notice submitted by such Company,
but such Syndicated Loans shall be made, converted into or continued as Base
Rate Loans instead of Offshore Rate Loans. In the case of any Offshore
Currency Loans, the Syndicated Borrowing or continuation shall be in an
aggregate amount equal to the Dollar Equivalent Amount of the originally
requested Syndicated Borrowing or continuation in the applicable Offshore
Currency, and to that end any outstanding Offshore Currency Loans which are
the subject of any continuation shall be redenominated and converted into
Base Rate Loans in Dollars with effect from the last day of the Interest
Period with respect to any such Offshore Currency Loans.
5.6 REPLACEMENT BANKS. The Companies may, in their sole discretion, on 10
Business Days' prior written notice to the Agent and a Bank (except in the case
of the replacement of a Bank after notice from such Bank to the Companies
pursuant to SECTION 5.3, in which case no prior notice from the Companies is
required), cause a Bank who has incurred increased costs or is unable to make
Offshore Rate Loans to (and such Bank shall) assign, pursuant to SECTION 12.8,
all of its rights and obligations under this Agreement (other than with respect
to outstanding Bid Loans) to an Eligible Assignee designated by the Companies
which is willing to become a Bank for a purchase price equal to the outstanding
principal amount of the Syndicated Loans payable to such Bank plus any accrued
but unpaid interest on such Loans, any accrued but unpaid fees with respect to
such Bank's Commitment and any other amount payable to such Bank under this
Agreement (other than with respect to outstanding Bid Loans); provided, that any
expenses or other amounts which would be owing to such Bank pursuant to any
indemnification provision hereof (including, if applicable, SECTION 5.4) shall
be payable by the Companies as if the Companies had prepaid the Loans of such
Bank rather than such Bank having assigned its interest hereunder. The
Companies or the Assignee shall pay the applicable processing fee under SECTION
12.8.
5.7 MITIGATION. Each Bank agrees that, with reasonable promptness after
the officer of such Bank responsible for administering the Loans of such Bank
becomes aware that such Bank has become an affected Bank under SECTION 5.2, is
entitled to receive payments under SECTION 5.3, or is or has become subject to
U.S. or United Kingdom withholding taxes payable by any Company in respect of
its Loans, it will, to the extent not inconsistent with any internal policy of
such Bank or any applicable legal or regulatory restriction, (i) use all
reasonable efforts to make, fund or maintain the Commitment of such Bank or the
Loans of such Bank through another lending office of such Bank, or (ii) take
such other reasonable measures, if, as a result thereof,
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the circumstances which would cause such Bank to be an affected Bank under
SECTION 5.2 would cease to exist, or the additional amounts which would
otherwise be required to be paid to such Bank pursuant to SECTION 5.3 would
be reduced, or such withholding taxes would be reduced, and if the making,
funding or maintaining of such Commitment or Loans through such other lending
office or in accordance with such other measures, as the case may be, would
not otherwise adversely affect such Commitment or Loans or the interests of
such Bank; PROVIDED that such Bank will not be obligated to utilize such
other lending office pursuant to this SECTION 5.7 unless the Companies agree
to pay all incremental expenses incurred by such Bank as a result of
utilizing such other lending office as described in clause (i) above. A
certificate as to the amount of any such expenses (setting forth in
reasonable detail the basis for requesting such amount and the calculation
thereof) submitted by such Bank to the Companies (with a copy to the Agent)
shall be PRIMA FACIE evidence of such expenses.
5.8 SURVIVAL. The agreements and obligations of the Companies in this
ARTICLE V shall survive the payment of all other Obligations.
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ARTICLE VI
CONDITIONS PRECEDENT
6.1 CONDITIONS TO EXECUTION OF AGREEMENT. (a) As a condition precedent to
the execution and delivery by the Agent and the Banks of this Agreement and the
other Loan Documents to which they are a party and to the making of Syndicated
Loans and issuing the Interim Note Guarantee, the Agent shall have received on
the Closing Date, in form and substance satisfactory to the Agent and the Banks,
the following:
(i) executed originals of each of this Agreement, Guaranties,
Pledge Agreements and the Notes, together with all schedules and
exhibits thereto and documents deliverable thereunder;
(ii) the favorable written opinion or opinions with respect to
the Loan Documents and the transactions contemplated thereby of
special counsel to the Companies and Guarantors dated the Closing
Date, addressed to the Agent and the Banks and reasonably satisfactory
to the Agent and the Banks;
(iii) resolutions of the boards of directors or other
appropriate governing body (or of the appropriate committee thereof)
of each Company and Guarantor certified by its secretary or assistant
secretary or other appropriate representative of such Company and
Guarantor as of the Closing Date, approving and adopting the Loan
Documents and Interim Note Instruments to be executed by such Person,
and authorizing the execution and delivery and performance thereof;
(iv) specimen signatures of officers or other appropriate
representatives of each Company and Guarantor executing the Loan
Documents and Interim Note Instruments on behalf of such Company and
Guarantor, which signature, and the office and incumbency of such
person, shall be certified by the appropriate representative of such
Company or Guarantor, as the case may be;
(v) the charter documents and bylaws or deed of incorporation
and articles of association or other organizational document of each
Company and Guarantor certified by the appropriate representative of
such Company;
(vi) Pro Forma Historical Statements;
(vii) Pro Forma Projections;
(viii) evidence satisfactory to the Agent that all fees
payable by the Companies on the Closing Date to the Agent, the
Arranger, NationsBank and the Banks have been paid in full;
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(ix) evidence that prior to or contemporaneously with the
initial Borrowing or Issuance hereunder all obligations of the
Borrower and its Subsidiaries under or in connection with the Existing
Credit Agreement shall have been paid in full or satisfied and the
Existing Credit Agreement shall have been terminated except as to any
provisions thereof which survive such termination;
(x) evidence satisfactory to the agent of the acceptance by
the holders of not less than 90% of the voting securities of Michael
Page of the offer by Interim (Europe) to purchase such securities;
(xi) closing statement containing a detailed disbursement of
proceeds of the Loans in accordance with SECTION 2.10; and
(xii) such other documents, instruments, certificates and
opinions as the Agent or the Banks may reasonably request on or prior
to the Closing Date in connection with the Acquisition.
(b) There shall not have occurred or become known to the Agent or any of
the Banks any event, condition, litigation, action, suit, investigation or other
arbitral, administrative or judicial proceeding or other situation or status
since the date of the information contained in the financial and business
projections, budgets, pro forma data and forecasts concerning the Borrower and
its Subsidiaries, or of Michael Page, delivered to the Agent prior to the
Effective Date that (x) has had or could reasonably be expected to result in a
Material Adverse Effect or materially adversely affect the business, properties,
operations or condition, financial or otherwise, of the Borrower and its
Subsidiaries or Michael Page and Subsidiaries , taken as a whole or (y) does or
could reasonably be expected to restrain or enjoin or otherwise materially and
adversely affect the ability of any Person to fulfill their respective
obligations with respect to the Acquisition of Michael Page; and
(c) Each Company and its Subsidiaries shall have received all approvals,
consents and waivers (including the expiration of early termination of any
waiting period without notice of intent to challenge or request for further
information by any Governmental Authority), and shall have made or given all
necessary filings and notices, as shall be required to consummate the
transactions contemplated hereby except for such approvals, consents, waivers,
filings and notices as to which the failure to receive, make or give will not
have a Material Adverse Effect or materially adversely affect the business,
properties, operations or condition, financial or otherwise, of the acquired
business of Michael Page, taken as a whole.
6.2 CONDITION OF EXTENSION OF CREDIT TO BORROWING SUBSIDIARY. The
obligation of each Bank to make any Credit Extension to a Borrowing Subsidiary
is subject to the condition that such Borrowing Subsidiary has furnished to the
Agent the following items.
(i) Copies of the articles of incorporation or similar organizational
documents of such Borrowing Subsidiary, together with all amendments, and a
certificate of good
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standing (if available), both certified by the appropriate governmental
officer in its jurisdiction of incorporation.
(ii) Copies, certified by an appropriate officer or director of such
Borrowing Subsidiary, of its by-laws or similar organizational documents
and of its Board of Directors' resolutions (and resolutions of other
bodies, if any are deemed necessary by counsel for any Bank) authorizing
the execution of the Loan Documents to which such Borrowing Subsidiary is a
party.
(iii) An incumbency certificate, executed by an appropriate
officer or director of such Borrowing Subsidiary, which shall identify by
name and title and bear the signature of the officers or directors of such
Borrowing Subsidiary authorized to sign the Loan Documents and to request
Loans hereunder, upon which certificate the Administrative Agent and the
Lenders shall be entitled to rely until informed of any change in writing
by such Borrowing Subsidiary.
(iv) A written opinion of counsel to such Borrowing Subsidiary,
addressed to the Banks in form and substance satisfactory to the Agent.
(v) Notes issued by such Borrowing Subsidiary to the order of each
of the Banks.
(vi) Such other documents as the Agent or its counsel may have
reasonably requested.
6.3 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Bank and
each Designated Bidder to make any Loan to be made by it (including its initial
Loan) other than, so long as no Event of Default shall have occurred and be
continuing, the continuation or conversion of any Loan previously made (which
shall remain subject to the limitations contained in ARTICLE II), and the
obligation of the Issuing Bank to Issue any Letter of Credit (including the
initial Letter of Credit), other than, so long as no Event of Default shall have
occurred and be continuing, the renewals of existing Letters of Credit, is
subject to the satisfaction of the following conditions precedent on the
relevant Borrowing Date or Issuance Date:
(a) IRREVOCABLE NOTICE OF SYNDICATED ACTIVITY, L/C APPLICATION. For
each Syndicated Loan, the Agent shall have received (with, in the case of
the initial Syndicated Loan only, a copy for each Bank) an Irrevocable
Notice of Syndicated Activity and, in the case of any Issuance of any
Letter of Credit, the Issuing Bank and the Agent shall have received an L/C
Application or L/C Amendment Application;
(b) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties in ARTICLE VII and in the other Loan
Documents shall be true and correct on and as of such Borrowing Date or
Issuance Date with the same effect as if made on and as of such Borrowing
Date or Issuance Date (except (i) to the extent such representations and
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warranties expressly refer to an earlier date, in which case they shall be
true and correct as of such earlier date, (ii) that references to financial
statements described in SECTION 7.10(a) shall be to the financial
statements most recently furnished pursuant to SECTION 8.1(a) or (b), and
(iii) that the reference to December 27, 1996 in SECTION 7.10(c) shall
refer to the date of the financial statements most recently furnished
pursuant to SECTION 8.1(a) OR (b)); and
(c) NO EXISTING DEFAULT. No Default or Event of Default shall exist
or shall result from such Borrowing or Issuance.
Each Irrevocable Notice of Syndicated Activity and L/C Application or L/C
Amendment Application submitted by any Company hereunder shall constitute a
representation and warranty by each Company hereunder, as of the date of each
such notice and as of each Borrowing Date, or Issuance Date, as applicable, that
the conditions in this SECTION 6.3 are satisfied. Nothing contained in this
SECTION 6.3 shall limit the obligation of the Banks to make an L/C Advance and
Interim Note Advance pursuant to SECTION 3.3 and SECTION 4.2, respectively.
6.4 SUPPLEMENTS TO SCHEDULES. The Companies may, from time to time but in
no event less than five (5) Business Days prior to delivery of any Irrevocable
Notice of Syndicated Activity hereunder, amend or supplement SCHEDULES 7.5,
7.10, 7.12 AND 7.13 to this Agreement by delivering (effective upon receipt) to
the Agent and each Bank a copy of such revised Schedule or Schedules which shall
(i) be dated the date of delivery, (ii) be certified by a Responsible Officer as
true, complete and correct as of such date and as delivered in replacement for
the corresponding Schedule or Schedules previously in effect, and (iii) show in
reasonable detail (by blacklining or other appropriate graphic means) the
changes from each such corresponding predecessor Schedule. Notwithstanding
anything to the contrary contained herein or in any of the other Loan Documents,
in the event that the Required Banks determine based upon such revised Schedules
(whether individually or in the aggregate or cumulatively) that there has been a
change which could have a Material Adverse Effect since the Closing Date, or
such later date as the Companies shall have most recently furnished supplements
to Schedules under this SECTION 6.4 or financial statements under SECTION 8.1(a)
OR (b), in the business, operations or affairs, financial or otherwise, of the
Borrower and its Subsidiaries, taken as a whole, the Banks shall have no further
obligation to fund Credit Extensions or continue or convert of any Loan
previously made or renew or extend existing Letters of Credit.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Each Company represents and warrants to the Agent and each Bank that:
7.1 EXISTENCE AND POWER. Such Company and each of its Subsidiaries:
(a) is a corporation, partnership or limited liability company duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation;
(b) has the power and authority and governmental licenses,
authorizations, consents and approvals to own its assets, carry on its
business and to execute, deliver, and perform its obligations under the
Loan Documents;
(c) is duly qualified and is licensed and in good standing under the
laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification or
license, except to the extent failure to so qualify would not have a
Material Adverse Effect; and
(d) is in compliance with all Requirements of Law, except to the
extent the failure to so comply would not have a Material Adverse Effect.
7.2 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by such Company and its Subsidiaries of this Agreement and each
other Loan Document to which such Person is party have been duly authorized by
all necessary action and do not and will not:
(a) contravene the terms of any of that Person's Organization
Documents;
(b) conflict with or result in a material breach or contravention of,
or the creation of any Lien under, any document evidencing any material
Contractual Obligation to which such Person is a party or any order,
injunction, writ or decree of any Governmental Authority to which such
Person or its property is subject; or
(c) violate any Requirement of Law.
7.3 GOVERNMENTAL AUTHORIZATION. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, such Company
or any of its Subsidiaries of the Agreement or any other Loan Document.
7.4 BINDING EFFECT. This Agreement and each other Loan Document to
which such Company or any of its Subsidiaries is a party constitute the
legal, valid and binding obligations
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of such Company and any of its Subsidiaries to the extent it is a party
thereto, enforceable against such Person in accordance with their respective
terms (except as enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability).
7.5 LITIGATION: LABOR CONTROVERSIES. There are no actions, suits,
labor controversies, proceedings, claims or disputes pending, or to the best
knowledge of such Company, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against such Company, or
its Subsidiaries or any of their respective properties which:
(a) purport to affect or pertain to this Agreement or any other Loan
Document, or any of the transactions contemplated hereby or thereby; or
(b) if determined adversely to such Company or its Subsidiaries,
would reasonably be expected to have a Material Adverse Effect, except as
set forth in SCHEDULE 7.5.
No injunction, writ, temporary restraining order or order of any nature has
been issued by any court or other Governmental Authority purporting to enjoin
or restrain the execution, delivery or performance of this Agreement or any
other Loan Document, or directing that the transactions provided for herein
or therein not be consummated as herein or therein provided.
7.6 NO DEFAULT. No Default or Event of Default exists or would result
from the incurring of any Obligations by such Company. As of the Closing
Date, neither such Company nor any of its Subsidiaries is in default under or
with respect to any Contractual Obligation in any respect which, individually
or together with all such defaults, could reasonably be expected to have a
Material Adverse Effect, or that would, if such default had occurred after
the Closing Date, create a Default or an Event of Default under SECTION 10.1(e).
7.7 USE OF PROCEEDS; MARGIN REGULATIONS. The Credit Extensions are to
be used solely for the repayment of the Existing Notes in full, the
acquisition of shares of Michael Page and the costs associated with such
Acquisition and for general corporate purposes. The shares of Michael Page
do not constitute Margin Stock. Neither such Company nor any of its
Subsidiaries is generally engaged in the business of purchasing or selling
Margin Stock or extending credit for the purpose of purchasing or carrying
Margin Stock. Less than 25% of the Property of the Companies and their
Subsidiaries consists of Margin Stock.
7.8 TITLE TO PROPERTIES. Such Company and each of its Subsidiaries
have good record and marketable title in fee simple to, or valid leasehold
interests in, all real property necessary or used in the ordinary conduct of
their respective businesses, except for such defects in title as could not,
individually or in the aggregate, have a Material Adverse Effect. As of the
Closing Date, the property of such Company and its Subsidiaries is subject to
no Liens, other than Liens permitted under SECTION 9.2.
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7.9 TAXES. Such Company and its Subsidiaries have filed all Federal
and other material tax returns and reports required to be filed, and have
paid all Federal and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income
or assets otherwise due and payable, except those which are being contested
in good faith by appropriate proceedings and for which adequate reserves have
been provided in accordance with GAAP. To the best of each Company's
knowledge, there is no proposed tax assessment against such Company or any of
its Subsidiaries that would, if made, have a Material Adverse Effect.
7.10 FINANCIAL CONDITION.
(a) The audited consolidated financial statements of the Borrower and
its Subsidiaries dated December 29, 1995 and December 27, 1996, and the
related consolidated statements of income or operations, shareholders'
equity and cash flows for the fiscal periods ended on such dates:
(i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly
noted therein;
(ii) present fairly the financial condition of the Borrower and
its Subsidiaries as of the dates thereof and results of operations for
the periods covered thereby; and
(iii) except as specifically disclosed in SCHEDULE 7.10, show
all material indebtedness and other liabilities, direct or contingent,
of the Borrower and its Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and Contingent
Obligations, which are required to be disclosed in accordance with
GAAP.
(b) Since December 27, 1996, there has been no Material Adverse
Effect.
(c) To the best knowledge of the Borrower, after due inquiry, the
audited consolidated financial statements of the Michael Page and its
Subsidiaries dated December 31, 1995 and December 31, 1996, and the related
consolidated statements of income or operations, shareholders' equity and
cash flows for the fiscal periods ended on such dates:
(i) were prepared in accordance with GAAP, as applied in the
United Kingdom, consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein;
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(ii) present fairly the financial condition of Michael Page and
its Subsidiaries as of the dates thereof and results of operations for
the periods covered thereby; and
(iii) except as specifically disclosed in SCHEDULE 7.10, show
all material indebtedness and other liabilities, direct or contingent,
of Michael Page and its Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and Contingent
Obligations, which are required to be disclosed in accordance with
GAAP, as applied in the United Kingdom.
(d) The Pro Forma Historical Statements provided to the Agent and the
Banks fairly present the historical pro forma financial condition and
results of operations of the Borrower and its Subsidiaries and, to the best
of its knowledge, Michael Page and its Subsidiaries for the respective
periods covered thereby, giving effect to the acquisition of the Acquired
Business.
(e) The Pro Forma Projections provided to the Agent and the Banks
were prepared by the Borrower in good faith and are based upon assumptions
which the Borrower believed, to the best of its knowledge, to have been
reasonable in all material respects as of the time of preparation thereof
and as of the Closing Date.
7.11 SUPPORT DOCUMENTS.
(a) The provisions of each of the Support Documents (and the actions
contemplated to be taken thereunder) are effective to create in favor of
the Agent for the benefit of the Banks, a legal, valid and enforceable (i)
guaranty of the obligations described therein except as limited by
bankruptcy, insolvency and similar laws affecting the enforcement of
creditors' rights generally and equitable principles of general application
and (ii) duly perfected pledge of all ownership interest (other than
directors' qualifying shares) in the Subsidiaries described in SCHEDULE II.
(b) All representations and warranties of such Company's Subsidiaries
contained in the Support Documents are true and correct in all material
respects.
7.12 COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC. Except as set forth
on SCHEDULE 7.12, such Company and its Subsidiaries own or are licensed or
otherwise have the right to use all of the patents, trademarks, service marks,
trade names, copyrights, contractual franchises, authorizations and other rights
that are reasonably necessary for the operation of their respective businesses,
without material conflict with the rights of any other Person. To the best
knowledge of such Company, except as set forth in SCHEDULE 7.12, no slogan or
other advertising device, product, process, method, substance, part or other
material now employed by such Company or any of its Subsidiaries infringes in
any material respect upon any rights held by any other Person. Except as set
forth in SCHEDULE 7.12, no claim or litigation regarding any of the foregoing is
pending or known to be threatened, and no patent, invention, device,
application, principle,
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statute, law, rule, regulation, standard or code is pending or, to the
knowledge of such Company, proposed, which, in either case, could reasonably
be expected to have a Material Adverse Effect.
7.13 SUBSIDIARIES. As of the Closing Date, such Company has no
Subsidiaries other than those specifically disclosed (and identified as being
Subsidiaries of such Company) in part (a) of SCHEDULE 7.13 and has no equity
investments in any other corporation or entity other than those specifically
disclosed in Part (b) of SCHEDULE 7.13 and each Subsidiary (other than a Foreign
Subsidiary) is a party to the Guaranty Agreement and is listed as a "Guarantor"
in SECTION 1.1 hereof.
7.14 INSURANCE. The Properties of such Company and its Subsidiaries are
insured with financially sound and reputable insurance companies not
Affiliates, other than Spectrum, of any Company, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities
where such Company or such Subsidiary operates; provided, however, the
Borrower and its Subsidiaries may maintain self insurance as to risks of the
types and in the amounts (and with such reserves) as are customarily
maintained by Persons conducting similar businesses in the same localities.
7.15 ERISA COMPLIANCE.
(a) All pension plans governed by laws other than the laws of the
United States have been funded in amounts at least equal to the present
value of the probable liabilities of the Companies and their Subsidiaries
thereunder.
(b) Except as set forth in SCHEDULE 7.15, each Plan is in compliance
in all material respects with the applicable provisions of ERISA, the Code
and other federal or state law. Each Plan which is intended to qualify
under SECTION 401(a) of the Code has received a favorable determination
letter from the IRS and to the best knowledge of the Companies, nothing has
occurred which would cause the loss of such qualification. The Borrower
and each ERISA Affiliate has made all required contributions to any Plan
subject to SECTION 412 of the Code, and no application for a funding waiver
or an extension of any amortization period pursuant to SECTION 412 of the
Code has been made with respect to any Plan.
(c) There are no pending or, to the best knowledge of the Companies,
threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan which has resulted or could reasonably
be expected to result in a Material Adverse Effect. There has been no
prohibited transaction or violation of the fiduciary responsibility rules
with respect to any Plan which has resulted or could reasonably be expected
to result in a Material Adverse Effect.
(d) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii)
neither The Borrower nor
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any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA)
(iv) neither the Borrower nor any ERISA Affiliate has incurred,or
reasonably expects to incur, any liability (and no event has occurred
which, with the giving of notice under Section 4219 of ERISA, would result
in such liability) under Section 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) neither the Borrower nor any ERISA Affiliate
has engaged in a transaction that could be subject to Section 4069 or
4212(c) of ERISA.
7.16 ENVIRONMENTAL MATTERS. Environmental Laws and Environmental Claims
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
7.17 REGULATED ENTITIES. None of such Company, any Person controlling
such Company, or any Subsidiary, is an "Investment Company" within the
meaning of the Investment Company Act of 1940. Such Company is not subject
to regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, the Interstate Commerce Act, any state public utilities
code, or any other Federal, state or foreign statute or regulation limiting
its ability to incur Indebtedness.
7.18 NO BURDENSOME RESTRICTIONS. Neither such Company nor any of its
Subsidiaries is a party to or bound by any Contractual Obligation, or subject to
any restriction in any Organization Document, or any Requirement of Law, which
could reasonably be expected to have a Material Adverse Effect.
7.19 FULL DISCLOSURE. Neither this Agreement nor any other Loan Document
or certificate or document executed and delivered by or on behalf of any Company
or any Subsidiary in accordance with SECTION 6.1 (other than SECTION 6.1(vi) and
(vii)) or SECTION 6.2 contains any misrepresentation or untrue statement of
material fact or omits to state a material fact necessary, in light of the
circumstance under which it was made, in order to make any such representation
or statement contained therein not misleading in any material respect.
7.20 IMMUNITY. The Companies and the Guarantors are generally subject to
suit and none of them nor any of their properties or revenues enjoys any right
of immunity from judicial proceedings.
7.21 CERTAIN AGREEMENTS PAID IN FULL. From and after the Effective Date,
all liabilities under the Existing Credit Agreement will have been paid in full
and such agreement will have been terminated except as to any provision thereof
which survives such termination.
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ARTICLE VIII
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Banks waive compliance in
writing:
8.1 FINANCIAL INFORMATION, REPORTS, NOTICES, ETC. The Companies will
furnish, or will cause to be furnished, to the Agent copies, with sufficient
copies for the Banks, of the following financial statements, reports, notices
and information:
(a) as soon as available and in any event within 60 days after the
end of each of the first three fiscal quarters of each fiscal year of the
Borrower, (x) the consolidated balance sheet of the Borrower and its
Subsidiaries, as of the end of such fiscal quarter and (x) related
consolidated statements of profits and losses and cash flows of the
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, such balance sheets and statements of profit and
losses and cash flow to be prepared in accordance with GAAP in a manner
consistent with past practices of the Borrower, certified by the chief
financial officer, treasurer or the secretary-controller of the Borrower;
(b) as soon as available and in any event within 110 days after the
end of each fiscal year of the Borrower, a copy of the annual audit report
for such fiscal year for the Borrower and its Subsidiaries, including
therein the consolidated balance sheet of the Borrower and its Subsidiaries
as of the end of such fiscal year and consolidated statements of profits
and losses and cash flow of the Borrower and its Subsidiaries for such
fiscal year, certified without any Impermissible Qualification by Deloitte
& Touche LLP or other internationally recognized independent public
accountants, together with a certificate from such accountants to the
effect that (i) the consolidated financial statements have been prepared in
accordance with GAAP consistently applied and present fairly the financial
condition and results of operations of the Borrower and its Subsidiaries
and (ii) in making the examination necessary for the signing of such annual
report by such accountants, they have not become aware of any Default or
Event of Default that has occurred and is continuing, or, if they have
become aware of such Default or Event of Default, describing such Default
or Event of Default and the steps, if any, being taken to cure it;
(c) together with the financial statements furnished under preceding
clauses (a) and (b), a certificate substantially in the form of EXHIBIT B,
as the same may be amended, modified or supplemented from time to time (the
"Compliance Certificate"), signed by the treasurer, the chief financial
officer, the secretary-controller or the chief executive officer of the
Borrower dated the date of such annual or such quarterly financial
statement, as the case may be, to the effect that no Default or Event of
Default has occurred and is continuing, or, if there is any such event,
describing it and the steps, if any, being taken
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to cure it, and containing a computation of each of the financial ratios
and restrictions contained in ARTICLE IX;
(d) promptly and in any event within 30 days after receiving such
reports, copies of all management reports submitted to a Company by its
independent public accountants in connection with each audit made by such
accountants of the books of a Company or any Subsidiary;
(e) as soon as possible and in any event within five Business Days of
any material change in its customary accounting practices, notice thereof
and copies of all documentation relating thereto;
(f) as soon as such Company has become aware of the occurrence of
each Default or Event of Default, a statement of a Responsible Officer of
such Company setting forth details of such Default or Event of Default and
the action which such Company has taken and proposes to take with respect
thereto;
(g) as soon as (x) such Company has become aware of the occurrence of
any known material adverse development with respect to any litigation,
action, proceeding or labor controversy described in SECTION 7.5 or (y) the
commencement of any known labor controversy, litigation, action or
proceeding of the type described in SECTION 7.5, notice thereof and copies
of all documentation relating thereto;
(h) as soon as possible and in any event within 10 days after the
sending or filing thereof, copies of all reports which the Borrower sends
to any of its security holders, and all reports and registration statements
which any Company or any of its Subsidiaries files with the Securities and
Exchange Commission or any national (including any foreign) securities
exchange;
(i) not later than 45 days after each fiscal year end an annual
budget for the current fiscal year for the Borrower and its Subsidiaries,
on a consolidated basis, with respect to such fiscal year;
(j) immediately upon becoming aware of the occurrence of any of the
following events affecting the Borrower or any ERISA Affiliate, notice with
respect to the occurrence of any of the following:
(i) an ERISA Event;
(ii) a material increase in the Unfunded Pension Liability of any
Pension Plan;
(iii) the adoption of, or the commencement of contributions
to, any Plan subject to Section 412 of the Code by such Company or
any ERISA Affiliate; or
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(iv) the adoption of any amendment to a Plan subject to Section
412 of the Code, if such amendment results in a material increase in
contributions or Unfunded Pension Liability;
(k) immediately upon becoming aware of any other event or
circumstance (but in no event more than 10 Business Days after such event
or circumstance) which has had or is reasonably likely to have a Material
Adverse Effect, notice thereof and copies of all documentation relating
thereto;
(l) within 10 Business Days after the confirmed loss of any contracts
with a vendor the sales under which contracts aggregate at least 10% of the
revenues of the Borrower and its Subsidiaries on a consolidated basis for
the most recent four fiscal quarter period, notice thereof;
(m) promptly after the issuance of any guaranty in excess of
$10,000,000 for the benefit of any Person, notice thereof and copies of all
documentation relating thereto;
(n) such other information respecting the financial condition or
operations of each Company or any of its Subsidiaries as any Bank through
the Agent may from time to time reasonably request.
8.2 COMPLIANCE WITH LAWS, ETC. Each Company will, and will cause each of
its Subsidiaries to, comply in all material respects with applicable laws,
rules, regulations and orders, such compliance to include (without limitation):
(a) the maintenance and preservation of its corporate existence and
qualification as a foreign corporation where such qualification is
appropriate and, as to qualification only, where the failure to be so
qualified would have or be reasonably likely to have a Material Adverse
Effect on such Person (for purposes of this SECTION 8.2(a), in the
definition of "Material Adverse Effect" all references to any Company or
any Subsidiary shall be deemed to refer solely to such Person); and
(b) the payment, before the same become delinquent, of all material
taxes, assessments and governmental charges imposed upon it or upon its
property the failure to pay or satisfy which could reasonably be expected
to have a Material Adverse Effect, except to the extent 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.
8.3 MAINTENANCE OF PROPERTIES. Each Company will, and will cause each of
its Subsidiaries to, maintain, preserve, protect and keep its properties in good
repair, working order and condition, and make necessary and required repairs,
renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all times unless such Company determines
in good faith that the continued maintenance of any of its properties is no
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longer economically desirable, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
8.4 INSURANCE. Each Company will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained with responsible
insurance companies insurance with respect to its material properties and
business (including business interruption insurance) against such casualties
and contingencies and of such types and in such amounts as is customary in
the case of similar businesses and will, upon request of the Agent or any
Bank, furnish to each Bank at reasonable intervals a certificate of a
Responsible Officer of such Company setting forth the nature and extent of
all insurance maintained by such Company and its Subsidiaries in accordance
with this Section.
8.5 BOOKS AND RECORDS. Each Company will, and will cause each of its
Subsidiaries to, keep books and records which accurately reflect all of its
business affairs and transactions, and permit the Agent and each Bank or any
of their respective representatives to visit all of its offices during normal
business hours, to discuss its and its Subsidiaries' financial matters with
its officers and independent public accountants (and each Company hereby
authorizes such independent public accountants to discuss such Company's and
its Subsidiaries' financial matters with each Bank or its representatives
whether or not any representative of such Company is present) and to examine
(and photocopy extracts from) any of its books or other corporate records.
Each Company shall pay any photocopy charges (or such Company shall provide
photocopies) and any fees of such independent public accountants incurred in
connection with the Agent's or any Bank's exercise of its rights pursuant to
this Section.
8.6 MAINTENANCE OF EXISTENCE, ETC. Subject to the provisions of
SECTION 9.7, each Company will, and will cause each of its Subsidiaries to,
conduct its business as it is conducted as of the Closing Date subject to
changes in the ordinary course and do such things as are reasonably necessary
to maintain, preserve, renew and keep in full force and effect its rights,
privileges, licenses, patents, patent rights, copyrights, trademarks, trade
names, franchises and other authority to the extent material and necessary
for the conduct of its respective business in the ordinary course as
conducted from time to time.
8.7 ADDITIONAL SUPPORT DOCUMENTS. (a) The Borrower will, and will
cause each Subsidiary that is an Active Subsidiary and not a Foreign
Subsidiary, whether on the Effective Date or thereafter to execute and
deliver (i) as promptly as practical but in any event within 45 days after
(A) the creation or Acquisition of any such Subsidiary or (B) such Subsidiary
ceasing to be an Inactive Subsidiary, a Guaranty, and (ii) each Person owning
any equity interest in such Subsidiary to execute and deliver within the time
period specified in clause (i) above a Pledge Agreement (or supplement to an
existing Pledge Agreement of such Person) pledging such equity interest,
together with such resolutions, stock certificates, opinions of counsel,
incumbency certificates and other documentation as the Agent may reasonably
require.
(b) The Borrower will, and will cause each Subsidiary other than
Spectrum, to take such actions as are necessary or as the Agent may from time
to time request to ensure that the Obligations are secured by a perfected
Lien on 65% of each class of the capital stock of each
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Foreign Subsidiary it being understood that within 45 days of the creation or
Acquisition of any Foreign Subsidiary or any Inactive Subsidiary which is a
Foreign Subsidiary becoming an Active Subsidiary, and to execute and deliver
a Pledge Agreement (in such form and substance satisfactory to the Agent)
pledging such stock together with such resolutions, stock certificates,
opinions of counsel, incumbency certificates and other documentation as the
Agent may reasonably require.
(c) The Borrower shall deliver to the Agent and the Lenders a revised
SCHEDULE 7.13 showing the addition of such Subsidiaries, and such revised
Schedule shall replace the existing Schedule and shall be deemed to have become
a part of this Agreement.
(d) The Borrower shall cause to be delivered to the Agent such other
documents as may be reasonably requested by the Agent from time to time with
respect to the Support Documents, including without limitation such documents as
may be necessary to continue the liens in property pledged in favor of the Agent
in connection with the transactions contemplated hereby.
8.8 COMPLIANCE WITH ERISA. Each Company will, and will cause each of
its ERISA Affiliates to: (a) maintain each Plan in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
federal or state law; (b) cause each Plan which is qualified under Section
401(a) of the Code to maintain such qualification; and (c) make all required
contributions to any Plan subject to Section 412 of the Code, if the failure
to do any or all of the foregoing could reasonably be expected to have a
Material Adverse Effect.
8.9 RELEASE OF PLEDGE OR GUARANTY. In connection with any merger or
consolidation transaction permitted under SECTION 9.6 and in which
transaction any Person whose equity interests have been pledged to the Agent
pursuant to any Support Document shall not be the survivor thereof, upon the
written request to the Agent by, and at the expense of, the Companies, the
Agent shall take such action as shall be necessary, without impairing any
remaining rights under the Loan Documents, to release such equity interests
from such pledge under the applicable Support Documents; provided, however,
that substantially simultaneously with such release the Agent shall receive
such Support Documents and related share certificates, evidences of
registration of lien, opinions and other items as the Agent may reasonably
require conferring upon the Agent (or providing assurances as to) a perfected
lien (of substantially equivalent or higher priority as the released lien) in
the equity interests (other than directors' qualifying shares) of such
resulting or surviving entity. In the event of any merger or consolidation
permitted under SECTION 9.6 or sale of all ownership interest in any
Subsidiary which is permitted hereunder, the Agent shall be entitled to
release the Guaranty of such Guarantor without the consent of the Lenders.
8.10 SWAP CONTRACTS. Not later than 90 days following the Closing Date,
cause outstanding Indebtedness for money borrowed (i) which bears interest at
a fixed rate or (ii) which is subject to a Swap Contract or other similar
arrangement, containing terms acceptable to the Agent, providing protection
from material fluctuations in interest rates, to equal not less than 30% of
outstanding Indebtedness for money borrowed. The Borrower shall have a
period of 90 days
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following the incurrence of additional Indebtedness for money borrowed
subsequent to the Closing Date to cause floating rate Indebtedness to become
fixed if required hereunder.
8.11 ACQUISITION OF MINORITY INTEREST. Interim (UK) shall commence as soon
as possible and comply with the procedures set out in Sections 428-30F of the
English Companies Act 1985 so as to acquire those shares in Michael Page which
it does not beneficially own at the date of this Agreement.
8.12 RE-REGISTRATION OF MICHAEL PAGE. Interim (UK) shall use all
reasonable efforts to cause Michael Page to re-register as soon as possible at
the Companies Registry of England and Wales as a private company and shall
promptly upon receipt by it provide the Agent with a copy of a certificate of
re-registration as a private company in respect of Michael Page.
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ARTICLE IX
NEGATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Banks waive compliance in writing:
9.1 BUSINESS ACTIVITIES. Each Company will not, and will not permit any
of its Subsidiaries to, engage in any business activity, except the fields of
enterprise presently being conducted subject to changes in the ordinary course,
and such activities as may be incidental or related thereto.
9.2 LIENS.
(a) NEGATIVE PLEDGE. Each Company will not, and will not permit any
Subsidiary to, cause or permit, or agree or consent to cause or permit in
the future (upon the happening of a contingency or otherwise), any of their
respective Property whether now owned or hereafter acquired, to be subject
to a Lien except the following (none of which (except as expressly
permitted under the Pledge Agreements) shall be permitted to exist in
respect of any collateral pledged to the Agent under any of the Loan
Documents):
(i) Liens for taxes, assessments or governmental charges or
levies on its Property if the same shall not at the time be delinquent
or thereafter can be paid without penalty, or are being contested in
good faith and by appropriate proceedings and for which adequate
reserves in accordance with generally accepted accounting shall have
been set aside on its books;
(ii) Liens imposed by law, such as carriers', warehousemen's,
materialmen's and mechanics liens and other similar liens arising in
the ordinary course of business which secure payment of obligations
not more than 60 days past due;
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other
social security or retirement benefits, or similar legislation;
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character
and which do not in any material way affect the marketability of the
same or interfere with the use thereof in the business of the Borrower
of the Subsidiaries;
(v) Liens arising under one or more Pledge Agreements;
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(vi) Other Liens securing Indebtedness not exceeding an aggregate
amount of $25,000,000.
(b) FINANCING STATEMENTS. Each Company will not, and will not permit
any Subsidiary to, sign or file a financing statement under the Uniform
Commercial Code of any jurisdiction that names such Company or such
Subsidiary as debtor, or sign any security agreement authorizing any
secured party thereunder to file any such financing statement, except, in
any such case, a financing statement filed or to be filed to perfect or
protect a security interest that such Company or such Subsidiary is
entitled to create, assume or incur, or permit to exist, under the
foregoing provisions of this SECTION 9.2, or to evidence for informational
purposes a lessor's interest in Property leased to such Company or any such
Subsidiary.
9.3 FINANCIAL CONDITION. The Borrower will not permit:
(i) As at the end of any fiscal quarter ending on or after the
Effective Date, for the four fiscal quarters then ending, the
Consolidated Fixed Charge Coverage Ratio to be less than (a) 1.50 to
1.00 through June 29, 1998, and (b) 2.00 to 1.00 thereafter.
(ii) At any time on or after the Effective Date, the Consolidated
Net Worth of the Borrower and its Subsidiaries (excluding in all
events any losses) to be less than $400,000,000 plus (A) 50% of the
quarterly Consolidated Net Income of the Borrower and its Subsidiaries
(if positive) for each fiscal quarter ending after the Effective Date
(on a cumulative basis) plus (B) 100% of net proceeds of equity
interests issued by the Borrower after the Effective Date.
(iii) The Consolidated Total Leverage Ratio as at the end of
any fiscal quarter ending on or after the Effective Date for the four
fiscal quarters then ending to exceed (w) for any period ending on or
prior to June 29, 1998, 4.75 to 1.00, (x) for any period ending on or
after June 30, 1998 and until June 29, 1999, 4.00 to 1.00, and (y) for
any period ending thereafter, 3.50 to 1.00.
9.4 INVESTMENTS. Each Company will not, and will not permit any of its
Subsidiaries to, make, incur, assume or suffer to exist any Investment in any
other Person, except, subject to the provisions of SECTION 8.7:
(a) Investments existing on the Effective Date and identified in
SCHEDULE 9.4(a);
(b) Cash Equivalent Investments;
(c) so long as such Company demonstrates, in writing, compliance with
clause (h) below, Investments by such Company or any of its Subsidiaries by
way of acquisitions of an entity or entities or assets of an entity or
entities, within such Company's line of
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business; provided, that so long as the Consolidated Total Leverage
Ratio for the most recently ended four fiscal quarters determined both
before and after giving effect to such Acquisition is (i) 2.50 to
1.00 or more (x) no Acquisition for which the Acquisition Price equals
or exceeds 7 1/2% of Consolidated Net Worth or the Stock Consideration
exceeds 25% of Consolidated Net Worth may be made without the prior
written consent of the Required Banks and (y) the aggregate Acquisition
Price of all Acquisitions for all Companies and their Subsidiaries as
measured on a cumulative basis since the Closing Date may not exceed
$50,000,000 without the prior written consent of the Required Banks, and
(ii) less than 2.50 to 1.00 no Acquisition for which the Acquisition
Price equals or exceeds 20% of Consolidated Net Worth may be made
without the prior written consent of the Required Banks, and no
Acquisition through a stock purchase may be made unless approved by the
acquired entity's Board of Directors or similar governing body; for the
purposes of this clause (c) "Acquisition Price" shall equal the cash paid
to the seller plus all notes or securities (other than common equity
securities of the Borrower) received by or delivered to the seller in
connection with such Acquisition;
(d) Investments in the capital stock of Active Subsidiaries; provided
that after giving effect thereto the Borrower is in compliance with
SECTION 8.7;
(e) loans and advances to any Active Subsidiary; provided that the
aggregate amount of all loans and advances by the Borrower and its
Subsidiaries other than Foreign Subsidiaries to Foreign Subsidiaries shall
not at any time exceed a Dollar Equivalent amount equal to 10% of
Consolidated Net Worth, excluding the investment as at the Closing Date in
Interim (UK);
(f) Investments by the Borrower in Spectrum at any time; provided
that, after giving effect to such Investments, Spectrum's total assets are
less than 10% of Consolidated Net Worth;
(g) other Investments in Affiliates, licensees and franchisees;
provided, however, that the aggregate amount of all Investments permitted
solely by this clause does not at any time exceed $30,000,000 (it being
understood that any such Investment which passes through more than one
entity shall be counted only once in determining compliance herewith); and
(h) no Investment otherwise permitted by clause (c) shall be
permitted to be made if, immediately before or after giving effect thereto,
any Default or Event of Default shall have occurred and be continuing. In
determining whether or not a Default or Event of Default would occur, the
calculations set forth in SECTION 9.3 shall be made on a pro forma basis,
as of the end of the last fiscal quarter prior thereto, as if the
Investment had been made prior to the period of any such calculations.
9.5 RESTRICTED PAYMENTS, ETC. On and at all times after the date
hereof, the Borrower will not, and will not permit any of its Subsidiaries
to, declare, pay or make any dividend or
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distribution (in cash, property or obligations) on any shares of any class of
capital stock (now or hereafter outstanding) of the Borrower or on any
warrants, options or other rights with respect to any shares of any class of
capital stock (now or hereafter outstanding) of the Borrower (other than
dividends or distributions payable in its common stock or warrants to
purchase its common stock or splitups or reclassifications of its stock into
additional or other shares of its common stock), or apply, or permit any of
its Subsidiaries to apply, any of its funds, property or assets to the
purchase, redemption, sinking fund or other retirement of, or agree or permit
any of its Subsidiaries to purchase or redeem, any shares of any class of
capital stock (now or hereafter outstanding) of the Borrower, or warrants,
options or other rights with respect to any shares of any class of capital
stock (now or hereafter outstanding) of the Borrower.
Notwithstanding the foregoing and so long as there shall not exist an Event
of Default which is continuing,
(a) any wholly owned (other than with respect to directors'
qualifying shares) Subsidiary of the Borrower may pay dividends or other
distributions to the Borrower or any other such wholly owned Subsidiary of
the Borrower; and
(b) the Borrower may purchase or redeem or make open market purchases
of any class of capital stock in any fiscal year at an aggregate cost not
to exceed 1% of Consolidated Net Worth as at the end of such fiscal year.
9.6 CONSOLIDATION MERGER, ETC. Except as permitted by SECTION 9.4(c),
each Company will not, and will not permit any of its Subsidiaries to, liquidate
or dissolve, consolidate with, or merge into or with, any other corporation, or
(except as permitted by SECTION 9.4(c)) purchase or otherwise acquire all or
substantially all of the assets of any Person (or of any division thereof)
except:
(a) any Subsidiary may liquidate or dissolve voluntarily into, and
may merge with and into, such Company or any Subsidiary, and the assets or
stock of any Subsidiary may be purchased or otherwise acquired by such
Company or any Subsidiary; provided, however, that (i) Agent shall have
received at least 15 days' prior written notice thereof and (ii) the
applicable requirements of SECTION 8.7 shall have been complied with in
connection with such transaction and the Agent shall have first received
such additional documents as necessary, in the opinion of the Agent, to
ensure that the Banks continue to have a first priority perfected security
interest in any property pledged in their favor as contemplated under the
Support Documents and to otherwise protect the interests of the Banks;
and
(b) such Company or any Subsidiary may merge with any other Person if
(i) no Default or Event of Default has occurred or would occur after giving
effect thereto, (ii) the general nature of its business is not changed
and (iii) the surviving entity is a Company (in the case of a merger
involving a Company) or a Subsidiary or an entity which is wholly-owned by
a wholly-owned Subsidiary (in the case of a merger involving
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a Subsidiary); provided, however, that (i) Agent shall have received at
least 15 days' prior written notice thereof and (ii) Companies shall have
complied with the applicable requirements of SECTION 8.7 in connection with
such transaction and the Agent shall have first received such additional
documents as necessary, in the opinion of the Agent, to ensure that the
Banks continue to have a first priority perfected security interest in any
property pledged in their favor as contemplated under the Support Documents
and to otherwise protect the interests of the Banks.
9.7 ASSET DISPOSITIONS, ETC. Each Company will not, and will not permit
any of its Subsidiaries to, sell, transfer, lease, contribute or otherwise
convey, or grant options, warrants or other rights with respect to, all or any
substantial part of its assets (including accounts receivable and capital stock
of Subsidiaries) to any Person, unless:
(a) such sale, transfer, lease, contribution or conveyance is in the
ordinary course of its business or is permitted by SECTION 9.6 or is the
sale of accounts receivable in connection with a Permitted Receivables
Securitization;
(b) the net book value of such assets which are sold other than those
sold, transferred, leased, contributed or conveyed in the ordinary course
of business by the Borrower and its Subsidiaries since the Closing Date or
permitted pursuant to SECTION 9.7(a) does not exceed in the aggregate
$125,000,000; and
(c) such assets are not responsible for more than 15% of consolidated
revenues of the Borrower and its Subsidiaries (including Michael Page and
its Subsidiaries) for the four fiscal quarter period ending during the
fiscal quarter in which such sale, lease or transfer occurs.
9.8 TRANSACTIONS WITH AFFILIATES. Each Company will not, and will not
permit any of its Subsidiaries to, enter into, or cause, suffer or permit to
exist, any arrangement or contract with any of its Affiliates that is not a
Guarantor unless such arrangement or contract is fair and equitable to such
Company or such Subsidiary and is an arrangement or contract of the kind which
would be entered into by a prudent Person in the position of such Company or
such Subsidiary with a Person that is not one of its Affiliates.
9.9 NEGATIVE PLEDGES, RESTRICTIVE AGREEMENTS, ETC. Each Company will not,
and will not permit any of its Subsidiaries to, enter into any agreement
(excluding (A) this Agreement, (B) any other Loan Document, (C) the agreements
giving rise to a Permitted Receivables Securitization (with respect to
restrictions on the creation of Liens on accounts receivable transferred in such
Permitted Receivables Securitization only), (D) prior to the initial Credit
Extension hereunder, the Existing Credit Agreement, (E) other Indebtedness
permitted under SECTION 9.12 (with respect to restrictions on the creation of
Liens on property, plant and equipment acquired with the proceeds of such
Property) and (F) those described on SCHEDULE 9.9) prohibiting:
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(a) the creation or assumption of any Lien upon its properties,
revenues or assets, whether now owned or hereafter acquired, or the ability
of such Company or any Subsidiary to amend or otherwise modify this
Agreement or any other Loan Document; or
(b) the ability of any Subsidiary to make any payments, directly or
indirectly, to such Company by way of dividends, advances, repayments of
loans or advances, reimbursements of management and other intercompany
charges, expenses and accruals or other returns on investments, or any
other agreement or arrangement which restricts the ability of any such
Subsidiary to make any payment, directly or indirectly, to such Company.
9.10 SUBSIDIARIES' VOTING SHARE. Each Company will not (a) permit any of
its Subsidiaries to issue voting shares to anyone other than such Company or
another wholly-owned Subsidiary, or (b) permit any of its wholly-owned
Subsidiaries to sell, transfer or otherwise dispose of the voting shares of any
Subsidiaries to any Person other than such Company or another of its wholly-
owned Subsidiaries.
9.11 ERISA. The Borrower shall not, and shall not suffer or permit any of
its ERISA Affiliates to: (a) engage in a prohibited transaction or violation of
the fiduciary responsibility rules with respect to any Plan which has resulted
or could reasonably be expected to result in liability of such Company in an
aggregate amount in excess of $5,000,000; or (b) engage in a transaction that
could be subject to SECTION 4069 or 4212(c) of ERISA.
9.12 LIMITATION ON INDEBTEDNESS. The Companies shall not, and shall not
permit any of their Subsidiaries to, create, incur, assume, suffer to exist, or
otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness existing on the date hereof and set forth in
SCHEDULE 9.12, including any renewals or replacements on substantially
similar terms;
(c) Indebtedness arising in connection with Permitted Receivables
Securitizations;
(d) Subordinated Indebtedness; and
(e) Additional Indebtedness of the Companies and the Guarantors not
to exceed $35,000,000.
9.13 CHANGE FISCAL YEAR. The Companies shall not change their fiscal year.
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ARTICLE X
EVENTS OF DEFAULT
10.1 EVENTS OF DEFAULT. Any of the following shall constitute an "Event of
Default":
(a) NON-PAYMENT. Any Company fails to make, (i) when and as required
to be made herein, payments of any amount of principal of any Loan or any
L/C Borrowing or Interim Note Borrowing (including without limitation any
cash collateral deposits with respect thereto), or (ii) within five days
after the same becomes due, payment of any amount of interest, fees or any
other amount payable hereunder or under any other Loan Document; provided
that any interest, fees or other amounts which are not paid on the due date
shall bear interest at the Base Rate plus 2% per annum after such due date;
or
(b) REPRESENTATION OR WARRANTY. Any representation or warranty by
any Company or any Subsidiary made or deemed made herein or in any other
Loan Document, or which is contained in any certificate, document or
financial or other statement by any Company, any Subsidiary, or any
Responsible Officer of any Company, furnished at any time under this
Agreement, or in or under any other Loan Document, is incorrect in any
material respect on or as of the date made or deemed made; or
(c) SPECIFIC DEFAULTS. Any Company fails to perform or observe any
term, covenant or agreement contained in any of SECTION 8.1(f), 8.1(j) or
8.7 or in ARTICLE IX; or
(d) OTHER DEFAULTS. Any Company or any Subsidiary party thereto
fails to perform or observe any other term or covenant contained in this
Agreement or any other Loan Document, and such default shall continue
unremedied for a period of 30 days after the earlier to occur of (i) the
date upon which written notice thereof is given to each Company by the
Agent or any Bank and (ii) the date any of the Companies becomes aware
thereof; or
(e) CROSS-DEFAULT. (i) Any Company or any Subsidiary (A) fails to
make any payment in respect of any Indebtedness or Contingent Obligations
having an aggregate principal amount (including amounts owing to all
creditors under any combined or syndicated credit arrangement) of more than
$10,000,000 when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise); or (B) fails to perform or observe any
other condition or covenant, or any other event shall occur or condition
exist, under any agreement or instrument relating to any such Indebtedness
or Contingent Obligation, if the effect of such failure, event or condition
is to cause, or to permit the holder or holders of such Indebtedness or
beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause
such Indebtedness to be declared to be due and payable prior to its stated
maturity, or such Contingent Obligation to become payable or cash
collateral in
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respect thereof to be demanded; or (ii) there occurs under any Swap
Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (1) any event of default under such Swap Contract as to
which any Company or any Subsidiary is the Defaulting Party (as defined
in such Swap Contract) or (2) any Termination Event (as so defined) as to
which any Company or any Subsidiary is an Affected Party (as so defined),
and, in either event, the Swap Termination Value owed by such Company or
such Subsidiary as a result thereof is greater than $10,000,000; or
(f) INSOLVENCY; VOLUNTARY PROCEEDINGS. Any Company or any Guarantor
(i) is unable to pay its debts as they fall due, ceases or fails to be
solvent, or generally fails to pay, or admits in writing its inability to
pay, its debts as they become due, subject to applicable grace periods, if
any, whether at stated maturity or otherwise; (ii) voluntarily ceases to
conduct its business in the ordinary course (except as permitted under
SECTION 8.7); (iii) commences any Insolvency Proceeding with respect to
itself; or (iv) takes any action to effectuate or authorize any of the
foregoing; or
(g) INVOLUNTARY PROCEEDINGS. (i) Any involuntary Insolvency
Proceeding is commenced or filed against any Company or any Guarantor, or
any writ, judgment, warrant of attachment, execution or similar process is
issued or levied against a material part of any Company's or any
Guarantor's properties, and any such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or
similar process shall not be released, vacated or fully bonded, within 60
days after commencement, filing or levy; (ii) any Company or any Guarantor
admits the material allegations of a petition against it in any Insolvency
Proceeding, or an order for relief (or similar order) is ordered in any
Insolvency Proceeding; or (iii) any Company or any Guarantor acquiesces in
the appointment of a receiver, trustee, custodian, conservator, liquidator,
mortgagee in possession (or agent therefor), or other similar Person for
itself or a material portion of its property or business; or
(h) MONETARY JUDGMENTS. One or more non-interlocutory judgments,
non-interlocutory orders, decrees or arbitration awards is entered against
any Company or any Guarantor involving in the aggregate a liability (to the
extent not covered by independent third-party insurance as to which the
insurer does not dispute coverage) as to any single or related series of
transactions, incidents or conditions, of $10,000,000 or more, and the same
shall remain unsatisfied, unvacated and unstayed pending appeal for a
period of 30 days after the entry thereof; or
(i) NON-MONETARY JUDGMENTS. Any non-monetary judgment, order or
decree is entered against a Company or any Subsidiary which does or would
reasonably be expected to have a Material Adverse Effect, and there shall
be any period of 10 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; or
(j) CHANGE OF CONTROL. There occurs any Change of Control; or
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(k) GUARANTOR/PLEDGOR DEFAULTS. (i) Any Guarantor, or any Company or
Subsidiary party to a Pledge Agreement, fails in any material respect to
perform or observe any term, covenant or agreement in its Guaranty or
Pledge Agreement; or (ii) any Guaranty or Pledge Agreement is for any
reason partially (including with respect to future advances) or wholly
revoked or invalidated, or otherwise ceases to be in full force and effect;
or
(l) ERISA. (i) An ERISA Event shall occur with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of a Company under Title IV of ERISA to
such Pension Plan, such Multiemployer Plan or the PBGC in an aggregate
amount in excess of $1,000,000; (ii) the aggregate amount of Unfunded
Pension Liability among all Pension Plans at any time exceeds $1,000,000;
or (iii) any Company or any ERISA Affiliate shall fail to pay when due,
after the expiration of any applicable grace period, any installment
payment with respect to its withdrawal liability under SECTION 4201 of
ERISA under a Multiemployer Plan in an aggregate amount in excess of
$1,000,000; or
(m) INTERIM NOTES. The Companies fail to make payment of any portion
of the principal or interest on any of the Interim Notes when the same
shall be due.
10.2 REMEDIES. If any Event of Default occurs, the Agent shall, at the
request of, or may, with the consent of, the Required Banks,
(a) declare the commitments of each Bank to make Loans and any
obligation of any Issuing Bank to Issue Letters of Credit to be terminated,
whereupon such commitments shall be terminated;
(b) declare an amount equal to the maximum aggregate amount that is
or at any time thereafter may become available for payment under any
outstanding Letters of Credit or the Interim Note Guarantee (whether or not
any beneficiary shall have presented, or shall be entitled at such time to
present, the drafts or other documents required to draw under such Letters
of Credit or the Interim Note Guarantee) to be immediately due and payable,
declare the unpaid principal amount of all outstanding Loans, all interest
accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and
payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by each Company;
(c) apply any cash or deposit account balances that were used by the
Companies to Cash Collateralize any Letters of Credit or the Interim Note
Guarantee that the Agent would otherwise be required to return to the
Companies pursuant to SECTION 3.7 or SECTION 4.6, as applicable, to any
outstanding Obligations; and
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(d) exercise on behalf of itself and the Banks (including the
International Swing Banks, in such capacity) all rights and remedies
available to it and the Banks under the Loan Documents or applicable law;
provided, however, that upon the occurrence of any event specified in
subsection (f) or (g) of SECTION 10.1 (in the case of clause (i) of
subsection (g) upon the expiration of the 60-day period mentioned therein),
the obligation of each Bank to make Loans and any obligation of the Issuing
Bank to Issue Letters of Credit shall automatically terminate and the unpaid
principal amount of all outstanding Loans and all interest and other amounts
as aforesaid shall automatically become due and payable without further act
of the Agent, the Issuing Bank or any Bank and without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived
by the Companies; and provided, further, that after any obligations with
respect to any undrawn Letter of Credit shall have been accelerated under
clause (b) and if such accelerated amount has been paid, the Banks shall
return to the Companies within 10 days after the expiration of such Letter of
Credit, any amount not drawn thereunder so long as no Obligations shall be
due and payable.
10.3 RIGHTS NOT EXCLUSIVE. The rights provided for in this Agreement
and the other Loan Documents are cumulative and are not exclusive of any
other rights, powers, privileges or remedies provided by law or in equity, or
under any other instrument, document or agreement now existing or hereafter
arising.
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ARTICLE XI
THE AGENT
11.1 APPOINTMENT AND AUTHORIZATION; "AGENT". (a) Each Bank hereby
irrevocably (subject to SECTION 11.9) appoints, designates and authorizes the
Agent to take such action on its behalf under the provisions of this
Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Without limiting the foregoing, the Agent may
accept Support Documents on behalf of the Banks. Notwithstanding any
provision to the contrary contained elsewhere in this Agreement or in any
other Loan Document, the Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall the Agent have or be
deemed to have any fiduciary relationship with any Bank, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or otherwise
exist against the Agent. Without limiting the generality of the foregoing
sentence, the use of the term "agent" in this Agreement or any other Loan
Document with reference to the Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of
any applicable law. Instead, such term is used merely as a matter of market
custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties. So long as there shall
only be one Bank party to this Agreement the term Agent shall mean such Bank.
(b) The Issuing Bank shall act on behalf of the Banks with respect to
any Letters of Credit Issued by it and the documents associated therewith
until such time and except for so long as the Agent may agree at the request
of the Required Banks to act for such Issuing Bank with respect thereto;
provided, however, that the Issuing Bank shall have all of the benefits and
immunities, including without limitation the right to resign under SECTION
11.9, (i) provided to the Agent in this ARTICLE XI with respect to any acts
taken or omissions suffered by the Issuing Bank in connection with Letters of
Credit Issued by it or proposed to be Issued by it and the application and
agreements for Letters of Credit pertaining to the Letters of Credit as fully
as if the term "Agent" as used in this ARTICLE XI, included the Issuing Bank
with respect to such acts or omissions, and (ii) as additionally provided in
this Agreement with respect to the Issuing Bank.
11.2 DELEGATION OF DUTIES. The Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
11.3 LIABILITY OF AGENT. None of the Agent-Related Persons shall (i) be
liable to any of the Banks for any action taken or omitted to be taken by any
of them under or in connection with this Agreement or any other Loan Document
or the transactions contemplated hereby (except for its own gross negligence
or willful misconduct), or (ii) be responsible in any manner to any of the
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Banks for any recital, statement, representation or warranty made by any
Company or any Subsidiary or Affiliate of any Company, or any officer
thereof, contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Agent under or in connection with, this Agreement or
any other Loan Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document,
or for any failure of any Company or any other party to any Loan Document to
perform its obligations hereunder or thereunder. No Agent-Related Person
shall be under any obligation to any Bank to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Company or any of any Company's
Subsidiaries or Affiliates.
11.4 RELIANCE BY AGENT.
(a) The Agent shall be entitled to rely, and shall be fully protected
in relying, upon any writing, resolution, notice, consent, certificate,
affidavit, letter, telegram, facsimile, telex or telephone message, statement
or other document or conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons, and
upon advice and statements of legal counsel (including counsel to any Company
or any Subsidiary), independent accountants and other experts selected by the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Banks or all the Banks as
it deems appropriate and, if it so requests, it shall first be indemnified to
its satisfaction by the Banks against any and all liability and expense,
except those arising out of its gross negligence or willful misconduct, which
may be incurred by it by reason of taking or continuing to take any such
action. The Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan Document in
accordance with a request or consent of the Required Banks or all Banks and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in SECTION 6.1 and SECTION 6.2, each Bank that has executed this
Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter either sent by the Agent to
such Bank for consent, approval, acceptance or satisfaction, or required
thereunder to be consented to or approved by or acceptable or satisfactory to
such Bank.
11.5 NOTICE OF DEFAULT. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default, except with
respect to defaults in the payment of principal, interest and fees required
to be paid to the Agent for the account of the Banks, unless the Agent shall
have received written notice from a Bank or a Company referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". The Agent will notify the Banks of its
receipt of any such notice. The Agent shall take such action with respect to
such Default or Event of Default as may be requested by the Required Banks in
accordance with ARTICLE X; provided, however, that unless and until the Agent
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has received any such request, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable or in the best
interest of the Banks 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 Banks or all the Banks.
11.6 CREDIT DECISION. Each Bank acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that
no act by the Agent hereafter taken, including any review of the affairs of
the Companies and their Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Bank. Each
Bank represents to the Agent that it has, independently and without reliance
upon any Agent-Related Person and based on such documents and information as
it has deemed appropriate, made its own appraisal of and investigation into
the business, prospects, operations, property, financial and other condition
and creditworthiness of each Company and its Subsidiaries, and all applicable
bank regulatory laws relating to the transactions contemplated hereby, and
made its own decision to enter into this Agreement and to extend credit to
the Companies hereunder. Each Bank also represents that it will,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking
or not taking action under this Agreement and the other Loan Documents, and
to make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
creditworthiness of each Company and each Subsidiary. Except for notices,
reports and other documents expressly herein required to be furnished to the
Banks by the Agent, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the
business, prospects, operations, property, financial and other condition or
creditworthiness of any Company or any other Person which may come into the
possession of any of the Agent-Related Persons.
11.7 INDEMNIFICATION OF AGENT. Whether or not the transactions
contemplated hereby are consummated, the Banks shall indemnify upon demand
the Agent-Related Persons (to the extent not reimbursed by or on behalf of
the Companies and without limiting the obligation of the Companies to do so),
pro rata, from and against any and all Indemnified Liabilities; provided,
however, that no Bank shall be liable for the payment to the Agent-Related
Persons of any portion of such Indemnified Liabilities resulting from such
Person's gross negligence or willful misconduct. Without limitation of the
foregoing, each Bank shall reimburse the Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs)
incurred by the Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the
extent that the Agent is not reimbursed for such expenses by or on behalf of
the Companies, except those arising out of its gross negligence or willful
misconduct. The undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of the Agent.
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11.8 AGENT IN INDIVIDUAL CAPACITY. NationsBank and its Affiliates may
make loans to, issue letters of credit for the account of, accept deposits
from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with each
Company and its Subsidiaries and Affiliates as though NationsBank were not
the Agent or the Issuing Bank hereunder and without notice to or consent of
the Banks. The Banks acknowledge that, pursuant to such activities,
NationsBank or its Affiliates may receive information regarding a Company or
its Affiliates (including information that may be subject to confidentiality
obligations in favor of such Company or such Affiliate) and acknowledge that
the Agent shall be under no obligation to provide such information to them.
With respect to its Loans, NationsBank shall have the same rights and powers
under this Agreement as any other Bank and may exercise the same as though it
were not the Agent or the Issuing Bank, and the terms "Bank" and "Banks"
include NationsBank in its individual capacity.
11.9 SUCCESSOR AGENT AND SUCCESSOR ISSUING BANK. Either the Agent or
the Issuing Bank, respectively, may resign as Agent or Issuing Bank upon 30
days' notice to the Banks. If the Agent or Issuing Bank resigns under this
Agreement, the Required Banks shall appoint from among the Banks a successor
agent for the Banks or successor issuing bank, respectively. The appointment
of a successor issuing bank shall be subject to the consent of the Companies
which shall not be unreasonably withheld. If no successor agent or successor
issuing bank is appointed prior to the effective date of the resignation of
the Agent or the Issuing Bank respectively, the Agent or the Issuing Bank may
appoint, after consulting with the Banks and the Companies, a successor agent
or successor issuing bank from among the Banks, subject to such Bank's
acceptance of such appointment. Upon the acceptance of its appointment as
successor agent or successor issuing bank hereunder, such successor agent or
successor issuing bank, respectively, shall succeed to all the rights, powers
and duties of the retiring Agent or the retiring Issuing Bank and the term
"Agent" or "Issuing Bank" shall mean such successor agent or successor
issuing bank and the retiring Agent's or the retiring Issuing Bank's
appointment, powers and duties as Agent or Issuing Bank shall be terminated.
After any retiring Agent's or retiring Issuing Bank's resignation hereunder
as Agent or Issuing Bank, the provisions of this ARTICLE XI and SECTIONS 12.4
AND 12.5 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent or Issuing Bank under this Agreement. If no
successor agent or successor issuing bank has accepted appointment as Agent
or Issuing Bank by the date which is 30 days following a retiring Agent's or
retiring Issuing Bank's notice of resignation, the retiring Agent's or
retiring Issuing Bank's resignation shall nevertheless thereupon become
effective and the Banks shall perform all of the duties of the Agent or
Issuing Bank hereunder until such time, if any, as the Required Banks appoint
a successor agent or successor issuing bank as provided for above.
11.10 SECURITY TRUSTEE. The Agent shall be the "Security Trustee" under
any of those Pledge Agreements which are expressed to be governed by English
law and shall accept without investigation, requisition or objection such
title as any person may have to the assets which are subject to the English
Pledge Agreements and shall not (a) be bound or concerned to examine or
inquire into the title of any person; (b) be liable for any defect or failure
in the title of any person, whether such defect or failure was known to it or
might have been discovered upon examination or inquiry and whether capable of
remedy or not; (c) be liable for any failure on its part to give
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notice of such Pledge Agreement to any third party or otherwise perfect or
register the security created by such Pledge Agreement.
The Security Trustee shall hold the benefit of the English Pledge
Agreements upon trust for itself, the Lenders and the Agent. Upon the
appointment of any successor Security Trustee, the resigning Security Trustee
shall execute and deliver such documents and do such other acts and things as
may be necessary to vest in the successor Security Trustee all the rights,
title and interests vested in the resigning Security Trustee.
11.11 DUTCH PLEDGE AGREEMENTS. Without prejudice to any of the other
provisions of this Agreement or any of the other Loan Documents and solely
for the purpose of ensuring and preserving the validity and continuity of the
Pledge Agreements to be governed by Dutch law ("Dutch Pledge Agreements"),
the Borrower and the Companies hereby irrevocably and unconditionally
acknowledge and agree with the Banks, that the Agent shall, by way of joint
and several creditorship, in its own right be entitled to and be creditor of
the Obligations. The Borrower, the Companies, the Banks and the Agent agree
and acknowledge that the Agent is entitled to collect and enforce any and all
rights under the Dutch Pledge Agreements in respect of the Obligations and it
is further agreed among the parties that the security granted by means of
execution of the Dutch Pledge Agreements to the Agent, is granted to the
Agent in its capacity as joint and several creditor of the Obligations.
11.12 DOCUMENTATION AGENT. None of the Banks identified in this
Agreement or any other Loan Document as the "Documentation Agent" shall have
any right, power, obligation, liability, responsibility or duty under this
Agreement or any other Loan Document other than those applicable to all Banks
as such. Each Bank acknowledges that it has not relied, and will not rely, on
any of the Banks so identified in deciding to enter into this Agreement or
any other Loan Document or in taking or refraining from taking any action
hereunder or thereunder or pursuant hereto or thereto.
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ARTICLE XII
MISCELLANEOUS
12.1 AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by any Company or any applicable Subsidiary therefrom, shall be
effective unless the same shall be in writing and signed by the Required
Banks (or by the Agent at the written request of the Required Banks) and each
Company and delivered to the Agent, and then any such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no such waiver, amendment, or consent
shall, unless in writing and signed by all the Banks and each Company and
delivered to the Agent, do any of the following:
(a) increase or extend the Commitment of any Bank (or reinstate any
Commitment terminated pursuant to SECTION 10.2);
(b) postpone or delay any date fixed by this Agreement or any other
Loan Document for any payment of principal, interest, fees or other amounts
due to the Banks (or any of them) hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate of interest specified herein
on, any Loan, or (subject to clause (ii) of the proviso below) any fees or
other amounts payable hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Loans which is required for the Banks or any of them
to take any action hereunder; or
(e) amend this Section, or SECTION 2.16, or any provision herein
providing for consent or other action by all Banks; or
(f) release any party to a Guaranty or, except as expressly provided
for herein, release any collateral for any obligations arising under the Loan
Documents;
and, provided further, that (i) no amendment, waiver or consent shall, unless
in writing and signed by the Issuing Bank in addition to the Required Banks
or all the Banks, as the case may be, affect the rights or duties of the
Issuing Bank under this Agreement or any L/C-Related Document relating to any
Letter of Credit Issued or to be Issued by it, (ii) no amendment, waiver or
consent shall, unless in writing and signed by NationsBank in addition to the
Required Banks or all the Banks, as the case may be, affect the rights or
duties of NationsBank as maker of the Interim Note Guarantee under this
Agreement or any Interim Note Related Documents, (iii) no amendment, waiver
or consent shall, unless in writing and signed by the Agent in addition to
the Required Banks or all the Banks, as the case may be, affect the rights or
duties of the Agent under
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this Agreement or any other Loan Document or (iv) the Fee Letters may be
amended, or rights or privileges thereunder waived, in a writing executed by
the parties thereto.
12.2 NOTICES.
(a) All notices, requests, consents, approvals, waivers and other
communications may be in writing or oral if confirmed in writing (which
includes confirmation by facsimile) at the address or number specified in
SCHEDULE 12.2.
(b) All such notices, requests and communications shall, when sent by
overnight delivery, or transmitted by facsimile, be effective when delivered to
the recipient or transmitted in legible form by facsimile machine, respectively,
or if mailed, upon the third Business Day after the date deposited into the U.S.
mail, or if hand delivered, upon delivery; except that notices pursuant to
ARTICLE II, ARTICLE III or ARTICLE XI to the Agent shall not be effective until
actually received by the Agent, and notices pursuant to ARTICLE III to the
Issuing Bank shall not be effective until actually received by the Issuing Bank
at the address specified for the "Issuing Bank" on SCHEDULE 12.2.
(c) Any agreement of the Agent and the Banks herein to receive certain
notices by telephone or facsimile is solely for the convenience and at the
request of the Companies. The Agent and the Banks shall be entitled to rely on
the authority of any Person purporting to be a Person authorized by a Company to
give such notice and the Agent and the Banks shall not have any liability to a
Company or other Person on account of any action taken or not taken by the Agent
or the Banks in reliance upon such telephonic or facsimile notice. The
obligation of the Companies to repay the Loans, L/C Obligations and the Interim
Note Obligations shall not be affected in any way or to any extent by any
failure by the Agent and the Banks to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Agent and the Banks of a
confirmation which is at variance with the terms reasonably understood by the
Agent and the Banks to be contained in the telephonic or facsimile notice.
12.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Agent or any Bank, any right, remedy,
power or privilege hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege.
12.4 COSTS AND EXPENSES. The Companies shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse NationsBank (including in its capacity as Agent
and Issuing Bank) and the Arranger for all reasonable costs and expenses
incurred by NationsBank (including in its capacity as Agent and Issuing Bank)
and the Arranger in connection with the development, preparation, delivery,
and execution of, and any amendment, supplement, waiver or modification to
(in each case, whether or not consummated but only if requested or caused by
a Company or a Subsidiary), this
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Agreement, any other Loan Document and any other documents prepared in
connection herewith or therewith, and the consummation of the transactions
contemplated hereby and thereby, including reasonable Attorney Costs incurred
by NationsBank (including in its capacity as Agent and Issuing Bank) and the
Arranger with respect thereto; and
(b) pay or reimburse the Agent, the Arranger and each Bank within
thirty days after invoice for all reasonable costs and expenses (including
Attorney Costs) incurred by them in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies under this
Agreement or any other Loan Document during the existence of an Event of
Default or after acceleration of the Loans (including in connection with any
"workout" or restructuring regarding the Loans, and including in any
Insolvency Proceeding or appellate proceeding).
The agreements in this Section shall survive payment of all other
Obligations.
12.5 COMPANY INDEMNIFICATION. Whether or not the transactions
contemplated hereby are consummated, the Companies shall indemnify, defend
and hold harmless the Agent-Related Persons, and each Bank and each of its
respective officers, directors, employees, counsel, agents and
attorneys-in-fact (each, an "Indemnified Person") from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, charges, expenses and disbursements (including Attorney Costs)
of any kind or nature whatsoever (other than expenses described in SECTION
12.4 whether or not required to be reimbursed thereunder) which may at any
time (including at any time following repayment of the Loans, the termination
of the Letters of Credit and Interim Note Guarantee and the termination,
resignation or replacement of the Agent or replacement of any Bank) be
imposed on, incurred by or asserted against any such Person in any way
relating to or arising out of this Agreement or any document contemplated by
or referred to herein or therein, or the transactions contemplated hereby or
thereby, or any action taken or omitted by any such Person under or in
connection with any of the foregoing, including with respect to any
investigation, litigation or proceeding (including any Insolvency Proceeding
or appellate proceeding) related to or arising out of this Agreement or the
Loans or Letters of Credit or Interim Note Guarantee or the use of the
proceeds thereof, or related to any Offshore Currency transactions entered
into in connection herewith, whether or not any Indemnified Person is a party
thereto (all the foregoing, collectively, the "Indemnified Liabilities");
provided, that the Companies shall have no obligation hereunder to any
Indemnified Person with respect to Indemnified Liabilities resulting solely
from the bad faith, gross negligence or willful misconduct of such
Indemnified Person; and provided further the Companies shall have no
obligations with respect to tax liabilities, funding costs or capital costs
of any Indemnified Person except as set forth in this Agreement. The
agreements in this Section shall survive payment of all other Obligations.
At the election of any Indemnified Person, the Companies shall defend
such Indemnified Person using legal counsel mutually acceptable to the
Companies, the Agent, the Required Banks and such Indemnified Person, at the
sole cost and expense of the Companies. All amounts owing under this Section
shall be paid within 30 days after demand.
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12.6 MARSHALLING; PAYMENTS SET ASIDE. Neither the Agent nor the Banks
shall be under any obligation to marshall any assets in favor of any Company
or any other Person or against or in payment of any or all of the
Obligations. To the extent that a Company makes a payment to the Agent or the
Banks, or the Agent or the Banks exercise their right of set-off, and such
payment or the proceeds of such set-off or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Agent or such Bank
in its discretion) to be repaid to a trustee, receiver or any other party, in
connection with any Insolvency Proceeding or otherwise, then (a) to the
extent of such recovery the obligation or part thereof originally intended to
be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such set-off had not occurred, and (b) each
Bank severally agrees (to the extent it shall have shared in any such
recovery) to pay to the Agent upon demand its pro rata share of any amount so
recovered from or repaid by the Agent.
12.7 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Companies may not assign
or transfer any of their rights or obligations under this Agreement without
the prior written consent of the Agent and each Bank.
12.8 ASSIGNMENTS, PARTICIPATIONS, ETC.
(a) Any Bank may, with the written consent of the Borrower (at all
times other than during the existence of an Event of Default) and the Agent
and the Issuing Bank, which consents shall not be unreasonably withheld
(provided that the withholding of consent by reason of any proposed
assignment resulting in the incurrence by the Companies of increased costs
under ARTICLE IV shall not be deemed to be unreasonable), at any time assign
and delegate to one or more Eligible Assignees (provided that no written
consent of the Companies, the Agent or the Issuing Bank shall be required in
connection with any assignment and delegation by a Bank to an Eligible
Assignee that is an Affiliate of such Bank) (each an "Assignee") all, or any
part of all, of the Loans, the Commitment, the L/C Commitment, the L/C
Obligations, the Interim Note Commitment, the Interim Note Obligations, Swing
Line Participations and the other rights and obligations of such Bank
hereunder, in a minimum aggregate amount of $5,000,000; provided, however,
that each Company and the Agent may continue to deal solely and directly with
such Bank in connection with the interest so assigned to an Assignee until
(A) written notice of such assignment, together with payment instructions,
addresses and related information with respect to the Assignee, shall have
been given to each Company and the Agent by such Bank and the Assignee; (B)
such Bank and its Assignee shall have delivered to each Company and the Agent
an Assignment and Acceptance in the form of EXHIBIT N ("Assignment and
Acceptance") together with any Note or Notes subject to such assignment; and
(C) the assignor Bank or Assignee has paid to the Agent a processing fee in
the amount of $3,500; and provided, further, the assignment may at the option
of the assigning Bank and the Assignee not assign any portion of any
outstanding Bid Loans. Notwithstanding the foregoing, no Bank may effect an
assignment under this SECTION 12.8(A) if after giving effect thereto its
remaining aggregate Commitment shall be less than $5,000,000, unless such
assignment shall be part of a series of transactions disclosed by such
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Bank to the Agent to effect the disposition of all of such Bank's interests
in the Loan Documents. A Bank may assign a portion of its Term Loan
Commitment without the assignment of a ratable portion of its Revolving
Credit Commitment.
(b) From and after the date that the Agent notifies the assignor Bank
that it has received (and provided its consent with respect to) an executed
Assignment and Acceptance and payment of the above-referenced processing fee,
(i) the Assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations of a Bank
under the Loan Documents, and (ii) the assignor Bank shall, to the extent
that rights and obligations hereunder and under the other Loan Documents have
been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations under the Loan Documents.
Upon the request of the Assignee, the Companies shall issue Notes to the
Assignee in lieu of and to replace the Notes then held by the assignor Bank,
which assigned Notes shall be returned by the assignor to the Companies.
(c) Within five Business Days after their receipt of notice from the
Agent that it has received an executed Assignment and Acceptance and payment
of the processing fee (and provided that they consent to such assignment in
accordance with SECTION 12.8(a)), the Companies shall execute and deliver to
the Agent a new Revolving Loan Note evidencing such Assignee's assigned
Revolving Loans and Revolving Commitment and a Bid Loan Note and a new Term
Loan Note evidencing such Assignee's assigned Term Loan Commitment and, if
the assignor Bank has retained a portion of its Revolving Loans and its
Revolving Commitment and Term Loan and its Term Loan Commitment, a
replacement Revolving Loan Note in the principal amount of the Revolving
Commitment it has retained (such Revolving Loan Note to be in exchange for,
but not in payment of, the Revolving Loan Note held by such Bank) and a
replacement Term Loan Note in the principal amount of the Term Loan
Commitment it has retained (such Term Loan Note to be in exchange for, but
not in payment of, the Term Loan Note held by such Bank). Immediately upon
payment of the processing fee under the Assignment and Acceptance, this
Agreement shall be deemed to be amended to the extent, but only to the
extent, necessary to reflect the addition of the Assignee and the resulting
adjustment of the Commitments arising therefrom. The Commitment allocated to
each Assignee shall reduce such Commitment of the assigning Bank pro tanto.
(d) Any Bank or Designated Bidder may at any time sell to one or more
commercial banks or other Persons not Affiliates of a Company (a
"Participant") participating interests in any Loans, the Commitment of that
Bank and the other interests of that Bank or Designated Bidder (the
"originating Bank") hereunder and under the other Loan Documents; provided,
however, that (i) the originating Bank's obligations under this Agreement
shall remain unchanged, (ii) the originating Bank shall remain solely
responsible for the performance of such obligations, (iii) each Company, the
Issuing Bank and the Agent shall continue to deal solely and directly with
the originating Bank in connection with the originating Bank's rights and
obligations under this Agreement and the other Loan Documents, and (iv) no
Bank shall transfer or grant any participating interest under which the
Participant has rights to approve any amendment to, or any
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consent or waiver with respect to, this Agreement or any other Loan Document,
except to the extent such amendment, consent or waiver would require
unanimous consent of the Banks as described in the first proviso to SECTION
12.1. In the case of any such participation, the Participant shall be
entitled to the benefit of SECTIONS 4.1, 4.3, 4.4 and 12.5 as though it were
also a Bank or Designated Bidder hereunder (provided that no Participant
shall be entitled to any payment under SECTION 4.1, 4.3 or 4.4 in excess of
the payment which would have been payable to the originating Bank if it had
not so sold a participation), and not have any rights under this Agreement,
or any of the other Loan Documents, and all amounts payable by the Companies
hereunder shall be determined as if such Bank had not sold such
participation; except that, if amounts outstanding under this Agreement are
due and unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant shall be
deemed to have the right of set-off in respect of its participating interest,
subject in all events to SECTION 2.18 as if such Participant were a Bank, in
amounts owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Bank or Designated
Bidder under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Bank or
Designated Bidder may at any time create a security interest in, or pledge
all or any portion of its rights under and interest in this Agreement and the
Notes held by it in favor of any Federal Reserve Bank in accordance with
Regulation A of the FRB or U.S. Treasury Regulation 31 CFR SECTION 203.14,
and such Federal Reserve Bank may enforce such pledge or security interest in
any manner permitted under applicable law.
(f) Any assignment or participation shall be subject to the assignee's
or the participant's agreement to be bound by all applicable confidentiality
restrictions set forth herein.
(g) Notwithstanding an assignment, the Bank making the assignment shall
continue to have the benefits of ARTICLE V and SECTIONS 12.4 and 12.5 with
respect to the period prior to the assignment.
12.9 DESIGNATED BIDDERS. Any Bank may designate one Designated Bidder
to have a right to offer and make Bid Loans pursuant to SECTION 2.6;
provided, however, that (i) no such Bank may make more than one such
designation, (ii) each such Bank making any such designation shall retain the
right to make Bid Loans, and (iii) the parties to each such designation shall
execute and deliver to the Agent a Designation Agreement. Upon its receipt of
an appropriately completed Designation Agreement executed by a designating
Bank and a designee representing that it is a Designated Bidder, the Agent
will accept such Designation Agreement and give prompt notice thereof to the
Company, whereupon such designation of such Designated Bidder shall become
effective and such designee shall become a party to this Agreement as a
"Designated Bidder."
12.10 CONFIDENTIALITY. Each Bank and Designated Bidder agrees to take
and to cause its Affiliates to take normal and reasonable precautions and
exercise due care to maintain the confidentiality of all information provided
to it by each Company or any Subsidiary, or by the Agent on such Company's or
Subsidiary's behalf, under this Agreement or any other Loan
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Document, and neither it nor any of its Affiliates shall use any such
information other than in connection with or in enforcement of this Agreement
and the other Loan Documents or in connection with other business now or
hereafter existing or contemplated with the Companies or any Subsidiary;
except to the extent such information (i) was or becomes generally available
to the public other than as a result of disclosure by the Agent, such Bank or
Designated Bidder, or (ii) was or becomes available from a source other than
the Companies, provided that such source is not bound by a confidentiality
agreement with the Companies known to the Bank or Designated Bidder;
provided, however, that any Bank or Designated Bidder may disclose such
information (A) at the request or pursuant to any requirement of any
Governmental Authority to which such Bank or Designated Bidder is subject or
in connection with an examination of such Bank or Designated Bidder by any
such authority; (B) pursuant to subpoena or other court process; (C) when
required to do so in accordance with the provisions of any applicable
Requirement of Law; (D) to the extent reasonably required in connection with
any litigation or proceeding to which the Agent, any Bank, any Designated
Bidder or their respective Affiliates may be party; (E) to the extent
reasonably required in connection with the exercise of any remedy hereunder
or under any other Loan Document; (F) to such Bank's or Designated Bidder's
independent auditors and other professional advisors provided that such
Person shall be notified of its obligation to keep such information
confidential to the same extent required of the Banks hereunder; (G) to any
Participant or Assignee, actual or potential, provided that such Person
agrees in writing to keep such information confidential to the same extent
required of the Banks hereunder; (H) as to any Bank, any Designated Bidder or
its Affiliate, as expressly permitted under the terms of any other document
or agreement regarding confidentiality to which the Companies or any
Subsidiary is party or is deemed party with such Bank or such Affiliate; and
(i) to its Affiliates. The Bank disclosing information pursuant to the above
proviso (except pursuant to clauses (A) , (E) , (F) , (G) , (H) or (I) shall
to the extent permitted by law give prior notice thereof to the Companies and
shall limit such disclosures to the information so required.
12.11 SET-OFF. In addition to any rights and remedies of the Banks
provided by law, if an Event of Default exists or the Loans have been
accelerated, each Bank (or Affiliate) and Designated Bidder (any Affiliate)
is authorized at any time and from time to time, without prior notice to any
Company, any such notice being waived by each Company to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final, but excluding deposits in
accounts which have been designated by the Borrower to the applicable Lender
as Payroll Accounts) at any time held by, and other indebtedness at any time
owing by, such Bank (or Affiliate) or Designated Bidder (or any Affiliate) to
or for the credit or the account of such Company against any and all
Obligations then due and owing, or in case of Letters of Credit, which may
become due and owing, to such Bank or Designated Bidder, now or hereafter
existing, irrespective of whether or not the Agent or such Bank or Designated
Bidder shall have made demand under this Agreement or any Loan Document.
Each Bank and Designated Bidder agrees promptly to notify each Company and
the Agent after any such set-off and application made by such Bank or
Designated Bidder; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and application.
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12.12 NOTIFICATION OF ADDRESSES OF LENDING OFFICES, ETC. Each Bank
and Designated Bidder shall notify the Agent in writing of any changes in the
address to which notices to such Bank and Designated Bidder should be
directed, of addresses of any Lending Office, of payment instructions in
respect of all payments to be made to it hereunder and of such other
administrative information as the Agent shall reasonably request.
12.13 COUNTERPARTS. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
12.14 SEVERABILITY. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement
required hereunder.
12.15 NO THIRD PARTIES BENEFITED. This Agreement is made and
entered into for the sole protection and legal benefit of the Companies, the
Banks, the Designated Bidders, the Agent and the Agent-Related Persons, and
their permitted successors and assigns, and no other Person shall be a direct
or indirect legal beneficiary of, or have any direct or indirect cause of
action or claim in connection with, this Agreement or any of the other Loan
Documents.
12.16 GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF FLORIDA; PROVIDED THAT THE AGENT AND THE BANKS
SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF FLORIDA
OR OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF FLORIDA, AND BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANIES, THE AGENT AND THE
BANKS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE COMPANIES, THE
DESIGNATED BIDDERS, THE AGENT AND THE BANKS IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR
ANY DOCUMENT RELATED HERETO. THE COMPANIES, THE AGENT, THE DESIGNATED
BIDDERS AND THE BANKS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT
OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY FLORIDA
LAW.
110
<PAGE>
12.17 WAIVER OF JURY TRIAL. THE COMPANIES, THE BANKS, THE
DESIGNATED BIDDERS AND THE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A
TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR
RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION
OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY
AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANIES, THE BANKS, THE
DESIGNATED BIDDERS AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL
BY JURY IS WAIVED BY OPERATION OF THIS SECTION 12.17 AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO
CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
12.18 ENTIRE AGREEMENT. This Agreement, together with the other
Loan Documents, embodies the entire agreement and understanding among the
Companies, the Banks and the Agent, and supersedes all prior or
contemporaneous agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof.
12.19 JUDGMENT CURRENCY. Each Company, the Agent and each Bank
hereby agree that if, in the event that a judgment is given in relation to
any sum due to the Agent or any Bank hereunder, such judgment is given in a
currency (the "Judgment Currency") other than that in which such sum was
originally denominated (the "Original Currency"), such Company agrees to
indemnify the Agent or such Bank, as the case may be, to the extent that the
amount of the Original Currency which could have been purchased by the Agent
in accordance with normal banking procedures on the Business Day following
receipt of such sum is less than the sum which could have been so purchased
by the Agent had such purchase been made on the day on which such judgment
was given or, if such day is not a Business Day, on the Business Day
immediately preceding the giving of such judgment, and if the amount so
purchased exceeds the amount which could have been so purchased had such
purchase been made on the day on which such judgment was given or, if such
day is not a Business Day, on the Business Day immediately preceding such
judgment, the Agent or the applicable Bank agrees to remit such excess to the
Companies. The agreements in this Section shall survive payment of all other
Obligations.
12.20 ECONOMIC AND MONETARY UNION IN THE EUROPEAN COMMUNITY.
(a) The parties confirm that, except as provided in subsection (b) below
of this SECTION 12.20, the occurrence or non-occurrence of an event associated
with economic and monetary
111
<PAGE>
union in the European Community will not have the effect of altering any term
of, or discharging or excusing performance under, this Agreement, any other
Loan Document, any Loan or any transaction contemplated by any of the
foregoing, nor give a party the right unilaterally to alter or terminate this
Agreement, any other Loan Document, any Loan or any transaction contemplated
by any of the foregoing or give rise to an Event of Default or otherwise be
the basis for the effective designation of a Termination Date.
"An event associated with economic and monetary union in the European
Community" includes, without limitation, each (and any combination) of the
following:
(i) the introduction of, changeover to or operation of a single or
unified European currency (whether known as the euro or otherwise);
(ii) the fixing of conversion rates between a member state's currency
and the new currency or between the currencies of member states;
(iii) the substitution of that new currency for the ECU as the
unit of account of the European Community;
(iv) the introduction of that new currency as lawful currency in a
member state;
(v) the withdrawal from legal tender of any currency that, before the
introduction of the new currency, was lawful currency in one of the member
states; or
(vi) the disappearance or replacement of a relevant price source for
the ECU or the national currency of any member state, or the failure of the
agreed sponsor (or a successor sponsor) to publish or display a relevant
rate, index, price, page or screen.
(b) Any agreement between the parties that amends or overrides the
provisions of this Section in respect of any Loan or any other transaction
contemplated by this Agreement or any of the Loan Documents will be effective
if it is in writing and expressly refers to this Section or to European
monetary union or to an event associated with economic and monetary union in
the European Community and would otherwise be effective in accordance with
Section 12.1).
(c) Each Company agrees that, notwithstanding anything to the contrary
contained in any agreement relating to "an event associated with economic and
monetary union in the European Community", upon the occurrence of any such
event, the Banks shall have the right to convert any or all Offshore Currency
Loans into Loans denominated in Dollars determined as of a date, as may be
selected by the Agent in its sole discretion.
112
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in Charlotte by their proper and duly authorized
officers as of the day and year first above written.
WITNESS: INTERIM SERVICES INC.
s/Kimberly Saltrick By: s/ Shannon C. Allen
- ------------------- -----------------------------------
Name: Shannon C. Allen
s/Wade M. Kennedy Title: Assistant Treasurer
- -------------------
INTERIM SERVICES (EUROPE) INC.
s/Kimberly Saltrick By: s/ Shannon C. Allen
- ------------------- -----------------------------------
Name: Shannon C. Allen
s/Wade M. Kennedy Title: Assistant Treasurer
- -------------------
INTERIM SERVICES (UK) PLC
s/Kimberly Saltrick By: s/ John B. Smith
- ------------------- -----------------------------------
Name: John B. Smith
s/Wade M. Kennedy Title: Director
- -------------------
<PAGE>
NATIONSBANK, NATIONAL ASSOCIATION, as Agent and
Issuing Bank
By: s/ Maria P. Conroy
--------------------------------------------
Name: Maria P. Conroy
Title: Senior Vice President
NATIONSBANK, NATIONAL ASSOCIATION, as a Bank
By: s/ Maria P. Conroy
--------------------------------------------
Name: Maria P. Conroy
Title: Senior Vice President
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO,
as Documentation Agent and as a Lender
By: s/ Courtenay R. Wood
--------------------------------------------
Name: Courtenay R. Wood
Title: Vice President
Lending Office:
One First National Plaza
Suite 0167, 1-10
Chicago, Illinois 60670
Wire Transfer Instructions:
The First National Bank of Chicago
Chicago, Illinois
ABA #071000013
Account #7521-7653
Attention: DES Incoming Clearing Account
Reference: Interim Services, Inc.
<PAGE>
BARNETT BANK, N.A., as a Co-Agent and
as a Lender
By: s/ Michael Cooney
--------------------------------------------
Name: Michael Cooney
Title: Vice President
Lending Office:
1 E. Broward Boulevard, 4th Floor
Fort Lauderdale, Florida 33301
Wire Transfer Instructions:
Barnett Bank, N.A.
Jacksonville, Florida
ABA #063000047
Account # Interim Services 00900015967
Attention: Commercial Loan Accounting
<PAGE>
THE FUJI BANK AND TRUST COMPANY,
as a Co-Agent and as a Lender
By: s/ Toshiaki Yakura
--------------------------------------------
Name: Toshiaki Yakura
Title: EVP
Lending Office:
The Fuji Bank and Trust Company
Two World Trade Center
New York, New York 10048
Wire Transfer Instructions:
The Fuji Bank and Trust Company
New York, New York
ABA # 026008905
Account # 515011U2
Attention: Betty Ali
Reference: Interim Services, Inc.
<PAGE>
THE CHASE MANHATTAN BANK,
as a Co-Agent and as a Lender
By: s/ William J. Caggiano
--------------------------------------------
Name: William J. Caggiano
Title: Managing Director
Lending Office:
270 Park Avenue
New York, New York 10017
Wire Transfer Instructions:
The Chase Manhattan Bank
New York, New York
ABA #021000021
Account # I059420
Reference: Interim Services, Inc.
Attention: John Knapp
<PAGE>
FLEET NATIONAL BANK, as a Co-Agent
and as a Lender
By: s/ Kevin J. Foley
--------------------------------------------
Name: Kevin J. Foley
Title: Senior Vice President
Lending Office:
1 Federal Street
MAOFDO4J
Boston, Massachusetts 02176
Wire Transfer Instructions:
Fleet National Bank
Boston, Massachusetts
ABA # 011-000-138
Account # __________
Attention: _______________________
Reference: Interim Services Inc.
<PAGE>
ABN AMRO BANK NV
By: s/ Richard Lavina
Name: Richard Lavina
Title: Group Vice President
By: s/ Javier Rocio
Name: Javier Rocio
Title: Group Vice President
Lending Office:
200 S. Biscayne Boulevard
22nd Floor
Miami, Florida 33131
Wire Transfer Instructions:
ABN AMRO Bank NV
Miami, Florida
ABA # 066010869
Account # 5111-806366-10
Attention: Credit Department
Reference: Interim Services Inc.
<PAGE>
BANK OF MONTREAL
By: s/ R.J. McClorey
---------------------------------
Name: R. J. McClorey
Title: Director
Lending Office:
115 South LaSalle Street
Chicago, Illinois 60603
Wire Transfer Instructions:
Harris Trust & Savings Bank
Chicago, Illinois 60603
ABA #071-000-288
Account # 1248566
Bank of Montreal, Chicago Branch
Reference: Interim Services Inc.
<PAGE>
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, ATLANTA AGENCY
By: s/ Kazuo Iida
---------------------------------
Name: Kazuo Iida
Title: General Manager
Lending Office:
191 Peachtree Street, N.E.
Suite 3600
Atlanta, Georgia 30303-1757
Wire Transfer Instructions:
The Industrial Bank of Japan, Limited,
New York Branch
New York, New York
ABA #026008345
For further credit to: IBJ Atlanta Agency
Account # 2601-21014
Reference: Interim Services Inc.
<PAGE>
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: s/ Oliver W. Wesson, Jr.
---------------------------------
Name: Oliver W. Wesson, Jr.
Title: Vice President
Lending Office:
60 Wall Street
New York, New York 10260-0060
Wire Transfer Instructions:
Morgan Guaranty Trust Company of New York
New York, New York
ABA # 021000238
For credit to: Loan Department
Account # 999-99-090
Attention: Module 0002
Reference: Interim Services Inc.
<PAGE>
THE SANWA BANK, LIMITED, ATLANTA
AGENCY
By: s/ P. J. Pawlak
---------------------------------
Name: P. J. Pawlak
Title: V.P. & Senior Manager
Lending Office:
133 Peachtree Street, N.E.
Suite 4950
Atlanta, Georgia 30303
Wire Transfer Instructions:
The Sanwa Bank, New York Branch
New York, New York
ABA # 026009823
For the account of: Sanwa Atlanta
Account # 999669
<PAGE>
THE SUMITOMO BANK, LIMITED
By: s/ Masayuki Fukushima
---------------------------------
Name: Masayuki Fukushima
Title: Joint General Manager
Lending Office:
277 Park Avenue
New York, New York 10172
Wire Transfer Instructions:
Morgan Guaranty Trust Company of New York
New York, New York
Account # 631-28-256
(The Sumitomo Bank, Ltd.)
ABA # 021000238
Attention: Loan Operations
Reference: Interim Services Inc.
<PAGE>
THE BANK OF NEW YORK
By: s/ David C. Siegel
---------------------------------
Name: David C. Siegel
Title: Assistant Vice President
Lending Office:
One Wall Street, 22nd Floor
New York, New York 10286
Wire Transfer Instructions:
The Bank of New York
New York, New York
ABA # 021000018
Commercial Loan Servicing Department
Reference: Interim Services Inc.
<PAGE>
COMERICA BANK
By: s/ Martin G. Ellis
---------------------------------
Name: Martin G. Ellis
Title: Vice President
Lending Office:
500 Woodward Avenue
Detroit, Michigan 48375-3280
Wire Transfer Instructions:
Comerica Bank
Detroit, Michigan
ABA # 072000096
Reference: Interim Services
Attention: CLAS
<PAGE>
HIBERNIA NATIONAL BANK
By: s/ Christopher B. Pitre
---------------------------------
Name: Christopher B. Pitre
Title: Assistant Vice President
Lending Office:
313 Carondelet Street
New Orleans, Louisiana 70130
Wire Transfer Instructions:
Hibernia National Bank
New Orleans, Louisiana
ABA #065000090
Account # 0520-36615
Attention: National Accounts
<PAGE>
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: s/ Victor F. Bulzacchelli
---------------------------------
Name: Victor F. Bulzacchelli
Title: Vice President
Lending Office:
1251 Avenue of the Americas, 12th Floor
New York, New York 10020-1104
Wire Transfer Instructions:
Bank of Tokyo-Mitsubishi Trust Company
ABA # 0260-0968-7
Further Credit to: Loan Operations Dept.
<PAGE>
EXHIBIT A
FORM OF BID LOAN NOTE
$__________ __________, 199_
FOR VALUE RECEIVED, the undersigned, Interim Services Inc. and
[LIST EACH BORROWING SUBSIDIARY] (the "Companies"), hereby jointly and
severally promise to pay to the order of _________________________________
(the "Bank") the principal sum of SIX HUNDRED SEVENTY-FIVE MILLION DOLLARS
($675,000,000) or, if less, the aggregate unpaid principal amount of all Bid
Loans made by the Bank to the Companies pursuant to the Credit Agreement
dated as of May 1, 1997 (such Credit Agreement, as it may be amended,
restated, supplemented or otherwise modified from time to time, being
hereinafter called the "Credit Agreement") among the Companies, the banks
parties thereto and NationsBank, National Association, as Agent for the
Banks, as a Letter of Credit Issuing Bank and as guarantor of the Interim
Notes, on the dates and in the amounts provided in the Credit Agreement. The
Companies further promise to pay interest on the unpaid principal amount of
the Bid Loans evidenced hereby from time to time at the rates, on the dates,
and otherwise as provided in the Credit Agreement. Terms defined in the
Credit Agreement are used herein with their defined meanings therein unless
otherwise defined herein.
The Bank is authorized to endorse the amount and the date on which each
Bid Loan is made, the maturity date therefor and each payment of principal
with respect thereto on the schedule annexed hereto and made a part hereof,
or on continuations thereof which shall be attached hereto and made a part
hereof; PROVIDED, HOWEVER, that any failure to endorse such information on
such schedule or continuation thereof shall not in any manner affect any
obligation of the Company under the Credit Agreement or this Bid Loan Note
(this "Note").
This Note is one of the Bid Loan Notes referred to in, and is entitled
to the benefits of, the Credit Agreement, which Credit Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of
dishonor.
A-1
<PAGE>
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE.
WITNESS: INTERIM SERVICES INC.
By:
- --------------------------- --------------------------------------
Name:
------------------------------------
Title:
- --------------------------- -----------------------------------
[LIST EACH BORROWING SUBSIDIARY]
By:
- --------------------------- --------------------------------------
Name:
------------------------------------
Title:
- --------------------------- --------------------------------------
A-2
<PAGE>
Schedule A to Bid Loan Note
LOANS AND REPAYMENT OF LOANS
(2) (3)
Amount of Maturity (4) (5)
(1) Absolute Date Amount of Notation
Date Rate Loan of Loan Loan Repaid Made by
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A-3
<PAGE>
EXHIBIT B
Interim Services Inc.
[LIST EACH BORROWING SUBSIDIARY]
COMPLIANCE CERTIFICATE
Financial
Statement Date: ___________, _____
Reference is made to that certain Credit Agreement dated as of May 1,
1997 (as extended, renewed, amended or restated from time to time, the
"CREDIT AGREEMENT") among Interim Services Inc. and
[LIST EACH BORROWING SUBSIDIARY], the several financial institutions from
time to time parties to the Credit Agreement (the "BANKS"), NationsBank,
National Association, as agent for the Banks (the "AGENT") and as Letter of
Credit Issuing Bank for the Banks. Unless otherwise defined herein,
capitalized terms used herein have the respective meanings assigned to them
in the Credit Agreement.
The undersigned, the (treasurer) (chief financial officer)
(secretary-controller) of Interim Services Inc., hereby certifies as of the
date hereof that he is authorized to execute and deliver this Certificate to
the Banks and the Agent on behalf of Interim Services Inc. and
[LIST EACH BORROWING SUBSIDIARY], and that:
[Use the following paragraph if this Certificate is delivered in connection with
the financial statements required by Section 8.1(a) of the Credit Agreement]
1. Attached as Schedule 1 hereto are (a) a true and correct copy of
the consolidated balance sheets and consolidated statement of profits and
losses of Interim Services Inc. and its Subsidiaries as of the end of the
fiscal quarter ended __________, ____ , and (b) the related consolidated
statements of cash flows for the period commencing on the first day and
ending on the last day of such quarter, and certified by its (chief financial
officer) (treasurer) (secretary-controller) that such financial statements
were prepared in accordance with GAAP and present fairly the financial
position and the results of operations of Interim Services Inc. and its
Subsidiaries.
[Use the following paragraph if this Certificate is delivered in connection
with the financial statements required by Section 8.1(b) of the Credit
Agreement]
1. Attached as SCHEDULE 1 hereto are (a) a true and correct copy of
the annual audit report of Interim Services Inc. and its Subsidiaries as of
the end of the fiscal year ended __________ 199__, including therein (i) the
consolidated balance sheet of Interim Services Inc.
B-1
<PAGE>
and its Subsidiaries as of the end of such fiscal year and (ii) consolidated
statements of profits and losses and cash flow of Interim Services Inc. and
its Subsidiaries for such fiscal year, in each case certified by
_____________________ or other nationally recognized independent public
accountants, and (b) a certificate from such accountants to the effect that
(i) such financial statements of Interim Services Inc. and its Subsidiaries
were prepared in accordance with GAAP and present fairly the financial
position and the results of operations of Interim Services Inc. and its
Subsidiaries and (ii) in making the examination necessary for the signing of
such annual report by such accountants, they have not become aware of any
Default or Event of Default that has occurred and is continuing, or, if they
have become aware of such Default or Event of Default, describing such
Default or Event of Default and the steps, if any, being taken to cure it.
2. The undersigned has reviewed and is familiar with the terms of the
Credit Agreement and has made, or has caused to be made under his
supervision, a detailed review of the transactions and conditions (financial
or otherwise) of Interim Services Inc. and its Subsidiaries during the
accounting period covered by the attached financial statements.
3. To the best of the undersigned's knowledge, Interim Services Inc.
and [LIST EACH BORROWING SUBSIDIARY], during such period, have observed,
performed or satisfied all of their covenants and other agreements, and
satisfied every condition in the Credit Agreement and other Loan Documents
to be observed, performed or satisfied by Interim Services Inc. and
[LIST EACH BORROWING SUBSIDIARY] and the undersigned has [no knowledge of any
Default or Event of Default] [knowledge of a Default or Event of Default and
the following steps are being taken to cure it:]
4. Attached as SCHEDULE 2 are computations of each of the financial
ratios and restrictions contained in ARTICLE IX of the Credit Agreement which
computations show compliance with that ARTICLE IX.
5. The Consolidated Net Worth as at ____________ is $______________ .
B-2
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of _______________________ , ______.
INTERIM SERVICES INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
B-3
<PAGE>
Schedule 2
FINANCIAL CONDITION
I. Consolidated Fixed Charge Coverage Ratio of Interim Services Inc.
Note: all calculations shall be for the four Fiscal Quarters then ending
(a) Consolidated Net Income $___________
(b) Income taxes $___________
(c) Consolidated Interest Expense (including
amounts attributable to interest under any
Permitted Receivable Securitization) ** $___________
(d) Depreciation expense $___________
(e) Amortization expense $___________
(f) EBITDA = sum of (a), (b), (c), (d) $___________
and (e)*
(g) Gains on the sale of assets outside the $___________
ordinary course of business (excluding
gains on the sale of assets previously
on operating leases)
(h) Capital Expenditures (other than by reason of an $____________
Acquisition)
(i) Line (f) minus the sum of line (g) and line (h) $____________
(j) Line (c) $____________
(k) Dividends $____________
* Adjusted as provided in the definitions of Consolidated EBITDA
**Calculation of addition to Consolidated Interest Expense after an
Acquisition as provided in the definition of Consolidated Interest
Expense.
B-4
<PAGE>
(l) Required Principal Payments $____________
(m) Line (j) plus line (k) plus line (l) $____________
(n) Ratio of line (i) to line (m)
(Consolidated Fixed Charge Ratio),
which shall not be less than: $____________
Closing until 6/29/98: 1.50:1.00
Thereafter 2.00:1.00
(i) Additional Indebtedness times rate
of interest for first full calendar
quarter following Acquisition
$__________ x 4 = $____________
(ii) Additional Indebtedness times rate
of interest for two full calendar
quarters following Acquisition
$__________ x 2 = $____________
(iii) Additional Indebtedness times rate
of interest for three full calendar
quarters following Acquisition
$__________ x 4/3's = $____________
II. Consolidated Total Leverage Ratio of Interim Services Inc.
Note: calculations of this ratio shall be for the four Fiscal Quarters
then ending,
(a) Total Indebtedness of Interim Services Inc.
and its Subsidiaries $____________
(b) EBITDA=Line I(f) $____________
(c) Ratio of line (a) to line (b) $____________
which shall not exceed the following:
Effective Date until 6/29/98: 4.75:1.00
6/30/98 until 6/29/99: 4.00:1.00
Thereafter: 3.50:1.00
(d) Applicable Margin = _________ bps
Applicable Fee Percentage = _________ bps
B-5
<PAGE>
III. Allowed Investments by Interim Services Inc. and its Subsidiaries
(a) All loans or advances to Foreign Subsidiaries $____________
(b) Investments in Spectrum $____________
(c) Other Investments in Affiliates, licensees and $____________
franchisees (not to exceed $30,000,000)
(d) Consolidated Net Worth $____________
(e) Line (a) DIVIDED BY Line (d) ____________%
(f) Line (b) DIVIDED BY Line (d) ____________%
IV. Asset Dispositions of Interim Services Inc.
(a) Net book value of all assets conveyed $____________
otherwise than in the ordinary course of
business by Interim Services Inc. or any
of its Subsidiaries pursuant to Section
9.7(b) since the Closing Date and
otherwise than is permitted in connection
with a Permitted Receivables Securitization
(b) Consolidated net revenues (including $____________
Michael Page and its Subsidiaries)
(c) 15% of line (b) $____________
V. Permitted Indebtedness for Interim Services Inc. and its Subsidiaries
(a) Total Indebtedness $____________
(b) Indebtedness incurred pursuant to Credit $____________
Agreement
(c) Existing Indebtedness as set forth in $____________
Schedule 9.12
(d) Indebtedness in connection with a $____________
Permitted Receivables Securitization
B-6
<PAGE>
(e) Subordinated Indebtedness $____________
(f) Additional Indebtedness of the Companies and
the Guarantors $____________
(g) Line (f) may not exceed $35,000,000
VI. Consolidated Net Worth
(a) Consolidated Net Worth requirement at prior
fiscal quarter end. (See immediately
preceding Compliance Certificate) $____________
(b) 50% of Quarterly Consolidated Net Income (if
positive) for the Fiscsal Quarter just ended $____________
(c) 100% of net proceeds of equity issued by Interim
Services during such fiscal quarter ended. $____________
(d) Line (a) plus Line (b) plus Line (c) $____________
B-7
<PAGE>
EXHIBIT C
DESIGNATION AGREEMENT
Dated __________________, 19____.
Reference is made to the Credit Agreement dated as of May 1, 1997 (as
amended from time to time, the "CREDIT AGREEMENT") among Interim Services Inc.
and [LIST EACH BORROWING SUBSIDIARY] (the "COMPANIES"), various financial
institutions parties thereto, NationsBank, National Association, as agent for
the Banks (the "AGENT") and as letter of credit issuing bank. Capitalized
terms used herein have the meanings specified in the Credit Agreement. Terms
defined in the Credit Agreement are used herein with the same meaning.
__________________________ (the "Designator") and __________________________
(the "Designee") agree as follows:
1. The Designator hereby designates the Designee, and the Designee hereby
accepts such designation, to have a right to make Bid Loans pursuant to
Section 2.6 of the Credit Agreement.
2. The Designator makes no representation or warranty and assumes no
responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any
other instrument or document furnished pursuant thereto or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of
the Credit Agreement or any other instrument or document furnished pursuant
thereto or (ii) the financial condition of the Companies or any of their
respective Subsidiaries or the performance or observance by the Companies
or any of their respective Subsidiaries of any of their respective
obligations under the Credit Agreement or any other instrument or document
furnished pursuant thereto.
3. The Designee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 7.10 or 8.1 thereof and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to
enter into this Designation Agreement; (ii) agrees that it will,
independently and without reliance upon the Agent, the Designator or any
other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (iii) confirms that
it is an entity qualified to be a Designated Bidder; (iv) appoints and
authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement as are delegated to the
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; (v) agrees that it will perform in accordance with
their terms all of the obligations which by the terms of the Credit
C-1
<PAGE>
Agreement are required to be performed by it as a Designated Bidder; and
(vi) specifies as its Lending Office with respect to Bid Loans (and address
for notices) the offices set forth beneath its name on the signature page
hereof.
4. Following the execution of this Designation Agreement by the Designator and
the Designee, it will be delivered to the Agent for acceptance by the
Agent. The effective date of this Designation Agreement shall be the date
of acceptance thereof by the Agent, unless otherwise specified on the
signature page hereto (the "Effective Date").
5. Upon such acceptance and recording by the Agent, as of the Effective Date,
the Designee shall be a party to the Credit Agreement as a "Designated
Bidder" with a right to make Bid Loans as a Bank pursuant to Section 2.6 of
the Credit Agreement and the rights and obligations of a Designated Bidder
related thereto.
6. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of Florida.
C-2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Designation Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
Effective Date: _______________________________, ___.
(NAME OF DESIGNATOR)
By: _______________________
Title:
(NAME OF DESIGNEE)
By: _______________________
Title:
Lending Office (and address for notices)
(Address)
Accepted this ______ day of
________________, ____.
(NAME OF AGENT)
By: ___________________________
Title:
_____________________________________
* This date should be no earlier than the date of acceptance by the Agent.
C-3
<PAGE>
EXHIBIT D
FORM OF LOAN NOTE INSTRUMENT
D-1
<PAGE>
EXHIBIT E
INVITATION FOR COMPETITIVE BID
VIA FACSIMILE
To the Banks Listed on SCHEDULE A attached hereto:
Re: Interim Services Inc. Credit Agreement dated as of May 1, 1997, as amended
(the "Credit Agreement")
Ladies and Gentlemen:
Capitalized terms used herein have the meanings specified in the Credit
Agreement. Pursuant to SECTION 2.7 of the Credit Agreement, you are hereby
invited to submit offers to make Bid Loans to the Companies based on the
following specifications:
1. Requesting Company
/ / Interim Services Inc.
/ / [LIST EACH BORROWING SUBSIDIARY]
2. Bid Type: Absolute
3. Competitive Bid Request Date:
_______ ________ ________
Day Month Year
4. Borrowing Date:
_______ ________ ________
Day Month Year
5. Aggregate Amount Requested by Company:
USD
------------------
E-1
<PAGE>
6. Specified Interest Periods:
Date From Date To # of Days
Interest Period #1 / / / / #
Interest Period #2 / / / / #
Interest Period #3 / / / / #
7. Bid Loan principal amounts must be USD 1,000,000 or in multiples of
USD 500,000 in excess thereof and may not exceed the amount of Bid
Loans which were requested.
8. The rate of interest should be rounded to 1/1000th of 1%.
All Competitive Bids must be in the form of EXHIBIT K to the Credit
Agreement and must be received by the undersigned no later than 10:00 a.m.
(Charlotte, North Carolina time) on ____________, ____.
__________________________________________
as Bid Agent
By:_______________________________________
Title:____________________________________
Facsimile:________________________________
E-2
<PAGE>
Schedule A
List of Banks
E-3
<PAGE>
EXHIBIT F
IRREVOCABLE NOTICE OF SYNDICATED ACTIVITY
Notice Date: / /
Re: Interim Services Inc. Credit Agreement dated as of May 1, 1997, as amended
(the "Credit Agreement") Agent Code ______
1. Borrower
/ / Interim Services Inc.
/ / [LIST EACH BORROWING
SUBSIDIARY]
2. Type of Syndicated Loan
/ / Revolving Loan
/ / Term Loan
3. Loan Borrowing
/ / Advance
/ / Reduce
/ / Continue
/ / Convert
4. Type of Letter of Credit
/ / Sublimit L/C
5. Letter of Credit
Commitment
/ / Issue
/ / Amend
/ / Renew
6. Applicable Currency
/ / British Pound Sterling
(initial Borrowing only)
/ / United States Dollar
7. Amount (in units)
__________ L
8. Interest Rate Type
/ / Offshore (Fixed)
/ / Base (Floating)
F-1
<PAGE>
10. Applicable Margin,
subject to changes
pursuant to the Credit
Agreement
/ / 25.0 bps (Level 6)
/ / 30.0 bps (Level 5)
/ / 40.0 bps (Level 4)
/ / 60.0 bps (Level 3)
/ / 75.0 bps (Level 2)
/ / 95.0 bps (Level 1)
11. Duration
/ / 1 month
/ / 2 months
/ / 3 months
/ / 6 months
Begin Date / /
End Date / /
12. Wire Instructions
_________________________
_________________________
_________________________
_________________________
Capitalized terms used herein have the meanings specified in the Credit
Agreement.
13. If this notice relates to any Loan or Issuance other than a continuation or
conversion of an existing Loan or renewal of an existing Letter of Credit,
the undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the proposed Borrowing,
before and after giving effect thereto and to the application of the
proceeds therefrom:
(a) the representations and warranties contained in Article VII of
the Credit Agreement and in the other Loan Documents are true and correct
as though made on and as of such date (except to the extent such
representations and warranties relate to an earlier date, in which case
they are true and correct as of such date); and
(b) no Default or Event of Default exists or would result from such
proposed Borrowing.
14. If this notice relates to a continuation or conversion of an existing Loan
or renewal of an existing Letter of Credit, no Event of Default or (in the case
of a continuation of or conversion to an Offshore Currency Loan with an interest
period of more than one month) Default exists.
F-2
<PAGE>
15. To the best of our knowledge, this request WILL NOT PUT the undersigned
above the maximum Commitment limits set forth in the Credit Agreement.
Signed:
/ / INTERIM SERVICES INC.
/ / [LIST EACH BORROWING SUBSIDIARY]
By:_________________________________________________
Title:______________________________________________
F-3
<PAGE>
EXHIBIT G
FORM OF REVOLVING LOAN NOTE
________________, 19___
FOR VALUE RECEIVED, the undersigned, Interim Services Inc. and
[LIST EACH BORROWING SUBSIDIARY] (the "COMPANIES"), hereby jointly and
severally promise to pay to the order of ____________ _____ (the "BANK") the
aggregate unpaid principal amount of all Revolving Loans made by the Bank to
the Companies pursuant to the Credit Agreement, dated as of May 1, 1997 (such
Credit Agreement, as it may be amended, restated, supplemented or otherwise
modified from time to time, being hereinafter called the "CREDIT AGREEMENT")
among the Companies, the banks parties thereto and NationsBank, National
Association, as Agent for the Banks, as a Letter of Credit Issuing Bank and
as guarantor of the Interim Notes, on the dates and in the amounts provided
in the Credit Agreement. The Company further promises to pay interest on the
unpaid principal amount of the Revolving Loans evidenced hereby from time to
time at the rates, on the dates, and otherwise as provided in the Credit
Agreement. Terms defined in the Credit Agreement are used herein with their
defined meanings therein unless otherwise defined herein.
The Bank is authorized to endorse the amount and the date on which each
Revolving Loan is made, the maturity date therefor and each payment of
principal with respect thereto on the schedules annexed hereto and made a
part hereof, or on continuations thereof which shall be attached hereto and
made a part hereof; PROVIDED, HOWEVER, that any failure to endorse such
information on such schedule or continuation thereof shall not in any manner
affect any obligation of the Companies under the Credit Agreement or this
Revolving Loan Note (the "NOTE").
This Note is one of the Revolving Loan Notes referred to in, and is
entitled to the benefits of, the Credit Agreement, which Credit Agreement,
among other things, contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also for prepayments
on account of principal hereof prior to the maturity hereof upon the terms
and conditions therein specified.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of
dishonor.
G-1
<PAGE>
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
INTERIM SERVICES INC.
WITNESS:
______________________________ By: ____________________________________
______________________________ Title: _________________________________
[LIST EACH BORROWING SUBSIDIARY]
WITNESS:
______________________________ By: ____________________________________
______________________________ Title: _________________________________
G-2
<PAGE>
Schedule A to Revolving Loan Note
BASE RATE LOANS AND REPAYMENT OF BASE RATE LOANS
(3)
(2) Amount of (4)
(1) Amount of Base Rate Notation
Date Base Rate Loan Loan Repaid Made by
---- -------------- ----------- --------
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
G-3
<PAGE>
Schedule B to Revolving Loan Note
OFFSHORE RATE LOANS AND REPAYMENT OF OFFSHORE RATE LOANS
(2) (3) (4)
Amount and Maturity Amount and
Currency of Date of Currency of (5)
(1) Offshore Offshore Offshore Rate Notation
Date Rate Loan Rate Loan Loan Repaid Made by
---- --------- --------- ----------- -------
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
G-4
<PAGE>
EXHIBIT H
FORM OF SWING LINE NOTE
$40,000,000 Charlotte, North Carolina
May __, 1997
FOR VALUE RECEIVED, INTERIM SERVICES INC., and [LIST EACH BORROWING
SUBSIDIARY] (the "Borrowers"), hereby jointly and severally promise to pay to
the order of
NATIONSBANK, NATIONAL ASSOCIATION (the "Lender"), in its individual
capacity, at the office of NationsBank, National Association, as agent for
the Lender (the "Agent"), located at Independence Center, 15th Floor,
Charlotte, North Carolina 28255 (or at such other place or places as the
Agent may designate) at the times set forth in the Credit Agreement dated as
of May 1, 1997 among the Borrowers, the financial institutions party thereto
(collectively, the "Lenders") and the Agent (as amended or supplemented, the
"Credit Agreement" -- all capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Credit Agreement), in
lawful money of the United States of America, in immediately available funds,
the aggregate unpaid principal amount of the Swing Line Loans made by the
Lender to the Borrowers pursuant to the Credit Agreement and to pay interest
on the unpaid principal amount of each such Swing Line Loan, in like money,
at said office, for the period commencing on the date of such Swing Line Loan
until such Swing Line Loan shall be paid in full, on the dates and at the
rates provided in Article II of the Credit Agreement. All or any portion of
the principal amount of Swing Line Loans may be prepaid as provided in the
Agreement.
This Swing Line Note is one of the Notes referred to in the Credit
Agreement and is issued pursuant to and entitled to the benefits and security
of the Credit Agreement to which reference is hereby made for a more complete
statement of the terms and conditions upon which the Swing Line Loans
evidenced hereby were or are made and are to be repaid. This Swing Line Note
is subject to certain restrictions on transfer or assignment as provided in
the Credit Agreement.
Interest hereunder shall be computed as provided in the Credit Agreement.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of
dishonor.
H-1
<PAGE>
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF FLORIDA.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of
dishonor.
[Remainder of page intentionally left blank.]
H-2
<PAGE>
IN WITNESS WHEREOF, the Borrowers have caused this Swing Line Note to be
made, executed and delivered by their duly authorized representatives as of
the date and year first above written, all pursuant to authority duly granted.
WITNESS: INTERIM SERVICES INC.
______________________________ By: ____________________________________
______________________________ Name: __________________________________
Title: _________________________________
WITNESS: [LIST EACH BORROWING SUBSIDIARY]
______________________________ By: ____________________________________
______________________________ Name: __________________________________
Title: _________________________________
H-3
<PAGE>
EXHIBIT I
FORM OF TERM LOAN NOTE
________________, 19__
FOR VALUE RECEIVED, the undersigned, Interim Services Inc. and
[LIST EACH BORROWING SUBSIDIARY] (the "COMPANIES"), hereby jointly and
severally promise to pay to the order of ____________ _____ (the "BANK") the
aggregate unpaid principal amount of all Term Loans made by the Bank to the
Companies pursuant to the Credit Agreement, dated as of May 1, 1997 (such
Credit Agreement, as it may be amended, restated, supplemented or otherwise
modified from time to time, being hereinafter called the "CREDIT AGREEMENT")
among the Companies, the banks parties thereto and NationsBank, National
Association, as Agent for the Banks as a Letter of Credit Issuing Bank and as
guarantor of the Interim Notes, on the dates and in the amounts provided in
the Credit Agreement. The Company further promises to pay interest on the
unpaid principal amount of the Term Loans evidenced hereby from time to time
at the rates, on the dates, and otherwise as provided in the Credit
Agreement. Terms defined in the Credit Agreement are used herein with their
defined meanings therein unless otherwise defined herein.
The Bank is authorized to endorse the amount and the date on which each
Term Loan is made, the maturity date therefor and each payment of principal
with respect thereto on the schedules annexed hereto and made a part hereof,
or on continuations thereof which shall be attached hereto and made a part
hereof; PROVIDED, HOWEVER, that any failure to endorse such information on
such schedule or continuation thereof shall not in any manner affect any
obligation of the Companies under the Credit Agreement or this Term Loan Note
(the "NOTE").
This Note is one of the Term Loan Notes referred to in, and is entitled
to the benefits of, the Credit Agreement, which Credit Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of
dishonor.
I-1
<PAGE>
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
INTERIM SERVICES INC.
WITNESS:
______________________________ By: ____________________________________
______________________________ Title: _________________________________
[LIST EACH BORROWING SUBSIDIARY]
WITNESS:
______________________________ By: ____________________________________
______________________________ Title: _________________________________
I-2
<PAGE>
Schedule A to Term Loan Note
BASE RATE LOANS AND REPAYMENT OF BASE RATE LOANS
(3)
(2) Amount of (4)
(1) Amount of Base Rate Notation
Date Base Rate Loan Loan Repaid Made by
---- -------------- ----------- --------
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
________________ ________________ ________________ ________________
I-3
<PAGE>
Schedule B to Term Loan Note
OFFSHORE RATE LOANS AND REPAYMENT OF OFFSHORE RATE LOANS
(2) (3) (4)
Amount and Maturity Amount and
Currency of Date of Currency of (5)
(1) Offshore Offshore Offshore Rate Notation
Date Rate Loan Rate Loan Loan Repaid Made by
---- --------- --------- ----------- -------
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
____________ ______________ ______________ ______________ ______________
I-4
<PAGE>
EXHIBIT J
COMPETITIVE BID REQUEST
Bid Agent ____________, ____
[Address]
Re: Interim Services Inc. Credit Agreement dated as of May 1, 1997, as amended
(the "Credit Agreement")
Ladies and Gentlemen:
This is a Competitive Bid Request for Bid Loans pursuant to Section 2.7 of
the Credit Agreement as follows:
1. Requesting Company
/ / Interim Services Inc.
/ / [LIST EACH BORROWING SUBSIDIARY]
2. Bid Type: Absolute
3. Borrowing Date:
Day Month Year
4. Aggregate Bid Amount:
USD
J-1
<PAGE>
5. Bid Details:
Date From Date To # of Days
Interest Period #1 / / / / #
Interest Period #2 / / / / #
Interest Period #3 / / / / #
Capitalized terms used herein have the meanings specified in the Credit
Agreement.
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the proposed Borrowing, before
and after giving effect thereto and to the application of the proceeds
therefrom:
(a) the representations and warranties contained in Article VII of
the Credit Agreement and in the other Loan Documents are true and correct
as though made on and as of such date (except to the extent such
representations and warranties relate to an earlier date, in which case
they are true and correct as of such date);
(b) no Default or Event of Default exists or would result from such
proposed Borrowing; and
(c) to the best of our knowledge, this request will not put the
undersigned above the maximum Commitment limits set forth in the Credit
Agreement.
Signed:
INTERIM SERVICES INC.
By:____________________________________
Name:__________________________________
Title:_________________________________
[LIST EACH BORROWING SUBSIDIARY]
By:____________________________________
Name:__________________________________
Title:_________________________________
J-2
<PAGE>
EXHIBIT K
COMPETITIVE BID
Bid Agent ____________, ____
[Address]
Re: Interim Services Inc. Credit Agreement dated as of May 1, 1997, as amended
(the "Credit Agreement")
Ladies and Gentlemen:
Capitalized terms used herein have the meanings specified in the Credit
Agreement. In response to the Competitive Bid Request of the Companies dated
____________, ____ and in accordance with Section 2.7(c)(ii) of the Credit
Agreement, the undersigned Bank offers to make [a] Bid Loan[s] thereunder in the
following principal amount[s] at the following interest rate[s] for the
following Interest Period[s]:
1. Requesting Company
/ / Interim Services Inc.
/ / [LIST EACH BORROWING SUBSIDIARY]
2. Bid Type: Absolute
3. Borrowing Date:
Day Month Year
4. Aggregate Bid Amount:
USD
K-1
<PAGE>
5. Bid Details:
Rate Date From Date To # of Days Offer Principal Interest
Interest Period #1 / / / / # 1 $ %
2 $ %
3 $ %
Interest Period #2 / / / / # 1 $ %
2 $ %
3 $ %
Interest Period #3 / / / / # 1 $ %
2 $ %
3 $ %
[NAME OF BANK]
By:____________________________________
Name:__________________________________
Title:_________________________________
K-2
<PAGE>
EXHIBIT L
FORM OF SWING LINE BORROWING NOTICE
To: NationsBank, National Association
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: (704)386-9923
Reference is hereby made to the Credit Agreement dated as of May 1, 1997
(as amended or supplemented from time to time, the "Agreement") among Interim
Services Inc. and [LIST EACH BORROWER SUBSIDIARY] (the "Borrowers"), the Banks
(as defined in the Agreement), and NationsBank, National Association, as Agent
for the Banks ("Agent"). Capitalized terms used but not defined herein shall
have the respective meanings therefor set forth in the Agreement.
The Company designated below through its Responsible Officer hereby gives
notice to NationsBank that a Swing Line Loan of the amount set forth below be
made on the date indicated:
COMPANY AMOUNT(1) DATE OF LOAN
------- --------- -------------
/ / Interim Services Inc. _________ __________, ____
/ / [LIST EACH BORROWER SUBSIDIARY] _________ __________, ____
_______________________
(1) Must be an integral multiple of $100,000.
L-1
<PAGE>
The Company designated below hereby requests that the proceeds of Swing
Line Loans described in this Borrowing Notice be made available to such Company
as follows: [INSERT TRANSMITTAL INSTRUCTIONS].
The undersigned hereby certifies that all conditions contained in the
Agreement to the making of any Loan requested hereby have been met or satisfied
in full .
_______________________________________
BY: ___________________________________
Responsible Officer
DATE: _________________________________
L-2
<PAGE>
EXHIBIT M
FORM OF ASSUMPTION LETTER
[Date]
To NationsBank, N.A., as Agent and
the Lenders party to the Credit
Agreement referred to below
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of May 1, 1997 among
Interim Services Inc. (the "Borrower"), the Borrowing Subsidiaries from time
to time party thereto, the financial institutions from time to time party
thereto as Lenders and NationsBank, National Association, as Agent (as
amended, restated or otherwise modified from time to time, the "Credit
Agreement"). Terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the Credit Agreement.
1. BORROWING SUBSIDIARY.
(i) The undersigned, _________________ (the "Subsidiary") a ______________
corporation and a Subsidiary of the Borrower, proposes to become a
"Borrowing Subsidiary" under the Credit Agreement, and accordingly hereby
agrees that from the date hereof until the payment in full of the principal
of and interest on all Loans made to it or on its behalf under the Credit
Agreement and performance of all of its other obligations thereunder, and
termination of its status as a "Borrowing Subsidiary" as provided below, it
shall perform, comply with and be bound by each of the provisions of the
Credit Agreement which are stated to apply to a "Borrowing Subsidiary" or a
"Company". In addition, the Subsidiary hereby represents and warrants that:
(i) each of the representations and warranties set forth in Article VII of
the Credit Agreement is true and correct with respect to the Subsidiary as
of the date hereof and (ii) it has heretofore received a true and correct
copy of the Credit Agreement (including any amendments thereto,
modifications thereof or waivers thereunder) as in effect on the date
hereof.
(ii) So long as the principal of and interest on all Loans made to the
Subsidiary or on its behalf under the Credit Agreement shall have been paid
in full and all other obligations of the Subsidiary under the Credit
Agreement shall have been fully performed, the Subsidiary may, by not less
than five Business Days' prior notice to the Agent, terminate its status as
a "Borrowing Subsidiary."
M-1
<PAGE>
2. CONDITIONS PRECEDENT. No Lender shall make any Loan to or on
behalf of the Subsidiary unless the Subsidiary has furnished to the Agent,
with sufficient copies for the Lenders, the following items:
(i) Copies of the articles of incorporation or similar organizational
documents of the Subsidiary, together with all amendments, and a
certificate of good standing (if available), both certified by the
appropriate governmental officer in its jurisdiction of
incorporation.
(ii) Copies, certified by an appropriate officer or director of the
Subsidiary, of its bylaws or similar organizational documents and
of its Board of Directors resolutions (and resolutions of other
bodies, if any are deemed necessary by counsel for any Lender)
authorizing the execution of this Assumption Letter and all other
Loan Documents to which the Subsidiary is a party.
(iii) An incumbency certificate, executed by an appropriate officer or
director of the Subsidiary, which shall identify by name and title
and bear the signature of the officers or directors of the
Subsidiary authorized to sign this Assumption Letter and the other
Loan Documents to which it is a party and to request Loans
thereunder, upon which certificate the Agent and the Lenders shall
be entitled to rely until informed of any change in writing by the
Subsidiary.
(iv) A written opinion of counsel to the Subsidiary, addressed to the
Lenders, in form and substance satisfactory to the Agent.
(v) Notes issued by the Subsidiary to the order of each of the Lenders.
(vi) Written money transfer instructions, in substantially the form of
EXHIBIT "A" attached hereto addressed to the Agent on behalf of
the Subsidiary and signed by duly authorized officer, together
with such other related money transfer authorizations as the Agent
may have reasonably requested.
(vii) Such other documents as any Lender or its counsel may have
reasonably requested.
3. REPRESENTATIONS. The Subsidiary further represents and warrants to
the Lenders as follows:
(i) EXISTENCE AND POWER. The Subsidiary and each of its Subsidiaries:
(a) is a corporation, partnership or limited liability company duly
organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation;
M-2
<PAGE>
(b) has the power and authority and governmental licenses,
authorizations, consents and approvals to own its assets, carry
on its business and to execute, deliver, and perform its
obligations under this Assumption Letter and the Loan Documents;
(c) is duly qualified and is licensed and in good standing under
the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires
such qualification or license, except to the extent failure
to so qualify would not have a Material Adverse Effect; and
(d) is in compliance with all Requirements of Law, except to the
extent the failure to so comply would not have a Material
Adverse Effect.
(ii) AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by the Subsidiary and its Subsidiaries of this
Assumption Letter and each other Loan Document to which such
Person is party have been duly authorized by all necessary action
and do not and will not:
(a) contravene the terms of any of that Person's Organization
Documents;
(b) conflict with or result in a material breach or contravention
of, or the creation of any Lien under, any document evidencing
any material Contractual Obligation to which such Person is a
party or any order, injunction, writ or decree of any
Governmental Authority to which such Person or its property is
subject; or
(c) violate any Requirement of Law.
(iii) GOVERNMENTAL AUTHORIZATION. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with,
any Governmental Authority is necessary or required in connection
with the execution, delivery or performance by, or enforcement
against, the Subsidiary or any of its Subsidiaries of this
Assumption Letter or any other Loan Document.
(iv) BINDING EFFECT. This Assumption Letter and each other Loan
Document to which the Subsidiary or any of its Subsidiaries is a
party constitute the legal, valid and binding obligations of the
Subsidiary and any of its Subsidiaries to the extent it is a party
thereto, enforceable against such Person in accordance with their
respective terms (except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors' rights generally or by equitable
principles relating to enforceability).
(v) FILING. To ensure the enforceability or admissibility in evidence
of this Assumption Letter, the Notes issued by the Subsidiary or
any of the other Loan Documents in the
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Subsidiary's country of organization or incorporation and country
which is its principal place of business (each, a "Subject
Country"), it is not necessary that this Assumption Letter or such
Notes or any other documents be filed or recorded with any court
or other authority in any Subject Country or that any stamp or
similar tax be paid in respect of this Assumption Letter or such
Notes or any other documents. The qualification by any Lender or
the Agent for admission to do business under the laws of any
Subject Country does not constitute a condition to, and the
failure to so qualify does not affect, the exercise by any Lender
or the Agent of any right, privilege, or remedy afforded to any
Lender or the Agent in connection with the Loan Documents or the
enforcement of any such right, privilege, or remedy. The
performance by any Lender or the Agent of any action required or
permitted under the Loan Documents will not violate any law or
regulation of any Subject Country or any political subdivision
thereof or result in any tax liability or other unfavorable
consequence to such party pursuant to the laws of any such Subject
Country or political subdivision or taxing authority thereof or
any rule or regulation of any federation or organization or
similar entity of which such Subject Country is a member.
(vi) NO IMMUNITY. Neither the Subsidiary nor any of its assets is
entitled to immunity from suit, execution, attachment or other
legal process. The Subsidiary's execution and delivery of this
Assumption Letter and the other Loan Documents to which it is a
party constitute, and the exercise of its rights and performance
of and compliance with its obligations under such Loan Documents
will constitute, private and commercial acts done and performed
for private and commercial purposes.
(vii) REGULATION U. Margin stock (as defined in Regulation U)
constitutes less than 25% of those assets of the Subsidiary and
its Subsidiaries which are subject to any limitation on sale,
pledge, or other restriction hereunder.
4. BORROWER GUARANTY OF SUBSIDIARY OBLIGATIONS. The Borrower expressly
agrees as follows:
(i) DIRECT OBLIGATIONS. The Borrower hereby unconditionally and
irrevocably affirms to the Lenders its direct liability for, and
guarantees to the Lenders, the due and punctual payment of all
obligations and liabilities of the Subsidiary to the Lenders,
whether arising under this Assumption Letter, the Credit
Agreement, the other Loan Documents or any other documents related
thereto (collectively, the "Borrowing Subsidiary Obligations")
including, but not limited to, the due and punctual payment of
principal of and interest on the Notes issued by the Subsidiary,
and punctual payment of all other sums now or hereafter owed by
the Subsidiary under this Assumption Letter, the Credit Agreement,
the Loan Documents, any Note issued by the Subsidiary and any
other document related thereto as and when the same shall become
due (whether by acceleration or otherwise) and according to the
terms hereof and thereof. In case of failure by the Subsidiary
punctually to pay any Borrowing
M-4
<PAGE>
Subsidiary Obligation, the Borrower hereby unconditionally agrees
to cause such payment to be made punctually as and when the same
shall become due and payable, whether at maturity or by
declaration or otherwise, and as if such payment were made by the
Subsidiary.
(ii) OBLIGATIONS UNCONDITIONAL. The obligations of the Borrower under
this Assumption Letter shall be irrevocable, unconditional and
absolute and, without limiting the generality of the foregoing,
shall not be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Subsidiary (or any
other Borrowing Subsidiary) or under any Note or other agreement
issued or entered into by any Subsidiary (or any other Borrowing
Subsidiary), by operation of law or otherwise;
(b) any modification or amendment of or supplement to this
Assumption Letter or any Loan Document;
(c) any compromise, settlement, modification, amendment,
waiver, release, non-perfection or invalidity of or to any direct
or indirect security, guarantee or other liability of any third
party with respect to any Borrowing Subsidiary Obligation;
(d) any change in the corporate existence, structure, or
ownership of, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting, the Subsidiary (or any other
Borrowing Subsidiary) or their assets or any resulting release or
discharge of any Borrowing Subsidiary Obligation;
(e) the existence of any claim, set-off or other right which
the Borrower may have at any time against the Subsidiary (or any
other Borrowing Subsidiary), the Agent, any Lender or any other
Person, whether or not arising in connection with this Assumption
Letter or any other Loan Document; provided, however, that nothing
herein shall prevent the assertion of any such claim by separate
suit or compulsory counterclaim;
(f) any invalidity or unenforceability relating to or against
the Subsidiary (or any other Borrowing Subsidiary) for any reason
of this Assumption Letter or any Loan Document, or any provision
of applicable law or regulation purporting to prohibit the payment
by the Subsidiary (or any other Borrowing Subsidiary) of the
principal of or interest on any Note issued by the Subsidiary (or
any other Borrowing Subsidiary) or any other amount payable by the
Subsidiary (or any other Borrowing Subsidiary) under this
Assumption Letter, the Credit Agreement or any Loan Document; or
M-5
<PAGE>
(g) any other act or omission to act or delay of any kind by
the Subsidiary (or any other Borrowing Subsidiary), the Agent, any
Lender or any other Person or any other circumstance whatsoever
that might, but for the provisions of this paragraph, constitute a
legal or equitable discharge of the obligations of the Borrower
under this Assumption Letter, the Credit Agreement or any Loan
Document.
(iii) DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN CERTAIN
CIRCUMSTANCES. The Borrower's obligations hereunder shall remain
in full force and effect until each Commitment has expired or is
terminated and the principal of and interest on the Notes and all
other Obligations payable under this Assumption Letter and the
Loan Documents shall have been paid in full. If at any time any
payment of the principal of or interest on any Note issued by the
Subsidiary or any other amount payable by the Subsidiary under
this Assumption Letter or any Loan Document is rescinded or must
be otherwise restored or returned upon the insolvency, bankruptcy
or reorganization of the Subsidiary or otherwise, the Borrower's
obligations under this Assumption Letter with respect to such
payment shall be reinstated at such time as though such payment
had become due but had not been made at such time. This provision
shall survive the termination of this Assumption Letter and the
payment in full of the Obligations.
(iv) WAIVER. The Borrower irrevocably waives acceptance hereof,
presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be
taken by any Person against the Subsidiary or any other Person.
The Borrower waives any benefit of the collateral, if any, which
may from time to time secure the Obligations or any part thereof
and authorizes the Agent or the Lenders to take any action, or
exercise any remedy with respect thereto, which the Agent or the
Lenders in its or their sole discretion shall determine, without
notice to the Borrower. In the event the Lenders in their sole
discretion elect to give notice of any action with respect to the
collateral, if any, securing the Obligations or any part thereof,
ten days' written notice mailed to the Borrower by certified mail
at the address set forth in the Credit Agreement shall be deemed
reasonable notice of any matter contained in such notice.
(v) STAY OF ACCELERATION. If acceleration of the time for payment of
any amount payable by the Subsidiary under this Assumption Letter
or any of the Loan Documents is stayed upon the insolvency,
bankruptcy or reorganization of the Subsidiary or any other
Person, all such amounts otherwise subject to acceleration under
the terms of this Assumption Letter or any Loan Document shall
nonetheless be payable by the Borrower hereunder forthwith on
demand by the Agent.
(vi) PAYMENTS. All payments to be made by the Borrower pursuant to
this Assumption Letter shall be made at the times and in the
manner and in the currency prescribed for payments in the Credit
Agreement.
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<PAGE>
(vii) DELAY OF SUBROGATION. Until the Borrower's obligations under this
Assumption Letter have been paid in full and terminated, the
Borrower shall not exercise any right of subrogation with respect
to payments made by the Borrower pursuant to this Assumption
Letter.
5. NOTICE. Any notice to be given to the Subsidiary may be given to the
Borrower (and shall conclusively be deemed to have been received by the
Subsidiary when received, or deemed received, by the Borrower) in the manner set
forth in the Credit Agreement. The Subsidiary agrees that the Borrower may give
notices under this Assumption Letter and the Loan Documents on behalf of the
Subsidiary, and that any such notice given by the Borrower on behalf of the
Subsidiary shall be binding upon the Subsidiary.
6. JURISDICTION AND GOVERNING LAW.
(i) Without limiting the provisions of Section 12.16 of the Credit
Agreement, the Subsidiary and Borrower each irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the United States federal court for
the Middle District of Florida or any Florida state court, and any
appellate court from any thereof, in any action or proceeding
arising out of or relating to this Assumption Letter, the Credit
Agreement or any other Loan Document or for recognition or
enforcement of any judgment relating thereto, and the Subsidiary
and the Borrower each irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be
heard and determined in any such court. The Subsidiary and the
Borrower each agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Assumption Letter shall affect
any right that any Lender or the Agent may otherwise have to bring
any action or proceeding relating to this Assumption Letter, the
Credit Agreement or any other Loan Document in the courts of any
jurisdiction.
(ii) This Assumption Letter shall be governed by, and construed in
accordance with, the internal laws (and not the law of conflicts)
of the State of Florida; provided that the Agent and the Lenders
shall retain all rights arising under federal law.
[signatures follow]
M-7
<PAGE>
IN WITNESS WHEREOF, the Subsidiary has duly executed and delivered this
Assumption Letter as of the date and year first above written.
[NAME OF BORROWING SUBSIDIARY]
By
----------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Agreed and Consented to:
INTERIM SERVICES INC.
By
-------------------------
Name:
-----------------
Title:
----------------
M-8
<PAGE>
EXHIBIT "A"
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To NationsBank, N.A.,
as Agent (the "Agent") under
the Credit Agreement Described Below.
RE: Credit Agreement dated as of May 1, 1997 (as the same may be amended,
modified or supplemented, the "Credit Agreement"), among Interim Services
Inc., (the "Borrower"), various Borrowing Subsidiaries thereof,
NationsBank, National Association, as Agent, and the Lenders named therein.
Terms used herein and not otherwise defined shall have the meanings
assigned thereto in the Credit Agreement.
The Agent is specifically authorized and directed to act upon the
following standing money transfer instructions with respect to the proceeds
of Loans or other extensions of credit from time to time until receipt by the
Agent of a specific written revocation of such instructions by
[NAME OF BORROWING SUBSIDIARY] (the "Borrowing Entity"), provided, however,
that the Agent may otherwise transfer funds as hereafter directed in writing
by the Borrowing Entity in accordance with Section 12.2 of the Credit
Agreement or based on any telephonic notice made in accordance with any other
applicable provision of the Credit Agreement.
Facility Identification
Number(s)______________________________________________________________________
Customer/Account Name__________________________________________________________
Transfer Funds to______________________________________________________________
______________________________________________________________
______________________________________________________________
For Account No.________________________________________________________________
Reference/Attention To_________________________________________________________
Authorized Officer (Customer Representative) Date_________________________
___________________________________________ _____________________________
(Please Print) (Signature)
Bank Officer Name Date_________________________
___________________________________________ _____________________________
(Please Print) (Signature)
(DELIVER COMPLETED FORM TO CREDIT SUPPORT STAFF FOR IMMEDIATE PROCESSING)
M-9
<PAGE>
EXHIBIT N
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Assignment and
Acceptance") dated as of _______________ , __, is made between
____________________ (the "Assignor") and _________________________ (the
"Assignee")
RECITALS
WHEREAS, the Assignor is party to that certain Credit Agreement dated as
of May 1, 1997 (as amended, amended and restated, modified, supplemented or
renewed, the "CREDIT AGREEMENT") among Interim Services Inc. and
[LIST EACH BORROWING SUBSIDIARY] (each a "COMPANY" and collectively the
"COMPANIES"), the several financial institutions from time to time party
thereto (including the Assignor, the "BANKS") and NationsBank, National
Association, as agent for the Banks (the "AGENT") and as Letter of Credit
Issuing Bank. Any terms defined in the Credit Agreement and not defined in
this Assignment and Acceptance are used herein as defined in the Credit
Agreement;
WHEREAS, as provided under the Credit Agreement, the Assignor has
committed to making loans (the "SYNDICATED LOANS") to the Companies in an
aggregate amount not to exceed $_________ (the "COMMITMENT");
WHEREAS, [the Assignor has made Syndicated Loans in the aggregate principal
amount of $__________ as follows: Revolving Loans $__________ and Term Loans
$__________][no Syndicated Loans are outstanding under the Credit Agreement];
and
WHEREAS, the Assignor wishes to assign to the Assignee [part of the]
[all]rights and obligations of the Assignor under the Credit Agreement in
respect of its Commitment, [together with a corresponding portion of each of its
outstanding Syndicated Loans] in an amount equal to $_________ ($__________
Revolving Commitment and $_________ Term Loan) (the "ASSIGNED AMOUNT") on the
terms and subject to the conditions set forth herein and the Assignee wishes to
accept assignment of such rights and to assume such obligations from the
Assignor on such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
1. ASSIGNMENT AND ACCEPTANCE.
(a) Subject to the terms and conditions of this Assignment and
Acceptance, (i) the Assignor hereby sells, transfers and assigns to the
Assignee, and (ii) the Assignee hereby purchases, assumes and undertakes from
the Assignor, without recourse to and without representation or warranty
(except as provided in this Assignment and Acceptance) by the
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Assignor __% (the "ASSIGNEE'S PERCENTAGE SHARE") of (A) the Commitments
[and the Syndicated Loans]of the Assignor and (B) all related rights,
benefits, obligations, liabilities and indemnities of the Assignor under and
in connection with the Credit Agreement and the other Loan Documents.
[No assignment is made pursuant hereto with respect to any Bid Loans.]
(b) With effect on and after the Effective Date (as defined in
SECTION 5 hereof), the Assignee shall be a party to the Credit Agreement and
succeed to all of the rights and be obligated to perform all of the
obligations of a Bank under the Credit Agreement, including the requirements
concerning confidentiality and the payment of indemnification, with a
Commitment in an amount equal to the Assigned Amount. The Assignee agrees
that it will perform in accordance with their terms all of the obligations
which by the terms of the Credit Agreement are required to be performed by it
as a Bank. It is the intent of the parties hereto that the Commitment of the
Assignor shall, as of the Effective Date, be reduced by an amount equal to
the Assigned Amount and the Assignor shall relinquish its rights and be
released from its obligations under the Credit Agreement to the extent such
obligations have been assumed by the Assignee; provided, however, the
Assignor shall not relinquish its rights under ARTICLE V and SECTIONS 12.4
and 12.5 of the Credit Agreement to the extent such rights relate to the time
prior to the Effective Date.
(c) After giving effect to the assignment and assumption set forth
herein, on the Effective Date the Assignee's Revolving Commitment will be
$__________ and Term Loan Commitment will be $__________.
(d) After giving effect to the assignment and assumption set forth
herein, on the Effective Date the Assignor's Revolving Commitment will be
$_________ and Term Loan Commitment will be $__________.
2. PAYMENTS.
(a) As consideration for the sale, assignment and transfer
contemplated in SECTION 1 hereof, the Assignee shall pay to the Assignor on
the Effective Date in immediately available funds an amount equal to
$__________, [representing the Assignee's Pro Rata Share of the principal
amount of all Syndicated Loans] [representing the outstanding principal of,
accrued interest on, and any fees with respect to the Assignee's Percentage
Share of the Revolving Commitment and Term Loan Commitment] [and all Syndicated
Loans].
(b) The [Assignor] [Assignee] [Companies] further agree[s] to pay
to the Agent a processing fee in the amount specified in SECTION 12.8 of the
Credit Agreement.
3. REALLOCATION OF PAYMENTS.
Any interest, fees and other payments accrued to the Effective Date with
respect to the Commitment [and Syndicated Loans] shall be for the account of
the Assignor. Any interest, fees and other payments accrued on and after the
Effective Date with respect to the Assigned Amount shall be for the account
of the Assignee. Each of the Assignor and the Assignee agrees that it will
N-2
<PAGE>
pay to the other party any interest, fees and other amounts which it may
receive to which the other party is entitled pursuant to the preceding
sentence promptly upon receipt.
4. INDEPENDENT CREDIT DECISION.
The Assignee (a) acknowledges that it has received a copy of the Credit
Agreement and the Schedules and Exhibits thereto, together with copies of the
most recent financial statements referred to in SECTION 7.10 or 8.1 of the
Credit Agreement, and such other documents and information as it has deemed
appropriate to make its own credit and legal analysis and decision to enter
into this Assignment and Acceptance; and (b) agrees that it will,
independently and without reliance upon the Assignor, the Agent or any other
Bank and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit and legal decisions in taking or
not taking action under the Credit Agreement.
5. EFFECTIVE DATE; NOTICES.
(a) As between the Assignor and the Assignee, the effective date
for this Assignment and Acceptance shall be _________, ____ (the "EFFECTIVE
DATE"); PROVIDED that the following conditions precedent have been satisfied
on or before the Effective Date:
(i) this Assignment and Acceptance shall have been executed
and delivered by the Assignor and the Assignee;
[(ii) the consent of the Companies and the Agent required for an
effective assignment of the Assigned Amount by the Assignor to the Assignee
under SECTION 12.8 of the Credit Agreement shall have been duly obtained and
shall be in full force and effect as of the Effective Date;]
(iii) the Assignee shall have paid to the Assignor all
amounts due to the Assignor under this Assignment and Acceptance;
(iv) the processing fee referred to in Section 2(b) hereof
and in SECTION 12.8 of the Credit Agreement shall have been paid to the
Agent; and
(v) the Assignor shall have assigned and the Assignee shall
have assumed a percentage equal to the Assignee's Percentage Share of the
rights and obligations of the Assignor under the Credit Agreement.
(b) Promptly following the execution of this Assignment and Acceptance,
the Assignor shall deliver to the Companies and the Agent for acknowledgment
by the Agent, a Notice of Assignment substantially in the form attached
hereto as SCHEDULE 1.
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<PAGE>
[6. Agent. [INCLUDE ONLY IF ASSIGNOR IS AGENT]
(a) The Assignee hereby appoints and authorizes the Assignor to take
such action as agent on its behalf and to exercise such powers under the
Credit Agreement as are delegated to the Agent by the Banks pursuant to the
terms of the Credit Agreement.
(b) The Assignee shall assume no duties or obligations held by the
Assignor in its capacity as Agent under the Credit Agreement.]
7. WITHHOLDING TAX.
The Assignee (a) represents and warrants to the Assignor, the Agent and
the Companies that under applicable law and treaties no tax will be required
to be withheld by the Assignor or Agent with respect to any payments to be
made to the Assignee as a result hereof, (b) agrees to furnish to the Agent
and the Companies prior to the time that the Agent or Companies are required
to make any payment of principal, interest or fees under the Credit
Agreement, duplicate executed originals of forms or other documentation
necessary to exempt all payments under the Credit Agreement from withholding
taxes and agrees to provide new forms upon the expiration of any previously
delivered form or comparable statements in accordance with applicable law and
regulations and amendments thereto, duly executed and completed by the
Assignee, and (c) agrees to comply with all applicable laws and regulations
with regard to such withholding tax exemption.
8. REPRESENTATIONS AND WARRANTIES.
(a) The Assignor represents and warrants that (i) it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any Lien or other adverse claim created by it;
(ii) it is duly organized and existing and it has the full power and
authority to take, and has taken, all action necessary to execute and deliver
this Assignment and Acceptance and any other documents required or permitted
to be executed or delivered by it in connection with this Assignment and
Acceptance and to fulfill its obligations hereunder; (iii) no notices to, or
consents, authorizations or approvals of, any Person are required (other than
any already given or obtained) for its due execution, delivery and
performance of this Assignment and Acceptance, and apart from any agreements
or undertakings or filings required by the Credit Agreement, no further
action by, or notice to, or filing with, any Person is required of it for
such execution, delivery or performance; and (iv) this Assignment and
Acceptance has been duly executed and delivered by it and constitutes the
legal, valid and binding obligation of the Assignor, enforceable against the
Assignor in accordance with the terms hereof, subject, as to enforcement, to
bankruptcy, insolvency, moratorium, reorganization and other laws of general
application relating to or affecting creditors' rights and to general
equitable principles.
(b) The Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any other instrument or
document furnished pursuant thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or
any other instrument or document furnished pursuant thereto. The Assignor
makes
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<PAGE>
no representation or warranty in connection with, and assumes no
responsibility with respect to, the solvency, financial condition or
statements of the Companies or any of their respective Subsidiaries, or the
performance or observance by the Companies or any of their respective
Subsidiaries, of any of their respective obligations under the Credit
Agreement or any other instrument or document furnished in connection
therewith.
(c) The Assignee represents and warrants that (i) it is duly organized
and existing and it has full power and authority to take, and has taken, all
action necessary to execute and deliver this Assignment and Acceptance and
any other documents required or permitted to be executed or delivered by it
in connection with this Assignment and Acceptance, and to fulfill its
obligations hereunder; (ii) no notices to, or consents, authorizations or
approvals of, any Person are required (other than any already given or
obtained) for its due execution, delivery and performance of this Assignment
and Acceptance; and apart from any agreements or undertakings or filings
required by the Credit Agreement, no further action by, or notice to, or
filing with, any Person is required of it for such execution, delivery or
performance; (iii) this Assignment and Acceptance has been duly executed and
delivered by it and constitutes the legal, valid and binding obligation of
the Assignee, enforceable against the Assignee in accordance with the terms
hereof, subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or affecting
creditors' rights and to general equitable principles; and (iv) it is an
Eligible Assignee.
9. FURTHER ASSURANCES.
The Assignor and the Assignee each hereby agree to execute and deliver
such other instruments, and take such other action, as either party may
reasonably request in connection with the transactions contemplated by this
Assignment and Acceptance, including the delivery of any notices or other
documents or instruments to the Companies or the Agent, which may be required
in connection with the assignment and assumption contemplated hereby.
10. MISCELLANEOUS.
(a) Any amendment or waiver of any provision of this Assignment and
Acceptance shall be in writing and signed by the parties hereto. No failure
or delay by either party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof and any waiver of any breach of
the provisions of this Assignment and Acceptance shall be without prejudice
to any rights with respect to any other or further breach thereof.
(b) All payments made hereunder shall be made without any set-off or
counterclaim.
(c) The Assignor and the Assignee shall each pay its own costs and
expenses incurred in connection with the negotiation, preparation, execution
and performance of this Assignment and Acceptance.
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<PAGE>
(d) Assignee hereby acknowledges and agrees that the agreement set
forth in this Section 1(b) is expressly made for the benefit of, and may be
enforced by, the Companies, the Agent, Assignor and the other Banks and their
respective successors and permitted assigns.
(e) This Assignment and Acceptance may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
(f) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF FLORIDA. The Assignor and the
Assignee each irrevocably submits to the non-exclusive jurisdiction of any
State or Federal court sitting in Florida over any suit, action or proceeding
arising out of or relating to this Assignment and Acceptance and irrevocably
agrees that all claims in respect of such action or proceeding may be heard
and determined in such Florida State or Federal court. Each party to this
Assignment and Acceptance hereby irrevocably waives, to the fullest extent it
may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding.
(g) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE 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 THIS ASSIGNMENT AND ACCEPTANCE, THE CREDIT AGREEMENT, ANY
RELATED DOCUMENTS AND AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
OR STATEMENTS (WHETHER ORAL OR WRITTEN).
N-6
<PAGE>
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be executed and delivered by their duly authorized
officers as of the date first above written.
[ASSIGNOR]
By:
---------------------------------------------
Title:
------------------------------------------
By:
---------------------------------------------
Title:
------------------------------------------
Address:
----------------------------------------
[ASSIGNEE]
By:
---------------------------------------------
Title:
------------------------------------------
By:
---------------------------------------------
Title:
------------------------------------------
Address:
----------------------------------------
N-7
<PAGE>
SCHEDULE 1
NOTICE OF ASSIGNMENT AND ACCEPTANCE
---------------,-----
NationsBank, N.A.
Independence Center, 15th Floor
Charlotte, North Carolina 28255
Interim Services Inc.
[address]
[LIST EACH BORROWING SUBSIDIARY]
[address]
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of May 1, 1997 (as amended,
amended and restated, modified, supplemented or renewed, the "CREDIT
AGREEMENT") among Interim Services Inc. and [LIST EACH BORROWING SUBSIDIARY]
(each a "COMPANY" and collectively the "COMPANIES"), the several financial
institutions from time to time party thereto (including the Assignor, the
"BANKS"), and NationsBank, National Association, as agent for the Banks (the
"AGENT") and as Letter of Credit Issuing Bank. Terms defined in the Credit
Agreement are used herein as therein defined.
1. We hereby give you notice of, and request your consent to, the
assignment by _________________ (the "ASSIGNOR") to _______________ (the
"ASSIGNEE") of _____% of the right, title and interest of the Assignor in and
to the Credit Agreement and other Loan Documents (including, without
limitation, the right, title and interest of the Assignor in and to the
Commitment of the Assignor, and all outstanding Syndicated Loans made by the
Assignor) pursuant to the Assignment and Acceptance Agreement attached hereto
(the "ASSIGNMENT AND ACCEPTANCE"). Before giving effect to such assignment
the Assignor's Commitment is $ __________, and the aggregate amount of its
outstanding Syndicated Loans is $__________.
2. The Assignee agrees that, upon receiving the consent of the Agent
and, if applicable, the Companies to such assignment, the Assignee will be
bound by the terms of the Credit Agreement as fully and to the same extent as
if the Assignee were the Bank originally holding such interest in the Credit
Agreement.
N-8
<PAGE>
3. The following administrative details apply to the Assignee:
(A) Notice Address:
Assignee name:
------------------------
Address:
------------------------
------------------------
------------------------
------------------------
Attention:
------------------------
Telephone:
------------------------
Telecopier:
------------------------
Telex (Answerback):
------------------------
(B) Payment Instructions:
Account No.:
------------------------
At:
------------------------
Reference:
------------------------
Attention:
------------------------
4. You are entitled to rely upon the representations, warranties and
covenants of each of the Assignor and Assignee contained in the Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Notice of Assignment and Acceptance to be executed by their respective duly
authorized officials, officers or agents as of the date first above mentioned.
Very truly yours,
[NAME OF ASSIGNOR]
By:
----------------------------------------------
Title:
-------------------------------------------
By:
----------------------------------------------
Title:
-------------------------------------------
N-9
<PAGE>
[NAME OF ASSIGNEE]
By:
----------------------------------------------
Title:
-------------------------------------------
By:
----------------------------------------------
Title:
-------------------------------------------
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
INTERIM SERVICES INC.
By:
------------------------
Title:
---------------------
[LIST EACH BORROWING SUBSIDIARY]
By:
------------------------
Title:
---------------------
NATIONSBANK, N.A., as Agent
By:
------------------------
Its:
-----------------------
N-10
<PAGE>
SCHEDULE I
PRICING GRID
- -------------------------------------------------------------------------
Level CONSOLIDATED APPLICABLE APPLICABLE
LEVERAGE RATIO MARGIN FEE
PERCENTAGE
- -------------------------------------------------------------------------
I Greater than or equal to 4.25x 95 25
II Greater than or equal to 3.75x 75 20
- -------------------------------------------------------------------------
III Greater than or equal to 3.00x 60 15
- -------------------------------------------------------------------------
IV Greater than or equal to 2.25x 40 12.5
- -------------------------------------------------------------------------
V Greater than or equal to 1.50x 30 10
- -------------------------------------------------------------------------
VI Less than 1.50x 25 8
- -------------------------------------------------------------------------
The Applicable Margin following Subordinated Debt Issue of greater than
$150 million shall be reduced as follows:
-----------------------------------------
Level Applicable Margin
Reduced By:
-----------------------------------------
I 7.5
-----------------------------------------
II 5.0
-----------------------------------------
III 5.0
-----------------------------------------
<PAGE>
SCHEDULE II
PLEDGORS AND PLEDGED INTERESTS
<PAGE>
SCHEDULE III
REQUIRED PRINCIPAL INSTALLMENT AMOUNTS
AND PAYMENT DATES OF TERM LOAN
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
YEAR OF PAYMENT
- -------------------------------------------------------------------------------------------------------
Payment Date 1997 1998 1999 2000 2001 2002
<S> <C> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------
March 31 $6,250,000 $8,750,000 $12,500,000 $18,750,000 $18,750,000
- -------------------------------------------------------------------------------------------------------
June 30 $6,250,000 $8,750,000 $12,500,000 $18,750,000 $18,750,000
- -------------------------------------------------------------------------------------------------------
September 30 $7,500,000 $6,250,000 $8,750,000 $12,500,000 $18,750,000 $18,750,000
- -------------------------------------------------------------------------------------------------------
December 31 $7,500,000 $6,250,000 $8,750,000 $12,500,000 $18,750,000 $18,750,000
- -------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE IV
SUBSIDIARIES
<PAGE>
SCHEDULE 1.1
EXISTING LETTERS OF CREDIT
<PAGE>
SCHEDULE 2.1
COMMITMENTS
<TABLE>
<CAPTION>
Name of Revolving Term Loan Total Percentage
Bank Commitment Commitment Commitments Interest
<S> <C> <C> <C> <C>
NationsBank, $139,259,259.28 $95,740,740.72 $235,000,000 34.814814815%
National 0
Association 7.407407407%
29,629,629.63 20,370,370.37
The First National Bank of 50,000,000
Chicago 23,703,703.70 16,296,296.30 5.925925926%
Barnett Bank, N.A. 40,000,000
23,703,703.70 16,296,296.30 5.925925926%
The Fuji Bank and 40,000,000
Trust Company 23,703,703.70 16,296,296.30 5.925925926%
The Chase Manhattan Bank 23,703,703.70 16,296,296.30 40,000,000 5.925925926%
Fleet National 40,000,000
Bank 17,777,777.78 12,222,222.22 4.444444444%
ABN AMRO Bank NV 30,000,000
17,777,777.78 12,222,222.22 4.444444444%
Bank of Montreal 30,000,000
17,777,777.78 12,222,222.22 4.444444444%
The Industrial 30,000,000
Bank of Japan, Limited
Morgan Guaranty 20,000,000
and Trust Company 11,851,851.85 8,148,148.15 2.962962963%
The Sanwa Bank, 20,000,000
Limited, Atlanta Agency 11,851,851.85 8,148,148.15 2.962962963%
The Sumitomo Bank, Limited 20,000,000
11,851,851.85 8,148,148.15 2.962962963%
The Bank of New York 20,000,000
11,851,851.85 8,148,148.15 2.962962963%
Comerica Bank 20,000,000
11,851,851.85 8,148,148.15 2.962962963%
Hibernia National Bank
The Bank of Tokyo- 20,000,000
Mitsubishi, Ltd.,
New York Branch
Total: $400,000,000 $275,000,000 $675,000,000 100%
</TABLE>
<PAGE>
SCHEDULE 7.5
LITIGATION
<PAGE>
SCHEDULE 7.10
ADDITIONAL LIABILITIES
<PAGE>
SCHEDULE 7.12
LITIGATION REGARDING PATENTS, TRADEMARKS, ETC.
<PAGE>
SCHEDULE 7.13
SUBSIDIARIES
INVESTMENTS
<PAGE>
SCHEDULE 7.15
ERISA MATTERS
<PAGE>
SCHEDULE 9.4(a)
EXISTING INVESTMENTS
<PAGE>
SCHEDULE 9.9
RESTRICTIVE AGREEMENTS
None
<PAGE>
SCHEDULE 9.12
EXISTING INDEBTEDNESS
<PAGE>
SCHEDULE 12.2
OFFSHORE AND DOMESTIC LENDING OFFICES
ADDRESSES FOR NOTICE
NATIONSBANK, NATIONAL ASSOCIATION (SOUTH)
Domestic and Offshore Lending Office:
NationsBank, National Association (South)
400 N. Ashley Drive, 2nd Floor
Tampa, Florida 33602
Attention: Miles C. Dearden
Telephone: (813) 224-5194
Facsimile: (813) 224-5948
Notices for Committed Advances:
NationsBank, National Association
101 N. Tryon Street
Mail Code NC1-001-15-03
Charlotte, North Carolina 28255
Attention: Barbara Pollock
Telephone: (704) 388-1112
Facsimile: (704) 386-8694
AGENT PAYMENT OFFICE FOR PAYMENTS IN DOLLARS:
NationsBank, National Association
101 N. Tryon Street
Mail Code NC1-001-15-03
Charlotte, North Carolina 28255
Attention: Barbara Pollock
Telephone: (704) 388-1112
Facsimile: (704) 386-8694
THE FIRST NATIONAL BANK OF CHICAGO
Domestic and Offshore Lending Office:
The First National Bank of Chicago
One First National Plaza, Suite 0634
Chicago, Illinois 60670
Attention: Yvette Thompkins
Telephone: (312) 732-1395
Facsimile: (312) 732-4840
<PAGE>
BARNETT BANK, N.A.
Domestic and Offshore Lending Office:
Barnett Bank, N.A.
9000 Southside Boulevard, Bldg. 600
Jacksonville, Florida 32232
Attention: Linda J. Roman
Telephone: (904) 464-5423
Facsimile: (904) 464-5552
THE FUJI BANK AND TRUST COMPANY
Domestic and Offshore Lending Office:
The Fuji Bank, Limited
New York Branch
Two World Trade Center
New York, New York 10048
Attention: Julian Baker
Telephone: (212) 898-2054
Facsimile: (212) 912-0516
THE CHASE MANHATTAN BANK
Domestic and Offshore Lending Office:
The Chase Manhattan Bank
1 Chase Manhattan Plaza, 8th Floor
New York, New York 10017
Attention: Vito Cipriano
Telephone: (212) 552-7402
Facsimile: (212) 552-5662
FLEET NATIONAL BANK
Domestic and Offshore Lending Office:
Fleet National Bank
1 Federal Street, MAOFDO4J
Boston, Massachusetts 02176
Attention: Karen Tardif
Telephone: (617) 346-4501
Facsimile: (617) 346-4667
ABN AMRO BANK NV
Domestic and Offshore Lending Office:
ABN AMRO Bank NV
200 S. Biscayne Blvd., 22nd Floor
Miami, Florida 33131
Attention: Rita Saco
Telephone: (305) 416-7789
Facsimile: (305) 577-0825
<PAGE>
BANK OF MONTREAL
Domestic and Offshore Lending Office:
Bank of Montreal
115 South LaSalle Street
Chicago, Illinois 60603
Attention: Farid Ali
Telephone: (312) 750-3727
Facsimile: (312) 750-6061
THE INDUSTRIAL BANK OF JAPAN, LIMITED
Domestic and Offshore Lending Office:
The Industrial Bank of Japan, Limited, Atlanta Agency
One Ninety One Peachtree Tower, Suite 3600
191 Peachtree Street N.E.
Atlanta, Georgia 30303-1757
Attention: Tracy Tull
Telephone: (404) 420-3326
Facsimile: (404) 577-6818
MORGAN GUARANTY AND TRUST COMPANY
Domestic and Offshore Lending Office:
Morgan Guaranty Trust Company of New York
c/o J.P. Morgan Services, Inc.
500 Stanton Christiana Road
Post Office Box 6070
Newark, Delaware 19713-2107
Attention: Maureen Ludlam
Telephone: (302) 634-1868
Facsimile: (302) 634-4061
THE SANWA BANK, LIMITED, ATLANTA AGENCY
Domestic and Offshore Lending Office:
The Sanwa Bank, Limited, Atlanta Agency
133 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attention: Renko Hara
Telephone: (212) 339-6390
Facsimile: (212) 754-2368
<PAGE>
THE SUMITOMO BANK, LIMITED
Domestic and Offshore Lending Office:
The Sumitomo Bank, Limited
133 Peachtree Street
Atlanta, Georgia 30303
Attention: Tom Savini
Telephone: (404) 526-8514
Facsimile: (404) 521-1187
THE BANK OF NEW YORK
Domestic and Offshore Lending Office:
The Bank of New York
One Wall Street
New York, New York 10286
Attention: David Siegel
Telephone: (212) 635-1489
Facsimile: (212) 635-6434
COMERICA BANK
Domestic and Offshore Lending Office:
Comerica Bank
500 Woodward Avenue
Detroit, Michigan 48275-3280
Attention: Venus Moses
Telephone: (313) 222-3319
Facsimile: (313) 222-3330
HIBERNIA NATIONAL BANK
Domestic and Offshore Lending Office:
Hibernia National Bank
313 Carondelet Street
New Orleans, Louisiana 70130
Attention: Sharon Dennis
Telephone: (504) 533-3293
Facsimile: (504) 533-5344
THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH
Domestic and Offshore Lending Office:
Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Americas, 12th Floor
New York, New York 10020-1104
Attention: Rolando Uy, Operations Officer
Telephone: (212) 766-3157
Facsimile: (212) 766-3127
<PAGE>
EXHIBIT 11
CALCULATION OF PRIMARY NET EARNINGS PER COMMON
AND COMMON EQUIVALENT SHARE
QUARTER ENDED
---------------------------------
MARCH 28, MARCH 29,
1997 1996
---------------- ---------------
Net earnings per common and common
equivalent share $ 8,525,000 $ 5,489,000
---------------- ---------------
---------------- ---------------
Average number of shares used in
calculating primary earnings per share:
Average number of common shares
outstanding 19,516,000 15,382,000
Dilutive effect of stock options after
application of treasury stock method 390,000 457,000
---------------- ---------------
Average number of shares outstanding 19,906,000 15,839,000
---------------- ---------------
---------------- ---------------
Earnings per share:
Primary $ 0.43 $ 0.35
---------------- ---------------
---------------- ---------------
CALCULATION OF FULLY DILUTED NET EARNINGS PER COMMON
AND COMMON EQUIVALENT SHARE
QUARTER ENDED
---------------------------------
MARCH 28, MARCH 29,
1997 1996
---------------- ---------------
Net earnings per common and common
equivalent share $ 8,525,000 $ 5,489,000
---------------- ---------------
---------------- ---------------
Average number of shares used in
calculating fully diluted earnings per share
Average number of common shares
outstanding 19,516,000 15,382,000
Additional effect of stock options after
application of treasury stock method 398,000 472,000
---------------- ---------------
Average number of shares outstanding 19,914,000 15,854,000
---------------- ---------------
---------------- ---------------
Earnings per share:
Fully-diluted $ 0.43 $ 0.35
---------------- ---------------
---------------- ---------------
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-26-1997
<PERIOD-START> DEC-28-1996
<PERIOD-END> MAR-28-1997
<CASH> 3,826
<SECURITIES> 0
<RECEIVABLES> 212,430
<ALLOWANCES> 3,511
<INVENTORY> 0
<CURRENT-ASSETS> 262,662
<PP&E> 101,516
<DEPRECIATION> 46,198
<TOTAL-ASSETS> 636,123
<CURRENT-LIABILITIES> 115,063
<BONDS> 0
0
0
<COMMON> 196
<OTHER-SE> 424,465
<TOTAL-LIABILITY-AND-EQUITY> 636,123
<SALES> 0
<TOTAL-REVENUES> 316,785
<CGS> 0
<TOTAL-COSTS> 219,345
<OTHER-EXPENSES> 9,428
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 275
<INCOME-PRETAX> 14,674
<INCOME-TAX> 6,149
<INCOME-CONTINUING> 8,525
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 8,525
<EPS-PRIMARY> 0.43
<EPS-DILUTED> 0
</TABLE>
