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CREDIT AGREEMENT
among
SITEL CORPORATION,
SITEL EUROPE PLC,
SITEL TMS LIMITED,
VARIOUS LENDERS
and
BANKERS TRUST COMPANY,
as administrative AGENT
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Dated as of April 11, 2000
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DEUTSCHE BANK SECURITIES INC., as
LEAD ARRANGER and BOOK MANAGER
BANK OF AMERICA, N.A., as
SYNDICATION AGENT
and
FIRST UNION NATIONAL BANK, as
DOCUMENTATION AGENT
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CREDIT AGREEMENT, dated as of April 11, 2000, among SITEL
CORPORATION, a Minnesota corporation (the "US Borrower"), SITEL EUROPE PLC, a
company incorporated under the laws of England (the "English Borrower"), SITEL
TMS LIMITED, a company incorporated under the laws of Ireland (the "Irish
Borrower"), the Lenders party hereto from time to time, and BANKERS TRUST
COMPANY, as Administrative Agent (all capitalized terms used herein and defined
in Section 11 are used herein as therein defined).
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, subject to and upon the terms and conditions set
forth herein, the Lenders are willing to make available to the respective
Borrowers the respective credit facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitments. (a) Subject to and upon the terms and
conditions set forth herein, each Lender severally agrees to make, at any time
and from time to time on and after the Effective Date and prior to the Final
Maturity Date, one or more loans (each, a "Revolving Loan", and collectively,
the "Revolving Loans") to one or more of the Borrowers (on a several basis),
which Revolving Loans (i) shall be made and maintained in the Approved Currency
or Approved Currencies permitted for the applicable Borrower, (ii) if
denominated in Dollars, at the option of the US Borrower, shall be incurred and
maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans, (iii)
if denominated in a Foreign Currency, at the option of the applicable Foreign
Borrower, shall be incurred and maintained as, and/or converted into, one or
more Borrowings of Revolving Loans of such Foreign Currency, (iv) if Euro Rate
Loans, shall have such Interest Periods as are selected by the applicable
Borrower pursuant to Section 1.09, (v) may be repaid and reborrowed in
accordance with the provisions hereof, (vi) shall not exceed for any Lender at
any time outstanding that aggregate Principal Amount which, when added to the
sum of (x) the aggregate Principal Amount of all other Revolving Loans made by
such Lender and then outstanding and (y) the product of (A) such Lender's
Percentage and (B) the sum of (1) the aggregate amount of all Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds
of, and simultaneously with the incurrence of, Revolving Loans) at such time and
(2) the aggregate Principal Amount of all Swingline Loans (exclusive of
Swingline Loans which are repaid with the proceeds of, and simultaneously with
the incurrence of, the respective incurrence of Revolving Loans) then
outstanding, equals the Revolving Loan Commitment of such Lender at such time,
and (vii) shall not exceed for all Lenders at any time outstanding that
aggregate Principal Amount which, when added to the sum of (I) the aggregate
amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which
are repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Revolving Loans) at such time and (II) the aggregate
Principal Amount of all Swingline Loans (exclusive of Swingline Loans which are
repaid with the
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proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) then outstanding, equals the Total Revolving Loan
Commitment at such time.
(b) Subject to and upon the terms and conditions set forth
herein, the Swingline Lender agrees to make, at any time and from time to time
on and after the Effective Date and prior to the Swingline Expiry Date, a
revolving loan or revolving loans (each a "Swingline Loan" and, collectively,
the "Swingline Loans") to the US Borrower, which Swingline Loans (i) shall be
made and maintained in Dollars and as Base Rate Loans, (ii) may be repaid and
reborrowed in accordance with the provisions hereof, (iii) shall not exceed in
aggregate Principal Amount at any time outstanding, when combined with the sum
of (I) the aggregate Principal Amount of all Revolving Loans then outstanding
and (II) the aggregate amount of all Letter of Credit Outstandings at such time,
an amount equal to the Total Revolving Loan Commitment at such time, and (iv)
shall not exceed in aggregate Principal Amount at any time outstanding the
Maximum Swingline Amount. Notwithstanding anything to the contrary contained in
this Section 1.01(b), (x) the Swingline Lender shall not be obligated to make
any Swingline Loans at a time when a Lender Default exists unless the Swingline
Lender has entered into arrangements satisfactory to it and the US Borrower to
eliminate the Swingline Lender's risk with respect to the Defaulting Lender's or
Lenders' participation in such Swingline Loans, including by cash
collateralizing such Defaulting Lender's or Lenders' Percentage of the
outstanding Swingline Loans and (y) the Swingline Lender shall not make any
Swingline Loan after it has received written notice from any Borrower or the
Required Lenders stating that a Default or an Event of Default exists and is
continuing until such time as the Swingline Lender shall have received written
notice (I) of rescission of all such notices from the party or parties
originally delivering such notice or (II) of the waiver of such Default or Event
of Default by the Required Lenders.
(c) On any Business Day, the Swingline Lender may, in its sole
discretion, give notice to the Lenders that the Swingline Lender's outstanding
Swingline Loans shall be funded with one or more Borrowings of Revolving Loans
(provided that such notice shall be deemed to have been automatically given upon
the occurrence of a Default or an Event of Default under Section 10.05 or upon
the exercise of any of the remedies provided in the last paragraph of Section
10), in which case one or more Borrowings of Revolving Loans denominated in
Dollars and constituting Base Rate Loans (each such Borrowing, a "Mandatory
Borrowing") shall be made on the immediately succeeding Business Day by all
Lenders pro rata based on each Lender's Percentage (determined before giving
effect to any termination of the Revolving Loan Commitments pursuant to the last
paragraph of Section 10) and the proceeds thereof shall be applied directly by
the Swingline Lender to repay the Swingline Lender for such outstanding
Swingline Loans. Each Lender hereby irrevocably agrees to make Revolving Loans
upon one Business Day's notice pursuant to each Mandatory Borrowing in the
amount and in the manner specified in the preceding sentence and on the date
specified in writing by the Swingline Lender notwithstanding (i) the amount of
the Mandatory Borrowing may not comply with the Minimum Borrowing Amount
otherwise required hereunder, (ii) whether any conditions specified in Section 6
are then satisfied, (iii) whether a Default or an Event of Default then exists,
(iv) the date of such Mandatory Borrowing and (v) the amount of the Total
Revolving Loan Commitment at such time. In the event that any Mandatory
Borrowing cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the
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commencement of a proceeding under the Bankruptcy Code with respect to the US
Borrower), then each Lender hereby agrees that it shall forthwith purchase (as
of the date the Mandatory Borrowing would otherwise have occurred, but adjusted
for any payments received from the US Borrower on or after such date and prior
to such purchase) from the Swingline Lender such participations in the
outstanding Swingline Loans as shall be necessary to cause the Lenders to share
in such Swingline Loans ratably based upon their respective Percentages
(determined before giving effect to any termination of the Revolving Loan
Commitments pursuant to the last paragraph of Section 10), provided that (x) all
interest payable on the Swingline Loans shall be for the account of the
Swingline Lender until the date as of which the respective participation is
required to be purchased and, to the extent attributable to the purchased
participation, shall be payable to the participant from and after such date and
(y) at the time any purchase of participations pursuant to this sentence is
actually made, the purchasing Lender shall be required to pay the Swingline
Lender interest on the principal amount of the participation so purchased for
each day from and including the day upon which the Mandatory Borrowing would
otherwise have occurred to but excluding the date of payment for such
participation, at the overnight Federal Funds Rate for the first three days and
at the rate otherwise applicable to Revolving Loans maintained as Base Rate
Loans hereunder for each day thereafter.
1.02 Minimum Amount of Each Borrowing. The aggregate principal
amount of each Borrowing of Revolving Loans or Swingline Loans shall not be less
than the Minimum Borrowing Amount applicable thereto. More than one Borrowing
may occur on the same date, but at no time shall there be outstanding more than
fifteen Borrowings of Euro Rate Loans.
1.03 Notice of Borrowing. (a) Whenever (x) the US Borrower
desires to incur Dollar Loans hereunder (other than Swingline Loans and
Revolving Loans incurred pursuant to a Mandatory Borrowing), the US Borrower
shall give the Administrative Agent at the Notice Office at least one Business
Day's prior notice of each Base Rate Loan, and at least three Business Days'
prior notice of each Eurodollar Loan, provided that any such notice shall be
deemed to have been given on a certain day only if given before 11:00 A.M. (New
York time) on such day, and (y) any Foreign Borrower desires to incur Foreign
Currency Loans hereunder, such Foreign Borrower shall give the Administrative
Agent at the Notice Office at least three Business Days' prior notice of each
such Foreign Currency Loan, provided that any such notice shall be deemed to
have been given on a certain day only if given before 11:00 A.M. (Local time) on
such day. Each such notice (each a "Notice of Borrowing"), except as otherwise
expressly provided in Section 1.10, shall be irrevocable and shall be given by
the applicable Borrower in writing, or by telephone promptly confirmed in
writing, in the form of Exhibit A, appropriately completed to specify (i) the
date of such incurrence (which shall be a Business Day), (ii) the aggregate
principal amount of the Revolving Loans to be made (stated in the applicable
Approved Currency), (iii) the Approved Currency for such Revolving Loans, (iv)
in the case of Dollar Loans, whether such Dollar Loans being made are to be
initially maintained as Base Rate Loans or, to the extent permitted hereunder,
Eurodollar Loans, and (v) in the case of Euro Rate Loans, the initial Interest
Period to be applicable thereto. The Administrative Agent shall promptly give
each Lender notice of such proposed incurrence, of such Lender's proportionate
share thereof and of the other matters required by the immediately preceding
sentence to be specified in the Notice of Borrowing.
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(b)(i) Whenever the US Borrower desires to incur Swingline
Loans hereunder, the US Borrower shall give the Swingline Lender no later than
2:00 P.M. (New York time) on the date that a Swingline Loan is to be incurred
hereunder, written notice or telephonic notice promptly confirmed in writing of
each Swingline Loan to be incurred hereunder. Each such notice shall be
irrevocable and specify in each case (A) the date of Borrowing (which shall be a
Business Day) and (B) the aggregate principal amount of the Swingline Loans to
be incurred pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice
specified in Section 1.01(c), with the US Borrower irrevocably agreeing, by its
incurrence of any Swingline Loan, to the making of the Mandatory Borrowings as
set forth in Section 1.01(c).
(c) Without in any way limiting the obligation of the
applicable Borrower to confirm in writing any telephonic notice permitted to be
given hereunder of any Borrowing or prepayment of Loans, the Administrative
Agent or the Swingline Lender, as the case may be, may act without liability
upon the basis of telephonic notice of such Borrowing or prepayment, as the case
may be, believed by the Administrative Agent or the Swingline Lender, as the
case may be, in good faith to be from the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Financial Officer, the Treasurer or
any Assistant Treasurer of such Borrower, or from any other authorized officer
of such Borrower designated in writing by any of the foregoing officers of such
Borrower to the Administrative Agent as being authorized to give such notices,
prior to receipt of written confirmation. In each such case, such Borrower
hereby waives the right to dispute the Administrative Agent's or Swingline
Lender's record of the terms of such telephonic notice of such Borrowing or
prepayment of Loans, as the case may be, absent manifest error.
1.04 Disbursement of Funds. No later than 12:00 Noon (Local
time) on the date specified in each Notice of Borrowing (or (x) in the case of
Swingline Loans, no later than 3:00 P.M. (New York time) on the date specified
pursuant to Section 1.03(b)(i) or (y) in the case of Mandatory Borrowings, no
later than 1:00 P.M. (New York time) on the date specified in Section 1.01(c)),
each Lender will make available its pro rata portion (determined in accordance
with Section 1.07) of each such Borrowing requested to be made on such date (or,
in the case of Swingline Loans, the Swingline Lender will make available the
full amount thereof). All such amounts will be made available in the relevant
Approved Currency and in immediately available funds at the Payment Office, and,
except for Revolving Loans made pursuant to a Mandatory Borrowing, the
Administrative Agent will make available to the applicable Borrower at the
Payment Office, in the relevant Approved Currency and in immediately available
funds, the aggregate of the amounts so made available by the Lenders to the
extent of funds actually received by the Administrative Agent. Unless the
Administrative Agent shall have been notified by any Lender prior to the date of
Borrowing that such Lender does not intend to make available to the
Administrative Agent such Lender's portion of any Borrowing to be made on such
date, the Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on such date of Borrowing and the
Administrative Agent may (but shall not be obligated to), in reliance upon such
assumption, make available to the applicable Borrower a corresponding amount. If
such corresponding amount is not in fact made available to
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the Administrative Agent by such Lender, the Administrative Agent shall be
entitled to recover such corresponding amount on demand from such Lender. If
such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent shall promptly
notify the applicable Borrower and such Borrower shall immediately pay such
corresponding amount to the Administrative Agent. The Administrative Agent also
shall be entitled to recover on demand from such Lender or such Borrower, as the
case may be, interest on such corresponding amount in respect of each day from
the date such corresponding amount was made available by the Administrative
Agent to such Borrower until the date such corresponding amount is recovered by
the Administrative Agent, at a rate per annum equal to (i) if recovered from
such Lender, at the overnight Federal Funds Rate (or, in the case of Foreign
Currency Loans, the Administrative Agent's customary rate for interbank
advances) for the first three days and at the interest rate otherwise applicable
to such Loans for each day thereafter, and (ii) if recovered from such Borrower,
the rate of interest applicable to the respective Borrowing, as determined
pursuant to Section 1.08. Nothing in this Section 1.04 shall be deemed to
relieve any Lender from its obligation to make Loans hereunder or to prejudice
any rights which any Borrower may have against any Lender as a result of any
failure by such Lender to make Loans hereunder.
1.05 Notes. (a) Each Borrower's obligation to pay the
principal of, and interest on, the Loans made by each Lender to such Borrower
shall be evidenced in the Register maintained by the Administrative Agent
pursuant to Section 13.15 and shall, if requested by such Lender, also be
evidenced (i) if Revolving Loans, by a promissory note duly executed and
delivered by each Borrower substantially in the form of Exhibit B-1, with blanks
appropriately completed in conformity herewith (each a "Revolving Note" and,
collectively, the "Revolving Notes"), and (ii) if Swingline Loans, by a
promissory note duly executed and delivered by the US Borrower substantially in
the form of Exhibit B-2, with blanks appropriately completed in conformity
herewith (the "Swingline Note").
(b) The Revolving Note issued by each Borrower to each Lender
shall (i) be executed by such Borrower, (ii) be payable to such Lender or its
registered assigns and be dated the Effective Date (or, if issued after the
Effective Date, be dated the date of the issuance thereof), (iii) be in a stated
principal amount (expressed in Dollars) equal to the Revolving Loan Commitment
of such Lender, (iv) with respect to each Revolving Loan evidenced thereby, be
payable in the respective Approved Currency in which such Revolving Loan was
made, (v) mature on the Final Maturity Date, (vi) bear interest as provided in
the appropriate clause of Section 1.08, (vii) be subject to voluntary prepayment
as provided in Section 4.01, and mandatory repayment as provided in Section
4.02, and (viii) be entitled to the benefits of this Agreement and the other
Credit Documents.
(c) The Swingline Note issued by the US Borrower to the
Swingline Lender shall (i) be executed by the US Borrower, (ii) be payable to
the Swingline Lender or its registered assigns and be dated the Effective Date,
(iii) be in a stated principal amount (expressed in Dollars) equal to the
Maximum Swingline Amount and be payable in Dollars and in the outstanding
principal amount of the Swingline Loans evidenced thereby from time to time,
(iv) mature on the Swingline Expiry Date, (v) bear interest as provided in the
appropriate clause of
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Section 1.08 in respect of the Base Rate Loans evidenced thereby, (vi) be
subject to voluntary prepayment as provided in Section 4.01, and mandatory
repayment as provided in Section 4.02 and (vii) be entitled to the benefits of
this Agreement and the other Credit Documents.
(d) Each Lender will note on its internal records the amount
of each Loan made by it and each payment in respect thereof and will prior to
any transfer of any of its Notes endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation or any error in such notation shall not affect the respective
Borrower's obligations in respect of such Loans.
1.06 Conversions. The US Borrower shall have the option to
convert, on any Business Day, all or a portion equal to at least the Minimum
Borrowing Amount of the outstanding principal amount of Revolving Loans made to
the US Borrower pursuant to one or more Borrowings of one or more Types of
Revolving Loans into a Borrowing of another Type of Revolving Loan, provided
that, (i) except as otherwise provided in Section 1.10(b), Eurodollar Loans may
be converted into Base Rate Loans only on the last day of an Interest Period
applicable to the Revolving Loans being converted and no such partial conversion
of Eurodollar Loans shall reduce the outstanding principal amount of such
Eurodollar Loans made pursuant to a single Borrowing to less than the Minimum
Borrowing Amount applicable thereto, (ii) Base Rate Loans may only be converted
into Eurodollar Loans if no Default or Event of Default is in existence on the
date of such conversion, and (iii) no conversion pursuant to this Section 1.06
shall result in a greater number of Borrowings of Euro Rate Loans than is
permitted under Section 1.02. Each such conversion shall be effected by the US
Borrower by giving the Administrative Agent at the Notice Office prior to 11:00
A.M. (New York time) at least three Business Days' prior notice (each a "Notice
of Conversion") specifying the Revolving Loans to be so converted, the Borrowing
or Borrowings pursuant to which such Revolving Loans were made and, if to be
converted into Eurodollar Loans, the Interest Period to be initially applicable
thereto. The Administrative Agent shall give each Lender prompt notice of any
such proposed conversion affecting any of its Revolving Loans. Upon any such
conversion the proceeds thereof will be deemed to be applied directly on the day
of such conversion to prepay the outstanding principal amount of the Revolving
Loans being converted. Swingline Loans and Foreign Currency Loans may not be
converted pursuant to this Section 1.06.
1.07 Pro Rata Borrowings. All Borrowings of Revolving Loans
under this Agreement shall be incurred from the Lenders pro rata on the basis of
their Revolving Loan Commitments. It is understood that no Lender shall be
responsible for any default by any other Lender of its obligation to make
Revolving Loans hereunder and that each Lender shall be obligated to make the
Revolving Loans provided to be made by it hereunder, regardless of the failure
of any other Lender to make its Revolving Loans hereunder.
1.08 Interest. (a) The US Borrower agrees to pay interest in
respect of the unpaid principal amount of each Base Rate Loan from the date of
Borrowing thereof until the earlier of (i) the maturity thereof (whether by
acceleration or otherwise) and (ii) the conversion of such Base Rate Loan to a
Eurodollar Loan pursuant to Section 1.06, at a rate per annum which
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shall be equal to the sum of the Applicable Margin plus the Base Rate each as in
effect from time to time.
(b) The US Borrower agrees to pay interest in respect of the
unpaid principal amount of each Eurodollar Loan from the date of Borrowing
thereof until the earlier of (i) the maturity thereof (whether by acceleration
or otherwise) and (ii) the conversion of such Eurodollar Loan to a Base Rate
Loan pursuant to Section 1.06, 1.09 or 1.10(b), as applicable, at a rate per
annum which shall, during each Interest Period applicable thereto, be equal to
the sum of the Applicable Margin plus the Euro Rate for such Interest Period.
(c) Each Foreign Borrower agrees to pay interest in respect of
the unpaid principal amount of each Euro Rate Loan made to such Foreign Borrower
from the date of Borrowing thereof until the maturity thereof (whether by
acceleration or otherwise) at a rate per annum which shall, during each Interest
Period applicable thereto, be equal to the sum of the Applicable Margin plus the
Euro Rate for such Interest Period.
(d) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan shall, in each case, bear interest at a
rate per annum equal to the greater of (x) the rate which is 2% in excess of the
rate then borne by such Loans and (y) the rate which is 2% in excess of the rate
otherwise applicable to Base Rate Loans from time to time, and all other overdue
amounts payable hereunder and under any other Credit Document shall bear
interest at the rate per annum equal to the rate which is 2% in excess of the
rate applicable to Base Rate Loans from time to time. Interest which accrues
under this Section 1.08(d) shall be payable on demand.
(e) Accrued (and theretofore unpaid) interest shall be payable
(i) in respect of each Base Rate Loan, quarterly in arrears on each Quarterly
Payment Date, (ii) in respect of each Euro Rate Loan, on the last day of each
Interest Period applicable thereto and, in the case of an Interest Period in
excess of three months, on each date occurring at three month intervals after
the first day of such Interest Period, and (iii) in respect of each Loan, on any
repayment or prepayment (on the amount repaid or prepaid), at maturity (whether
by acceleration or otherwise) and, after such maturity, on demand.
(f) Upon each Interest Determination Date, the Administrative
Agent shall determine the respective interest rate for each Interest Period
applicable to Euro Rate Loans for which such determination is being made and
shall promptly notify the applicable Borrower and the Lenders thereof. Each such
determination shall, absent manifest error, be final and conclusive and binding
on all parties hereto.
1.09 Interest Periods. At the time the applicable Borrower
gives any Notice of Borrowing or Notice of Conversion in respect of the making
of, or conversion into, any Euro Rate Loan (in the case of the initial Interest
Period applicable thereto) or prior to 11:00 A.M. (Local time) on the third
Business Day prior to the expiration of an Interest Period applicable to such
Euro Rate Loan (in the case of any subsequent Interest Period), the applicable
Borrower shall have the right to elect, by giving the Administrative Agent
notice thereof, the interest period
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(each an "Interest Period") applicable to such Euro Rate Loan, which Interest
Period shall, at the option of such Borrower, be a one, two, three or six-month
period, provided that:
(i) all Euro Rate Loans comprising a Borrowing shall at all
times have the same Interest Period;
(ii) the initial Interest Period for any Euro Rate Loan shall
commence on the date of Borrowing of such Euro Rate Loan (including, in
the case of Eurodollar Loans, the date of any conversion thereto from a
Base Rate Loan) and each Interest Period occurring thereafter in
respect of such Euro Rate Loan shall commence on the day on which the
next preceding Interest Period applicable thereto expires;
(iii) if any Interest Period for a Euro Rate Loan begins on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period, such Interest Period shall
end on the last Business Day of such calendar month;
(iv) if any Interest Period for a Euro Rate Loan would otherwise
expire on a day which is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day; provided, however, that if
any Interest Period for a Euro Rate Loan would otherwise expire on a
day which is not a Business Day but is a day of the month after which
no further Business Day occurs in such month, such Interest Period
shall expire on the next preceding Business Day;
(v) no Interest Period for a Eurodollar Loan may be selected
at any time when a Default or an Event of Default is then in existence;
(vi) no Interest Period of longer than one month may be selected
for a Foreign Currency Loan at any time when a Default or an Event of
Default is then in existence; and
(vii) no Interest Period in respect of any Borrowing of Euro Rate
Loans shall be selected which extends beyond the Final Maturity Date.
If upon the expiration of any Interest Period applicable to a
Borrowing of Euro Rate Loans, the applicable Borrower has failed to elect, or is
not permitted to elect, a new Interest Period to be applicable to such
Eurodollar Loans as provided above, such Borrower shall be deemed to have
elected (x) in the case of Eurodollar Loans, to convert such Eurodollar Loans
into Base Rate Loans effective as of the expiration date of such current
Interest Period, and (y) in the case of Foreign Currency Loans, to select a
one-month Interest Period for such Foreign Currency Loans effective as of the
expiration of such current Interest Period.
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1.10 Increased Costs, Illegality, etc. (a) In the event that
any Lender shall have determined (which determination shall, absent manifest
error, be final and conclusive and binding upon all parties hereto but, with
respect to clauses (i) and (iv) below, may be made only by the Administrative
Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the date of this Agreement affecting the relevant
interbank market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the
definition of Euro Rate;
(ii) at any time, that such Lender shall incur increased costs
or reductions in the amounts received or receivable hereunder with
respect to any Euro Rate Loan because of (x) any change since the
Effective Date in any applicable law or governmental rule, regulation,
order, guideline or request (whether or not having the force of law) or
in the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, order,
guideline or request, such as, for example, but not limited to: (A) a
change in the basis of taxation of payment to such Lender of the
principal of or interest on such Euro Rate Loans or any other amounts
payable hereunder (except for changes in the rate of tax on, or
determined by reference to, the net income or profits of such Lender
pursuant to the laws of the jurisdiction in which it is organized or in
which its principal office or applicable lending office is located or
any subdivision thereof or therein) or (B) a change in official reserve
requirements, but, in all events, excluding reserves required under
Regulation D to the extent included in the computation of the
Eurodollar Rate and/or (y) other circumstances since the Effective Date
affecting such Lender, the relevant interbank market or the position of
such Lender in such market; or
(iii) at any time, that the making or continuance of any Euro
Rate Loan has been made (x) unlawful by any law or governmental rule,
regulation or order, (y) impossible by compliance by such Lender in
good faith with any governmental request (whether or not having force
of law) or (z) impracticable as a result of a contingency occurring
after the Effective Date which materially and adversely affects the
relevant interbank market;
(iv) at any time that any Foreign Currency is not available in
sufficient amounts, as determined in good faith by the Administrative
Agent, to fund any Borrowing of Revolving Loans denominated in such
Foreign Currency; or
(v) at any time, that such Lender shall incur any Mandatory
Costs;
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i) or (iv) above) shall promptly give written notice to the
Borrowers and, except in the case of clauses (i) and (iv) above, to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Lenders). Thereafter (v) in
the case of clause (i) above, (A) in the event that Eurodollar Loans are so
affected, Eurodollar Loans shall no longer be available until such time as the
Administrative Agent notifies the US Borrower and the Lenders that the
circumstances giving rise to such notice by the Administrative Agent no longer
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exist, and any Notice of Borrowing or Notice of Conversion given by the US
Borrower with respect to Eurodollar Loans which have not yet been incurred
(including by way of conversion) shall be deemed rescinded by the US Borrower
and (B) in the event that any Foreign Currency Loans are so affected, the
applicable Euro Rate shall be determined on the basis provided in the last
sentence of the definition of such Euro Rate, (w) in the case of clause (ii)
above, the applicable Borrower shall pay to such Lender, upon written demand
therefor, such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
sole discretion shall determine) as shall be required to compensate such Lender
for such increased costs or reductions in amounts received or receivable
hereunder (a written notice as to the additional amounts owed to such Lender,
showing in reasonable detail the basis for the calculation thereof, submitted to
the respective Borrower by such Lender shall, absent manifest error, be final
and conclusive and binding on all the parties hereto), (x) in the case of clause
(iii) above, the applicable Borrower shall take one of the actions specified in
Section 1.10(b) as promptly as possible and, in any event, within the time
period required by law, (y) in the case of clause (iv) above, Revolving Loans in
the affected Foreign Currency (other than any such Revolving Loans which have
theretofore been funded) shall no longer be available until such time as the
Administrative Agent notifies the Borrowers and the Lenders that the
circumstances giving rise to such notice by the Administrative Agent no longer
exist, and any Notice of Borrowing given by a Borrower with respect to such
Revolving Loans which have not yet been incurred shall be deemed rescinded by
such Borrower and (z) in the case of clause (v) above, the respective Foreign
Borrower shall pay to such Lender, upon written demand therefor, such Mandatory
Costs.
(b) At any time that any Euro Rate Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the applicable Borrower
may (and in the case of a Euro Rate Loan affected by the circumstances described
in Section 1.10(a)(iii) the applicable Borrower shall) either (x) if the
affected Euro Rate Loan is then being made initially or pursuant to a
conversion, cancel the respective Borrowing by giving the Administrative Agent
written notice on the same date that such Borrower was notified by the affected
Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or
(y) if the affected Euro Rate Loan is then outstanding, upon at least three
Business Days' written notice to the Administrative Agent and the affected
Lender, (A) in the case of a Eurodollar Loan, require the affected Lender to
convert such Eurodollar Loan into a Base Rate Loan or repay such Eurodollar Loan
in full and (B) in the case of any Foreign Currency Loan, repay such Foreign
Currency Loan in full; provided that (i) if the circumstances described in
Section 1.10(a)(iii) apply to any Foreign Currency Loan, the applicable Borrower
may, in lieu of taking the actions described above, maintain such Foreign
Currency Loan outstanding, in which case the applicable Euro Rate shall be
determined on the basis provided in the last sentence of the definition of the
applicable Euro Rate, unless the maintenance of such Foreign Currency Loan
outstanding on such basis would not stop the conditions described in Section
1.10(a)(iii) from existing (in which case the actions described above, without
giving effect to this proviso, shall be required to be taken), and (ii) if more
than one Lender is affected at any time, then all affected Lenders must be
treated the same pursuant to this Section 1.10(b).
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(c) If any Lender determines that after the Effective Date the
introduction of or any change in any applicable law or governmental rule,
regulation, order, guideline, directive or request (whether or not having the
force of law) concerning capital adequacy, or any change in interpretation or
administration thereof by the NAIC or any governmental authority, central bank
or comparable agency, will have the effect of increasing the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender based on the existence of such Lender's Revolving Loan
Commitment hereunder or its obligations hereunder, then the applicable Borrower
shall pay to such Lender, upon its written demand therefor, such additional
amounts as shall be required to compensate such Lender or such other corporation
for the increased cost to such Lender or such other corporation or the reduction
in the rate of return to such Lender or such other corporation as a result of
such increase of capital. In determining such additional amounts, each Lender
will act reasonably and in good faith and will use averaging and attribution
methods which are reasonable, provided that such Lender's determination of
compensation owing under this Section 1.10(c) shall, absent manifest error, be
final and conclusive and binding on all the parties hereto. Each Lender, upon
determining that any additional amounts will be payable pursuant to this Section
1.10(c), will give prompt written notice thereof to the applicable Borrower,
which notice shall show in reasonable detail the basis for calculation of such
additional amounts.
(d) In the event that any Lender shall determine (which
determination shall, absent manifest error, be final and conclusive and binding
on all parties hereto) at any time that such Lender is required to maintain
reserves (including, without limitation, any marginal, emergency, supplemental,
special or other reserves required by applicable law) which have been
established by any Federal, state, local or foreign court or governmental
agency, authority, instrumentality or regulatory body with jurisdiction over
such Lender (including any branch, Affiliate or funding office thereof) in
respect of any Foreign Currency Loans or any category of liabilities which
includes deposits by reference to which the interest rate on any Foreign
Currency Loan is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Lender to
non-United States residents, then, unless such reserves are included in the
calculation of the interest rate applicable to such Foreign Currency Loans or in
Section 1.10(a)(ii), such Lender shall promptly notify the applicable Borrower
or Borrowers in writing specifying the additional amounts required to indemnify
such Lender against the cost of maintaining such reserves (such written notice
to provide in reasonable detail a computation of such additional amounts) and
the applicable Borrower or Borrowers shall, and shall be obligated to, pay to
such Lender such specified amounts as additional interest at the time that the
applicable Borrower is otherwise required to pay interest in respect of such
Foreign Currency Loan or, if later, on written demand therefor by such Lender.
1.11 Compensation. Each Borrower shall compensate each Lender,
upon its written request (which request shall set forth in reasonable detail the
basis for requesting such compensation), for all losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other funds
required by such Lender to fund its Euro Rate Loans, but excluding loss of
anticipated profit) which such Lender may sustain: (i) if for any reason (other
than a default by such Lender or the Administrative Agent) a Borrowing of, or
conversion from or into, Euro Rate Loans does
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not occur on a date specified therefor in a Notice of Borrowing or Notice of
Conversion (whether or not withdrawn by such Borrower); (ii) if any repayment
(including any repayment made pursuant to Section 4.01 or 4.02 or a result of an
acceleration of the Loans pursuant to Section 10 or as a result of the
replacement of a Lender pursuant to Section 1.13 or 13.12(b)) or conversion of
any Euro Rate Loans occurs on a date which is not the last day of an Interest
Period with respect thereto; (iii) if any prepayment of any Euro Rate Loans is
not made on any date specified in a notice of prepayment given by such Borrower;
or (iv) as a consequence of (x) any other default by such Borrower to repay its
Loans when required by the terms of this Agreement or any Note held by such
Lender or (y) any election made pursuant to Section 1.10(b).
1.12 Change of Lending Office. (a) Each Lender may at any time
or from time to time designate, by written notice to the Administrative Agent to
the extent not already reflected on Schedule II, one or more lending offices
(which, for this purpose, may include lending affiliates of the respective
Lender) for the various Foreign Currency Loans made by such Lender (including,
without limitation, by designating a separate lending office (or affiliate) to
act as such with respect to Dollar Loans versus Foreign Currency Loans);
provided that for designations made after the Effective Date, to the extent such
designation shall result in increased costs under Section 1.10, 2.06 or 4.04 in
excess of those which would be charged in the absence of the designation of a
different lending office (including a different affiliate of the respective
Lenders), then the respective Foreign Borrower or Foreign Borrowers shall not be
obligated to pay such excess increased costs (although such Borrowers, in
accordance with and pursuant to the other provisions of this Agreement, shall be
obligated to pay the costs which would apply in the absence of such designation
and any subsequent increased costs of the type described in Section 1.10, 2.06
or 4.04 resulting from changes after the date of the respective designation).
Each lending office and affiliate of any Lender designated as provided above
shall, for all purposes of this Agreement, be treated in the same manner as the
respective Lender (and shall be entitled to all indemnities and similar
provisions in respect of its acting as such hereunder).
(b) Each Lender agrees that upon the occurrence of any event
giving rise to the operation of Section 1.10(a)(ii), (iii) or (v), Section
1.10(c), Section 1.10(d), Section 2.06 or Section 4.04 with respect to such
Lender, it will, if requested by the applicable Borrower, use reasonable efforts
(subject to overall policy considerations of such Lender) to designate another
lending office for any Loans or Letters of Credit affected by such event,
provided that such designation is made on such terms that such Lender and its
lending office suffer no economic, legal or regulatory disadvantage, with the
object of avoiding the consequence of the event giving rise to the operation of
such Section. Nothing in this Section 1.12 shall affect or postpone any of the
obligations of any Borrower or the right of any Lender provided in Sections
1.10, 2.06 and 4.04.
1.13 Replacement of Lenders. (a)(i) If any Lender becomes a
Defaulting Lender or otherwise defaults in its obligations to make Loans, (ii)
upon the occurrence of an event giving rise to the operation of Section
1.10(a)(ii), (iii) or (v), Section 1.10(c), Section 1.10(d), Section 2.06 or
Section 4.04 with respect to any Lender which results in such Lender charging to
any Borrower increased costs in excess of those being generally charged by the
other Lenders or (iii) in the case of a refusal by a Lender to consent to
certain proposed changes, waivers, dis-
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charges or terminations with respect to this Agreement which have been approved
by the Required Lenders as (and to the extent) provided in Section 13.12(b), the
applicable Borrower shall have the right, if no Default or Event of Default then
exists (or, in the case of preceding clause (iii), no Default or Event of
Default will exist immediately after giving effect to such replacement), to
replace such Lender (the "Replaced Lender") with one or more other Eligible
Transferees, none of whom shall constitute a Defaulting Lender at the time of
such replacement (collectively, the "Replacement Lender") and each of whom shall
be required to be reasonably acceptable to the Administrative Agent, provided
that (i) at the time of any replacement pursuant to this Section 1.13, the
Replacement Lender shall enter into one or more Assignment and Assumption
Agreements pursuant to Section 13.04(b) (and with all fees payable pursuant to
said Section 13.04(b) to be paid by the Replacement Lender) pursuant to which
the Replacement Lender shall acquire the entire Revolving Loan Commitment and
outstanding Revolving Loans of, and participations in Letters of Credit by, the
Replaced Lender and, in connection therewith, shall pay to (x) the Replaced
Lender in respect thereof an amount equal to the sum of (I) an amount equal to
the principal amount of, and all accrued interest on, all outstanding Revolving
Loans of the Replaced Lender, (II) an amount equal to all Unpaid Drawings that
have been funded by (and not reimbursed to) such Replaced Lender, together with
all then unpaid interest with respect thereto at such time and (III) an amount
equal to all accrued, but theretofore unpaid, Fees owing to the Replaced Lender
pursuant to Section 3.01, (y) each Issuing Lender an amount equal to such
Replaced Lender's Percentage of any Unpaid Drawing (which at such time remains
an Unpaid Drawing) to the extent such amount was not theretofore funded by such
Replaced Lender to such Issuing Lender and (z) the Swingline Lender an amount
equal to such Replaced Lender's Percentage of any Mandatory Borrowings to the
extent such amount was not theretofore funded by such Replaced Lender to the
Swingline Lender and (ii) all obligations of the Borrowers due and owing to the
Replaced Lender at such time (other than those specifically described in clause
(i) above in respect of which the assignment purchase price has been, or is
concurrently being, paid) shall be paid in full to such Replaced Lender
concurrently with such replacement.
(b) Upon the execution of the respective Assignment and
Assumption Agreement, the payment of amounts referred to in clauses (i) and (ii)
above and, if so requested by the Replacement Lender, delivery to the
Replacement Lender of the appropriate Revolving Notes executed by the Borrowers,
the Replacement Lender shall become a Lender hereunder and the Replaced Lender
shall cease to constitute a Lender hereunder, except with respect to
indemnification provisions under this Agreement (including, without limitation,
Sections 1.10, 1.11, 2.06, 4.04, 12.06 and 13.01), which shall survive as to
such Replaced Lender.
SECTION 2. Letters of Credit.
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2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions set forth herein, the US Borrower may request that an Issuing Lender
issue, at any time and from time to time on and after the Effective Date and
prior to the 30th day prior to the Final Maturity Date, (x) for the account of
the US Borrower and for the benefit of any holder (or any trustee, agent or
other similar representative for any such holders) of L/C Supportable
Obligations of the US Borrower or any of its Subsidiaries, an irrevocable
standby letter of credit, in a form customarily
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used by such Issuing Lender or in such other form as has been approved by such
Issuing Lender and (y) for the account of the US Borrower and for the benefit of
sellers of goods to the US Borrower or any of its Subsidiaries, an irrevocable
trade letter of credit, in a form customarily used by such Issuing Lender or in
such other form as has been approved by such Issuing Lender (each such letter of
credit issued pursuant to this Section 2.01, together with each letter of credit
described in the second succeeding sentence, a "Letter of Credit"). All Letters
of Credit shall be denominated in Dollars and shall be issued on a sight basis
only; provided, however, with the consent of the respective Issuing Lender, up
to $10,000,000 of standby Letters of Credit in the aggregate may be issued and
outstanding at any time in Foreign Currencies. It is hereby acknowledged and
agreed that each of the letters of credit described in Schedule VII (the
"Existing Letters of Credit") which were issued under the Existing Credit
Agreement prior to the Effective Date and which remain outstanding on such date,
shall constitute a "Letter of Credit" for all purposes of this Agreement and
shall be deemed issued on the Effective Date.
(b) Subject to and upon the terms and conditions set forth
herein, each Issuing Lender agrees that it will, at any time and from time to
time on and after the Effective Date and prior to the 30th day prior to the
Final Maturity Date, following its receipt of the respective Letter of Credit
Request, issue for the account of the US Borrower, one or more Letters of Credit
as are permitted to remain outstanding hereunder without giving rise to a
Default or an Event of Default, provided that no Issuing Lender shall be under
any obligation to issue any Letter of Credit of the types described above if at
the time of such issuance:
(i) any order, judgment or decree of any governmental authority
or arbitrator shall purport by its terms to enjoin or restrain such
Issuing Lender from issuing such Letter of Credit or any requirement of
law applicable to such Issuing Lender or any request or directive
(whether or not having the force of law) from any governmental
authority with jurisdiction over such Issuing Lender shall prohibit, or
request that such Issuing Lender refrain from, the issuance of letters
of credit generally or such Letter of Credit in particular or shall
impose upon such Issuing Lender with respect to such Letter of Credit
any restriction or reserve or capital requirement (for which such
Issuing Lender is not otherwise compensated) not in effect on the
Effective Date, or any unreimbursed loss, cost or expense which was not
applicable or in effect with respect to such Issuing Lender as of the
date hereof and which such Issuing Lender reasonably and in good faith
deems material to it; or
(ii) such Issuing Lender shall have received notice from the US
Borrower or the Required Lenders prior to the issuance of such Letter
of Credit of the type described in the second sentence of Section
2.03(b).
(c) Each Issuing Lender agrees to provide to the
Administrative Agent by facsimile promptly on the first Business Day of each
week the daily aggregate Stated Amount of all Letters of Credit issued by such
Issuing Lender and outstanding during the immediately preceding week.
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2.02 Maximum Letter of Credit Outstandings; Final Maturities.
Notwithstanding anything to the contrary contained in this Agreement, (i) no
Letter of Credit shall be issued the Stated Amount of which, when added to the
Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid on
the date of, and prior to the issuance of, the respective Letter of Credit) at
such time would exceed either (x) $25,000,000 or (y) when added to the sum of
(I) the aggregate Principal Amount of all Revolving Loans then outstanding and
(II) the aggregate Principal Amount of all Swingline Loans then outstanding, an
amount equal to the Total Revolving Loan Commitment at such time, (ii) each
standby Letter of Credit shall by its terms terminate on or before the earlier
of (x) the date which occurs 12 months after the date of the issuance thereof
(although any such standby Letter of Credit may be extendable for successive
periods of up to 12 months, but not beyond the third Business Day prior to the
Final Maturity Date, on terms acceptable to such Issuing Lender) and (y) three
Business Days prior to the Final Maturity Date, and (iii) each trade Letter of
Credit shall by its terms terminate on or before the earlier of (x) the date
which occurs 180 days after the date of the issuance thereof and (y) 30 days
prior to the Final Maturity Date.
2.03 Letter of Credit Requests; Minimum Stated Amount. (a)
Whenever the US Borrower desires that a Letter of Credit be issued for its
account, the US Borrower shall give the Administrative Agent and the respective
Issuing Lender at least five Business Days' (or such shorter period as is
acceptable to such Issuing Lender) written notice thereof (including by way of
facsimile transmission). Each notice shall be in the form of Exhibit C (each a
"Letter of Credit Request").
(b) The making of each Letter of Credit Request shall be
deemed to be a representation and warranty by the US Borrower that such Letter
of Credit may be issued in accordance with, and will not violate the
requirements of, Section 2.02. Unless the respective Issuing Lender has received
notice from the US Borrower or the Required Lenders before it issues a Letter of
Credit that one or more of the conditions specified in Section 5 or 6 are not
then satisfied, or that the issuance of such Letter of Credit would violate
Section 2.02, then such Issuing Lender shall, subject to the terms and
conditions of this Agreement, issue the requested Letter of Credit for the
account of the US Borrower in accordance with such Issuing Lender's usual and
customary practices. Upon its issuance of or amendment to any standby Letter of
Credit, the respective Issuing Lender shall promptly notify the US Borrower and
the Administrative Agent, in writing, of such issuance or amendment and such
notice shall be accompanied by a copy of the issued standby Letter of Credit or
amendment. Upon receipt of such notice, the Administrative Agent shall promptly
notify each Participant, in writing, of such issuance or amendment and if so
requested by a Participant, the Administrative Agent will furnish such
Participant with a copy of the issued standby Letter of Credit or amendment.
Notwithstanding anything to the contrary contained in this Agreement, in the
event that a Lender Default exists, no Issuing Lender shall be required to issue
any Letter of Credit unless such Issuing Lender has entered into an arrangement
satisfactory to it and the US Borrower to eliminate such Issuing Lender's risk
with respect to the participation in Letters of Credit by the Defaulting Lender
or Lenders, including by cash collateralizing such Defaulting Lender's or
Lenders' Percentage of the Letter of Credit Outstandings.
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(c) The initial Stated Amount of each Letter of Credit shall
not be less than $100,000 (or, in the case of a Letter of Credit issued in a
currency other than Dollars, the Dollar Equivalent thereof) or such lesser
amount as is acceptable to the respective Issuing Lender.
2.04 Letter of Credit Participations. (a) Immediately upon the
issuance by each Issuing Lender of any Letter of Credit, such Issuing Lender
shall be deemed to have sold and transferred to each Lender, other than such
Issuing Lender (each such Lender, in its capacity under this Section 2.04, a
"Participant"), and each such Participant shall be deemed irrevocably and
unconditionally to have purchased and received from such Issuing Lender, without
recourse or warranty, an undivided interest and participation, to the extent of
such Participant's Percentage, in such Letter of Credit, each drawing or payment
made thereunder and the obligations of the US Borrower under this Agreement with
respect thereto, and any security therefor or guaranty pertaining thereto. Upon
any change in the Revolving Loan Commitments or Percentages of the Lenders
pursuant to Section 1.13 or 13.04, it is hereby agreed that, with respect to all
outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic
adjustment to the participations pursuant to this Section 2.04 to reflect the
new Percentages of the assignor and assignee Lender, as the case may be.
(b) In determining whether to pay under any Letter of Credit
issued by it, no Issuing Lender shall have an obligation relative to the other
Lenders other than to confirm that any documents required to be delivered under
such Letter of Credit appear to have been delivered and that they appear to
substantially comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by any Issuing Lender under or
in connection with any Letter of Credit issued by it shall not create for such
Issuing Lender any resulting liability to the US Borrower, any other Credit
Party, any Lender or any other Person unless such action is taken or omitted to
be taken with gross negligence or willful misconduct (as determined by a court
of competent jurisdiction in a final and non-appealable decision).
(c) In the event that any Issuing Lender makes any payment
under any Letter of Credit issued by it and the US Borrower shall not have
reimbursed such amount in full to such Issuing Lender pursuant to Section
2.05(a), such Issuing Lender shall promptly notify the Administrative Agent,
which shall promptly notify each Participant of such failure, and, except as
provided in the proviso of the immediately succeeding sentence, each Participant
shall promptly and unconditionally pay to such Issuing Lender the amount of such
Participant's Percentage of such unreimbursed payment in Dollars (or, in the
case of any unreimbursed payment made in a currency other than Dollars, of the
Dollar Equivalent of such unreimbursed payment, as determined by the respective
Issuing Lender on the date on which such unreimbursed payment was made by such
Issuing Lender) and in same day funds. If the Administrative Agent so notifies,
prior to 11:00 A.M. (New York time) on any Business Day, any Participant
required to fund a payment under a Letter of Credit, such Participant shall make
available to the respective Issuing Lender in Dollars (or, in the case of any
unreimbursed payment made in a currency other than Dollars, of the Dollar
Equivalent thereof) such Participant's Percentage of the amount of such payment
on such Business Day in same day funds; provided, however, that no Participant
shall be obligated to pay to the respective Issuing Lender its Percentage of
such unreimbursed amount for any wrongful payment made by such
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Issuing Lender under a Letter of Credit issued by it as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of
such Issuing Lender (as determined by a court of competent jurisdiction in a
final and non-appealable decision). If and to the extent such Participant shall
not have so made its Percentage of the amount of such payment available to the
respective Issuing Lender, such Participant agrees to pay to such Issuing
Lender, forthwith on demand such amount, together with interest thereon, for
each day from such date until the date such amount is paid to such Issuing
Lender at the overnight Federal Funds Rate for the first three days and at the
interest rate applicable to Base Rate Loans for each day thereafter. The failure
of any Participant to make available to the respective Issuing Lender its
Percentage of any payment under any Letter of Credit shall not relieve any other
Participant of its obligation hereunder to make available to such Issuing Lender
its Percentage of any Letter of Credit on the date required, as specified above,
but no Participant shall be responsible for the failure of any other Participant
to make available to such Issuing Lender such other Participant's Percentage of
any such payment.
(d) Whenever an Issuing Lender receives a payment of a
reimbursement obligation as to which it has received any payments from the
Participants pursuant to clause (c) above, such Issuing Lender shall pay to each
Participant which has paid its Percentage thereof, in Dollars (or, in the case
of any payment received in a currency other than Dollars, of the Dollar
Equivalent thereof) and in same day funds, an amount equal to such Participant's
share (based upon the proportionate aggregate amount originally funded by such
Participant to the aggregate amount funded by all Participants) of the principal
amount of such reimbursement obligation and interest thereon accruing after the
purchase of the respective participations.
(e) The obligations of the Participants to make payments to
each Issuing Lender with respect to Letters of Credit issued by it shall be
irrevocable and not subject to any qualification or exception whatsoever (except
as otherwise provided in the proviso to the second sentence of Section 2.04(c))
and shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or
any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right
which the US Borrower or any of its Subsidiaries may have at any time
against a beneficiary named in a Letter of Credit, any transferee of
any Letter of Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, any Issuing Lender, any Participant
or any other Person, whether in connection with this Agreement, any
Letter of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the US
Borrower or any Subsidiary of the US Borrower and the beneficiary named
in any such Letter of Credit);
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(iii) any draft, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
2.05 Agreement to Repay Letter of Credit Drawings. (a) The US
Borrower agrees to reimburse each Issuing Lender, by making payment to the
Administrative Agent in Dollars (or, in the case of any payment or disbursement
made by such Issuing Lender in a currency other than Dollars, of the Dollar
Equivalent of such payment or disbursement as determined by such Issuing Lender
on the date of such payment or disbursement) and in immediately available funds
at the Payment Office, for any payment or disbursement made by such Issuing
Lender under any Letter of Credit issued by it (each such amount (or the Dollar
Equivalent thereof, as the case may be) so paid until reimbursed, an "Unpaid
Drawing"), not later than one Business Day following receipt by the US Borrower
of notice of such payment or disbursement (provided that no such notice shall be
required to be given if a Default or an Event of Default under Section 10.05
shall have occurred and be continuing, in which case the Unpaid Drawing shall be
due and payable immediately without presentment, demand, protest or notice of
any kind (all of which are hereby waived by the US Borrower)), with interest on
the amount so paid or disbursed by such Issuing Lender, to the extent not
reimbursed prior to 12:00 Noon (New York time) on the date of such payment or
disbursement, from and including the date paid or disbursed to but excluding the
date such Issuing Lender was reimbursed by the US Borrower therefor at a rate
per annum which shall be the sum of the Applicable Margin for Revolving Loans
that are maintained as Base Rate Loans plus the Base Rate each as in effect from
time to time; provided, however, to the extent such amounts are not reimbursed
prior to 12:00 Noon (New York time) on the third Business Day following the
receipt by the US Borrower of notice of such payment or disbursement or
following the occurrence of a Default or an Event of Default under Section
10.05, interest shall thereafter accrue on the amounts so paid or disbursed by
such Issuing Lender (and until reimbursed by the US Borrower) at a rate per
annum which shall be the sum of the Applicable Margin for Revolving Loans that
are maintained as Base Rate Loans plus the Base Rate each as in effect from time
to time plus 2%, in each such case, with interest to be payable on demand. Each
Issuing Lender shall give the US Borrower prompt written notice of each Drawing
under any Letter of Credit issued by it, provided that the failure to give any
such notice shall in no way affect, impair or diminish the US Borrower's
obligations hereunder.
(b) The obligations of the US Borrower under this Section 2.05
to reimburse each Issuing Lender with respect to Unpaid Drawings (including, in
each case, interest thereon) shall be absolute and unconditional under any and
all circumstances and irrespective of any setoff, counterclaim or defense to
payment which the US Borrower may have or have had against any Lender (including
in its capacity as issuer of the Letter of Credit or as Participant), including,
without limitation, any defense based upon the failure of any drawing or payment
under a Letter of Credit (each a "Drawing") to conform to the terms of the
Letter of Credit or any nonapplica-
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tion or misapplication by the beneficiary of the proceeds of such Drawing;
provided, however, that the US Borrower shall not be obligated to reimburse the
respective Issuing Lender for any wrongful payment made by such Issuing Lender
under a Letter of Credit issued by it as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of such Issuing
Lender (as determined by a court of competent jurisdiction in a final and
non-appealable decision).
2.06 Increased Costs. If at any time after the Effective Date,
the introduction of or any change in any applicable law, rule, regulation,
order, guideline or request or in the interpretation or administration thereof
by the NAIC or any governmental authority charged with the interpretation or
administration thereof, or compliance by any Issuing Lender or any Participant
with any request or directive by the NAIC or by any such authority (whether or
not having the force of law), shall either (i) impose, modify or make applicable
any reserve, deposit, capital adequacy or similar requirement against letters of
credit issued by any Issuing Lender or participated in by any Participant, or
(ii) impose on any Issuing Lender or any Participant any other conditions
relating, directly or indirectly, to this Agreement; and the result of any of
the foregoing is to increase the cost to any Issuing Lender or any Participant
of issuing, maintaining or participating in any Letter of Credit, or reduce the
amount of any sum received or receivable by any Issuing Lender or any
Participant hereunder or reduce the rate of return on its capital with respect
to Letters of Credit (except for changes in the rate of tax on, or determined by
reference to, the net income or profits of such Issuing Lender or such
Participant pursuant to the laws of the jurisdiction in which it is organized or
in which its principal office or applicable lending office is located or any
subdivision thereof or therein), then, upon the delivery of the certificate
referred to below to the US Borrower by such Issuing Lender or such Participant
(a copy of which certificate shall be sent by such Issuing Lender or such
Participant to the Administrative Agent), the US Borrower shall pay to such
Issuing Lender or such Participant such additional amount or amounts as will
compensate such Issuing Lender or such Participant for such increased cost or
reduction in the amount receivable or reduction on the rate of return on its
capital. Each Issuing Lender or Participant, upon determining that any
additional amounts will be payable to it pursuant to this Section 2.06, will
give prompt written notice thereof to the US Borrower, which notice shall
include a certificate submitted to the US Borrower by such Issuing Lender or
such Participant (a copy of which certificate shall be sent by such Issuing
Lender or such Participant to the Administrative Agent), setting forth in
reasonable detail the basis for the calculation of such additional amount or
amounts necessary to compensate such Issuing Lender or such Participant. The
certificate required to be delivered pursuant to this Section 2.06 shall, absent
manifest error, be final and conclusive and binding on the US Borrower.
SECTION 3. Fees; Adjustments to the Total Revolving Loan
Commitment.
--------------------------------------------------
3.01 Fees. (a) The Borrowers jointly and severally agree to
pay to the Administrative Agent for distribution to each Non-Defaulting Lender,
a commitment commission (the "Commitment Commission") for the period from and
including the Effective Date to but excluding the Final Maturity Date (or such
earlier date on which the Total Revolving Loan Commitment shall have been
terminated), computed at a rate for each day equal to the Applicable Commitment
Commission Percentage on the daily average Unutilized Revolving
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Loan Commitment of such Non-Defaulting Lender. Accrued Commitment Commission
shall be due and payable quarterly in arrears on each Quarterly Payment Date and
on the Final Maturity Date (or such earlier date on which the Total Revolving
Loan Commitment shall have been terminated).
(b) The US Borrower agrees to pay to the Administrative Agent
for distribution to each Lender (based on each such Lender's respective
Percentage) a fee in respect of each Letter of Credit issued hereunder (the
"Letter of Credit Fee") for the period from and including the date of issuance
of such Letter of Credit to and including the date of termination or expiration
of such Letter of Credit, computed at a rate per annum equal to the Applicable
Margin then in effect for Eurodollar Loans on the daily Stated Amount of such
Letter of Credit. Accrued Letter of Credit Fees shall be due and payable
quarterly in arrears on each Quarterly Payment Date and on the first day after
the termination of the Total Revolving Loan Commitment upon which no Letters of
Credit remain outstanding.
(c) The US Borrower agrees to pay to each Issuing Lender, for
its own account, a facing or fronting fee in respect of each Letter of Credit
issued by such Issuing Lender hereunder upon such terms and conditions as are
separately agreed to between such Issuing Lender and the US Borrower.
(d) The US Borrower agrees to pay to each Issuing Lender, for
its own account, upon each payment under, issuance of, or amendment to, any
Letter of Credit, such amount as shall at the time of such event be the
administrative charge and the reasonable expenses which such Issuing Lender is
generally imposing in connection with such occurrence with respect to letters of
credit.
(e) The Borrowers jointly and severally agree to pay to the
Administrative Agent, for its own account, such other fees as have been agreed
to in writing by the Borrowers and the Administrative Agent.
3.02 Voluntary Termination of Unutilized Commitments. (a) Upon
at least one Business Day's prior written notice to the Administrative Agent at
the Notice Office (which notice the Administrative Agent shall promptly transmit
to each of the Lenders), the Borrowers shall have the right, at any time or from
time to time, without premium or penalty, to terminate the Total Unutilized
Revolving Loan Commitment, in whole or in part, pursuant to this Section
3.02(a), in an integral multiple of $1,000,000 in the case of partial reductions
to the Total Unutilized Revolving Loan Commitment, provided that each such
reduction shall apply proportionately to permanently reduce the Revolving Loan
Commitment of each Lender.
(b) In the event of a refusal by a Lender to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Lenders as (and to the
extent) provided in Section 13.12(b), the Borrowers may, subject to their
compliance with the requirements of Section 13.12(b), upon five Business Days'
prior written notice to the Administrative Agent at the Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the Lenders)
terminate the Revolving Loan Commitment of such Lender, so long as all Revolving
Loans, together with accrued and
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unpaid interest, Fees and all other amounts, owing to such Lender are repaid
concurrently with the effectiveness of such termination pursuant to Section
4.01(b) (at which time Schedule I shall be deemed modified to reflect such
changed amounts), and at such time, such Lender shall no longer constitute a
"Lender" for purposes of this Agreement, except with respect to indemnifications
under this Agreement (including, without limitation, Sections 1.10, 1.11, 2.06,
4.04, 12.06 and 13.01), which shall survive as to such repaid Lender.
3.03 Mandatory Reduction of Commitments. (a) The Total
Revolving Loan Commitment (and the Revolving Loan Commitment of each Lender)
shall terminate in their entirety on May 31, 2000 unless the Effective Date has
occurred on or before such date.
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date on or after the Effective Date on
which the US Borrower or any of its Subsidiaries receives Cash Proceeds from any
Asset Sale, the Total Revolving Loan Commitment shall be permanently reduced on
each such date by an amount equal to 100% of the Net Sale Proceeds from such
Asset Sale, provided that such Net Sale Proceeds shall not give rise to a
reduction to the Total Revolving Loan Commitment pursuant to this Section
3.03(b) on any such date to the extent that no Default or Event of Default then
exists and such Net Sale Proceeds shall be used to purchase assets used or to be
used in the businesses permitted pursuant to Section 9.14 (including, without
limitation (but only to the extent permitted by Section 9.02), the purchase of
the assets or 100% of the capital stock of a Person engaged in such businesses)
within 270 days following the date of receipt of such Net Sale Proceeds from
such Asset Sale, and provided further, that if all or any portion of such Net
Sale Proceeds are not so used within such 270 day period (or such earlier date,
if any, as the Board of Directors of the US Borrower or such Subsidiary, as the
case may be, determines not to reinvest such Net Sale Proceeds), the Total
Revolving Loan Commitment shall be permanently reduced on the last day of such
period (or such earlier date, as the case may be) by an amount equal to such
remaining portion.
(c) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date on or after the Effective Date on
which the US Borrower or any of its Subsidiaries receives any cash proceeds from
any incurrence of Indebtedness for borrowed money (other than Indebtedness
permitted to be incurred pursuant to Section 9.04 as such Section is in effect
on the Effective Date) by the US Borrower or any of its Subsidiaries, the Total
Revolving Loan Commitment shall be permanently reduced on each such date by an
amount equal to 100% of the Net Debt Proceeds of the respective incurrence of
Indebtedness.
(d) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, within 10 days following each date on or after
the Effective Date on which the US Borrower or any of its Subsidiaries receives
any cash proceeds from any Recovery Event, the Total Revolving Loan Commitment
shall be permanently reduced on each such date by an amount equal to 100% of the
Net Insurance Proceeds of such Recovery Event, provided that so long as no
Default or Event of Default then exists and such proceeds from such Recovery
Event do not exceed $10,000,000, such proceeds shall not give rise to a
reduction to the Total Revolving Loan Commitment pursuant to this Section
3.03(d) on any such date to the extent that the US Borrower or such Subsidiary,
as the case may be, has delivered a certificate to the
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Administrative Agent on or prior to such date stating that such proceeds shall
be used to replace or restore any properties or assets in respect of which such
proceeds were paid within 270 days following the date of receipt of such
proceeds (which certificate shall set forth the estimates of the proceeds to be
so expended), and provided further, that (i) if the amount of such proceeds
exceeds $10,000,000, then the Total Revolving Loan Commitment shall be reduced
by the entire amount of such proceeds and not just the portion in excess of
$10,000,000 as provided above in this Section 3.03(d), and (ii) if all or any
portion of such proceeds are not so used within such 270-day period (or such
earlier date, if any, as the Board of Directors of the US Borrower or such
Subsidiary, as the case may be, determines not to reinvest such Net Insurance
Proceeds), the Total Revolving Loan Commitment shall be permanently reduced on
the last day of such period (or such earlier date, as the case may be) by an
amount equal to such remaining portion.
(e) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment (and the
Revolving Loan Commitment of each Lender) shall terminate in its entirety on the
earlier of (i) the Final Maturity Date and (ii) unless the Required Lenders
otherwise agree, the date on which a Change of Control occurs.
(f) Each reduction to the Total Revolving Loan Commitment
pursuant to this Section 3.03 shall apply proportionately to reduce the
Revolving Loan Commitment of each Bank.
3.04 Increase of the Total Revolving Loan Commitment. So long
as no Default or Event of Default then exists or would result therefrom, the US
Borrower shall have the right, at any time and from time to time after the
Effective Date, to request that one or more Lenders increase their respective
Revolving Loan Commitments, it being understood and agreed, however, that (i) no
Lender shall be obligated to increase its Revolving Loan Commitment as a result
of any request by the US Borrower, (ii) any Lender may so increase its Revolving
Loan Commitment without the consent of any other Lender, (iii) any increase in
the Total Revolving Loan Commitment pursuant to this Section 3.04 shall be in a
minimum amount of at least $5,000,000 and in $1,000,000 increments in excess
thereof, (iv) the Total Revolving Loan Commitment may not be increased by more
than $25,000,000 in the aggregate pursuant to this Section 3.04, and (v) any
increase in the Total Revolving Loan Commitment pursuant to this Section 3.04
shall not be made without the prior written consent of the Administrative Agent.
At the time of any increase in the Total Revolving Loan Commitment pursuant to
this Section 3.04, (i) the US Borrower shall pay to the Administrative Agent and
to each Lender that has so increased its Revolving Loan Commitment such fees as
may have been separately agreed to by the US Borrower, the Administrative Agent
and/or each such Lender, (ii) the Borrowers shall, in coordination with the
Administrative Agent, repay outstanding Revolving Loans of certain Lenders and,
if necessary, incur additional Revolving Loans from other Lenders, in each case
so that the Lenders continue to participate in each Borrowing of Revolving Loans
pro rata on the basis of their respective Revolving Loan Commitments (after
giving effect to any such increase in the Total Revolving Loan Commitment
pursuant to this Section 3.04) and with the Borrowers being obligated to pay to
the respective Lenders any costs of the type referred to in Section 1.11 in
connection with any such repayment and/or Borrowing, (iii) Schedule I shall be
deemed modified to reflect the revised Revolving Loan Commitments of the
affected Lenders, (iv) upon
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surrender by those Lenders that have increased their Revolving Loan Commitments
pursuant to this Section 3.04 of any Revolving Notes issued prior to such
increase in the Total Revolving Loan Commitment, to the extent requested by such
Lenders, new Revolving Notes will be issued, at the Borrowers' expense, to such
Lenders to be in conformity with the requirements of Section 1.05 (with
appropriate modifications) to the extent needed to reflect the revised Revolving
Loan Commitments, (v) no Credit Events may occur pursuant to any such increase
in the Total Revolving Loan Commitment unless the same is permitted pursuant to
the terms of the Senior Subordinated Note Indenture (and with the Borrowers and
the Administrative Agent to agree on a basis on which such incremental Credit
Events are to be allocated under the applicable provisions of the Senior
Subordinated Note Indenture), and (vi) the Credit Parties shall deliver to the
Administrative Agent copies of resolutions of their respective Boards of
Directors authorizing the increase in the Total Revolving Loan Commitment,
together with one or more opinions of counsel requested by the Administrative
Agent, and with the foregoing to be in form and substance reasonably
satisfactory to the Administrative Agent.
SECTION 4. Prepayments; Payments; Taxes.
4.01 Voluntary Prepayments. (a) Each Borrower shall have the
right to prepay the Loans made to it, without premium or penalty, in whole or in
part at any time and from time to time on the following terms and conditions:
(i) the applicable Borrower shall give the Administrative Agent prior to 12:00
Noon (New York time) at the Notice Office (x) at least one Business Day's prior
written notice (or telephonic notice promptly confirmed in writing) of its
intent to prepay Base Rate Loans (or same day notice in the case of a prepayment
of Swingline Loans) and (y) at least three Business Days' prior written notice
(or telephonic notice promptly confirmed in writing) of its intent to prepay
Euro Rate Loans, whether Revolving Loans or Swingline Loans shall be prepaid,
the amount of such prepayment, the Types and currency of the Loans to be prepaid
and, in the case of Euro Rate Loans, the specific Borrowing or Borrowings
pursuant to which made, which notice the Administrative Agent shall, except in
the case of Swingline Loans, promptly transmit to each of the Lenders; (ii) each
prepayment of Revolving Loans pursuant to this Section 4.01(a) shall be in an
aggregate principal amount of at least $100,000 (or the Dollar Equivalent
thereof in the case of Foreign Currency Loans) and each prepayment of Swingline
Loans pursuant to this Section 4.01(a) shall be in an aggregate principal amount
of at least $50,000, provided that if any partial prepayment of Euro Rate Loans
made pursuant to any Borrowing shall reduce the outstanding principal amount of
Euro Rate Loans made pursuant to such Borrowing to an amount less than the
Minimum Borrowing Amount applicable thereto, then such Borrowing may not be
continued as a Borrowing of Euro Rate Loans and any election of an Interest
Period with respect thereto given by the applicable Borrower shall have no force
or effect and, in the case of a Borrowing of Foreign Currency Loans, such
Borrowing shall be repaid; and (iii) each prepayment pursuant to this Section
4.01(a) in respect of any Revolving Loans made pursuant to a Borrowing shall be
applied pro rata among such Revolving Loans, provided that at the applicable
Borrower's election in connection with any prepayment of Revolving Loans
pursuant to this Section 4.01(a) and so long as no Default or Event of Default
then exists, such prepayment shall not be applied to any Revolving Loan of a
Defaulting Lender.
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(b) In the event of a refusal by a Lender to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Lenders as (and to the
extent) provided in Section 13.12(b), the Borrowers may, upon five Business
Days' prior written notice to the Administrative Agent at the Notice Office
(which notice the Administrative Agent shall promptly transmit to each of the
Lenders), repay all Revolving Loans of such Lender, together with accrued and
unpaid interest, Fees and other amounts owing to such Lender in accordance with,
and subject to the requirements of, said Section 13.12(b) so long as (A) the
Revolving Loan Commitment of such Lender is terminated concurrently with such
repayment pursuant to Section 3.02(b) (at which time Schedule I shall be deemed
modified to reflect the changed Revolving Loan Commitments) and (B) the
consents, if any, required under Section 13.12(b) in connection with the
repayment pursuant to this clause (b) have been obtained.
4.02 Mandatory Repayments. (a) (i) On any day on which the sum
of (I) the aggregate outstanding Principal Amount of all Revolving Loans (after
giving effect to all other repayments thereof on such date), (II) the aggregate
outstanding Principal Amount of all Swingline Loans (after giving effect to all
other repayments thereof on such date) and (III) the aggregate amount of all
Letter of Credit Outstandings exceeds the Total Revolving Loan Commitment as
then in effect, the US Borrower shall prepay on such day the principal of
Swingline Loans and, after all Swingline Loans have been repaid in full or if no
Swingline Loans are outstanding, the Borrowers shall prepay Revolving Loans in
an amount equal to such excess. If, after giving effect to the prepayment of all
outstanding Swingline Loans and Revolving Loans, the aggregate amount of the
Letter of Credit Outstandings exceeds the Total Revolving Loan Commitment as
then in effect, the US Borrower shall pay to the Administrative Agent at the
Payment Office on such day an amount of cash and/or Cash Equivalents equal to
the amount of such excess (up to a maximum amount equal to the Letter of Credit
Outstandings at such time), such cash and/or Cash Equivalents to be held as
security for all obligations of the US Borrower to the Issuing Lenders and the
Lenders hereunder in a cash collateral account to be established by the
Administrative Agent.
(ii) On any day on which the aggregate amount of all Letter of
Credit Outstandings exceeds $25,000,000, the US Borrower shall pay to the
Administrative Agent at the Payment Office on such day an amount of cash and/or
Cash Equivalents equal to the amount of such excess, such cash and/or Cash
Equivalents to be held as security for all obligations of the US Borrower to the
Issuing Lenders and the Lenders hereunder in a cash collateral account to be
established by the Administrative Agent.
(iii) On any day on which Letters of Credit issued in a
currency other than Dollars are outstanding and the aggregate amount of all
Letter of Credit Outstandings in respect of all non-Dollar denominated Letters
of Credit exceeds $10,000,000, the US Borrower shall pay to the Administrative
Agent at the Payment Office on such day an amount of cash and/or Cash
Equivalents equal to the amount of such excess, such cash and/or Cash
Equivalents to be held as security for all obligations of the US Borrower to the
Issuing Lenders and the Lenders hereunder in a cash collateral account to
established by the Administrative Agent.
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(b) With respect to each repayment of Revolving Loans required
by this Section 4.02, each Borrower may designate the Types and/or currency of
Revolving Loans which are to be repaid and, in the case of Euro Rate Loans, the
specific Borrowing or Borrowings pursuant to which such Euro Rate Loans were
made, provided that: (i) repayments of Euro Rate Loans pursuant to this Section
4.02 may only be made on the last day of an Interest Period applicable thereto
unless all Euro Rate Loans with Interest Periods ending on such date of required
repayment and all Base Rate Loans have been paid in full; (ii) if any repayment
of Euro Rate Loans made pursuant to a single Borrowing shall reduce the
outstanding Euro Rate Loans made pursuant to such Borrowing to an amount less
than the Minimum Borrowing Amount applicable thereto, such Borrowing, in the
case of Eurodollar Loans, shall be converted at the end of the then current
Interest Period into a Borrowing of Base Rate Loans or, in the case of Foreign
Currency Loans, shall be repaid; and (iii) each repayment of any Revolving Loans
made pursuant to a Borrowing shall be applied pro rata among such Revolving
Loans. In the absence of a designation by any Borrower as described in the
preceding sentence, the Administrative Agent shall, subject to the above, make
such designation in its sole discretion.
(c) Notwithstanding anything to the contrary contained in this
Agreement or in any other Credit Document, (i) all then outstanding Revolving
Loans shall be repaid in full on the Final Maturity Date, (ii) all then
outstanding Swingline Loans shall be repaid in full on the Swingline Expiry Date
and (iii) unless the Required Lenders otherwise agree, all then outstanding
Loans shall be repaid in full on the date on which a Change of Control occurs.
4.03 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement or under any
Note shall be made to the Administrative Agent for the account of the Lender or
Lenders entitled thereto not later than 12:00 Noon (Local time) on the date when
due and shall be made in immediately available funds at the Payment Office and
in (x) Dollars, if such payment is made in respect of any obligation of the US
Borrower under this Agreement (including, without limitation, Commitment
Commission, reimbursement obligations with respect to Letters of Credit, Letter
of Credit Fees and Facing Fees, even if the respective Letter of Credit is
denominated in a currency other than Dollars) or (y) the appropriate Approved
Currency, if such payment is made in respect of principal of or interest on
Foreign Currency Loans. Whenever any payment to be made hereunder or under any
Note shall be stated to be due on a day which is not a Business Day, the due
date thereof shall be extended to the next succeeding Business Day and, with
respect to payments of principal, interest shall be payable at the applicable
rate during such extension.
4.04 Net Payments. (a) All payments made by each Borrower
hereunder or under any Note will be made without setoff, counterclaim or other
defense. Except as provided in Sections 4.04(b), (c) and (d), all such payments
will be made free and clear of, and without deduction or withholding for, any
present or future taxes, levies, imposts, duties, fees, assessments or other
charges of whatever nature now or hereafter imposed by any jurisdiction or by
any political subdivision or taxing authority thereof or therein with respect to
such payments (but excluding, except as provided in the second succeeding
sentence, any tax imposed on or measured by the net income or net profits of a
Lender pursuant to the laws of the jurisdiction in which it is organized or the
jurisdiction in which the principal office or applicable lending office
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of such Lender is located or any subdivision thereof or therein) and all
interest, penalties or similar liabilities with respect to such non-excluded
taxes, levies, imposts, duties, fees, assessments or other charges (all such
non-excluded taxes, levies, imposts, duties, fees, assessments or other charges
being referred to collectively, as "Taxes"). If any Taxes are so levied or
imposed, the relevant Borrower agrees to pay the full amount of such Taxes, and
such additional amounts as may be necessary so that every payment of all amounts
due under this Agreement or under any Note, after withholding or deduction for
or on account of any Taxes, will not be less than the amount provided for herein
or in such Note. If any amounts are payable in respect of Taxes pursuant to the
preceding sentence, the relevant Borrower agrees to reimburse each Lender, upon
the written request of such Lender, for taxes imposed on or measured by the net
income or net profits of such Lender pursuant to the laws of the jurisdiction in
which such Lender is organized or in which the principal office or applicable
lending office of such Lender is located or under the laws of any political
subdivision or taxing authority of any such jurisdiction in which such Lender is
organized or in which the principal office or applicable lending office of such
Lender is located and for any withholding of taxes as such Lender shall
determine are payable by, or withheld from, such Lender, in respect of such
amounts so paid to or on behalf of such Lender pursuant to the preceding
sentence and in respect of any amounts paid to or on behalf of such Lender
pursuant to this sentence. Each Borrower will furnish to the Administrative
Agent within 45 days after the date the payment of any Taxes is due pursuant to
applicable law certified copies of tax receipts evidencing such payment by the
Borrower. Each Borrower agrees to indemnify and hold harmless each Lender, and
reimburse such Lender upon its written request, for the amount of any Taxes so
levied or imposed and paid by such Lender.
(b) In the case of Loans to the US Borrower, each Lender that
is not a United States person (as such term is defined in Section 7701(a)(30) of
the Code) for U.S. Federal income tax purposes agrees to deliver to the US
Borrower and the Administrative Agent on or prior to the Effective Date, or in
the case of a Lender that is an assignee or transferee of an interest under this
Agreement pursuant to Section 1.13 or 13.04 (unless the respective Lender was
already a Lender hereunder immediately prior to such assignment or transfer), on
the date of such assignment or transfer to such Lender, (i) two accurate and
complete original signed copies of Internal Revenue Service Form W-8ECI or Form
W-8BEN (with respect to a complete exemption under an income tax treaty) (or
successor forms) certifying to such Lender's entitlement as of such date to a
complete exemption from United States withholding tax with respect to payments
to be made by the US Borrower under this Agreement and under any Note or (ii) if
the Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the
Code and cannot deliver either Internal Revenue Service Form W-8ECI or Form
W-8BEN (with respect to a complete exemption under an income tax treaty)
pursuant to clause (i) above, (x) a certificate substantially in the form of
Exhibit D (any such certificate, a "Section 4.04(b)(ii) Certificate") and (y)
two accurate and complete original signed copies of Internal Revenue Service
Form W-8BEN (with respect to the portfolio interest exemption) (or successor
form) certifying to such Lender's entitlement as of such date to a complete
exemption from United States withholding tax with respect to payments of
interest to be made by the US Borrower under this Agreement and under any Note.
In addition, in the case of Loans to the US Borrower, each Lender agrees that
from time to time after the Effective Date, when a lapse in time or change in
circumstances renders the previous certification obsolete or inaccurate in any
material respect, such Lender will
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deliver to the US Borrower and the Administrative Agent two new accurate and
complete original signed copies of Internal Revenue Service Form W-8ECI or Form
W-8BEN (with respect to the benefit of any income tax treaty), or Form W-8BEN
(with respect to the portfolio interest exemption) and a Section 4.04(b)(ii)
Certificate, as the case may be, and such other forms as may be required in
order to confirm or establish the entitlement of such Lender to a continued
exemption from or reduction in United States withholding tax with respect to
payments by the US Borrower under this Agreement and any Note, or such Lender
shall immediately notify the US Borrower and the Administrative Agent of its
inability to deliver any such Form or Certificate, in which case such Lender
shall not be required to deliver any such Form or Certificate pursuant to this
Section 4.04(b). Notwithstanding anything to the contrary contained in Section
4.04(a), but subject to Section 13.04(b) and the immediately succeeding
sentence, (x) the US Borrower shall be entitled, to the extent it is required to
do so by law, to deduct or withhold income or similar taxes imposed by the
United States (or any political subdivision or taxing authority thereof or
therein) from interest, Fees or other amounts payable by it hereunder for the
account of any Lender which is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes
to the extent that such Lender has not provided to the US Borrower U.S. Internal
Revenue Service Forms that establish a complete exemption from such deduction or
withholding and (y) the US Borrower shall not be obligated pursuant to Section
4.04(a) to gross-up payments to be made by it to a Lender in respect of income
or similar taxes imposed by the United States if (I) such Lender has not
provided to the US Borrower the Internal Revenue Service Forms required to be
provided to the US Borrower pursuant to this Section 4.04(b) or (II) in the case
of a payment, other than interest, to a Lender described in clause (ii) above,
to the extent that such Forms do not establish a complete exemption from
withholding of such taxes. Notwithstanding anything to the contrary contained in
the preceding sentence or elsewhere in this Section 4.04 and except as set forth
in Section 13.04(b), the US Borrower agrees to pay any additional amounts and to
indemnify each Lender in the manner set forth in Section 4.04(a) (without regard
to the identity of the jurisdiction requiring the deduction or withholding) in
respect of any Taxes deducted or withheld by it as described in the immediately
preceding sentence as a result of any changes that are effective after the
Effective Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of such Taxes.
(c) In the case of Loans to the English Borrower, each Lender
that is not a resident of the United Kingdom for United Kingdom tax purposes
agrees, to the extent such Lender is entitled to do so by law and the provisions
of any applicable tax treaty, within a reasonable period of time after the
Effective Date (or, in the case of a Lender that is an assignee or transferee of
an interest under this Agreement pursuant to Section 1.13 or Section 13.04(b)
(unless the respective Lender was already a Lender hereunder immediately prior
to such assignment or transfer), within a reasonable period of time after the
date such Lender becomes a party to this Agreement by execution of an Assignment
and Assumption Agreement), to make the requisite filing with the appropriate
United Kingdom taxing authority (as to which the English Borrower shall notify
such Lender) (and/or the taxing authority of the jurisdiction in which such
Lender's principal office is located) as required to establish its entitlement
to an exemption from or reduction in United Kingdom withholding under the double
tax treaty
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currently in force between the United States (or the jurisdiction in which such
Lender's principal office is located) and the United Kingdom. Notwithstanding
anything to the contrary contained in Section 4.04(a), but subject to Section
13.04(b) and the immediately succeeding sentence, (i) the English Borrower shall
be entitled, to the extent it is required to do so by law, to deduct and
withhold income or similar taxes imposed by the United Kingdom on interest, Fees
or other amounts payable hereunder for the account of any Lender which is not a
resident of the United Kingdom for United Kingdom tax purposes to the extent
that such Lender has not provided forms, declarations or other certification
required to establish a complete exemption from such deduction or withholding
and (ii) the English Borrower shall not be obligated pursuant to Section 4.04(a)
hereof to gross-up payments to be made to a Lender in respect of income or
similar taxes imposed by the United Kingdom if such Lender has not provided to
the English Borrower the forms and declaration required to be provided by such
Lender pursuant to the preceding sentence. Alternatively, if a Lender is a bank
as defined in Section 840A of the Income and Corporation Taxes Act of 1988 of
the United Kingdom, it shall, upon the reasonable written request of the English
Borrower, provide certifications to that effect to the English Borrower.
Notwithstanding anything to the contrary contained above in this clause (c) or
elsewhere in this Section 4.04 and except as set forth in Section 13.04(b), the
English Borrower agrees to pay any additional amounts and to indemnify each
Lender in the manner set forth in Section 4.04(a) (without regard to the
identity of the jurisdiction requiring the deduction or withholding) in respect
of any Taxes deducted or withheld by it as described in the immediately
preceding sentence as a result of any changes that are effective after the
Effective Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of such Taxes.
(d) In the case of Loans to the Irish Borrower, each Lender
that is not a resident of Ireland for Irish tax purposes shall use reasonable
efforts to file any certificate or document reasonably requested by the Irish
Borrower pursuant to any applicable treaty, law or regulation if such filing
would eliminate or reduce the amount of withholding taxes imposed by Ireland and
would not, in the sole discretion of such Lender, result in a legal, economic or
regulatory disadvantage to such Lender.
SECTION 5. Conditions Precedent to the Effective Date. The
occurrence of the Effective Date pursuant to Section 13.10 is subject to the
satisfaction of the following conditions:
5.01 Execution of Agreement; Notes. On or prior to the
Effective Date, (i) this Agreement shall have been executed and delivered as
provided in Section 13.10 and (ii) there shall have been delivered to the
Administrative Agent for the account of each of the Lenders the appropriate
Revolving Notes executed by the applicable Borrowers and to the Swingline
Lender, the Swingline Note executed by the US Borrower, in each case, in the
amount, maturity and as otherwise provided herein.
5.02 Officer's Certificate. On the Effective Date, the
Administrative Agent shall have received a certificate from each Borrower, dated
the Effective Date and signed on behalf of such Borrower by the Chairman of the
Board, the Chief Executive Officer, the President, any
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Vice President or Director of such Borrower, certifying on behalf of such
Borrower that all of the conditions in Sections 5.05, 5.06, 5.07 and 6.02 have
been satisfied on such date.
5.03 Opinions of Counsel. On the Effective Date, the
Administrative Agent shall have received (i) from Abrahams Kaslow and Cassman,
special counsel to the Credit Parties, an opinion addressed to the
Administrative Agent, the Collateral Agent and each of the Lenders and dated the
Effective Date covering the matters set forth in Exhibit E-1 and such other
matters incident to the transactions contemplated herein as the Administrative
Agent may reasonably request, (ii) from the General Counsel of the US Borrower,
an opinion addressed to the Administrative Agent, the Collateral Agent and each
of the Lenders and dated the Effective Date covering the matters set forth in
Exhibit E-2 and such other matters incident to the transactions contemplated
herein as the Administrative Agent may reasonably request, (iii) from Taylor
Joynson Garrett Carmelite, special United Kingdom counsel to the English
Borrower, an opinion addressed to the Administrative Agent, the Collateral Agent
and each of the Lenders and dated the Effective Date covering the matters set
forth in Exhibit E-3 and such other matters incident to the transactions
contemplated herein as the Administrative Agent may reasonably request, (iv)
from Matheson Ormsby Prentice, special Irish counsel to the Irish Borrower, an
opinion addressed to the Administrative Agent, the Collateral Agent and each of
the Lenders and dated the Effective Date covering the matters set forth in
Exhibit E-4 and such other matters incident to the transactions contemplated
herein as the Administrative Agent may reasonably request, and (v) from Buxeda &
Asociados, special Spanish counsel to the US Borrower, an opinion addressed to
the Administrative Agent, the Collateral Agent and each of the Lenders and dated
the Effective Date covering the matters set forth in Exhibit E-5 and such other
matters incident to the transactions contemplated herein as the Administrative
Agent may reasonably request.
5.04 Corporate Documents; Proceedings; etc. (a) On the
Effective Date, the Administrative Agent shall have received a certificate from
each Credit Party (other than SITEL Belgium NV and SITEL Teleservices Canada
Inc.), dated the Effective Date, signed on behalf of such Credit Party by the
Chairman of the Board, the Chief Executive Officer, the President, any Vice
President or any Director of such Credit Party, and attested to by the Secretary
or any Assistant Secretary of such Credit Party, in the form of Exhibit F with
appropriate insertions, together with copies of the certificate or articles of
incorporation (or equivalent organizational document) and by-laws of such Credit
Party and the resolutions of such Credit Party referred to in such certificate,
and the foregoing shall be in form and substance reasonably acceptable to the
Administrative Agent.
(b) All corporate and legal proceedings and all instruments
and agreements in connection with the transactions contemplated by this
Agreement and the other Credit Documents shall be reasonably satisfactory in
form and substance to the Administrative Agent and the Required Lenders, and the
Administrative Agent shall have received all information and copies of all
documents and papers, including records of corporate proceedings, governmental
approvals, good standing certificates and bring-down telegrams or facsimiles, if
any, which the Administrative Agent reasonably may have requested in connection
therewith, such documents and papers where appropriate to be certified by proper
corporate or governmental authorities.
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5.05 Refinancing, etc. (a) On the Effective Date, the
commitments under the Indebtedness to be Refinanced shall have been terminated,
all loans outstanding thereunder shall have been repaid in full, together with
all accrued and unpaid interest thereon, all accrued and unpaid fees thereon
shall have been paid in full, all letters of credit and bank guarantees issued
thereunder shall have been terminated (except to the extent that same constitute
an Existing Letter of Credit which is deemed issued under this Agreement) and
all other amounts owing pursuant to the Indebtedness to be Refinanced shall have
been repaid in full.
(b) On the Effective Date, all security interests in respect
of, and Liens securing, obligations under the Indebtedness to be Refinanced
shall have been terminated and released to the satisfaction of the
Administrative Agent, and the Administrative Agent shall have received all such
releases as may have been requested by the Administrative Agent, which releases
shall be in form and substance reasonably satisfactory to the Administrative
Agent. Without limiting the foregoing, there shall have been delivered (i)
proper termination statements (Form UCC-3 or the appropriate equivalent) for
filing under the UCC (or the foreign equivalent thereof) of each jurisdiction
where a financing statement Form UCC-1 or equivalent was filed with respect to
the US Borrower or any of its Subsidiaries in connection with the security
interests created pursuant to the Indebtedness to be Refinanced and the
documentation related thereto, fully executed by the appropriate parties, (ii)
termination or reassignment of any security interest in, or Lien on, any
patents, trademarks, copyrights or similar interests of the US Borrower or any
of its Subsidiaries on which filings have been made to secure obligations under
the Indebtedness to be Refinanced, fully executed by the appropriate parties,
and (iii) terminations of all mortgages, leasehold mortgages and deeds of trusts
created with respect to property of the US Borrower or any of its Subsidiaries
to secure the obligations under the Indebtedness to be Refinanced, fully
executed by the appropriate parties, all of which shall be in form and substance
reasonably satisfactory to the Administrative Agent.
5.06 Adverse Change, etc. (a) Nothing shall have occurred (and
neither the Administrative Agent nor the Lenders shall have become aware of any
facts or conditions not previously known) which the Administrative Agent or the
Required Lenders shall reasonably determine (a) has had, or could reasonably be
expected to have, a material adverse effect on the rights or remedies of the
Lenders or the Administrative Agent, or on the ability of any Credit Party to
perform its obligations to the Lenders or the Administrative Agent hereunder or
under any other Credit Document or (b) has had, or could reasonably be expected
to have, a material adverse effect on the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects of the US
Borrower or any of its Subsidiaries.
(b) On or prior to the Effective Date, all necessary
governmental (domestic and foreign) and third party approvals and/or consents in
connection with the transactions contemplated by this Agreement and the other
Credit Documents and otherwise referred to herein or therein shall have been
obtained and remain in effect. Additionally, there shall not exist any judgment,
order, injunction or other restraint issued or filed or a hearing seeking
injunctive relief or other restraint pending or notified prohibiting or imposing
materially adverse conditions upon the transactions contemplated by this
Agreement and the other Credit Documents or otherwise referred to herein or
therein.
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5.07 Litigation. On the Effective Date, there shall be no
actions, suits or proceedings pending or threatened (i) with respect to this
Agreement or any other Credit Document or (ii) which the Administrative Agent or
the Required Lenders shall reasonably determine could reasonably be expected to
have a material adverse effect on (a) the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects of the US
Borrower or any of its Subsidiaries, (b) the rights or remedies of the Lenders
or the Administrative Agent hereunder or under any other Credit Document or (c)
the ability of any Credit Party to perform its respective obligations to the
Lenders or the Administrative Agent hereunder or under any other Credit
Document.
5.08 Pledge Agreements. On the Effective Date, (i) each US
Credit Party shall have duly authorized, executed and delivered a Pledge
Agreement in the form of Exhibit G, with such changes thereto, or additional
pledge agreements (or amendments thereto) entered into in connection therewith,
as foreign counsel for the Administrative Agent may suggest in connection with
the Pledge Agreement Collateral issued to any US Credit Party by any Foreign
Subsidiary, (ii) each Initial Foreign Credit Party organized under the laws of
the United Kingdom shall have duly authorized, executed and delivered one or
more other pledge agreements in form and substance satisfactory to the
Administrative Agent and as foreign counsel for the Administrative Agent may
suggest in connection with the Pledge Agreement Collateral to be pledged by any
such Initial Foreign Credit Party (such Pledge Agreement, together with such
additional and other pledge agreements (as well as any pledge agreements
delivered pursuant to Section 8.15(a)), as modified, amended or supplemented
from time to time in accordance with the terms thereof and hereof, collectively,
the "Pledge Agreements") and shall have delivered to the Collateral Agent, as
Pledgee thereunder, all of the certificated Pledge Agreement Collateral, if any,
referred to therein and then owned by each such Credit Party, (A) endorsed in
blank in the case of promissory notes constituting such Pledge Agreement
Collateral and (B) together with (x) executed and undated stock powers in the
case of capital stock constituting such Pledge Agreement Collateral and (y)
proper Financing Statements (Form UCC-1 or the equivalent) fully executed for
filing under the UCC or other appropriate filing offices of each jurisdiction as
may be necessary or, in the reasonable opinion of the Collateral Agent,
desirable to perfect the security interests purported to be created by the
Pledge Agreements, and (iii) each Credit Party shall have taken all such further
actions as may be necessary or, in the reasonable opinion of the Collateral
Agent desirable, to perfect the security interest purported to be created by the
Pledge Agreements.
5.09 Security Agreements. On the Effective Date, (i) each US
Credit Party shall have duly authorized, executed and delivered the Security
Agreement in the form of Exhibit H and (ii) each Initial Foreign Credit Party
organized under the laws of the United Kingdom shall have duly authorized,
executed and delivered one or more other security agreements in form and
substance satisfactory to the Administrative Agent and as foreign counsel to the
Administrative Agent may suggest in connection with the Security Agreement
Collateral of each such Foreign Credit Party (such Security Agreement, together
with such other security agreements (as well as any security agreements
delivered pursuant to Section 8.15(a)), as modified, amended or supplemented
from time to time in accordance with the terms thereof and hereof, collectively,
the
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"Security Agreements"), in each case covering all of each such Credit Party's
present and future Security Agreement Collateral, together with:
(i) proper Financing Statements (Form UCC-1 or the equivalent)
fully executed for filing under the UCC or other appropriate filing
offices of each jurisdiction as may be necessary or, in the reasonable
opinion of the Collateral Agent desirable, to perfect the security
interests purported to be created by the Security Agreements;
(ii) certified copies of Requests for Information or Copies
(Form UCC-11), or equivalent reports, listing all effective financing
statements that name any Credit Party as debtor and that are filed in
the jurisdictions referred to in clause (i) above, together with copies
of such other financing statements that name any Credit Party as debtor
(none of which shall cover the Collateral except to the extent
evidencing Permitted Liens or in respect of which the Collateral Agent
shall have received termination statements (Form UCC-3 or the
equivalent) as shall be required by local law fully executed for
filing);
(iii) evidence of the completion of all other recordings and
filings of, or with respect to, the Security Agreements as may be
necessary to perfect the security interests intended to be created by
the Security Agreements; and
(iv) evidence that all other actions necessary to perfect and
protect the security interests purported to be created by the Security
Agreements have been taken.
5.10 Subsidiary Guaranties. (a) On the Effective Date, each
Subsidiary Guarantor that is a US Credit Party shall have duly authorized,
executed and delivered the Subsidiaries Guaranty in the form of Exhibit I-1 (as
amended, modified or supplemented from time to time, the "US Subsidiaries
Guaranty").
(b) On the Effective Date, each Subsidiary Guarantor (other
than SITEL Belgium NV and SITEL Teleservices Canada Inc.) shall have duly
authorized, executed and delivered the Subsidiaries Guaranty in the form of
Exhibit I-2, with such changes thereto as foreign counsel for the Administrative
Agent may suggest with respect to any Foreign Credit Party (as amended, modified
or supplemented from time to time, the "Foreign Subsidiaries Guaranty").
5.11 Financial Statements; Projections. On or prior to the
Effective Date, the Administrative Agent shall have received true and correct
copies of the historical financial statements and the Projections referred to in
Sections 7.05(a) and (d), which historical financial statements and Projections
shall be in form and substance reasonably satisfactory to the Administrative
Agent and the Required Lenders.
5.12 Solvency Certificate. On the Effective Date, the US
Borrower shall have delivered to the Administrative Agent a solvency certificate
from the chief financial officer of the US Borrower in the form of Exhibit J.
5.13 Insurance Certificates. On or prior to the Effective
Date, the US Borrower shall have delivered to the Administrative Agent
certificates from its insurance brokers or
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carriers with respect to the business and properties of the US Credit Parties in
scope, form and substance reasonably satisfactory to the Administrative Agent
and naming the Collateral Agent as an additional insured and/or as loss payee
and stating that the respective insurer shall endeavor to provide at least 30
days' prior written notice to the Collateral Agent before such insurance shall
be cancelled.
5.14 Fees, etc. On the Effective Date, the Borrowers shall
have paid to the Administrative Agent and each Lender all costs, fees and
expenses (including, without limitation, reasonable legal fees and expenses)
payable to the Administrative Agent and such Lender to the extent then due
pursuant hereto or as otherwise agreed between the US Borrower and the
Administrative Agent.
5.15 Consent Letter. On the Effective Date, the Administrative
Agent shall have received a letter from CT Corporation System, presently located
at 111 Eighth Avenue, New York, New York 10011, substantially in the form of
Exhibit N, indicating its consent to its appointment by each Borrower and each
Initial Foreign Credit Party (other than SITEL Belgium NV and SITEL Teleservices
Canada Inc.) to receive service of process as specified in Section 13.08 of this
Agreement and in Section 20 of the Foreign Subsidiaries Guaranty, respectively.
SECTION 6. Conditions Precedent to All Credit Events. The
obligation of each Lender to make Loans (including Loans made on the Effective
Date), and the obligation of each Issuing Lender to issue Letters of Credit, is
subject, at the time of each such Credit Event (except as hereinafter
indicated), to the satisfaction of the following conditions:
6.01 Effective Date. The Effective Date shall have occurred.
6.02 No Default; Representations and Warranties. At the time
of each such Credit Event and also after giving effect thereto (i) there shall
exist no Default or Event of Default and (ii) all representations and warranties
contained herein and in the other Credit Documents shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct in all material
respects only as of such specified date).
6.03 Notice of Borrowing; Letter of Credit Request. (a) Prior
to the making of each Revolving Loan (other than a Revolving Loan made pursuant
to a Mandatory Borrowing), the Administrative Agent shall have received a Notice
of Borrowing meeting the requirements of Section 1.03(a). Prior to the making of
each Swingline Loan, the Swingline Lender shall have received the notice
referred to in Section 1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the respective Issuing Lender shall have received a
Letter of Credit Request meeting the requirements of Section 2.03.
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The occurrence of the Effective Date and the acceptance of the
benefits of each Credit Event shall constitute a representation and warranty by
each Borrower to the Administrative Agent and each of the Lenders that all the
conditions specified in Section 5 (with respect to the Effective Date and Credit
Events to occur on the Effective Date) and in this Section 6 (with respect to
the Effective Date and Credit Events to occur on or after the Effective Date)
and applicable to such Credit Event exist as of that time. All of the Notes,
certificates, legal opinions and other documents and papers referred to in
Section 5 and in this Section 6, unless otherwise specified, shall be delivered
to the Administrative Agent at the Notice Office for the account of each of the
Lenders and, except for the Notes, in sufficient counterparts or copies for each
of the Lenders and shall be in form and substance satisfactory to the
Administrative Agent and the Required Lenders.
SECTION 7. Representations, Warranties and Agreements. In
order to induce the Lenders to enter into this Agreement and to make the Loans,
and issue (or participate in) the Letters of Credit as provided herein, each
Borrower makes the following representations, warranties and agreements, in each
case after giving effect to the Effective Date, all of which shall survive the
execution and delivery of this Agreement and the Notes and the making of the
Loans and issuance of the Letters of Credit, with the occurrence of the
Effective Date and the occurrence of each Credit Event on or after the Effective
Date being deemed to constitute a representation and warranty that the matters
specified in this Section 7 are true and correct on and as of the Effective Date
and on the date of each such Credit Event (it being understood and agreed that
any representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct only as of such specified date).
7.01 Status. Each of the US Borrower and each of its
Subsidiaries (i) is a duly organized and validly existing corporation,
partnership or limited liability company, as the case may be, in good standing
under the laws of the jurisdiction of its organization, (ii) has the corporate,
partnership or limited liability company power and authority, as the case may
be, to own its property and assets and to transact the business in which it is
engaged and presently proposes to engage and (iii) is duly qualified and is
authorized to do business and is in good standing in each jurisdiction where the
ownership, leasing or operation of its property or the conduct of its business
requires such qualifications except for failures to be so qualified which,
either individually or in the aggregate, could not reasonably be expected to
have a material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the US Borrower
and its Subsidiaries taken as a whole.
7.02 Power and Authority. Each Credit Party has the corporate,
partnership or limited liability company power and authority, as the case may
be, to execute, deliver and perform the terms and provisions of each of the
Credit Documents to which it is party and has taken all necessary corporate,
partnership or limited liability company action, as the case may be, to
authorize the execution, delivery and performance by it of each of such Credit
Documents. Each Credit Party has duly executed and delivered each of the Credit
Documents to which it is party, and each of such Credit Documents constitutes
its legal, valid and binding obligation enforceable in accordance with its
terms, except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
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laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
7.03 No Violation. Neither the execution, delivery or
performance by any Credit Party of the Credit Documents to which it is a party,
nor compliance by it with the terms and provisions thereof, (i) will contravene
any provision of any law, statute, rule or regulation or any order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
conflict with or result in any breach of any of the terms, covenants, conditions
or provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien (except pursuant
to the Security Documents) upon any of the property or assets of the US Borrower
or any of its Subsidiaries pursuant to the terms of any indenture (including the
Senior Subordinated Note Indenture), mortgage, deed of trust, credit agreement
or loan agreement, or any other material agreement, contract or instrument, to
which the US Borrower or any of its Subsidiaries is a party or by which it or
any of its property or assets is bound or to which it may be subject or (iii)
will violate any provision of the certificate or articles of incorporation or
by-laws (or equivalent organizational documents) of the US Borrower or any of
its Subsidiaries.
7.04 Approvals. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except for those that have otherwise been obtained or made on or prior to the
Effective Date and which remain in full force and effect on the Effective Date),
or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required by any Credit Party to authorize, or is
required in connection with, (i) the execution, delivery and performance of any
Credit Document by any Credit Party or (ii) the legality, validity, binding
effect or enforceability of any such Credit Document against any Credit Party.
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc. (a) The consolidated balance sheet of the US
Borrower and its Subsidiaries for its fiscal year ended on December 31, 1999,
and the related consolidated statements of income, cash flows and shareholders'
equity of the US Borrower and its Subsidiaries for its fiscal year ended on such
date, copies of which have been furnished to the Lenders on or prior to the
Effective Date, present fairly in all material respects the consolidated
financial position of the US Borrower and its Subsidiaries at the dates of such
balance sheet and the consolidated results of the operations of the US Borrower
and its Subsidiaries for the period covered thereby. All of the foregoing
financial statements have been prepared in accordance with generally accepted
accounting principles consistently applied. Since December 31, 1999, there has
been no material adverse change in the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the US Borrower
and its Subsidiaries taken as a whole.
(b) On and as of the Effective Date and after giving effect
thereto, (a) the sum of the assets, at a fair valuation, of each Borrower on a
stand-alone basis and of each Borrower and its Subsidiaries taken as a whole
will exceed its debts; (b) each Borrower on a stand-alone basis and each
Borrower and its Subsidiaries taken as a whole has not incurred and does not
intend to incur, and does not believe that it will incur, debts beyond its
ability to pay such debts as such
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debts mature; and (c) each Borrower on a stand-alone basis and each Borrower and
its Subsidiaries taken as a whole will have sufficient capital with which to
conduct its business. For purposes of this Section 7.05(b), "debt" means any
liability on a claim, and "claim" means (i) right to payment, whether or not
such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured,
or unsecured or (ii) right to an equitable remedy for breach of performance if
such breach gives rise to a payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured. The amount of contingent liabilities at any
time shall be computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
(c) Except as fully disclosed in the financial statements
delivered pursuant to Section 7.05(a), there were as of the Effective Date no
liabilities or obligations with respect to the US Borrower or any of its
Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether or not due) which, either individually or in aggregate,
could reasonably be expected to be material to the US Borrower and its
Subsidiaries taken as a whole. As of the Effective Date, no Borrower knows of
any basis for the assertion against the US Borrower or any of its Subsidiaries
of any liability or obligation of any nature whatsoever that is not fully
disclosed in the financial statements delivered pursuant to Section 7.05(a)
which, either individually or in the aggregate, could reasonably be expected to
be material to the US Borrower and its Subsidiaries taken as a whole.
(d) On and as of the Effective Date, the Projections delivered
to the Administrative Agent and the Lenders prior to the Effective Date have
been prepared in good faith and are based on reasonable assumptions, and there
are no statements or conclusions in the Projections which are based upon or
include information known to the US Borrower to be misleading in any material
respect or which fail to take into account material information known to the US
Borrower regarding the matters reported therein. On the Effective Date, each
Borrower believes that the Projections are reasonable and attainable, it being
recognized by the Lenders, however, that projections as to future events are not
to be viewed as facts and that the actual results during the period or periods
covered by the Projections may differ from the projected results and that the
differences may be material.
7.06 Litigation. There are no actions, suits or proceedings
pending or, to the best knowledge of each Borrower, threatened (i) with respect
to this Agreement or any other Credit Document, (ii) with respect to any
material Indebtedness of the US Borrower or any of its Subsidiaries or (iii)
that are reasonably likely to, either individually or in the aggregate,
materially and adversely affect the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the US Borrower
and its Subsidiaries taken as a whole.
7.07 True and Complete Disclosure. All factual information
(taken as a whole) furnished by or on behalf of any Credit Party in writing to
the Administrative Agent or any Lender (including, without limitation, all
information contained in the Credit Documents) for purposes of or in connection
with this Agreement, the other Credit Documents or any transaction
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contemplated herein or therein is, and all other such factual information (taken
as a whole) hereafter furnished by or on behalf of any Credit Party in writing
to the Administrative Agent or any Lender will be, true and accurate in all
material respects on the date as of which such information is dated or certified
and not incomplete by omitting to state any fact necessary to make such
information (taken as a whole) not misleading in any material respect at such
time in light of the circumstances under which such information was provided.
7.08 Use of Proceeds; Margin Regulations. (a) All proceeds of
the Revolving Loans and the Swingline Loans shall be used (i) to repay the
Indebtedness to be Refinanced, (ii) to pay fees and expenses related thereto and
(iii) for the working capital and general corporate purposes of the US Borrower
and its Subsidiaries (including, without limitation, for Permitted
Acquisitions).
(b) No part of any Credit Event (or the proceeds thereof) will
be used to purchase or carry any Margin Stock or to extend credit for the
purpose of purchasing or carrying any Margin Stock except in connection with the
repurchase of shares of stock of the US Borrower as permitted by Section 9.03.
The value of all Margin Stock at any time owned by the US Borrower and its
Subsidiaries does not, and will not, exceed 25% of the value of the assets of
the US Borrower and its Subsidiaries taken as a whole. Neither the making of any
Loan nor the use of the proceeds thereof nor the occurrence of any other Credit
Event will violate or be inconsistent with the provisions of Regulation T, U or
X of the Board of Governors of the Federal Reserve System.
7.09 Tax Returns and Payments. Each of the US Borrower and
each of its Subsidiaries has filed all federal and state income tax returns and
all other material tax returns, domestic and foreign, required to be filed by it
and has paid all taxes and assessments payable by it which have become due,
except for those contested in good faith and adequately disclosed and fully
provided for on the financial statements of the US Borrower and its Subsidiaries
in accordance with generally accepted accounting principles. Each of the US
Borrower and each of its Subsidiaries have paid, or have provided adequate
reserves (in the good faith judgment of the management of the US Borrower or
such Subsidiary, as the case may be) for the payment of, all federal, state,
local and foreign income taxes applicable for all prior fiscal years and for the
current fiscal year to date. There is no material action, suit, proceeding,
investigation, audit, or claim now pending or, to the knowledge of any Borrower
threatened, by any authority regarding any taxes relating to the US Borrower or
any of its Subsidiaries. As of the Effective Date, neither the US Borrower nor
any of its Subsidiaries has entered into an agreement or waiver or been
requested to enter into an agreement or waiver extending any statute of
limitations relating to the payment or collection of taxes of the US Borrower or
any of its Subsidiaries, or is aware of any circumstances that would cause the
taxable years or other taxable periods of the US Borrower or any of its
Subsidiaries not to be subject to the normally applicable statute of
limitations.
7.10 Compliance with ERISA. (i) Each Plan (and each related
trust, insurance contract or fund) is in substantial compliance with its terms
and with all applicable laws, including without limitation ERISA and the Code;
each Plan (and each related trust, if any)
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which is intended to be qualified under Section 401(a) of the Code has received
a determination letter from the Internal Revenue Service to the effect that it
meets the requirements of Sections 401(a) and 501(a) of the Code; no Reportable
Event has occurred; no Plan which is a multiemployer plan (as defined in Section
4001(a)(3) of ERISA) is insolvent or in reorganization; no Plan has an Unfunded
Current Liability; no Plan which is subject to Section 412 of the Code or
Section 302 of ERISA has an accumulated funding deficiency, within the meaning
of such sections of the Code or ERISA, or has applied for or received a waiver
of an accumulated funding deficiency or an extension of any amortization period,
within the meaning of Section 412 of the Code or Section 303 or 304 of ERISA;
all contributions required to be made with respect to a Plan have been made and
no material liability has occurred as a result of any failure to make any such
contribution in a timely manner; neither the US Borrower nor any Subsidiary of
the US Borrower nor any ERISA Affiliate has incurred any material liability
(including any indirect, contingent or secondary liability) to or on account of
a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069,
4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or,
to the knowledge of any executive officer of any Borrower or the highest ranking
human resources officer of any Borrower, expects to incur any such material
liability under any of the foregoing sections with respect to any Plan; no
condition exists which presents a material risk to the US Borrower or any
Subsidiary of the US Borrower or any ERISA Affiliate of incurring a material
liability to or on account of a Plan pursuant to the foregoing provisions of
ERISA and the Code; no proceedings have been instituted to terminate or appoint
a trustee to administer any Plan which is subject to Title IV of ERISA; no
action, suit, proceeding, hearing, audit or investigation with respect to the
administration, operation or the investment of assets of any Plan (other than
routine claims for benefits) is pending or, to the knowledge of any executive
officer of any Borrower or the highest ranking human resources officer of any
Borrower, expected or threatened; using actuarial assumptions and computation
methods consistent with Part 1 of subtitle E of Title IV of ERISA, the aggregate
liabilities of the US Borrower and its Subsidiaries and its ERISA Affiliates to
all Plans which are multiemployer plans (as defined in Section 4001(a)(3) of
ERISA) in the event of a complete withdrawal therefrom, as of the close of the
most recent fiscal year of each such Plan ended prior to the date of the most
recent Credit Event, would not exceed $500,000; each group health plan (as
defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) which
covers or has covered employees or former employees of the US Borrower, any
Subsidiary of the US Borrower or any ERISA Affiliate has at all times been
operated in substantial compliance with the provisions of Part 6 of subtitle B
of Title I of ERISA and Section 4980B of the Code and any failure to so comply
would not result in a material liability; no lien imposed under the Code or
ERISA on the assets of the US Borrower or any Subsidiary of the US Borrower or
any ERISA Affiliate exists or, to the knowledge of any executive officer of any
Borrower or the highest ranking human resources officer of any Borrower, is
likely to arise on account of any Plan; and the US Borrower and its Subsidiaries
may cease contributions to or terminate any employee benefit plan maintained by
any of them without incurring any material liability.
(ii) Each Foreign Pension Plan has been maintained in
substantial compliance with its terms and with the requirements of any and all
applicable laws, statutes, rules, regulations and orders and has been
maintained, where required, in good standing with applicable regulatory
authorities. All contributions required to be made with respect to a Foreign
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Pension Plan have been made and no material liability has occurred as a result
of any failure to make any such contribution in a timely manner. Neither the US
Borrower nor any of its Subsidiaries has incurred any obligation in connection
with the termination of or withdrawal from any Foreign Pension Plan. The present
value of the accrued benefit liabilities (whether or not vested) under each
Foreign Pension Plan, determined as of the end of the US Borrower's most
recently ended fiscal year on the basis of actuarial assumptions, each of which
is reasonable, did not exceed the current value of the assets of such Foreign
Pension Plan allocable to such benefit liabilities.
7.11 Security Documents. (a) The security interests created in
favor of the Collateral Agent, as Pledgee, for the benefit of the Secured
Creditors, under each Pledge Agreement constitute first priority perfected
security interests in the Pledge Agreement Collateral described in such Pledge
Agreement, subject to no security interests of any other Person. Except as have
been obtained or made on or prior to the Effective Date (or prior to the date
required by Section 8.11, 8.12 or 8.15, as applicable), no filings or recordings
are required in order to perfect (or maintain the perfection or priority of) the
security interests created in the Pledge Agreement Collateral under the Pledge
Agreements.
(b) The provisions of each Security Agreement are effective to
create in favor of the Collateral Agent for the benefit of the Secured Creditors
a legal, valid and enforceable security interest in all right, title and
interest of the Credit Parties party thereto in the Security Agreement
Collateral described therein, and the Collateral Agent, for the benefit of the
Secured Creditors has a fully perfected first lien on, and security interest in,
all right, title and interest in all of the Security Agreement Collateral
described therein, subject to no other Liens other than Permitted Liens of the
type described in Section 9.01(i).
7.12 Properties. Each of the US Borrower and each of its
Subsidiaries have good and marketable title to all material properties owned by
them, including all property reflected in the balance sheet referred to in
Section 7.05(a) (except as sold or otherwise disposed of since the date of such
balance sheet in the ordinary course of business or as permitted by the terms of
this Agreement or, if prior to the Effective Date, the Existing Credit
Agreement), free and clear of all Liens, other than Permitted Liens.
7.13 Capitalization. On the Effective Date, the authorized
capital stock of the US Borrower shall consist of 200,000,000 shares of common
stock, $.001 par value per share. All outstanding shares of capital stock of the
US Borrower have been duly and validly issued and are fully paid and
non-assessable. The US Borrower does not have outstanding any securities
convertible into or exchangeable for its capital stock or outstanding any rights
to subscribe for or to purchase, or any options for the purchase of, or any
agreement providing for the issuance (contingent or otherwise) of, or any calls,
commitments or claims of any character relating to, its capital stock, except
for options, warrants or rights to purchase shares of the US Borrower's common
stock or Qualified Preferred Stock which may be issued from time to time.
7.14 Subsidiaries. As of the Effective Date, the US Borrower
has no Subsidiaries other than those Subsidiaries listed on Schedule III.
Schedule III correctly sets forth, as of the
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Effective Date, (i) the percentage ownership (direct or indirect) of the US
Borrower in each class of capital stock or other equity of each of its
Subsidiaries and also identifies the direct owner thereof and (ii) the
jurisdiction of incorporation of each such Subsidiary.
7.15 Compliance with Statutes, etc. Each of the US Borrower
and each of its Subsidiaries is in compliance with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls), except such noncompliances as could not, either individually or in
the aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the US Borrower and its Subsidiaries taken as a
whole.
7.16 Investment Company Act. Neither the US Borrower nor any
of its Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
7.17 Public Utility Holding Company Act. Neither the US
Borrower nor any of its Subsidiaries 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.
7.18 Environmental Matters. (a) The US Borrower and each of
its Subsidiaries have complied with, and on the date of each Credit Event are in
compliance with, all applicable Environmental Laws and the requirements of any
permits issued under such Environmental Laws. There are no pending or, to the
best knowledge of any Borrower, threatened Environmental Claims against the US
Borrower or any of its Subsidiaries (including any such claim arising out of the
ownership, lease or operation by the US Borrower or any of its Subsidiaries of
any Real Property no longer owned, leased or operated by the US Borrower or any
of its Subsidiaries) or any Real Property owned, leased or operated by the US
Borrower or any of its Subsidiaries. There are no facts, circumstances,
conditions or occurrences with respect to the business or operations of the US
Borrower or any of its Subsidiaries, or any Real Property owned, leased or
operated by the US Borrower or any of its Subsidiaries (including any Real
Property formerly owned, leased or operated by the US Borrower or any of its
Subsidiaries but no longer owned, leased or operated by the US Borrower or any
of its Subsidiaries) or any property adjoining or adjacent to any such Real
Property that could be expected (i) to form the basis of an Environmental Claim
against the US Borrower or any of its Subsidiaries or any Real Property owned,
leased or operated by the US Borrower or any of its Subsidiaries or (ii) to
cause any Real Property owned, leased or operated by the US Borrower or any of
its Subsidiaries to be subject to any restrictions on the ownership, occupancy
or transferability of such Real Property by the US Borrower or any of its
Subsidiaries under any applicable Environmental Law.
(b) Hazardous Materials have not at any time been generated,
used, treated or stored on, or transported to or from, any Real Property owned,
leased or operated by the US Borrower or any of its Subsidiaries where such
generation, use, treatment or storage has violated
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or could be expected to violate any Environmental Law. Hazardous Materials have
not at any time been Released on or from any Real Property owned, leased or
operated by the US Borrower or any of its Subsidiaries where such Release has
violated or could be expected to violate any applicable Environmental Law.
(c) Notwithstanding anything to the contrary in this Section
7.18 the representations made in this Section 7.18 shall not be untrue unless
the aggregate effect of all violations, claims, restrictions, failures and
noncompliances of the types described above could, either individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the US Borrower and its Subsidiaries taken as a
whole.
7.19 Labor Relations. Neither the US Borrower nor any of its
Subsidiaries is engaged in any unfair labor practice that could reasonably be
expected to have a material adverse effect on the US Borrower and its
Subsidiaries taken as a whole. There is (i) no unfair labor practice complaint
pending against the US Borrower or any of its Subsidiaries or threatened against
any of them, before the National Labor Relations Board (or any foreign
equivalent labor relations authority), and no grievance or arbitration
proceeding arising out of or under any collective bargaining agreement is so
pending against the US Borrower or any of its Subsidiaries or, to the best
knowledge of any Borrower, threatened against any of them, (ii) no strike, labor
dispute, slowdown or stoppage pending against the US Borrower or any of its
Subsidiaries or, to the best knowledge of any Borrower, threatened against the
US Borrower or any of its Subsidiaries and (iii) no union representation
question exists with respect to the employees of the US Borrower or any of its
Subsidiaries, except (with respect to any matter specified in clause (i), (ii)
or (iii) above, either individually or in the aggregate) such as could not
reasonably be expected to have a material adverse effect on the business,
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of the US Borrower and its Subsidiaries taken as a whole.
7.20 Patents, Licenses, Franchises and Formulas. Each of the
US Borrower and each of its Subsidiaries owns or has the right to use all the
patents, trademarks, permits, service marks, trade names, copyrights, licenses,
franchises, proprietary information (including but not limited to rights in
computer programs and databases) and formulas, or rights with respect to the
foregoing, and has obtained assignments of all leases and other rights of
whatever nature, necessary for the present conduct of its business, without any
known conflict with the rights of others which, or the failure to obtain which,
as the case may be, could reasonably be expected to result in a material adverse
effect on the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the US Borrower and its Subsidiaries
taken as a whole.
7.21 Indebtedness. Schedule IV sets forth a true and complete
list of all Indebtedness (including Contingent Obligations) of the US Borrower
and its Subsidiaries as of the Effective Date and which is to remain outstanding
after giving effect thereto (excluding the Loans, the Letters of Credit and the
Senior Subordinated Notes, the "Existing Indebtedness"), in each case showing
the aggregate principal amount thereof and the name of the respective
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borrower and any Credit Party or any of its Subsidiaries which directly or
indirectly guarantees such debt.
7.22 Senior Subordinated Notes. The subordination provisions
contained in the Senior Subordinated Notes and in the other Senior Subordinated
Note Documents are enforceable against the respective Credit Parties party
thereto and the holders of the Senior Subordinated Notes, and all Obligations
and Guaranteed Obligations (as defined in this Agreement and in the US
Subsidiaries Guaranty and the Foreign Subsidiaries Guaranty) of such Credit
Parties are within the definition of "Senior Debt" or "Guarantor Senior Debt,"
as the case may be, included in such subordination provisions.
7.23 Year 2000. All computer applications that are material to
the US Borrower's or any of its Subsidiaries' business and operations are able
to perform properly date-sensitive functions for all dates before and after
January 1, 2000, except to the extent that a failure to do so could not
reasonably be expected to have a material adverse effect on the business,
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of the US Borrower and its Subsidiaries, taken as a whole.
SECTION 8. Affirmative Covenants. Each Borrower hereby
covenants and agrees that on and after the Effective Date and until the Total
Revolving Loan Commitment and all Letters of Credit have terminated and the
Loans, Notes and Unpaid Drawings, together with interest, Fees and all other
Obligations incurred hereunder and thereunder, are paid in full:
8.01 Information Covenants. The US Borrower will furnish to
each Lender:
(a) Quarterly Financial Statements. Within 50 days after the
close of the first three quarterly accounting periods in each fiscal year of the
US Borrower, (i) the consolidated and consolidating balance sheets of the US
Borrower and its Subsidiaries as at the end of such quarterly accounting period
and the related consolidated and consolidating statements of income and retained
earnings and statement of cash flows for such quarterly accounting period and
for the elapsed portion of the fiscal year ended with the last day of such
quarterly accounting period, in each case setting forth comparative figures for
the related periods in the prior fiscal year and comparable budgeted figures for
such quarterly accounting period as set forth in the respective budget delivered
pursuant to Section 8.01(d), all of which shall be certified by a Senior
Financial Officer of the US Borrower that they fairly present in all material
respects in accordance with generally accepted accounting principles the
financial condition of the US Borrower and its Subsidiaries as of the dates
indicated and the results of their operations and changes in their cash flows
for the periods indicated, subject to normal year-end audit adjustments and the
absence of footnotes, and (ii) management's discussion and analysis of the
important operational and financial developments during such quarterly
accounting period.
(b) Annual Financial Statements. Within 95 days after the
close of each fiscal year of the Borrower, (i) the consolidated and
consolidating balance sheets of the US Borrower and its Subsidiaries as at the
end of such fiscal year and the related consolidated and consolidating
statements of income and retained earnings and statement of cash flows for such
fiscal year setting forth comparative figures for the preceding fiscal year and
(x) in the case of the
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consolidated financial statements, certified by KPMG Peat Marwick LLP or such
other independent certified public accountants of recognized national standing
reasonably acceptable to the Administrative Agent, together with a report of
such accounting firm stating that in the course of its regular audit of the
financial statements of the US Borrower and its Subsidiaries, which audit was
conducted in accordance with generally accepted auditing standards, such
accounting firm obtained no knowledge of any Default or an Event of Default
which has occurred and is continuing or, if in the opinion of such accounting
firm such a Default or Event of Default has occurred and is continuing, a
statement as to the nature thereof and (y) in the case of the consolidating
financial statements, certified by a Senior Financial Officer of the US Borrower
that they fairly present in all material respects in accordance with generally
accepted accounting principles the financial condition of the US Borrower and
its Subsidiaries as of the dates indicated and the results of their operations
and changes in their cash flows for the periods indicated, and (ii) management's
discussion and analysis of the important operational and financial developments
during such fiscal year.
(c) Management Letters. Promptly after the US Borrower's or
any of its Subsidiaries' receipt thereof, a copy of any "management letter"
received from its certified public accountants and management's response
thereto.
(d) Budgets. No later than 30 days following the first day of
each fiscal year of the US Borrower, a budget in form reasonably satisfactory to
the Administrative Agent (including budgeted statements of income and sources
and uses of cash and balance sheets) prepared by the US Borrower for each of the
twelve months of such fiscal year prepared in detail setting forth, with
appropriate discussion, the principal assumptions upon which such budgets are
based.
(e) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Sections 8.01(a) and (b), a certificate of
a Senior Financial Officer of the US Borrower to the effect that, to the best of
such officer's knowledge, no Default or Event of Default has occurred and is
continuing or, if any Default or Event of Default has occurred and is
continuing, specifying the nature and extent thereof, which certificate shall
set forth in reasonable detail the calculations required to establish whether
the US Borrower and its Subsidiaries were in compliance with the provisions of
Sections 3.03(b), 3.03(d), 9.03, 9.04, 9.05 and 9.07 through 9.10, inclusive, at
the end of such fiscal quarter or year, as the case may be.
(f) Notice of Default or Litigation. Promptly upon, and in any
event within three Business Days after, an officer of any Credit Party obtains
knowledge thereof, notice of (i) the occurrence of any event which constitutes a
Default or an Event of Default and/or (ii) any litigation or governmental
investigation or proceeding pending (x) against the US Borrower or any of its
Subsidiaries which could reasonably be expected to materially and adversely
affect the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the US Borrower and its Subsidiaries
taken as a whole, (y) with respect to any material Indebtedness of the US
Borrower or any of its Subsidiaries or (z) with respect to any Credit Document.
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(g) Other Reports and Filings. Promptly after the filing or
delivery thereof, copies of all reports on Forms 10-K, 10-Q and 8-K and all
proxy materials, if any, which the US Borrower or any of its Subsidiaries shall
publicly file with the Securities and Exchange Commission or any successor
thereto (the "SEC").
(h) Environmental Matters. Promptly after any officer of any
Credit Party obtains knowledge thereof, notice of one or more of the following
environmental matters, unless such environmental matters could not, either
individually or when aggregated with all other such environmental matters, be
reasonably expected to have a material adverse effect on the business,
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of the US Borrower and its Subsidiaries taken as a whole:
(i) any pending or threatened Environmental Claim against the
US Borrower or any of its Subsidiaries or any Real Property owned,
leased or operated by the US Borrower or any of its Subsidiaries;
(ii) any condition or occurrence on or arising from any Real
Property owned, leased or operated by the US Borrower or any of its
Subsidiaries that (a) results in noncompliance by the US Borrower or
any of its Subsidiaries with any applicable Environmental Law or (b)
could be expected to form the basis of an Environmental Claim against
the US Borrower or any of its Subsidiaries or any such Real Property;
(iii) any condition or occurrence on any Real Property owned,
leased or operated by the US Borrower or any of its Subsidiaries that
could be expected to cause such Real Property to be subject to any
restrictions on the ownership, lease, occupancy, use or transferability
by the US Borrower or any of its Subsidiaries of such Real Property
under any Environmental Law; and
(iv) the taking of any removal or remedial action in response to
the actual or alleged presence of any Hazardous Material on any Real
Property owned, leased or operated by the US Borrower or any of its
Subsidiaries as required by any Environmental Law or any governmental
or other administrative agency; provided, that in any event the US
Borrower shall deliver to each Lender all notices received by the US
Borrower or any of its Subsidiaries from any government or governmental
agency under, or pursuant to, CERCLA which identify the US Borrower or
any of its Subsidiaries as potentially responsible parties for
remediation costs or which otherwise notify the US Borrower or any of
its Subsidiaries of potential liability under CERCLA.
All such notices shall describe in reasonable detail the
nature of the claim, investigation, condition, occurrence or removal or remedial
action and the US Borrower's or such Subsidiary's response thereto.
(i) Other Information. From time to time, such other
information or documents (financial or otherwise) with respect to the US
Borrower or any of its Subsidiaries as the Administrative Agent or any Lender
may reasonably request.
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8.02 Books, Records and Inspections; Annual Meetings. (a) The
US Borrower will, and will cause each of its Subsidiaries to, keep proper books
of record and accounts in which full, true and correct entries in conformity
with generally accepted accounting principles and all requirements of law shall
be made of all dealings and transactions in relation to its business and
activities. The US Borrower will, and will cause each of its Subsidiaries to,
permit officers and designated representatives of the Administrative Agent or
any Lender to visit and inspect, under guidance of officers of the US Borrower
or such Subsidiary, any of the properties of the US Borrower or such Subsidiary,
and to examine the books of account of the US Borrower or such Subsidiary and
discuss the affairs, finances and accounts of the US Borrower or such Subsidiary
with, and be advised as to the same by, its and their officers and independent
accountants, all at such reasonable times and intervals and to such reasonable
extent as the Administrative Agent or such Lender may reasonably request.
(b) At a date to be mutually agreed upon between the
Administrative Agent and the US Borrower occurring on or prior to the 120th day
after the close of each fiscal year of the US Borrower, the US Borrower will, at
the request of the Administrative Agent, hold a meeting with all of the Lenders
at which meeting shall be reviewed the financial results of the US Borrower and
its Subsidiaries for the previous fiscal year and the budgets presented for the
current fiscal year of the US Borrower.
8.03 Maintenance of Property; Insurance. (a) The US Borrower
will, and will cause each of its Subsidiaries to, (i) keep all property
necessary to the business of the US Borrower and its Subsidiaries in reasonably
good working order and condition, ordinary wear and tear excepted, (ii) maintain
insurance in at least such amounts and against at least such risks as is
consistent and in accordance with industry practice for companies similarly
situated owning similar properties in the same general areas in which the US
Borrower or any of its Subsidiaries operates, and (iii) furnish to the
Administrative Agent or any Lender, upon written request, full information as to
the insurance carried.
(b) Subject to Section 8.15, the US Borrower will, and will
cause each of the other Credit Parties that have executed a Security Agreement
to, at all times keep their respective property insured in favor of the
Collateral Agent, and all certificates with respect to such insurance (i) shall
name the Collateral Agent as loss payee (with respect to property) and, to the
extent permitted by applicable law, as an additional insured, (ii) shall state
that the respective insurer shall endeavor to provide at least 30 days' prior
written notice to the Collateral Agent before such insurance shall be cancelled
and (iii) shall be deposited with the Collateral Agent.
(c) If the US Borrower or any of its respective Subsidiaries
shall fail to maintain insurance in accordance with this Section 8.03, or if the
US Borrower or any of its Subsidiaries shall fail to so endorse and deposit all
certificates with respect thereto as provided in clause (b) of this Section
8.03, the Administrative Agent shall have the right (but shall be under no
obligation) to procure such insurance and each Borrower agrees to reimburse the
Administrative Agent for all costs and expenses of procuring such insurance.
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8.04 Corporate Franchises. The US Borrower will, and will
cause each of its Subsidiaries to, do or cause to be done, all things necessary
to preserve and keep in full force and effect its existence and its material
rights, franchises, licenses and patents; provided, however, that nothing in
this Section 8.04 shall prevent (i) sales of assets and other transactions by
the US Borrower or any of its Subsidiaries in accordance with Section 9.02 or
(ii) the withdrawal by the US Borrower or any of its Subsidiaries of its
qualification as a foreign corporation in any jurisdiction where such withdrawal
could not reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the US Borrower and its Subsidiaries taken as a
whole.
8.05 Compliance with Statutes, etc. The US Borrower will, and
will cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls), except such noncompliances (x) as could not, either individually or
in the aggregate, reasonably be expected to have a material adverse effect on
the business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the US Borrower and its Subsidiaries taken as a whole
or (y) as are being contested in good faith by the US Borrower or such
Subsidiary through appropriate proceedings which are being diligently
prosecuted.
8.06 Compliance with Environmental Laws. The US Borrower will,
and will cause each of its Subsidiaries to, comply in all material respects with
all Environmental Laws applicable to the ownership or use of its Real Property
now or hereafter owned, leased or operated by the US Borrower or any of its
Subsidiaries, will promptly pay or cause to be paid all costs and expenses
incurred in connection with such compliance, and will keep or cause to be kept
all such Real Property free and clear of any Liens imposed pursuant to such
Environmental Laws. Neither the US Borrower nor any of its Subsidiaries will
generate, use, treat, store, Release or dispose of, or permit the generation,
use, treatment, storage, Release or disposal of Hazardous Materials on any Real
Property now or hereafter owned, leased or operated by the US Borrower or any of
its Subsidiaries, or transport or permit the transportation of Hazardous
Materials to or from any such Real Property, except for Hazardous Materials
generated, used, treated, stored, Released or disposed of at any such Real
Properties in compliance in all material respects with all applicable
Environmental Laws and reasonably required in connection with the operation, use
and maintenance of the business or operations of the US Borrower or any of its
Subsidiaries.
8.07 ERISA. As soon as possible and, in any event, within ten
(10) days after the US Borrower, any Subsidiary of the US Borrower or any ERISA
Affiliate knows or has reason to know of the occurrence of any of the following,
the US Borrower will deliver to each of the Lenders a certificate of a Senior
Financial Officer of the US Borrower setting forth the full details as to such
occurrence and the action, if any, that the US Borrower, such Subsidiary or such
ERISA Affiliate is required or proposes to take, together with any notices
required or proposed to be given to or with or filed by the US Borrower, the
Subsidiary, the Plan Administrator, or the ERISA Affiliate to or with the PBGC
or any other government agency, or a
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Plan participant and any notices received by such US Borrower, such Subsidiary
or ERISA Affiliate from the PBGC or any other government agency, or a Plan
Participant with respect thereto: that a Reportable Event has occurred (except
to the extent that the US Borrower has previously delivered to the Lenders a
certificate and notices (if any) concerning such event pursuant to the next
clause hereof); that a contributing sponsor (as defined in Section 4001(a)(13)
of ERISA) of a Plan subject to Title IV of ERISA is subject to the advance
reporting requirement of PBGC Regulation Section 4043.61 (without regard to
subparagraph (b)(1) thereof), and an event described in subsection .62, .63,
.64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably expected
to occur with respect to such Plan within the following 30 days; that an
accumulated funding deficiency, within the meaning of Section 412 of the Code or
Section 302 of ERISA, has been incurred or an application may be or has been
made for a waiver or modification of the minimum funding standard (including any
required installment payments) or an extension of any amortization period under
Section 412 of the Code or Section 303 or 304 of ERISA with respect to a Plan;
that any contribution required to be made with respect to a Plan or Foreign
Pension Plan has not been timely made; that a Plan has been or may be
terminated, reorganized, partitioned or declared insolvent under Title IV of
ERISA; that a Plan has an Unfunded Current Liability; that proceedings may be or
have been instituted to terminate or appoint a trustee to administer a Plan
which is subject to Title IV of ERISA; that a proceeding has been instituted
pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan;
that the US Borrower, any Subsidiary of the US Borrower or any ERISA Affiliate
will or may incur any material liability (including any indirect, contingent, or
secondary liability) to or on account of the termination of or withdrawal from a
Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with
respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the Code or
Section 409 or 502(i) or 502(l) of ERISA or with respect to a group health plan
(as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under
Section 4980B of the Code; or that the US Borrower or any Subsidiary of the US
Borrower may incur any material liability pursuant to any employee welfare
benefit plan (as defined in Section 3(1) of ERISA) that provides benefits to
retired employees or other former employees (other than as required by Section
601 of ERISA) or any Plan or any Foreign Pension Plan. Upon the request of the
Administrative Agent, the US Borrower will deliver to each of the Lenders copies
of any records, documents or other information that must be furnished to the
PBGC with respect to any Plan pursuant to Section 4010 of ERISA. The US Borrower
will also deliver to each of the Lenders a complete copy of the annual report
(on Internal Revenue Service Form 5500-series) of each Plan (including, to the
extent required, the related financial and actuarial statements and opinions and
other supporting statements, certifications, schedules and information) required
to be filed with the Internal Revenue Service. In addition to any certificates
or notices delivered to the Lenders pursuant to the first sentence hereof,
copies of any records, documents or other information that must be furnished to
the PBGC with respect to any Plan pursuant to Section 4010 of ERISA, and any
material notices received by the US Borrower, any Subsidiary of the US Borrower
or any ERISA Affiliate with respect to any Plan or Foreign Pension Plan shall be
delivered to the Lenders no later than ten (10) days after the date such
records, documents and/or information has been furnished to the PBGC or such
notice has been received by the US Borrower, the Subsidiary or the ERISA
Affiliate, as applicable. The US Borrower and each of its applicable
Subsidiaries shall ensure that all Foreign Pension Plans administered by it or
into which it makes payments, obtains or retains (as applicable) registered
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status under and as required by applicable law and is administered in a timely
manner in all respects in compliance with all applicable laws except where the
failure to do any of the foregoing would not be reasonably likely to result in a
material adverse effect upon the business, operations, condition (financial or
otherwise) or prospects of the US Borrower or any Subsidiary of the US Borrower.
8.08 End of Fiscal Years; Fiscal Quarters. The US Borrower
will cause (i) its fiscal year to end on December 31, and (ii) its fiscal
quarters to end on March 31, June 30, September 30 and December 31.
8.09 Performance of Obligations. The US Borrower will, and
will cause each of its Subsidiaries to, perform all of its obligations under the
terms of each mortgage, indenture, security agreement, loan agreement or credit
agreement and each other material agreement, contract or instrument by which it
is bound, except such non-performances as could not, either individually or in
the aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the US Borrower and its Subsidiaries taken as a
whole.
8.10 Payment of Taxes. The US Borrower will pay and discharge,
and will cause each of its Subsidiaries to pay and discharge, all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which penalties attach thereto, and all lawful claims for sums that have become
due and payable which, if unpaid, might become a Lien not otherwise permitted
under Section 9.01(i); provided, that neither the US Borrower nor any of its
Subsidiaries shall be required to pay any such tax, assessment, charge, levy or
claim which is being contested in good faith and by proper proceedings if it has
maintained adequate reserves with respect thereto in accordance with generally
accepted accounting principles.
8.11 Foreign Subsidiaries Security. If, following a change in
the relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, the US Borrower
does not within 30 days after a request from the Administrative Agent or the
Required Lenders deliver evidence, in form and substance reasonably satisfactory
to the Administrative Agent, with respect to any Foreign Subsidiary of the US
Borrower which has not already had all of its stock pledged pursuant to a Pledge
Agreement to secure the Obligations of the US Borrower that (i) a pledge of
66-2/3% or more of the total combined voting power of all classes of capital
stock of such Foreign Subsidiary entitled to vote to secure the Obligations of
the US Borrower, (ii) the entering into by such Foreign Subsidiary of a security
agreement in substantially the form of the Security Agreement to secure the
Obligations of the US Borrower and (iii) the entering into by such Foreign
Subsidiary of a guaranty in substantially the form of the US Subsidiaries
Guaranty, in any such case could reasonably be expected to cause (I) any
undistributed earnings of such Foreign Subsidiary as determined for Federal
income tax purposes to be treated as a deemed dividend to such Foreign
Subsidiary's United States parent for Federal income tax purposes or (II) other
materially adverse Federal income tax consequences to the Credit Parties, then
in the case of a failure to deliver the evidence described in clause (i) above,
that portion of such Foreign Subsidiary's outstanding
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capital stock not theretofore pledged pursuant to a Pledge Agreement to secure
the Obligations of the US Borrower shall be promptly pledged to the Collateral
Agent for the benefit of the Secured Creditors pursuant to a Pledge Agreement
(or another pledge agreement in substantially similar form, if needed), and in
the case of a failure to deliver the evidence described in clause (ii) above,
such Foreign Subsidiary shall promptly execute and deliver a Security Agreement
and Pledge Agreement (or another security agreement or pledge agreement in
substantially similar form, if needed), granting the Secured Creditors a
security interest in all of such Foreign Subsidiary's assets and securing the
Obligations of the US Borrower under the Credit Documents and under any Interest
Rate Protection Agreement or Other Hedging Agreement entered into with a Secured
Creditor and, in the event the US Subsidiaries Guaranty shall have been executed
by such Foreign Subsidiary, the obligations of such Foreign Subsidiary
thereunder, and in the case of a failure to deliver the evidence described in
clause (iii) above, such Foreign Subsidiary shall promptly execute and deliver
the US Subsidiaries Guaranty (or another guaranty in substantially similar form,
if needed), guaranteeing the Obligations of the US Borrower under the Credit
Documents and under any Interest Rate Protection Agreement or Other Hedging
Agreement entered into with a Secured Creditor, in each case to the extent that
the entering into of a Security Agreement, a Pledge Agreement or the US
Subsidiaries Guaranty is permitted by the laws of the respective foreign
jurisdiction and with all documents delivered pursuant to this Section 8.11 to
be in form and substance reasonably satisfactory to the Administrative Agent.
8.12 Additional Security; Further Assurances. (a) Promptly
after (i) the creation or acquisition of any new Wholly-Owned Domestic
Subsidiary, and (ii) any Wholly-Owned Foreign Subsidiary incorporated under the
laws of England or Wales in the United Kingdom, Belgium, Canada, Ireland and/or
Spain which is not an Initial Foreign Credit Party and which has or at any time
acquires assets with a fair market value (as determined in good faith by the US
Borrower) in excess of $250,000, the US Borrower will notify the Administrative
Agent and will cause each new Wholly-Owned Domestic Subsidiary and each such
Wholly-Owned Foreign Subsidiary to duly authorize, execute and deliver
counterparts of the applicable Credit Documents that any such Wholly-Owned
Subsidiary would have been required to duly authorize, execute and deliver on
the Effective Date if same were a US Credit Party or a Foreign Credit Party on
such date, as the case may be, together with each of the other relevant
certificates, opinions of counsel and other documentation that such Wholly-Owned
Subsidiary would have been required to deliver pursuant to Sections 5.03, 5.04,
5.08, 5.09, 5.10, 5.13 and 5.15 on the Effective Date.
(b) Subject to Section 8.11, the US Borrower will, and will
cause each of its Wholly-Owned Subsidiaries to, (i) grant to the Collateral
Agent security interests in such assets and properties of the US Borrower and
such Wholly-Owned Subsidiaries as are not covered by the original Security
Documents, and as may be reasonably requested from time to time by the
Administrative Agent or the Required Lenders, and (ii) in the case of any such
Wholly-Owned Subsidiary, execute and deliver a counterpart of the US
Subsidiaries Guaranty and/or the Foreign Subsidiaries Guaranty, as appropriate
(or one or more other guaranties in substantially similar form, if necessary)
(all such security and guaranty documentation are collectively referred to as
the "Additional Security and Guaranty Documents"), in each case to the extent
that the entering into of such Credit Documents is permitted under applicable
law. All such Additional Security
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and Guaranty Documents shall be reasonably satisfactory in form and substance to
the Administrative Agent and, in the case of security documentation, shall
constitute valid and enforceable perfected security interests superior to and
prior to the rights of all third Persons and subject to no other Liens except
for Permitted Liens. The Additional Security and Guaranty Documents or
instruments related thereto shall have been duly recorded or filed in such
manner and in such places as are required by law to give the Administrative
Agent and/or the Collateral Agent the Liens, rights, powers and privileges
purported to be created thereby and all taxes, fees and other charges payable in
connection therewith shall have been paid in full.
(c) The US Borrower will, and will cause each of the
Subsidiary Guarantors to, at the expense of the respective Credit Party or
Credit Parties, make, execute, endorse, acknowledge, file and/or deliver to the
Collateral Agent from time to time such vouchers, invoices, schedules,
confirmatory assignments, conveyances, financing statements, transfer
endorsements, powers of attorney, certificates, landlord waivers and other
assurances or instruments and take such further steps relating to the Collateral
covered by any of the Security Documents as the Collateral Agent may reasonably
require. Furthermore, the US Borrower will cause to be delivered to the
Collateral Agent such opinions of counsel and other related documents as may be
reasonably requested by the Administrative Agent to assure itself that this
Section 8.12 has been complied with.
(d) The US Borrower agrees that each action required above by
this Section 8.12 shall be completed as soon as possible, but in no event later
than 60 days (or 90 days in the case of a Wholly-Owned Foreign Subsidiary
incorporated in a jurisdiction other than England, Wales or Canada) after such
action is either requested to be taken by the Administrative Agent or the
Required Lenders or required to be taken by the US Borrower and/or its
Subsidiaries pursuant to the terms of this Section 8.12; provided that, (i) in
no event, will the US Borrower or any of its Subsidiaries be required to take
any action, other than using its best efforts, to obtain consents from third
parties or approvals from governmental officials with respect to its compliance
with this Section 8.12, and (ii) to the extent that the US Borrower is
diligently taking all such actions to comply with this Section 8.12 with respect
to any Wholly-Owned Foreign Subsidiary incorporated in a jurisdiction other than
England, Wales or Canada, the 90-day period referred to above in this Section
8.12(d) may be extended to 150 days with the consent of the Administrative
Agent.
8.13 Margin Stock. The US Borrower will, and will cause each
of the other Credit Parties to, take any and all actions as may be required to
ensure that no capital stock pledged, or required to be pledged, pursuant to the
Pledge Agreement shall constitute Margin Stock.
8.14 Permitted Acquisitions. (a) Subject to the provisions of
this Section 8.14 and the requirements contained in the definition of Permitted
Acquisition, the US Borrower and its Wholly-Owned Subsidiaries may from time to
time effect Permitted Acquisitions, so long as (in each case except to the
extent the Required Lenders otherwise specifically agree in writing in the case
of a specific Permitted Acquisition): (i) no Default or Event of Default shall
have occurred and be continuing at the time of the consummation of the proposed
Permitted
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Acquisition or immediately after giving effect thereto; (ii) the US Borrower
shall have given to the Administrative Agent and the Lenders at least 10
Business Days' prior written notice of any Permitted Acquisition, together with
an executive summary setting forth (in reasonable detail) the principal terms
and conditions of such Permitted Acquisition and a description of the business
which is being acquired; (iii) calculations are made by the US Borrower of
compliance with the financial covenants contained in Sections 9.08, 9.09 and
9.10 for the respective Calculation Period, on a Pro Forma Basis as if the
respective Permitted Acquisition (as well as all other Permitted Acquisitions
and Designated Investments theretofore consummated after the first day of such
Calculation Period) had occurred on the first day of such Calculation Period,
and such recalculations shall show that such financial covenants would have been
complied with if the Permitted Acquisition had occurred on the first day of such
Calculation Period; (iv) all representations and warranties contained herein and
in the other Credit Documents shall be true and correct in all material respects
with the same effect as though such representations and warranties had been made
on and as of the date of such Permitted Acquisition (both before and after
giving effect thereto), unless stated to relate to a specific earlier date, in
which case such representations and warranties shall be true and correct in all
material respects as of such earlier date; (v) the aggregate cash consideration
(including, without limitation, (I) the aggregate principal amount of any
Indebtedness assumed, incurred or issued in connection therewith and (II) the
aggregate cash amount paid and to be paid pursuant to any earn-out, non-compete
or deferred compensation or purchase price arrangements) for any such proposed
Permitted Acquisition shall not exceed either (A) $35,000,000 or (B) when added
to the aggregate cash consideration paid for all other Permitted Acquisitions
consummated during such fiscal year, $50,000,000; (vi) immediately after giving
effect to each Permitted Acquisition (and all payments to be made in connection
therewith), the Total Unutilized Revolving Loan Commitment shall equal or exceed
$15,000,000; and (vii) the US Borrower shall have delivered to the
Administrative Agent and each Lender an officer's certificate executed by a
Senior Financial Officer of the US Borrower, certifying to the best of such
officer's knowledge, compliance with the requirements of preceding clauses (i)
through (vi), inclusive, and containing the calculations (in reasonable detail)
required by the preceding clauses (iii), (v) and (vi).
(b) At the time of each Permitted Acquisition involving the
creation or acquisition of a Subsidiary, or the acquisition of capital stock or
other equity interest of any Person, all capital stock or other equity interests
thereof created or acquired in connection with such Permitted Acquisition (to
the extent owned by a Credit Party) shall be pledged for the benefit of the
Secured Creditors pursuant to (and to the extent required by) the Pledge
Agreements.
(c) The Borrower will cause each Wholly-Owned Subsidiary which
is formed to effect, or is acquired pursuant to, a Permitted Acquisition to
comply with, and to execute and deliver, all of the documentation as and to the
extent required by, Sections 8.12 and 9.15, to the satisfaction of the
Administrative Agent.
(d) The consummation of each Permitted Acquisition shall be
deemed to be a representation and warranty by the US Borrower that the
certifications by the US Borrower pursuant to Section 8.14(a) are true and
correct and that all conditions thereto have been satisfied
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and that same is permitted in accordance with the terms of this Agreement, which
representation and warranty shall be deemed to be a representation and warranty
for all purposes hereunder, including, without limitation, Sections 7 and 10.
8.15 Certain Post-Closing Actions.
(a) No later than June 15, 2000 (and notwithstanding anything
to the contrary contained in Sections 5.08 and 5.09), the Borrowers
will cause the following actions to be taken:
(i) SITEL International, Inc. shall have duly
authorized, executed and delivered to the Collateral Agent one
or more Pledge Agreements governed by local law with respect
to the shares of SITEL Iberica Teleservices, S.A. and SITEL
Belgium NV owned by it;
(ii) the English Borrower shall have duly authorized,
executed and delivered to the Collateral Agent one or more
additional Pledge Agreements governed by local law with
respect to the shares of SITEL TMS Limited and SITEL Belgium
NV owned by it;
(iii) the Irish Borrower shall have duly authorized,
executed and delivered to the Collateral Agent one or more
additional Security Agreements governed by Irish law with
respect to the assets owned by it;
(iv) SITEL Teleservices Canada Inc. shall have
duly authorized, executed and delivered to the Collateral
Agent one or more additional Security Agreements and/or Pledge
Agreements governed by Canadian law with respect to the assets
owned by it;
(v) the Irish Borrower shall have delivered to the
Collateral Agent one or more certificates of insurance
complying with the requirements of Section 8.03(b) with
respect to the Irish Borrower's properties and operations;
(vi) SITEL Iberica Teleservices, S.A. shall have
duly authorized, executed and delivered to the Collateral
Agent a Pledge Agreement governed by Spanish law with respect
to the shares of stock owned by it; and
(vii) the US Borrower shall have delivered, or cause
to be delivered, to the Collateral Agent one or more opinions
of counsel, in form and substance reasonably satisfactory to
the Administrative Agent, with respect to the transactions
contemplated by the Credit Documents referred to above in this
clause (a) and such other matters incident thereto as the
Administrative Agent may reasonably request.
(b) No later than May 15, 2000, the Borrowers will cause the
following actions to be taken:
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(i) SITEL Teleservices Canada Inc. shall have been
reincorporated under the laws of Ontario;
(ii) SITEL Belgium NV and SITEL Teleservices Canada
Inc. each shall have duly authorized, executed and delivered
to the Collateral Agent a counterpart of the Foreign
Subsidiaries Guaranty;
(iii) SITEL Belgium NV and SITEL Teleservices Canada
Inc. each shall have delivered to the Collateral Agent such
opinions of counsel, officers' certificates and consent
letters as it would have been required to deliver to the
Administrative Agent pursuant to Sections 5.03, 5.04 and 5.15
on the Effective Date if it was required to execute the
Foreign Subsidiaries Guaranty on such date, all of which shall
be in form and substance reasonably satisfactory to the
Administrative Agent; and
(iv) the Initial Foreign Credit Parties organized
under the laws of the United Kingdom and Canada shall have
delivered to the Collateral Agent one or more certificates of
insurance complying with the requirements of Section 8.03(b)
with respect to such Initial Foreign Credit Parties'
properties and operations.
SECTION 9. Negative Covenants. Each Borrower hereby covenants
and agrees that on and after the Effective Date and until the Total Revolving
Loan Commitment and all Letters of Credit have terminated and the Loans, Notes
and Unpaid Drawings, together with interest, Fees and all other Obligations
incurred hereunder and thereunder, are paid in full:
9.01 Liens. The US Borrower will not, and will not permit any
of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon
or with respect to any property or assets (real or personal, tangible or
intangible) of the US Borrower or any of its Subsidiaries, whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable with recourse to the US
Borrower or any of its Subsidiaries), or assign any right to receive income or
permit the filing of any financing statement under the UCC or any other similar
notice of Lien under any similar recording or notice statute; provided that the
provisions of this Section 9.01 shall not prevent the creation, incurrence,
assumption or existence of the following (Liens described below are herein
referred to as "Permitted Liens"):
(i) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due or not yet delinquent and payable without
any penalty of any kind or character or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been
established in accordance with generally accepted accounting
principles;
(ii) Liens in respect of property or assets of the US Borrower
or any of its Subsidiaries imposed by law, which were incurred in the
ordinary course of business and do not secure Indebtedness for borrowed
money, such as carriers', warehousemen's, materialmen's and mechanics'
liens and other similar Liens arising in the ordinary course
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of business, and (x) which do not in the aggregate materially detract
from the value of the US Borrower's or such Subsidiary's property or
assets or materially impair the use thereof in the operation of the
business of the US Borrower or such Subsidiary or (y) which are being
contested in good faith by appropriate proceedings, which proceedings
have the effect of preventing the forfeiture or sale of the property
or assets subject to any such Lien;
(iii) Liens in existence on the Effective Date (and after giving
effect thereto) which are listed, and the property subject thereto
described, in Schedule V, but only to the respective date, if any, set
forth in such Schedule V for the removal, replacement and termination
of any such Liens, plus renewals, replacements and extensions of such
Liens to the extent set forth on Schedule V, provided that (x) the
aggregate principal amount of the Indebtedness, if any, secured by such
Liens does not increase from that amount outstanding at the time of any
such renewal, replacement or extension and (y) any such renewal,
replacement or extension does not encumber any additional assets or
properties of the US Borrower or any of its Subsidiaries;
(iv) Liens created pursuant to the Security Documents;
(v) leases or subleases granted to other Persons not materially
interfering with the conduct of the business of the US Borrower or any
of its Subsidiaries;
(vi) Liens upon assets of the US Borrower or any of its
Subsidiaries subject to Capitalized Lease Obligations to the extent
such Capitalized Lease Obligations are permitted by Section 9.04(iv),
provided that (x) such Liens only serve to secure the payment of
Indebtedness arising under such Capitalized Lease Obligation and (y)
the Lien encumbering the asset giving rise to the Capitalized Lease
Obligation does not encumber any other asset of the US Borrower or any
Subsidiary of the US Borrower;
(vii) Liens placed upon equipment or machinery used in the
ordinary course of business of the US Borrower or any of its
Subsidiaries at the time of the acquisition thereof by the US Borrower
or any such Subsidiary or within 90 days thereafter to secure
Indebtedness incurred to pay all or a portion of the purchase price
thereof or to secure Indebtedness incurred solely for the purpose of
financing the acquisition of any such equipment or machinery or
extensions, renewals or replacements of any of the foregoing for the
same or a lesser amount, provided that (x) such Indebtedness is
permitted by Section 9.04(iv) and (y) in all events, the Lien
encumbering the equipment or machinery so acquired does not encumber
any other asset of the US Borrower or such Subsidiary;
(viii) easements, rights-of-way, restrictions, encroachments and
other similar charges or encumbrances, and minor title deficiencies, in
each case not securing Indebtedness and not materially interfering with
the conduct of the business of the US Borrower or any of its
Subsidiaries;
(ix) Liens arising from precautionary UCC financing statement
filings regarding operating leases;
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(x) Liens arising out of the existence of judgments or awards
in respect of which the US Borrower or any of its Subsidiaries shall in
good faith be prosecuting an appeal or proceedings for review in
respect of which there shall have been secured a subsisting stay of
execution pending such appeal or proceedings, provided that the
aggregate amount of any cash and the fair market value of any property
subject to such Liens do not exceed $3,000,000 at any time outstanding;
(xi) statutory and common law landlords' liens under leases to
which the US Borrower or any of its Subsidiaries is a party;
(xii) Liens placed upon any of the assets of a Foreign Subsidiary
of the US Borrower which is not a Credit Party to secure any Foreign
Subsidiary Third Party Borrowings incurred pursuant to Section 9.04(v),
provided that in all events the Lien encumbering such assets does not
encumber any asset of any Credit Party;
(xiii) Liens (other than Liens imposed under ERISA) incurred in
the ordinary course of business in connection with workers compensation
claims, unemployment insurance and social security benefits;
(xiv) Liens securing (x) the performance of bids, tenders, leases
and contracts in the ordinary course of business and (y) statutory
obligations, surety bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business (exclusive of
obligations in respect of the payment for borrowed money), provided
that the aggregate outstanding amount of obligations secured by Liens
permitted by this clause (xiv) (and the value of all cash and property
encumbered by Liens permitted pursuant to this clause (xiv)) shall not
at any time exceed $500,000; and
(xv) Liens on property or assets acquired pursuant to a
Permitted Acquisition or pursuant to an Investment made under Section
9.05(xiv), or on property or assets of a Subsidiary of the US Borrower
in existence at the time such Subsidiary is acquired pursuant to a
Permitted Acquisition or pursuant to an Investment made under Section
9.05(xiv), provided that (x) any Indebtedness that is secured by such
Liens is permitted to exist under Section 9.04(x), and (y) such Liens
are not incurred in connection with, or in contemplation or
anticipation of, such Permitted Acquisition or such permitted
Investment, as the case may be, and do not attach to any other asset of
the US Borrower or any of its Subsidiaries.
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc.
The US Borrower will not, and will not permit any of its Subsidiaries to, wind
up, liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of all or any part of
its property or assets, or enter into any sale-leaseback transactions, or
purchase or otherwise acquire (in one or a series of related transactions) any
part of the property or assets (other than purchases or other acquisitions of
inventory, materials and equipment in the ordinary course of business) of any
Person (or agree to do any of the foregoing at any future time), except that:
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(i) Capital Expenditures by the US Borrower and its Subsidiaries
shall be permitted to the extent not in violation of Section 9.07;
(ii) each of the US Borrower and its Subsidiaries may make sales
of inventory in the ordinary course of business;
(iii) each of the US Borrower and its Subsidiaries may sell
obsolete or worn-out equipment or materials in the ordinary course of
business;
(iv) each of the US Borrower and its Subsidiaries may sell or
discount, in each case without recourse and in the ordinary course of
business, accounts receivable arising in the ordinary course of
business, but only in connection with the compromise or collection
thereof and not as part of any financing transaction;
(v) each of the US Borrower and its Subsidiaries may sell other
assets in the ordinary course of business in an aggregate amount not
to exceed $500,000 per sale or series of related sales, provided that
no more than $1,000,000 of such sales may be made pursuant to this
clause (v) in any fiscal year of the US Borrower;
(vi) each of the US Borrower and its Subsidiaries may sell other
assets (other than the capital stock of a Subsidiary unless all of the
capital stock of such Subsidiary is so sold pursuant to this clause
(vi)) so long as (i) no Default or no Event of Default then exists or
would result therefrom, (ii) each such sale is in an arm's-length
transaction and the US Borrower or the respective Subsidiary receives
at least fair market value (as determined in good faith by the US
Borrower or such Subsidiary, as the case may be), (iii) the total
consideration received by the US Borrower or such Subsidiary is at
least 90% cash and is paid at the time of the closing of such sale,
(iv) the Net Sale Proceeds therefrom are applied and/or reinvested as
(and to the extent) required by Section 3.03(b) and (v) the aggregate
amount of the proceeds received from all assets sold pursuant to this
clause (vi) shall not exceed $5,000,000 in any fiscal year of the US
Borrower;
(vii) Investments may be made to the extent permitted by Section
9.05;
(viii) each of the US Borrower and its Subsidiaries may lease (as
lessee) real or personal property (so long as any such lease does not
create a Capitalized Lease Obligation except to the extent permitted
by Section 9.04(iv));
(ix) Permitted Acquisitions may be made in accordance with
Section 8.14;
(x) each of the US Borrower and its Subsidiaries may grant
leases or subleases to other Persons not materially interfering with
the conduct of the business of the US Borrower or any of its
Subsidiaries;
(xi) the US Borrower and its Subsidiaries may consummate sale and
leaseback transactions with respect to properties acquired after the
Effective Date, in each case so long as (i) no Default or Event of
Default then exists or would result therefrom, (ii) each
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such sale and leaseback transaction is in an arm's-length transaction
and the US Borrower or the respective Subsidiary receives at least
fair market value (as determined in good faith by the Borrower or such
Subsidiary, as the case may be), (iii) the total consideration
received by the US Borrower or such Subsidiary in connection with each
such sale and leaseback transaction is cash and is paid at the time of
the closing thereof, and (iv) the Net Sale Proceeds therefrom are
applied and/or reinvested as (and to the extent) required by Section
3.03(b);
(xii) any Subsidiary of the US Borrower may be merged,
consolidated or liquidated with or into the US Borrower so long as the
US Borrower is the surviving corporation of such merger, consolidation
or liquidation;
(xiii) any Domestic Subsidiary of the US Borrower may be merged,
consolidated or liquidated with or into any other Domestic Subsidiary
of the US Borrower so long as (i) in the case of any such merger,
consolidation or liquidation involving a Subsidiary Guarantor, a
Subsidiary Guarantor is the surviving corporation of such merger,
consolidation or liquidation, and (ii) in the case of any such merger,
consolidation or liquidation involving a Wholly-Owned Domestic
Subsidiary of the US Borrower, in addition to the requirements of
preceding clause (i), a Wholly-Owned Domestic Subsidiary is the
surviving corporation of such merger, consolidation or liquidation;
(xiv) any Foreign Subsidiary of the US Borrower may be merged,
consolidated or liquidated with or into any other Foreign Subsidiary
of the US Borrower so long as (i) in the case of any such merger,
consolidation or liquidation involving a Subsidiary Guarantor, a
Subsidiary Guarantor is the surviving corporation of such merger,
consolidation or liquidation, and (ii) in the case of any such merger,
consolidation or liquidation involving a Wholly-Owned Foreign
Subsidiary of the US Borrower, in addition to the requirements of the
preceding clause (i), a Wholly-Owned Foreign Subsidiary is the
surviving corporation of such merger, consolidation or liquidation;
and
(xv) the US Borrower and its Subsidiaries may sell up to a 49%
equity interest in the US Borrower's Subsidiary formed to conduct
business in Latin America (other than in Mexico and Columbia) to a
joint venture partner that is not an Affiliate of the US Borrower so
long as (i) no Default or Event of Default then exists or would result
therefrom, (ii) such sale is in an arm's-length transaction and the US
Borrower or the respective Subsidiary receives at least fair market
value (as determined in good faith by the US Borrower or such
Subsidiary, as the case may be), (iii) the total consideration
received by the US Borrower or such Subsidiary in connection therewith
is cash and is paid at the time of the closing of such sale, and (iv)
the Net Sale Proceeds therefrom are applied and/or reinvested as (and
to the extent) required by Section 3.03(b).
To the extent the Required Lenders or all of the Lenders, as
the case may be, waive the provisions of this Section 9.02 with respect to the
sale of any Collateral, or any Collateral is sold as permitted by this Section
9.02 (other than to the US Borrower or a Subsidiary thereof), such Collateral
shall be sold free and clear of the Liens created by the
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respective Security Documents and the Administrative Agent and the
Collateral Agent shall be authorized to take any actions deemed
appropriate in order to effect the foregoing.
9.03 Restricted Payments. The US Borrower will not, and will
not permit any of its Subsidiaries to, authorize, declare, pay or make any
Restricted Payment, except that:
(i) any Subsidiary of the US Borrower may pay cash Dividends to
the US Borrower or to any Wholly-Owned Subsidiary of the US Borrower;
(ii) any non-Wholly-Owned Subsidiary of the US Borrower may pay
cash Dividends to its shareholders generally so long as the US
Borrower or its respective Subsidiary which owns the equity interest
in the Subsidiary paying such Dividends receives at least its
proportionate share thereof (based upon its relative holding of the
equity interest in the Subsidiary paying such Dividends and taking
into account the relative preferences, if any, of the various classes
of equity interests of such Subsidiary); and
(iii) so long as there shall exist no Default or Event of Default
(both before and after giving effect to the payment thereof), the US
Borrower may make cash Restricted Payments so long as the aggregate
amount of all Restricted Payments made subsequent to the Effective
Date pursuant to this clause (iii) does not exceed the remainder of
(A) the sum of (I) $15,000,000, plus (II) 50% of the cumulative
Consolidated Net Income (or, if cumulative Consolidated Net Income
shall be a loss, minus 100% of such loss) of the US Borrower earned
subsequent to the Effective Date and on or prior to the date the
Restricted Payment occurs (the "Restricted Payment Reference Date")
(treating such period as a single accounting period), plus (III) 100%
of the aggregate Net Equity Proceeds received by the US Borrower from
any Person (other than a Subsidiary of the US Borrower) from the
issuance and sale subsequent to the Effective Date and on or prior to
the Restricted Payment Reference Date of common stock and/or Qualified
Preferred Stock of the US Borrower, plus (IV) without duplication of
any amounts included in preceding clause (III), 100% of the aggregate
Net Equity Proceeds of any equity contribution received by the US
Borrower from a holder of the US Borrower's common stock (other than
from a Subsidiary of the US Borrower) subsequent to the Effective Date
and on or prior to the Restricted Payment Reference Date minus (B) any
amounts referred to in preceding clauses (II), (III) and (IV) to the
extent that such amounts are used to make Investments pursuant to
Section 9.05(xiv).
Notwithstanding anything to the contrary contained in clause (iii) above in this
Section 9.03, the US Borrower will not, and will not permit any of its
Subsidiaries to, make any Restricted Payment in respect of the Senior
Subordinated Notes (i) to the extent that the payment thereof would violate the
subordination provisions contained therein or (ii) as a result of any asset
sale, change of control or similar event.
9.04 Indebtedness. The US Borrower will not, and will not
permit any of its Subsidiaries to, contract, create, incur, assume or suffer to
exist any Indebtedness, except:
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(i) Indebtedness incurred pursuant to this Agreement and the
other Credit Documents;
(ii) Existing Indebtedness outstanding on the Effective Date (and
after giving effect thereto), and giving effect to any subsequent
extension, renewal or refinancing thereof, provided that the aggregate
principal amount of the Indebtedness to be extended, renewed or
refinanced does not increase from that amount outstanding at the time
of any such extension, renewal or refinancing;
(iii) Indebtedness under Interest Rate Protection Agreements
entered into with respect to other Indebtedness permitted under this
Section 9.04;
(iv) Indebtedness of the US Borrower and its Subsidiaries
evidenced by Capitalized Lease Obligations and purchase money
Indebtedness subject to Liens permitted under Section 9.01(vii),
provided that in no event shall the sum of (I) the aggregate principal
amount of all Capitalized Lease Obligations and (II) the aggregate
principal amount of all purchase money Indebtedness incurred pursuant
to this clause (iv), together with the aggregate principal amount of
all Capitalized Lease Obligations and purchase money Indebtedness
constituting Existing Indebtedness, exceed $40,000,000 at any time
outstanding;
(v) Indebtedness of any Foreign Subsidiary of the US Borrower
that is not a Credit Party under lines of credit and overdraft
facilities extended by third Persons to such Foreign Subsidiary the
proceeds of which Indebtedness are used for any Foreign Subsidiary's
working capital and general corporate purposes, provided that the
aggregate principal amount of all such Indebtedness incurred pursuant
to this clause (v), together with the aggregate principal amount of
all Existing Indebtedness under such lines of credit and overdraft
facilities, shall not exceed $20,000,000 (or the Dollar Equivalent
thereof in the case of Indebtedness incurred in a currency other than
Dollars) at any time outstanding (the "Foreign Subsidiary Third Party
Borrowings");
(vi) intercompany Indebtedness among the US Borrower and its
Subsidiaries to the extent permitted by Section 9.05;
(vii) Indebtedness consisting of guaranties by the US Borrower
and its Subsidiaries of other Indebtedness of the US Borrower and its
Subsidiaries otherwise permitted to be incurred under this Section
9.04;
(viii) Indebtedness under Other Hedging Agreements providing
protection against fluctuations in currency values in connection with
the US Borrower's or any of its Subsidiaries' operations so long as
management of the US Borrower or such Subsidiary, as the case may be,
has determined that the entering into of such Other Hedging Agreements
are bona fide hedging activities and are not for speculative purposes;
(ix) Indebtedness of the US Borrower and the Subsidiary
Guarantors under the Senior Subordinated Notes and the other Senior
Subordinated Note Documents in an
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aggregate principal amount not to exceed $100,000,000 (as reduced by
any repayments of principal thereof); provided, however, to the extent
that any Foreign Credit Party guaranties the US Borrower's obligations
under the Senior Subordinated Notes, such Foreign Credit Party also
shall execute and deliver a counterpart of the US Subsidiaries
Guaranty;
(x) Indebtedness of a Subsidiary acquired pursuant to a Permitted
Acquisition or pursuant to an Investment made under Section 9.05(xiv)
(or Indebtedness assumed at the time of a Permitted Acquisition or an
Investment made under Section 9.05(xiv) of an asset securing such
Indebtedness), provided that (x) such Indebtedness was not incurred in
connection with, or in anticipation or contemplation of, such
Permitted Acquisition or such Investment, as the case may be, (y) such
Indebtedness does not constitute debt for borrowed money (other than
debt for borrowed money incurred in connection with industrial revenue
or industrial development bond financings), it being understood and
agreed that Capitalized Lease Obligations and purchase money
Indebtedness shall not constitute debt for borrowed money for purposes
of this clause (y), and (z) at the time of such Permitted Acquisition
or such Investment, as the case may be, such Indebtedness does not
exceed 30% of the total value of the assets of the Subsidiary so
acquired, or of the asset so acquired, as the case may be;
(xi) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn
against insufficient funds in the ordinary course of business so long
as such Indebtedness is extinguished within 5 Business Days of the
incurrence thereof; and
(xii) additional unsecured Indebtedness incurred by the US
Borrower and its Subsidiaries in an aggregate principal amount not to
exceed $7,000,000 at any one time outstanding.
9.05 Advances, Investments and Loans. The US Borrower will
not, and will not permit any of its Subsidiaries to, directly or indirectly,
lend money or credit or make advances to any Person, or purchase or acquire any
stock, obligations or securities of, or any other interest in, or make any
capital contribution to, any other Person, or purchase or own a futures contract
or otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract, or hold any
cash or Cash Equivalents (each of the foregoing an "Investment" and,
collectively, "Investments"), except that the following shall be permitted:
(i) the US Borrower and its Subsidiaries may acquire and hold
accounts receivables owing to any of them, if created or acquired in
the ordinary course of business and payable or dischargeable in
accordance with customary trade terms of the US Borrower or such
Subsidiary;
(ii) the US Borrower and its Subsidiaries may acquire and hold
cash and Cash Equivalents;
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(iii) the US Borrower and its Subsidiaries may hold the
Investments held by them on the Effective Date and described on
Schedule VI, provided that any additional Investments made with
respect thereto shall be permitted only if independently justified
under the other provisions of this Section 9.05;
(iv) the US Borrower and its Subsidiaries may acquire and own
investments (including debt obligations) received in connection with
the bankruptcy or reorganization of suppliers and customers and in
good faith settlement of delinquent obligations of, and other disputes
with, customers and suppliers arising in the ordinary course of
business;
(v) the US Borrower and its Subsidiaries may make loans and
advances in the ordinary course of business to their respective
employees so long as the aggregate principal amount thereof at any
time outstanding (determined without regard to any write-downs or
write-offs of such loans and advances) shall not exceed $2,000,000;
(vi) the US Borrower may acquire and hold obligations of one or
more officers or other employees of the US Borrower or any of its
Subsidiaries in connection with such officers' or employees'
acquisition of shares of common stock of the US Borrower so long as no
cash is paid by the US Borrower or any of its Subsidiaries to such
officers or employees in connection with the acquisition of any such
obligations;
(vii) the US Borrower and its Subsidiaries may enter into
Interest Rate Protection Agreements to the extent permitted by Section
9.04(iii);
(viii) the US Borrower and its Subsidiaries may enter into Other
Hedging Agreements to the extent permitted by Section 9.04(viii);
(ix) the US Borrower and its Wholly-Owned Subsidiaries may make
intercompany loans and advances between or among one another
(collectively, "Intercompany Loans"), so long as (i) each Intercompany
Loan made by a Credit Party shall be evidenced by an Intercompany Note
that is pledged to the Collateral Agent pursuant to the applicable
Pledge Agreement and (ii) each Intercompany Loan that is made to
either (x) the US Borrower by any Wholly-Owned Subsidiary or (y) to
any other Credit Party by a Wholly-Owned Subsidiary that is not a
Credit Party shall (in each case) be subject to the subordination
provisions set forth in Exhibit M;
(x) the US Borrower may make cash equity contributions to the
capital of its Wholly-Owned Subsidiaries and Wholly-Owned Subsidiaries
of the US Borrower may make cash equity contributions to the capital
of their respective Wholly-Owned Subsidiaries (including as a result
of converting any intercompany obligation into an equity
contribution);
(xi) Permitted Acquisitions shall be permitted pursuant to
Section 9.02(ix);
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(xii) the US Borrower and its Subsidiaries may acquire and hold
promissory notes issued by the purchaser of assets in connection with
a sale of such assets to the extent permitted by Section 9.02(vi);
(xiii) the US Borrower and its Subsidiaries may make additional
cash Investments to their respective Subsidiaries for the purpose of
enabling such Subsidiaries to make an Investment permitted by clause
(xiv) of this Section 9.05 so long as each such Investment made by a
Credit Party in the form of a loan shall be evidenced by an
Intercompany Note that is pledged to the Collateral Agent pursuant to
the applicable Pledge Agreement;
(xiv) so long as no Default or Event of Default then exists or
would result therefrom, the US Borrower and its Subsidiaries may make
additional Investments so long as the aggregate amount of all such
Investments made subsequent to the Effective Date and outstanding at
any time (determined without regard to any write-downs or write-offs
thereof) pursuant to this clause (xiv) does not exceed the remainder
of (A) the sum of (I) $30,000,000, plus (II) 50% of the cumulative
Consolidated Net Income (or, if cumulative Consolidated Net Income
shall be a loss, minus 100% of such loss) of the US Borrower earned
subsequent to the Effective Date and on or prior to the date the
Investment occurs (the "Investment Reference Date") (treating such
period as a single accounting period), plus (III) 100% of the
aggregate Net Equity Proceeds received by the US Borrower from any
Person (other than a Subsidiary of the US Borrower) from the issuance
and sale subsequent to the Effective Date and on or prior to the
Investment Reference Date of common stock and/or Qualified Preferred
Stock of the US Borrower, plus (IV) without duplication of any amounts
included in preceding clause (III), 100% of the aggregate Net Equity
Proceeds of any equity contribution received by the US Borrower from a
holder of the US Borrower's stock (other than from a Subsidiary of the
US Borrower) subsequent to the Effective Date and on or prior to the
Investment Reference Date, plus (V) in any fiscal year of the US
Borrower (commencing with its fiscal year beginning on January 1,
2001), an amount equal to the Additional Investment Basket Amount for
such fiscal year, minus (B) the sum of (I) any amounts referred to in
preceding clauses (A)(II), (A)(III) and (A)(IV) to the extent that
such amounts are used to make Restricted Payments pursuant to Section
9.03(iii) plus (II) any portion of the Additional Investment Basket
Amount that is used to make Capital Expenditures pursuant to Section
9.07(b) in the respective fiscal year, provided that in the case of
any such Investment of $2,500,000 or more that is made in any Person
that is not then a Subsidiary of the US Borrower (a "Designated
Investment"), at least 10 Business Days prior to the making of any
such Investment, the US Borrower shall deliver to the Administrative
Agent and each of the Lenders a certificate of a Senior Financial
Officer of the US Borrower certifying (and showing the calculations
therefor in reasonable detail) that the US Borrower would have been in
compliance with the financial covenants set forth in Sections 9.08,
9.09 and 9.10 for the respective Calculation Period, in each case with
such financial covenants to be determined on a Pro Forma Basis as if
such Investment (as well as all other Designated Investments and
Permitted Acquisitions theretofore consummated after the first day of
such Calculation Period) had been made on the first day of such
Calculation Period; and
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(xv) subject to the requirements of Section 13.19 (to the extent
applicable), SITEL International, Inc. and/or a Subsidiary thereof may
contribute their equity interests in Grupo SITEL de Mexico, S.A. de
C.V. and/or any other Foreign Subsidiary of the US Borrower to another
Wholly-Owned Subsidiary of the US Borrower.
9.06 Transactions with Affiliates. (a) The US Borrower will
not, and will not permit any of its Subsidiaries to, directly or indirectly,
enter into or permit to exist any transaction or series of related
transactions (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service), with, or for the
benefit of, any Affiliate of the US Borrower or any of its Subsidiaries (each
an "Affiliate Transaction"), other than (x) Affiliate Transactions permitted
under clause (b) of this Section 9.06 and (y) Affiliate Transactions on terms
that are no less favorable than those that might reasonably have been obtained
in a comparable transaction at such time on an arm's length basis from a
Person that is not an Affiliate of the US Borrower or such Subsidiary. All
Affiliate Transactions (and each series of related Affiliate Transactions
which are similar or part of a common plan) involving aggregate payments or
other property with a fair market value (as determined in good faith by the
Board of Directors of the US Borrower or such Subsidiary, as the case may be)
in excess of $1,000,000 shall, prior to the consummation thereof, be approved
by the Board of Directors of the US Borrower or such Subsidiary, as the case
may be, and with such approval to be evidenced by a Board resolution stating
that such Board of Directors has determined that such transaction complies
with the foregoing provisions. If the US Borrower or any Subsidiary of the US
Borrower enters into an Affiliate Transaction (or a series of related
Affiliate Transactions related to a common plan) that involves an aggregate
fair market value (as determined in good faith by the Board of Directors of
the US Borrower or such Subsidiary, as the case may be) of more than
$5,000,000, the US Borrower or such Subsidiary, as the case may be, shall,
prior to the consummation thereof, obtain a favorable opinion as to the
fairness of such transaction or series of related transactions to the US
Borrower or the relevant Subsidiary, as the case may be, from a financial
point of view, from an Independent Financial Advisor and file the same with
the Administrative Agent.
(b) The restrictions set forth in clause (a) of this Section
9.06 shall not apply to (i) reasonable fees and compensation paid to, and
indemnity provided on behalf of, officers, directors, employees or
consultants of the US Borrower or any Subsidiary of the US Borrower as
determined in good faith by the US Borrower's Board of Directors or senior
management, (ii) transactions exclusively between or among the US Borrower
and any of its Subsidiaries or exclusively between or among such
Subsidiaries, provided such transactions are not otherwise prohibited by the
Credit Documents, (iii) transactions exclusively between or among the US
Borrower and any of its Subsidiaries on the one hand and any joint venture in
which the US Borrower and its Subsidiaries own at least 45% of the total
equity interest on the other hand, so long as no portion of the remaining
interest in such joint venture is owned by a Person who is an Affiliate of
the US Borrower (other than another Subsidiary of the Borrower) and such
transactions are not otherwise prohibited by the Credit Documents, (iv) any
agreement as in effect as of the Effective Date or any amendment thereto or
any transaction contemplated thereby (including pursuant to any amendment
thereto) in any replacement agreement thereto so long as any such amendment
or replacement agreement is not more disadvantageous to the
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Lenders in any material respect than the original agreement as in effect on
the Effective Date; (v) advances or loans to employees, officers and
directors of the US Borrower and its Subsidiaries permitted by Sections
9.05(v) and (xiv), and (vi) Restricted Payments permitted by Section 9.03.
9.07 Capital Expenditures. (a) The US Borrower will not, and
will not permit any of its Subsidiaries to, make any Capital Expenditures,
except that during any fiscal year of the US Borrower set forth below (taken
as one accounting period), the US Borrower and its Subsidiaries may make
Capital Expenditures so long as the aggregate amount of all such Capital
Expenditures does not exceed in any fiscal year of the US Borrower set forth
below the amount set forth opposite such fiscal year below:
Fiscal Year Ending Amount
------------------ ------
December 31, 2000 $ 60,000,000
December 31, 2001 $ 70,000,000
December 31, 2002 $ 80,000,000
December 31, 2003 $100,000,000
December 31, 2004 $100,000,000
December 31, 2005 $100,000,000
(b) In addition to the foregoing, in the event that the amount
of Capital Expenditures permitted to be made by the US Borrower and its
Subsidiaries pursuant to clause (a) above in any fiscal year of the US Borrower
(before giving effect to any increase in such permitted Capital Expenditure
amount pursuant to this clause (b)) is greater than the amount of Capital
Expenditures actually made by the US Borrower and its Subsidiaries during such
fiscal year, the remainder of (A) the lesser of (x) such excess and (y) 25% of
the applicable permitted scheduled Capital Expenditure amount as set forth in
such clause (a) above (such lesser amount, the "CapEx Rollover Amount") minus
(B) any portion of the CapEx Rollover Amount that is utilized to make
Investments pursuant to Section 9.05(xiv) in reliance on clause (A)(V) thereof
may be carried forward and utilized to make Capital Expenditures in the
immediately succeeding fiscal year, provided that no amounts once carried
forward pursuant to this Section 9.07(b) may be carried forward to any fiscal
year thereafter and such amounts may only be utilized after the US Borrower and
its Subsidiaries have utilized in full the permitted Capital Expenditure amount
for such fiscal year as set forth in the table in clause (a) above (without
giving effect to any increase in such amount by operation of this clause (b)).
(c) In addition to the foregoing, the US Borrower and its
Subsidiaries may make Capital Expenditures with the amount of Net Sale Proceeds
received by the US Borrower or any of its Subsidiaries from any Asset Sale so
long as such Net Sale Proceeds are reinvested in replacement assets within 270
days following the date of such Asset Sale to the extent such Net Sale Proceeds
are not otherwise required to be applied to reduce the Total Revolving Loan
Commitment pursuant to Section 3.03(b).
(d) In addition to the foregoing, the US Borrower and its
Subsidiaries may make Capital Expenditures with the amount of Net Insurance
Proceeds received by the US Borrower or
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any of its Subsidiaries from any Recovery Event so long as such Net Insurance
Proceeds are used to replace or restore any properties or assets in respect of
which such Net Insurance Proceeds were paid within 270 days following the date
of receipt of such Net Insurance Proceeds from such Recovery Event to the extent
such Net Insurance Proceeds are not otherwise required to be applied to reduce
the Total Revolving Loan Commitment pursuant to Section 3.03(d).
(e) In addition to the foregoing, the US Borrower and its
Wholly-Owned Subsidiaries may consummate Permitted Acquisitions to the extent
permitted by Section 9.02(ix).
9.08 Consolidated Interest Coverage Ratio. The US Borrower
will not permit the Consolidated Interest Coverage Ratio for any Test Period
ending on the last day of a fiscal quarter of the US Borrower set forth below to
be less than the ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ending Ratio
--------------------- -----
June 30, 2000 5.00:1.00
September 30, 2000 5.50:1.00
December 31, 2000 5.50:1.00
March 31, 2001 5.50:1.00
June 30, 2001 5.50:1.00
September 30, 2001 and
the last day of each fiscal
quarter of the US Borrower
thereafter 6.00:1.00
9.09 Maximum Leverage Ratio. The US Borrower will not permit
the Leverage Ratio at any time during a period set forth below to be greater
than the ratio set forth opposite such period below:
Period Ratio
------ -----
Effective Date
through and including December 31, 2000 2.50:1.00
January 1, 2001 through
and including December 31, 2001 2.25:1.00
January 1, 2002
and thereafter 2.00:1.00
9.10 Minimum Consolidated EBITDA. The US Borrower will not
permit Consolidated EBITDA for any Test Period ending on the last day of a
fiscal quarter of the US Borrower set forth below to be less than the amount set
forth opposite such fiscal quarter below:
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Fiscal Quarter Ending Amount
--------------------- ------
June 30, 2000 $70,000,000
September 30, 2000
and the last day of
each fiscal quarter of the
US Borrower thereafter $75,000,000
9.11 Limitation on Modifications of Certificate of
Incorporation, By-Laws, and Senior Subordinated Note Documents; etc. (a) The US
Borrower will not, and will not permit any of its Subsidiaries to, (i) amend,
modify or change its certificate or articles of incorporation (including,
without limitation, by the filing or modification of any certificate of
designation) or by-laws (or the equivalent organizational documents) unless any
such amendment, modification or change could not be adverse to the interests of
the Lenders in any material respect or (ii) amend, modify or change any of the
Senior Subordinated Note Documents.
(b) Neither the US Borrower nor any of its Subsidiaries shall
designate any Indebtedness, other than the Obligations, as "Designated Senior
Debt" for purposes of the Senior Subordinated Notes and the other Senior
Subordinated Note Documents.
9.12 Limitation on Certain Restrictions on Subsidiaries. The
US Borrower will not, and will not permit any of its Subsidiaries to, directly
or indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any such Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by the US Borrower or any
Subsidiary of the US Borrower, or pay any Indebtedness owed to the US Borrower
or any Subsidiary of the US Borrower, (b) make loans or advances to the US
Borrower or any Subsidiary of the US Borrower or (c) transfer any of its
properties or assets to the US Borrower or any Subsidiary of the US Borrower,
except for such encumbrances or restrictions existing under or by reason of (i)
applicable law, (ii) this Agreement and the other Credit Documents, (iii) the
Senior Subordinated Note Documents, (iv) customary provisions restricting
subletting or assignment of any lease governing a leasehold interest of the US
Borrower or any Subsidiary of the US Borrower, (v) customary provisions
restricting assignment of any licensing agreement or agreements for the
provision of services entered into by the US Borrower or any Subsidiary of the
US Borrower in the ordinary course of business and (vi) restrictions on the
transfer of any asset subject to a Lien permitted by Section 9.01.
9.13 Limitation on Issuance of Capital Stock. (a) The US
Borrower will not, and will not permit any of its Subsidiaries to, issue (i) any
preferred stock (other than Qualified Preferred Stock of the US Borrower) or
(ii) any redeemable common stock (other than common stock that is redeemable at
the sole option of the US Borrower or such Subsidiary).
(b) The US Borrower will not permit any of its Subsidiaries to
issue any capital stock (including by way of sales of treasury stock) or any
options or warrants to purchase, or securities convertible into, capital stock,
except (i) for transfers and replacements of then
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outstanding shares of capital stock, (ii) for stock splits, stock dividends and
issuances which do not decrease the percentage ownership of the US Borrower or
any of its Subsidiaries in any class of the capital stock of such Subsidiary,
(iii) to qualify directors to the extent required by applicable law or (iv) for
issuances by newly created or acquired Subsidiaries in accordance with the terms
of this Agreement.
9.14 Business. The US Borrower and its Subsidiaries will not
engage in any businesses which are not the same, similar or reasonably related
to the businesses engaged in by the US Borrower and its Subsidiaries as of the
Effective Date and reasonable extensions or expansions thereof.
9.15 Limitation on Creation of Subsidiaries. Notwithstanding
anything to the contrary contained in this Agreement, the US Borrower will not,
and will not permit any of its Subsidiaries to, establish, create or acquire
after the Effective Date any Subsidiary, provided that the US Borrower and its
Wholly-Owned Subsidiaries shall be permitted to establish, create or, to the
extent permitted by this Agreement, acquire (x) Wholly-Owned Subsidiaries so
long as (i) the capital stock or other equity interests of each such new
Wholly-Owned Subsidiary (to the extent owned by a Credit Party) is pledged
pursuant to, and to the extent required by, the applicable Pledge Agreement, and
(ii) each such new Wholly-Owned Subsidiary takes all such actions as may be
required or requested to be taken by it as and to the extent provided for in
Sections 8.11 and/or 8.12, and (y) non-Wholly-Owned Subsidiaries so long as the
capital stock or other equity interest of each such new non-Wholly-Owned
Subsidiary (to the extent owned by a Credit Party) is pledged pursuant to, and
to the extent required by, the applicable Pledge Agreement.
SECTION 10. Events of Default. Upon the occurrence of any of
the following specified events (each an "Event of Default"):
10.01 Payments. Any Borrower shall (i) default in the payment
when due of any principal of any Loan or any Note or (ii) default, and such
default shall continue unremedied for three or more Business Days, in the
payment when due of any interest on any Loan or Note, any Unpaid Drawing (or any
interest thereon) or any Fees or any other amounts owing hereunder or
thereunder; or
10.02 Representations, etc. Any representation, warranty or
statement made or deemed made by any Credit Party herein or in any other Credit
Document or in any certificate delivered to the Administrative Agent or any
Lender pursuant hereto or thereto shall prove to be untrue in any material
respect on the date as of which made or deemed made; or
10.03 Covenants. Any Credit Party shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 8.01(f)(i) or 8.08 or Section 9 or (ii) default in the due performance
or observance by it of any other term, covenant or agreement contained in this
Agreement or any other Credit Document (other than those set forth in Sections
10.01 and 10.02) and such default shall continue unremedied for a period of 30
days after written notice thereof to the defaulting party by the Administrative
Agent or the Required Lenders; or
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10.04 Default Under Other Agreements. (i) The US Borrower or
any of its Subsidiaries shall (x) default in any payment of any Indebtedness
(other than the Notes) beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created or (y) default
in the observance or performance of any agreement or condition relating to any
Indebtedness (other than the Notes) or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause (determined without regard
to whether any notice is required), any such Indebtedness to become due prior to
its stated maturity, or (ii) any Indebtedness (other than the Notes) of the US
Borrower or any of its Subsidiaries shall be declared to be (or shall become)
due and payable, or required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof, provided that it
shall not be a Default or an Event of Default under this Section 10.04 unless
the aggregate principal amount of all Indebtedness as described in preceding
clauses (i) and (ii) is at least $3,000,000; or
10.05 Bankruptcy, etc. The US Borrower or any of its
Subsidiaries shall commence a voluntary case concerning itself under Title 11 of
the United States Code entitled "Bankruptcy," as now or hereafter in effect, or
any successor thereto (the "Bankruptcy Code"); or an involuntary case is
commenced against the US Borrower or any of its Subsidiaries, and the petition
is not controverted within 10 days, or is not dismissed within 60 days, after
commencement of the case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or substantially all of the property of
the US Borrower or any of its Subsidiaries, or the US Borrower or any of its
Subsidiaries commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to the US Borrower or any of its Subsidiaries, or there is
commenced against the US Borrower or any of its Subsidiaries any such proceeding
which remains undismissed for a period of 60 days, or the US Borrower or any of
its Subsidiaries is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding is entered; or the US Borrower
or any of its Subsidiaries suffers any appointment of any custodian or the like
for it or any substantial part of its property to continue undischarged or
unstayed for a period of 60 days; or the US Borrower or any of its Subsidiaries
makes a general assignment for the benefit of creditors; or any corporate action
is taken by the US Borrower or any of its Subsidiaries for the purpose of
effecting any of the foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof under Section 412 of
the Code or Section 302 of ERISA or a waiver of such standard or extension of
any amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
with respect to such Plan within the following 30 days, any Plan which is
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subject to Title IV of ERISA shall have had or is likely to have a trustee
appointed to administer such Plan, any Plan which is subject to Title IV of
ERISA is, shall have been or is likely to be terminated or to be the subject of
termination proceedings under ERISA, any Plan shall have an Unfunded Current
Liability, a contribution required to be made with respect to a Plan or a
Foreign Pension Plan has not been timely made, the US Borrower or any Subsidiary
of the US Borrower or any ERISA Affiliate has incurred or is likely to incur any
liability to or on account of a Plan under Section 409, 502(i), 502(l), 515,
4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971
or 4975 of the Code or on account of a group health plan (as defined in Section
607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of the
Code, or the US Borrower or any Subsidiary of the US Borrower has incurred or is
likely to incur liabilities pursuant to one or more employee welfare benefit
plans (as defined in Section 3(1) of ERISA) that provide benefits to retired
employees or other former employees (other than as required by Section 601 of
ERISA) or Plans or Foreign Pension Plans, a "default," within the meaning of
Section 4219(c)(5) of ERISA, shall occur with respect to any Plan, any
applicable law, rule or regulation is adopted, changed or interpreted, or the
interpretation or administration thereof is changed, in each case after the date
hereof, by any governmental authority or agency or by any court (a "Change in
Law"), or, as a result of a Change in Law, an event occurs following a Change in
Law, with respect to or otherwise affecting any Plan; (b) there shall result
from any such event or events the imposition of a lien, the granting of a
security interest, or a liability or a material risk of incurring a liability;
and (c) such lien, security interest or liability, individually, and/or in the
aggregate, has had, or could reasonably be expected to have, a material adverse
effect on the business, operations, properties, assets, liabilities, condition
(financial or otherwise) or prospects of the US Borrower and its Subsidiaries
taken as a whole; or
10.07 Security Documents. At any time after the execution and
delivery thereof, any of the Security Documents shall cease to be in full force
and effect, or shall cease to give the Collateral Agent for the benefit of the
Secured Creditors the Liens, rights, powers and privileges purported to be
created thereby (including, without limitation, a perfected first priority
security interest in all of the Collateral, in favor of the Collateral Agent,
superior to and prior to the rights of all third Persons); or
10.08 Guaranties. At any time after the execution and delivery
thereof, any Guaranty or any provision thereof shall cease to be in full force
or effect as to any Guarantor, or any Guarantor or any Person acting by or on
behalf of such Subsidiary Guarantor shall deny or disaffirm such Guarantor's
obligations under any Guaranty to which it is a party or any Guarantor shall
default in the due performance or observance of any term, covenant or agreement
on its part to be performed or observed pursuant to any Guaranty to which it is
a party; or
10.09 Judgments. One or more judgments or decrees shall be
entered against the Borrower or any Subsidiary of the US Borrower involving in
the aggregate for the US Borrower and its Subsidiaries a liability (not paid or
fully covered by a reputable and solvent insurance company) and such judgments
and decrees either shall be final and non-appealable or shall not be vacated,
discharged or stayed or bonded pending appeal for any period of 30 consecutive
days, and the aggregate amount of all such judgments equals or exceeds
$3,000,000; or
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10.10 Change of Control. A Change of Control shall occur;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent, may with the written consent
of the Required Lenders and upon the written request of the Required Lenders,
shall by written notice to the Borrowers, take any or all of the following
actions, without prejudice to the rights of any Administrative Agent, any Lender
or the holder of any Note to enforce its claims against any Credit Party
(provided, that, if an Event of Default specified in Section 10.05 shall occur
with respect to any Borrower, the result which would occur upon the giving of
written notice by the Administrative Agent as specified in clauses (i) and (ii)
below shall occur automatically without the giving of any such notice): (i)
declare the Total Revolving Loan Commitment terminated, whereupon the Revolving
Loan Commitment of each Lender shall forthwith terminate immediately and any
Commitment Commission shall forthwith become due and payable without any other
notice of any kind; (ii) declare the principal of and any accrued interest in
respect of all Loans and the Notes and all Obligations owing hereunder and
thereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by each Credit Party; (iii) terminate any Letter of Credit
which may be terminated in accordance with its terms; (iv) direct the US
Borrower to pay (and the US Borrower agrees that upon receipt of such notice, or
upon the occurrence of an Event of Default specified in Section 10.05 with
respect to the US Borrower, it will pay) to the Collateral Agent at the Payment
Office such additional amount of cash or Cash Equivalents, to be held as
security by the Collateral Agent, as is equal to the aggregate Stated Amount of
all Letters of Credit issued for the account of the US Borrower and then
outstanding; (v) enforce, as Collateral Agent, all Liens, rights and remedies
created pursuant to any of the Security Documents; and (vi) apply any cash
collateral held by the Administrative Agent pursuant to Section 4.02 to the
repayment of the Obligations.
SECTION 11. Definitions and Accounting Terms.
11.01 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Additional Investment Basket Amount" shall mean, in respect
of any fiscal year of the US Borrower (commencing with its fiscal year beginning
on January 1, 2001), the lesser of (x) $5,000,000 and (y) the CapEx Rollover
Amount permitted to be utilized for such fiscal year (it being understood that
the Additional Investment Basket Amount shall be reset on the first day of each
fiscal year of the US Borrower and that no amount of the Additional Investment
Basket Amount that remains unutilized may be carried to any fiscal year
thereafter).
"Additional Security and Guaranty Documents" shall have the
meaning provided in Section 8.12.
"Administrative Agent" shall mean BTCo (and/or any lending
affiliate of BTCo performing obligations or functions on its behalf), in its
capacity as Administrative Agent for the Lenders hereunder, and shall include
any successor to the Administrative Agent appointed pursu-
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ant to Section 12.09. As of the Effective Date, and until BTCo otherwise
notifies the Borrowers and the Lenders, the Administrative Agent shall be (i)
with respect to all matters relating to Foreign Currency Loans (including,
without limitation, all determinations of Euro LIBOR, Euro Equivalent, Sterling
LIBOR and Sterling Equivalent), Bankers Trust Company (London), and (ii) for all
other purposes, BTCo.
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such Person. A Person shall be deemed to control
another Person if such Person possesses, directly or indirectly, the power (i)
to vote 5% or more of the securities having ordinary voting power for the
election of directors of such corporation or (ii) to direct or cause the
direction of the management and policies of such other Person, whether through
the ownership of voting securities, by contract or otherwise.
"Affiliate Transaction" shall have the meaning provided in
Section 9.06.
"Agreement" shall mean this Credit Agreement, as modified,
supplemented, amended, restated (including any amendment and restatement
hereof), extended or renewed from time to time.
"Applicable Commitment Commission Percentage" shall mean (i)
with respect to any fiscal quarter of the US Borrower (or, if shorter, the
period from the Effective Date through and including June 30, 2000) during which
the daily average Total Unutilized Revolving Loan Commitment is greater than 50%
of the Total Revolving Loan Commitment, .500% per annum, and (ii) at all other
times, .375% per annum; provided that the Applicable Commitment Commission
Percentage shall be .500% at all times when a Default or an Event of Default
exists.
"Applicable Margin" shall mean, with respect to Revolving
Loans and Swingline Loans, from and after any Start Date to and including the
corresponding End Date, the respective percentage per annum set forth below
under the respective Type of Revolving Loans or Swingline Loans and opposite the
respective Level (i.e., Level 1, Level 2, Level 3 or Level 4, as the case may
be) indicated to have been achieved on the applicable Test Date for such Start
Date (as shown on the respective officer's certificate delivered pursuant to
Section 8.01(e) or the first proviso below):
Level Leverage Ratio Base Rate Loans Euro Rate Loans
------ ------------------ -------------------- ---------------
1 Less than or equal to
1.75:1.00 0.50% 1.50%
2 Greater than 1.75:1.00
but less than or equal
to 2.00:1.00
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0.75% 1.75%
3 Greater than 2.00:1.00
but less than or equal
to 2.25:1.00
1.00% 2.00%
4 Greater than 2.25:1.00
1.25% 2.25%
provided, however, that if the US Borrower fails to deliver the financial
statements required to be delivered pursuant to Section 8.01(a) or (b)
(accompanied by the officer's certificate required to be delivered pursuant to
Section 8.01(e) showing the applicable Leverage Ratio on the relevant Test Date)
on or prior to the respective date required by such Sections, then Level 4
pricing shall apply until such time, if any, as the financial statements
required as set forth above and the accompanying officer's certificate have been
delivered showing the pricing for the respective Margin Reduction Period is at a
level which is less than Level 4 (it being understood that, in the case of any
late delivery of the financial statements and officer's certificate as so
required, any reduction in the Applicable Margin shall apply only from and after
the date of the delivery of the complying financial statements and officer's
certificate); provided further, that Level 4 pricing shall apply at any time
when any Default or Event of Default is in existence. Notwithstanding anything
to the contrary contained in the immediately preceding sentence (other than the
second proviso thereof), Level 3 pricing shall apply for the period from the
Effective Date to but not including the date which is the first Start Date after
the Borrower's fiscal quarter ending on June 30, 2000.
"Approved Currency" shall mean (i) in the case of the US
Borrower, Dollars, (ii) in the case of the English Borrower, Pounds Sterling or
Euros, and (iii) in the case of the Irish Borrower, Pounds Sterling or Euros.
"Asset Sale" shall mean any sale, transfer or other
disposition by the US Borrower or any of its Subsidiaries to any Person
(including by-way-of redemption by such Person), other than to the US Borrower
or a Wholly-Owned Subsidiary of the US Borrower, of any asset (including,
without limitation, any capital stock or other securities of, or equity
interests in, another Person) other than sales of assets pursuant to Sections
9.02 (ii), (iii), (iv), (v) and (x).
"Assignment and Assumption Agreement" shall mean an Assignment
and Assumption Agreement substantially in the form of Exhibit K (appropriately
completed).
"Bankruptcy Code" shall have the meaning provided in Section
10.05.
"Base Rate" shall mean, at any time, the higher of (i) the
Prime Lending Rate and (ii) 1/2 of 1% in excess of the Federal Funds Rate.
"Base Rate Loan" shall mean (i) each Swingline Loan and (ii)
each other Dollar Loan designated or deemed designated as such by the US
Borrower at the time of the incurrence thereof or conversion thereto.
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"Borrower" shall mean each of the US Borrower, the English
Borrower and the Irish Borrower.
"Borrowing" shall mean (i) the borrowing of Swingline Loans
from the Swingline Lender on a given date and (ii) the borrowing of Revolving
Loans of a single currency and Type by a Borrower from all the Lenders on a
given date (or resulting from a conversion or conversions on such date) having
in the case of Euro Rate Loans the same Interest Period, provided that Base Rate
Loans incurred pursuant to Section 1.10(b) shall be considered part of the
related Borrowing of Eurodollar Loans.
"BTCo" shall mean Bankers Trust Company, in its individual
capacity, and any successor corporation thereto by merger, consolidation or
otherwise.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day except Saturday, Sunday and any day which
shall be in New York City, New York, a legal holiday or a day on which banking
institutions are authorized or required by law or other government action to
close and (ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Euro Rate Loans, any day which
is a Business Day described in clause (i) above and which is also (x) a day for
trading by and between banks in the London interbank market and, with respect to
any notices, determinations or payments in respect of Euros, a day on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET)
System is open and (y) not a day which in London, England shall be a legal
holiday or a day on which banking institutions are authorized or required by law
or other government action to close.
"Calculation Period" shall mean, in the case of any Permitted
Acquisition or any Designated Investment, the Test Period most recently ended
prior to the date of such Permitted Acquisition or Designated Investment, as the
case may be, for which financial statements are available.
"CapEx Rollover Amount" shall have the meaning provided in
Section 9.07(b).
"Capital Expenditures" shall mean, with respect to any Person,
all expenditures by such Person which should be capitalized in accordance with
generally accepted accounting principles, but excluding the amount of
Capitalized Lease Obligations incurred by such Person.
"Capitalized Lease Obligations" shall mean, with respect to
any Person, all rental obligations of such Person which, under generally
accepted accounting principles, are or will be required to be capitalized on the
books of such Person, in each case taken at the amount thereof accounted for as
indebtedness in accordance with such principles.
"Cash Equivalents" shall mean, as to any Person, (i)
securities issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (provided that the full faith
and credit of the United States is pledged in support thereof) having maturities
of not more than one year from the date of acquisition, (ii) Dollar denominated
time deposits and certificates of deposit of any commercial bank having, or
which is the principal
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banking subsidiary of a bank holding company having, a long-term unsecured debt
rating of at least "A" or the equivalent thereof from Standard & Poor's Ratings
Services or "A2" or the equivalent thereof from Moody's Investors Service, Inc.
with maturities of not more than one year from the date of acquisition by such
Person, (iii) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (i) above entered into
with any bank meeting the qualifications specified in clause (ii) above, (iv)
commercial paper issued by any Person incorporated in the United States rated at
least A-1 or the equivalent thereof by Standard & Poor's Ratings Services or at
least P-1 or the equivalent thereof by Moody's Investors Service, Inc. and in
each case maturing not more than one year after the date of acquisition by such
Person, (v) marketable direct obligations issued by the District of Columbia or
any State of the United States or any political subdivision of any such State or
any public instrumentality thereof maturing within one year from the date of
acquisition and, at the time of acquisition, having one of the two highest
ratings obtainable from either Standard & Poor's Ratings Services or Moody's
Investors Service, Inc. and (vi) investments in money market funds substantially
all of whose assets are comprised of securities of the types described in
clauses (i) through (v) above.
"Cash Proceeds" shall mean, with respect to any Asset Sale,
the aggregate cash payments (including any cash received by way of deferred
payment pursuant to a note receivable issued in connection with such Asset Sale
or pursuant to a receivable or otherwise, other than (in each case) the portion
of such deferred payment constituting interest, but only as and when so
received) received by the US Borrower and/or any of its Subsidiaries from such
Asset Sale.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. ss. 9601 et seq.
"Change of Control" shall mean (i) any Person or "group"
(within the meaning of Section 13(d) and 14(d) under the Securities Exchange
Act, as in effect on the Effective Date), shall (A) have acquired beneficial
ownership of 25% or more on a fully diluted basis of the voting and/or economic
interest in the US Borrower's capital stock or (B) obtained the power (whether
or not exercised) to elect a majority of the US Borrower's directors or (ii) the
Board of Directors of the US Borrower shall cease to consist of a majority of
Continuing Directors or (iii) any "change of control" under, and as defined in,
the Senior Subordinated Note Indenture shall occur.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the Code are to the Code, as in effect on the
Effective Date of this Agreement and any subsequent provisions of the Code,
amendatory thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean the Pledge Agreement Collateral, the
Security Agreement Collateral and all cash and Cash Equivalents delivered as
collateral pursuant to Section 4.02 or 10.
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"Collateral Agent" shall mean the Administrative Agent acting
as collateral agent for the Secured Creditors pursuant to the Security
Documents.
"Commitment Commission" shall have the meaning set forth in
Section 3.01(a).
"Consolidated EBIT" shall mean, for any period, Consolidated
Net Income for such period before Consolidated Interest Expense and provision
for taxes for such period and without giving effect (x) to any extraordinary
gains or losses and (y) to any gains or losses from sales of assets other than
from sales of inventory sold in the ordinary course of business.
"Consolidated EBITDA" shall mean, for any period, Consolidated
EBIT for such period, adjusted by adding thereto the amount of all amortization
of intangibles and depreciation that were deducted in arriving at Consolidated
EBIT for such period (including deferred financing, legal and accounting costs
associated with the Existing Credit Agreement, the Senior Subordinated Notes and
this Agreement), but determined without giving effect to any non-cash charges of
up to $10,000,000 in the aggregate which are taken by the US Borrower on or
prior to December 31, 1999 in connection with the write-off of capitalized costs
with respect to certain of the US Borrower's software platforms, software
investments and other intangible assets; it being understood that in determining
the Leverage Ratio only, Consolidated EBITDA for any period shall be calculated
on a Pro Forma Basis to give effect to any Person or assets acquired during such
period pursuant to a Permitted Acquisition and/or a Designated Investment and
not subsequently sold or otherwise disposed of by the US Borrower or any of its
Subsidiaries during such period.
"Consolidated Indebtedness" shall mean, at any time, the
principal amount of all Indebtedness of the US Borrower and its Subsidiaries at
such time as determined on a consolidated basis; provided that for purposes of
this definition, the amount of Indebtedness in respect of Interest Rate
Protection Agreements and Other Hedging Agreements shall be at any time the
unrealized net loss position, if any, of the US Borrower and/or its Subsidiaries
thereunder on a marked-to-market basis determined no more than one month prior
to such time.
"Consolidated Interest Coverage Ratio" shall mean, for any
period, the ratio of Consolidated EBITDA to Consolidated Interest Expense for
such period.
"Consolidated Interest Expense" shall mean, for any period,
the total consolidated interest expense of the US Borrower and its Subsidiaries
for such period (calculated without regard to any limitations on the payment
thereof) plus, without duplication, that portion of Capitalized Lease
Obligations of the US Borrower and its Subsidiaries representing the interest
factor for such period; provided that the amortization of deferred financing
costs with respect to this Agreement, the Existing Credit Agreement and the
Senior Subordinated Notes shall be excluded from Consolidated Interest Expense
to the extent same would otherwise have been included therein.
"Consolidated Net Income" shall mean, for any period, the net
income (or loss) of the US Borrower and its Subsidiaries for such period,
determined on a consolidated basis (and after deductions for minority
interests), provided that (i) the net income of any other Person
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which is not a Subsidiary of the US Borrower or is accounted for by the US
Borrower by the equity method of accounting shall be included only to the extent
of the payment of cash dividends or distributions by such other Person to the US
Borrower or a Subsidiary thereof during such period, (ii) the net income of any
Subsidiary of the US Borrower shall be excluded to the extent that the
declaration or payment of cash dividends or similar distributions by that
Subsidiary of that net income is not at the time permitted by operation of the
terms of its charter or any agreement, instrument or law applicable to such
Subsidiary; and (iii) the net income (or loss) of any other Person acquired by
such specified Person or a Subsidiary of such Person in a pooling of interests
transaction for any period prior to the date of such acquisition shall be
excluded.
"Contingent Obligation" shall mean, as to any Person, any
obligation of such Person as a result of such Person being a general partner of
the other Person, unless the underlying obligation is expressly made
non-recourse as to such general partner, and any obligation of such Person
guaranteeing or intended to guarantee any Indebtedness, leases, dividends or
other obligations ("primary obligations") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (x) for the purchase
or payment of any such primary obligation or (y) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the holder of such
primary obligation against loss in respect thereof; provided, however, that the
term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Continuing Directors" shall mean the directors of the US
Borrower on the Effective Date and each other director if such director's
nomination for election to the Board of Directors of the US Borrower is
recommended by a majority of the then Continuing Directors.
"Credit Documents" shall mean this Agreement and, after the
execution and delivery thereof pursuant to the terms of this Agreement, each
Note, each Subsidiaries Guaranty and each Security Document.
"Credit Event" shall mean the making of any Loan or the
issuance of any Letter of Credit.
"Credit Party" shall mean each Borrower and each Subsidiary
Guarantor.
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"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to
which a Lender Default is in effect.
"Designated Investment" shall have the meaning provided in
Section 9.05(xiv).
"Dividend" shall mean, with respect to any Person, that such
Person has declared or paid a dividend or returned any equity capital to its
stockholders, partners or members or authorized or made any other distribution,
payment or delivery of property (other than common stock of such Person,
Qualified Preferred Stock of the US Borrower or rights to purchase common stock
of such Person or Qualified Preferred Stock of the US Borrower) or cash to its
stockholders, partners or members as such, or redeemed, retired, purchased or
otherwise acquired, directly or indirectly, for a consideration any shares of
any class of its capital stock or any partnership or membership interests
outstanding on or after the Effective Date (or any options or warrants issued by
such Person with respect to its capital stock), or set aside any funds for any
of the foregoing purposes, or shall have permitted any of its Subsidiaries to
purchase or otherwise acquire for a consideration any shares of any class of the
capital stock or any partnership or membership interests of such Person
outstanding on or after the Effective Date (or any options or warrants issued by
such Person with respect to its capital stock). Without limiting the foregoing,
"Dividends" with respect to any Person shall also include all payments made or
required to be made by such Person with respect to any stock appreciation rights
plans, equity incentive or achievement plans or any similar plans or setting
aside of any funds for the foregoing purposes.
"Dollar Equivalent" shall mean, at any time for the
determination thereof, (i) except as provided in clause (ii) below, the amount
of Dollars which could be purchased with the amount of the relevant Foreign
Currency involved in such computation at the spot exchange rate therefor as
quoted by the Administrative Agent as of 11:00 A.M. (London time) on the date
two Business Days prior to the date of any determination thereof for purchase on
such date and (ii) for purposes of Section 13.07(d), the amount of Dollars which
could be purchased with the amount of the relevant Foreign Currency involved in
such computation at the spot exchange rate therefor as quoted or utilized by the
Administrative Agent on the date of any determination thereof for purchase on
such day.
"Dollar Loan" shall mean each Swingline Loan and each
Revolving Loan denominated in Dollars.
"Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States.
"Domestic Subsidiary" shall mean (i) each Subsidiary of the US
Borrower that is incorporated under the laws of the United States or any State
or territory thereof and (ii) each Subsidiary of the US Borrower that is
incorporated or organized outside the United States or any
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State or territory thereof but which is, or has elected to be, treated as a
partnership or a disregarded entity pursuant to the provisions of Treasury
Regulations Section 301.7701-3.
"Drawing" shall have the meaning provided in Section 2.05(b).
"Effective Date" shall have the meaning provided in Section
13.10.
"Eligible Transferee" shall mean and include a commercial
bank, an insurance company, a finance company, a financial institution, any fund
that invests in bank loans or, with the consent of the US Borrower (which
consent shall not be unreasonably withheld or delayed), any other "accredited
investor" (as defined in Regulation D of the Securities Act).
"EMU Legislation" shall mean the legislative measures of the
European Council for the introduction of, changeover to or operation of a single
or unified European currency.
"End Date" shall mean, for any Margin Reduction Period, the
last day of such Margin Reduction Period.
"English Borrower" shall have the meaning provided in the
first paragraph of this Agreement.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereafter, "Claims"),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the environment due
to the presence of Hazardous Materials.
"Environmental Law" shall mean any Federal, state, foreign
or local statute, law, rule, regulation, ordinance, code, guideline, written
policy and rule of common law now or hereafter in effect and in each case as
amended, and any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent decree or judgment, relating to
the environment, employee health and safety or Hazardous Materials, including,
without limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33
U.S.C.ss. 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C.ss. 2601 et
seq.; the Clean Air Act, 42 U.S.C.ss. 7401 et seq.; the Safe Drinking Water Act,
42 U.S.C.ss. 3803 et seq.; the Oil Pollution Act of 1990, 33 U.S.C.ss. 2701 et
seq.; the Emergency Planning and the Community Right-to-Know Act of 1986, 42
U.S.C.ss. 11001 et seq.; the Hazardous Material Transportation Act, 49 U.S.C.ss.
1801 et seq.; the Occupational Safety and Health Act, 29 U.S.C.ss. 651 et seq.;
and any state and local or foreign counterparts or equivalents, in each case as
amended from time to time.
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"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect on the Effective Date of this Agreement and any subsequent provisions of
ERISA, amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which together with the US Borrower or a Subsidiary of
the US Borrower would be deemed to be a "single employer" (i) within the meaning
of Section 414(b), (c), (m) or (o) of the Code or (ii) as a result of the US
Borrower or a Subsidiary of the US Borrower being or having been a general
partner of such person.
"Euro" shall mean the single currency of the participating
member states as described in any EMU Legislation.
"Euro Equivalent" shall mean, at any time for the
determination thereof, the amount of Euros which could be purchased with the
amount of Dollars involved in such computation at the spot exchange rate
therefor as quoted by the Administrative Agent as of 11:00 A.M. (London time) on
the date two Business Days prior to the date of any determination thereof for
purchase on such date (or, in the case of any determination pursuant to Section
29 of the Foreign Subsidiaries Guaranty, on the date of determination).
"Euro LIBOR" shall mean, with respect to each Interest Period
applicable to any Foreign Currency Loan denominated in Euros, (i) the rate per
annum determined by the Administrative Agent at approximately 11:00 a.m. (London
time) on the date which is two Business Days prior to the beginning of the
relevant Interest Period by reference to page 3750 of the Dow Jones Markets
Screen and/or any successor page for deposits in Euros for a period equal to
such Interest Period (rounded, if necessary, upward to the nearest whole
multiple of 1/16th of 1%), provided that, to the extent that an interest rate is
not ascertainable pursuant to the foregoing provisions of this definition, the
"Euro LIBOR" shall be the interest rate per annum determined by the
Administrative Agent to be the rate (rounded, if necessary, upward to the
nearest whole multiple of 1/16th of 1% per annum, if such average is not such a
multiple) per annum at which deposits in Euros are offered for such relevant
Interest Period to major banks in the London interbank market in London, England
by BTCo at approximately 11:00 a.m. (London time) on the date which is two
Business Days prior to the beginning of such Interest Period, provided that in
the event the Administrative Agent has made any determination pursuant to
Section 1.10(a)(i) in respect of Foreign Currency Loans denominated in Euros, or
in the circumstances described in clause (i) to the proviso to Section 1.10(b)
in respect of Foreign Currency Loans denominated in Euros, Euro LIBOR determined
pursuant to this definition shall instead be the rate determined by the
Administrative Agent as the all-in-cost of funds for the Administrative Agent to
fund the respective Foreign Currency Loan denominated in Euros with maturities
comparable to the Interest Period applicable thereto.
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"Euro Rate" shall mean (i) with respect to Dollar Loans, the
Eurodollar Rate, (ii) with respect to Foreign Currency Loans denominated in
Euros, Euro LIBOR, and (iii) with respect to Foreign Currency Loans denominated
in Pounds Sterling, Sterling LIBOR.
"Euro Rate Loan" shall mean each Revolving Loan (other than
any such Revolving Loan incurred as a Base Rate Loan).
"Eurodollar Loan" shall mean each Revolving Loan designated as
such by the US Borrower at the time of the incurrence thereof or conversion
thereto.
"Eurodollar Rate" shall mean, with respect to any Eurodollar
Loan for any Interest Period, (a) the rate appearing on Page 3750 of the Dow
Jones Telerate Screen (or on any successor or substitute page of such Screen, or
any successor to or substitute for such Screen, providing rate quotations
comparable to those currently provided on such page of such Screen, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
interbank Eurodollar market) at approximately 11:00 A.M. (New York time), two
Business Days prior to the commencement of such Interest Period, as the rate for
Dollar deposits with a maturity comparable to such Interest Period, provided
that in the event that such rate is not available at such time for any reason,
then this component of the "Eurodollar Rate" with respect to such Eurodollar
Loan for such Interest Period shall be the offered quotation to first-class
banks in the interbank Eurodollar market by BTCo for Dollar deposits of amounts
in immediately available funds comparable to the outstanding principal amount of
the Eurodollar Loan of BTCo with maturities comparable to the Interest Period
applicable to such Eurodollar Loan commencing two Business Days thereafter as of
11:00 A.M. (New York time) on the date which is two Business Days prior to the
commencement of such Interest Period; divided (and rounded upward to the next
whole multiple of 1/16 of 1%) by (b) a percentage equal to 100% minus the then
stated maximum rate of all reserve requirements (including, without limitation,
any marginal, emergency, supplemental, special or other reserves required by
applicable law) applicable to any member bank of the Federal Reserve System in
respect of Eurocurrency funding or liabilities as defined in Regulation D (or
any successor category of liabilities under Regulation D).
"Euro-zone" shall mean the region composed of the member
states as described in any EMU Legislation.
"Event of Default" shall have the meaning provided in Section
10.
"Existing Credit Agreement" shall mean the Credit Agreement,
dated as of July 24, 1997, as amended and restated as of March 10, 1998, and as
further amended, modified or supplemented through the Effective Date, among the
US Borrower, the lenders party thereto, U.S. Bank National Association, as
Syndication Agent, First Union National Bank, as Documentation Agent, and BTCo,
as Administrative Agent.
"Existing Indebtedness" shall have the meaning provided in
Section 7.21.
"Existing Letters of Credit" shall have the meaning provided
in Section 2.01(a).
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"Federal Funds Rate" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred
to in Section 3.01.
"Final Maturity Date" shall mean April 11, 2005.
"Foreign Borrower" shall mean each of the English Borrower and
the Irish Borrower.
"Foreign Credit Party" shall mean each Foreign Borrower and
each Subsidiary Guarantor that also is a Wholly-Owned Foreign Subsidiary.
"Foreign Currency" shall mean (i) in the case of any Revolving
Loan, Euros and Pounds Sterling, and (ii) in the case of any non-Dollar
denominated Letter of Credit, Euros, Pounds Sterling, Canadian Dollars,
Australian Dollars and such other currencies as may be requested by the US
Borrower and reasonably acceptable to the Administrative Agent and the
respective Issuing Lender.
"Foreign Currency Loan" shall mean each Revolving Loan
denominated in a Foreign Currency.
"Foreign Pension Plan" shall mean any plan, fund (including,
without limitation, any superannuation fund) or other similar program
established or maintained outside the United States of America by the US
Borrower or any one or more of its Subsidiaries primarily for the benefit of
employees of the US Borrower or such Subsidiaries residing outside the United
States of America, which plan, fund or other similar program provides, or
results in, retirement income, a deferral of income in contemplation of
retirement or payments to be made upon termination of employment, and which plan
is not subject to ERISA or the Code.
"Foreign Subsidiaries Guaranty" shall have the meaning
provided in Section 5.10(b).
"Foreign Subsidiary" shall mean each Subsidiary of the US
Borrower which is not a Domestic Subsidiary.
"Foreign Subsidiary Third Party Borrowings" shall have the
meaning provided in Section 9.04(v).
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"Guaranteed Creditors" shall mean and include each of the
Administrative Agent, the Collateral Agent, each Lender and each party (other
than any Credit Party) party to an Interest Rate Protection Agreement or Other
Hedging Agreement with a Subsidiary of the US Borrower to the extent that such
party constitutes a Secured Creditor under the Security Documents.
"Guaranteed Obligations" shall mean (i) the principal and
interest on each Note issued by each Foreign Borrower to each Lender, and Loans
made to each Foreign Borrower, under this Agreement, together with all other
obligations (including obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due) and liabilities
(including, without limitation, indemnities, fees and interest thereon) of such
Foreign Borrower to such Lender, the Administrative Agent and the Collateral
Agent now existing or hereafter incurred under, arising out of or in connection
with this Agreement and each other Credit Document to which such Foreign
Borrower is a party and the due performance and compliance by such Foreign
Borrower with all the terms, conditions and agreements contained in this
Agreement and each such other Credit Document and (ii) all obligations
(including obligations which, but for the automatic stay under Section 362(a) of
the Bankruptcy Code, would become due) and liabilities of each Subsidiary of the
US Borrower owing under any Interest Rate Protection Agreement or Other Hedging
Agreement entered into with any Lender or any affiliate thereof (even if such
Lender subsequently ceases to be a Lender under this Agreement for any reason)
so long as such Lender or affiliate participates in such Interest Rate
Protection Agreement or Other Hedging Agreement, and their subsequent assigns,
if any, whether now in existence or hereafter arising, and the due performance
and compliance by each such Subsidiary with all terms, conditions and agreements
contained therein.
"Guarantor" shall mean each of the US Borrower and each
Subsidiary Guarantor.
"Guaranty" shall mean and include each of the Parent Guaranty
and each Subsidiaries Guaranty.
"Hazardous Materials" shall mean (a) any petroleum or
petroleum products, radioactive materials, asbestos in any form that is friable,
urea formaldehyde foam insulation, transformers or other equipment that contain
dielectric fluid containing levels of polychlorinated biphenyls, and radon gas;
(b) any chemicals, materials or substances defined as or included in the
definition of "hazardous substances," "hazardous waste," "hazardous materials,"
"extremely hazardous substances," "restricted hazardous waste," "toxic
substances," "toxic pollutants," "contaminants," or "pollutants," or words of
similar import, under any applicable Environmental Law; and (c) any other
chemical, material or substance, the Release of which is prohibited, limited or
regulated by any governmental authority.
"Indebtedness" shall mean, as to any Person, without
duplication, (i) all indebtedness (including principal, interest, fees and
charges) of such Person for borrowed money or for the deferred purchase price of
property or services, (ii) the maximum amount available to be drawn under all
letters of credit issued for the account of such Person and all unpaid drawings
in respect of such letters of credit, (iii) all Indebtedness of the types
described in clause (i), (ii), (iv),
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(v), (vi) or (vii) of this definition secured by any Lien on any property owned
by such Person, whether or not such Indebtedness has been assumed by such Person
(provided, that, if the Person has not assumed or otherwise become liable in
respect of such Indebtedness, such Indebtedness shall be deemed to be in an
amount equal to the fair market value of the property to which such Lien relates
as determined in good faith by such Person), (iv) the aggregate amount required
to be capitalized under leases under which such Person is the lessee, (v) all
obligations of such Person to pay a specified purchase price for goods or
services, whether or not delivered or accepted, i.e., take-or-pay and similar
obligations, (vi) all Contingent Obligations of such Person and (vii) all
obligations under any Interest Rate Protection Agreement, any Other Hedging
Agreement or under any similar type of agreement. Notwithstanding the foregoing,
Indebtedness shall not include trade payables and accrued expenses incurred by
any Person in accordance with customary practices and in the ordinary course of
business of such Person.
"Indebtedness to be Refinanced" shall mean all Indebtedness
set forth on Schedule IX.
"Independent Financial Advisor" shall mean a firm (i) which
does not, and whose directors, officers and employees or Affiliates do not, have
a direct or indirect financial interest in any Borrower and (ii) which, in the
judgment of the Board of Directors of the US Borrower, is otherwise independent
and qualified to perform the task for which it is to be engaged.
"Initial Foreign Credit Party" shall mean and include each of
the English Borrower, the Irish Borrower, SITEL Teleservices Canada Inc., a
Canadian corporation, SITEL Consulting Limited, an English company, Leiderman
and Roncoroni Limited, an English company, The Training Works Limited, an
English company, SITEL Kingston Limited, an English company, SITEL Moor Park
Limited, an English company, SITEL Stratford Limited, an English company, SITEL
UK Limited, an English company, B's Telemarketing Limited, an English company,
SITEL Kingston (Services) Limited, an English company, SITEL Moor Park
(Services) Limited, an English company, SITEL Stratford (Services) Limited, an
English company, SITEL Iberica Teleservices, S.A., a Spanish company, Teleaction
Hispanica, S.A., a Spanish company, Telepromotion S.A., a Spanish company, and
SITEL Belgium NV, a Belgian company.
"Intercompany Loan" shall have the meaning provided in Section
9.05(ix).
"Intercompany Note" shall mean a promissory note, in the form
of Exhibit L or such other form as may be reasonably acceptable to the
Administrative Agent, in either case evidencing Intercompany Loans.
"Interest Determination Date" shall mean, with respect to any
Euro Rate Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Euro Rate Loan.
"Interest Period" shall have the meaning provided in Section
1.09.
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"Interest Rate Protection Agreement" shall mean any interest
rate swap agreement, interest rate cap agreement, interest collar agreement,
interest rate hedging agreement or other similar agreement or arrangement.
"Investment Reference Date" shall have the meaning provided in
Section 9.05(xiv).
"Investments" shall have the meaning provided in Section 9.05.
"Irish Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Issuing Lender" shall mean BTCo and its affiliates (including
Deutsche Bank AG, New York Branch) and any other Lender which at the request of
the US Borrower and with the consent of the Administrative Agent agrees, in such
Lender's sole discretion, to become an Issuing Lender for the purpose of issuing
Letters of Credit pursuant to Section 2 (and/or any lending affiliate of the
foregoing Persons performing obligations on its behalf).
"Judgment Currency" shall have the meaning provided in Section
13.17(a).
"Judgment Currency Conversion Date" shall have the meaning
provided in Section 13.17(a).
"L/C Supportable Obligations" shall mean (i) obligations of
the US Borrower or any of its Subsidiaries with respect to workers compensation,
surety bonds and other similar statutory obligations, (ii) all Foreign
Subsidiary Third Party Borrowings and (iii) such other obligations of the US
Borrower or any of its Subsidiaries as are reasonably acceptable to the
respective Issuing Lender and otherwise permitted to exist pursuant to the terms
of this Agreement (other than obligations with respect to the Senior
Subordinated Notes).
"Leaseholds" of any Person shall mean all the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Lender" shall mean each financial institution listed on
Schedule I, as well as any Person which becomes a "Lender" hereunder pursuant to
Section 1.13 or 13.04(b).
"Lender Default" shall mean (i) the refusal (which has not
been retracted) or the failure of a Lender to make available its portion of any
Borrowing required to be made available by it hereunder (including any Mandatory
Borrowing) or to fund its portion of any unreimbursed payment under Section
2.04(c) or (ii) a Lender having notified in writing the Borrowers and/or the
Administrative Agent that such Lender does not intend to comply with its
obligations under Section 1.01(a), 1.01(c) or 2.04, in the case of either clause
(i) or (ii) as a result of any takeover or control (including, without
limitation, as a result of the occurrence of any event of the type described in
Section 10.05 with respect to such Lender) of such Lender by any regulatory
authority or agency.
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"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in
Section 3.01(b).
"Letter of Credit Outstandings" shall mean, at any time, the
sum of (i) the aggregate Stated Amount of all outstanding Letters of Credit at
such time and (ii) the amount of all Unpaid Drawings at such time.
"Letter of Credit Request" shall have the meaning provided in
Section 2.03(a).
"Leverage Ratio" shall mean, at any time, the ratio of
Consolidated Indebtedness at such time to Consolidated EBITDA for the Test
Period then most recently ended, provided that, for purposes of calculating the
Applicable Margin, the foregoing numerator shall instead be the sum of (I)
Consolidated Indebtedness (excluding Revolving Outstandings) at such time plus
(II) the average Revolving Outstandings for the then most recently ended fiscal
quarter of the US Borrower.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Loan" shall mean each Revolving Loan and each Swingline Loan.
"Local time" shall mean the local time in effect at (x) the
applicable Notice Office (in the case of Notices of Borrowing, Notices of
Conversion and Letter of Credit Requests) and (y) the applicable Payment Office
in the case of all payments and disbursements of Loans or Letters of Credit.
"Mandatory Borrowing" shall have the meaning provided in
Section 1.01(c).
"Mandatory Cost" shall mean, in relation to any Lender, the
sum of (a) any fees or other amounts payable by the relevant Lender in relation
to banking supervision by the Financial Services Authority, as determined in
accordance with Schedule VIII, and (b) the cost imputed to such Lender of
compliance with any reserve asset requirements of the European Central Bank (in
each case, without duplication of any other amounts required to be reimbursed to
such Lender pursuant to any other provision of this Agreement).
"Margin Reduction Period" shall mean each period which shall
commence on the date occurring after the Effective Date upon which the
respective officer's certificate is delivered pursuant to Section 8.01(e) and
which shall end on the date of actual delivery of the next officer's
certificates pursuant to Section 8.01(e) or the latest date on which such next
officer's certificate is required to be so delivered.
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"Margin Stock" shall have the meaning provided in Regulation
U.
"Maximum Swingline Amount" shall mean $10,000,000.
"Minimum Borrowing Amount" shall mean (i) with respect to
Revolving Loans maintained as Euro Rate Loans, $1,000,000 (or the Euro
Equivalent or the Sterling Equivalent, as the case may be), (ii) with respect to
Revolving Loans maintained as Base Rate Loans, $500,000, and (iii) with respect
to Swingline Loans, $250,000.
"NAIC" shall mean the National Association of Insurance
Commissioners.
"Net Debt Proceeds" shall mean, with respect to any incurrence
of Indebtedness for borrowed money, the cash proceeds (net of underwriting
discounts and commissions and other reasonable costs associated therewith)
received by the respective Person from the respective incurrence of such
Indebtedness for borrowed money.
"Net Equity Proceeds" shall mean, with respect to each
issuance or sale of any equity by any Person or any capital contribution to such
Person, the cash proceeds (net of underwriting discounts and commissions and
other costs associated therewith) received by such Person from the respective
sale or issuance of its equity or from the respective capital contribution.
"Net Insurance Proceeds" shall mean, with respect to any
Recovery Event, the cash proceeds (net of reasonable costs and taxes incurred in
connection with such Recovery Event) received by the respective Person in
connection with the respective Recovery Event.
"Net Sale Proceeds" shall mean, for any Asset Sale, the gross
cash proceeds (including any cash received by way of deferred payment pursuant
to a promissory note, receivable or otherwise, but only as and when received)
received from such Asset Sale, net of the reasonable costs of such sale
(including fees and commissions, payments of unassumed liabilities relating to
the assets sold and required payments of any Indebtedness (other than
Indebtedness which is secured under the Security Documents) which is secured by
the respective assets which were sold), and the incremental taxes paid or
payable as a result of such Asset Sale.
"Non-Defaulting Lender" shall mean and include each Lender
other than a Defaulting Lender.
"Note" shall mean each Revolving Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03(a).
"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean (i) except as provided in clause
(ii) below, the office of Bankers Trust Company, as Administrative Agent,
located at One Bankers Trust Plaza, New York, New York 10006, with a copy to
Bankers Trust Company, 1 Appold Street, Broadgate, London EC2A HE, Attention:
Loans Agency Department - Liz Keegan, or such other office or offices as the
Administrative Agent may designate to the Borrowers and the Lenders
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from time to time, and (ii) in the case of Foreign Currency Loans, the office of
Bankers Trust Company, 1 Appold Street, Broadgate, London EC2A HE, Attention:
Loans Agency Department - Liz Keegan, with a copy to Bankers Trust Company at
One Bankers Trust Company, New York, New York 10006, or such other office or
offices as the Administrative Agent may designate to the Borrowers and the
Lenders from time to time.
"Obligation Currency" shall have the meaning provided in
Section 13.17(a).
"Obligations" shall mean all amounts owing to the
Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender
pursuant to the terms of this Agreement or any other Credit Document.
"Other Hedging Agreement" shall mean any foreign exchange
contracts, currency swap agreements, commodity agreements or other similar
agreements or arrangements designed to protect against the fluctuations in
currency values.
"Parent Guaranty" shall mean the guaranty of the US Borrower
pursuant to Section 14.
"Participant" shall have the meaning provided in Section
2.04(a).
"Payment Office" shall mean (i) except as provided in clause
(ii) below, the office of the Administrative Agent located at One Bankers Trust
Plaza, New York, New York 10006 or such other office as the Administrative Agent
may designate to the Borrowers and the Lenders from time to time, and (ii) in
the case of Foreign Currency Loans, the office of Bankers Trust Company, located
at 1 Appold Street, Broadgate, London EC2A HE, or such other office or offices
as the Administrative Agent may designate to the Borrowers and the Lenders from
time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Percentage" of any Lender at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Lender at such time and the denominator of which is the Total
Revolving Loan Commitment at such time, provided that if the Percentage of any
Lender is to be determined after the Total Revolving Loan Commitment has been
terminated, then the Percentages of the Lenders shall be determined immediately
prior (and without giving effect) to such termination.
"Permitted Acquisition" shall mean the negotiated acquisition
by the US Borrower or a Wholly-Owned Subsidiary thereof of assets constituting a
business, division or product line of any Person not already a Subsidiary of the
US Borrower or of 100% of the capital stock or other equity interests of any
such Person (including by way of merger and including by purchasing the
remaining portion of the capital stock of any Person in which the US Borrower or
a Wholly-Owned Subsidiary already has an ownership interest and as a result of
which such Person shall become a Wholly-Owned Subsidiary of the US Borrower),
which Person shall, as a
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result of such stock or other equity acquisition, become a Wholly-Owned
Subsidiary of the US Borrower (or shall be merged with and into a Wholly-Owned
Subsidiary of the US Borrower) (such assets or Person are referred to as an
"Acquired Entity or Business"), provided that (in each case) (A) the
consideration paid by the US Borrower or such Wholly-Owned Subsidiary consists
solely of cash (including proceeds of Loans), the issuance or incurrence of
Indebtedness otherwise permitted by Section 9.04, the issuance of common stock
of the US Borrower or Qualified Preferred Stock of the US Borrower to the extent
no Default or Event of Default exists pursuant to Section 10.10 or would result
therefrom and the assumption/ acquisition of any Indebtedness (calculated at
face value) which is permitted to remain outstanding in accordance with the
requirements of Section 9.04, (B) in the case of the acquisition of 100% of the
capital stock or other equity interests of any Person (including by way of
merger and including by purchasing the remaining portion of the capital stock of
any Person in which the US Borrower or a Wholly-Owned Subsidiary already has an
ownership interest and as a result of which such Person shall become a
Wholly-Owned Subsidiary of the US Borrower), such Person shall own no capital
stock or other equity interests of any other Person (other than de minimis
amounts) unless either (x) such Person owns 100% of the capital stock or other
equity interests of such other Person or (y) (1) such Person and/or its
Wholly-Owned Subsidiaries own at least 75% of the consolidated assets of such
Person and its Subsidiaries and (2) any non-Wholly Owned Subsidiary or other
non-wholly owned equity interest of such Person was non-Wholly Owned prior to
the date of such Permitted Acquisition of such Person, (C) the Acquired Entity
or Business acquired pursuant to the respective Permitted Acquisition is in a
business permitted by Section 9.14 and (D) all applicable requirements of
Sections 8.14, 9.02 and 9.15 applicable to Permitted Acquisitions are satisfied.
Notwithstanding anything to the contrary contained in the immediately preceding
sentence, an acquisition which does not otherwise meet the requirements set
forth above in the definition of "Permitted Acquisition" shall constitute a
Permitted Acquisition if, and to the extent, the Required Lenders agree in
writing, prior to the consummation thereof, that such acquisition shall
constitute a Permitted Acquisition for purposes of this Agreement.
"Permitted Liens" shall have the meaning provided in Section
9.01.
"Person" shall mean any individual, partnership, joint
venture, firm, corporation, association, limited liability company, trust or
other enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" shall mean any pension plan as defined in Section 3(2)
of ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) the US Borrower or a Subsidiary of the US Borrower
or an ERISA Affiliate, and each such plan for the five year period immediately
following the latest date on which the US Borrower, or a Subsidiary of the US
Borrower or an ERISA Affiliate maintained, contributed to or had an obligation
to contribute to such plan.
"Pledge Agreement Collateral" shall mean all "Collateral" as
defined in, or in which a security interest has been granted pursuant to, any
Pledge Agreement.
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"Pledge Agreements" shall have the meaning provided in Section
5.08.
"Pounds Sterling" shall mean freely transferable lawful money
of the United Kingdom.
"Prime Lending Rate" shall mean the rate which BTCo announces
from time to time as its prime lending rate, the Prime Lending Rate to change
when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. BTCo may make commercial loans or other loans
at rates of interest at, above or below the Prime Lending Rate.
"Principal Amount" shall mean (i) the stated amount of each
Swingline Loan, (ii) the stated amount of each Revolving Loan denominated in
Dollars, and/or (iii) the Dollar Equivalent of the stated amount of each Foreign
Currency Loan, as the context may require.
"Pro Forma Basis" shall mean, in connection with any
calculation of compliance with any financial covenant or financial term, the
calculation thereof after giving effect on a pro forma basis to (x) the
incurrence of any Indebtedness after the first day of the relevant Calculation
Period as if such Indebtedness had been incurred (and the proceeds thereof
applied) on the first day of the relevant Calculation Period, (y) the permanent
repayment of any Indebtedness after the first day of the relevant Calculation
Period as if such Indebtedness had been retired or redeemed on the first day of
the relevant Calculation Period and (z) the Permitted Acquisition or Designated
Investment, if any, then being consummated as well as any other Permitted
Acquisition or Designated Investment consummated after the first day of the
relevant Calculation Period and on or prior to the date of the respective
Permitted Acquisition or Designated Investment then being effected, with the
following rules to apply in connection therewith:
(i) all Indebtedness (x) incurred or issued after the first day
of the relevant Calculation Period (whether incurred to finance a
Permitted Acquisition or a Designated Investment, to refinance
Indebtedness or otherwise) shall be deemed to have been incurred or
issued (and the proceeds thereof applied) on the first day of the
respective Calculation Period and remain outstanding through the date
of determination and (y) permanently retired or redeemed after the
first day of the relevant Calculation Period shall be deemed to have
been retired or redeemed on the first day of the respective Calculation
Period and remain retired through the date of determination;
(ii) all Indebtedness assumed to be outstanding pursuant to
preceding clause (i) shall be deemed to have borne interest at (x) the
rate applicable thereto, in the case of fixed rate indebtedness or (y)
the rates which would have been applicable thereto during the
respective period when same was deemed outstanding, in the case of
floating rate Indebtedness (although interest expense with respect to
any Indebtedness for periods while same was actually outstanding during
the respective period shall be calculated using the actual rates
applicable thereto while same was actually outstanding); and
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(iii) in making any determination of Consolidated EBITDA, the US
Borrower may not take into account any pro forma cost savings or
expenses expected to be realized as part of any Permitted Acquisition
or Designated Investment, whether or not same would otherwise be
permitted to be accounted for as an adjustment pursuant to Article 11
of Regulation S-X under the Securities Act.
"Projections" shall mean the projections which were prepared
by the US Borrower for the period ending on December 31, 2004 and which were
delivered to the Lenders on or about March 15, 2000.
"Qualified Preferred Stock" shall mean any preferred stock of
the US Borrower so long as the terms of any such preferred stock (i) do not
contain any mandatory put, redemption, repayment, sinking fund or other similar
provision occurring before December 31, 2006, (ii) do not require the cash
payment of dividends, (iii) do not contain any covenants, and (iv) are otherwise
reasonably satisfactory to the Administrative Agent.
"Quarterly Payment Date" shall mean the last Business Day of
each September, December, March and June occurring after the Effective Date.
"RCRA" shall mean the Resource Conservation and Recovery Act,
as the same may be amended from time to time, 42 U.S.C. ss. 6901 et seq.
"Real Property" of any Person shall mean all the right, title
and interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recovery Event" shall mean the receipt by the US Borrower or
any of its Subsidiaries of any cash insurance proceeds or condemnation awards
payable (i) by reason of theft, loss, physical destruction, damage, taking or
any other similar event with respect to any property or assets of the US
Borrower or any of its Subsidiaries and (ii) under any policy of insurance
required to be maintained under Section 8.03.
"Register" shall have the meaning provided in Section 13.15.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
"Regulation T" shall mean Regulation T of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
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"Release" shall mean the disposing, discharging, injecting,
spilling, pumping, leaking, leaching, dumping, emitting, escaping, emptying,
pouring or migrating, into or upon any land or water or air, or otherwise
entering into the environment.
"Relevant Currency Equivalent" shall mean the Dollar
Equivalent, the Euro Equivalent or the Sterling Equivalent, as the case may be.
"Replaced Lender" shall have the meaning provided in Section
1.13.
"Replacement Lender" shall have the meaning provided in
Section 1.13.
"Reportable Event" shall mean an event described in Section
4043(c) of ERISA with respect to a Plan that is subject to Title IV of ERISA
other than those events as to which the 30-day notice period is waived under
subsection .22, .23, .25, .27 or .28 of PBGC Regulation Section 4043.
"Required Lenders" shall mean Non-Defaulting Lenders the sum
of whose Revolving Loan Commitments (or after the termination thereof,
outstanding Revolving Loans and Percentages of outstanding Swingline Loans and
Letter of Credit Outstandings) represent an amount greater than 50% of the sum
of the Total Revolving Loan Commitment less the Revolving Loan Commitments of
all Defaulting Lenders (or after the termination thereof, the sum of the then
total outstanding Revolving Loans of Non-Defaulting Lenders and the aggregate
Percentages of Non-Defaulting Lenders of the total outstanding Swingline Loans
and Letter of Credit Outstandings at such time).
"Restricted Payment" shall mean (a) any authorization,
declaration or payment of any Dividends with respect to the US Borrower or any
of its Subsidiaries, or (b) the making (or the giving of any notice in respect
thereof) by the US Borrower or any of its Subsidiaries of any voluntary,
optional or mandatory payment or prepayment on or redemption or acquisition for
value of (including, without limitation, by way of depositing with the trustee
with respect thereto money or securities before due for the purpose of paying
when due) any of the Senior Subordinated Notes.
"Restricted Payment Reference Date" shall have the meaning
provided in Section 9.03(iii).
"Revolving Loan" shall have the meaning provided in Section
1.01(a).
"Revolving Loan Commitment" shall mean, for each Lender, the
amount set forth opposite such Lender's name in Schedule I directly below the
column entitled "Revolving Loan Commitment," as same may be (x) reduced from
time to time pursuant to Sections 3.02, 3.03 and/or 10, (y) increased from time
to time pursuant to Section 3.04 or (z) adjusted from time to time as a result
of assignments to or from such Lender pursuant to Section 1.13 or 13.04(b).
"Revolving Note" shall have the meaning provided in Section
1.05(a).
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"Revolving Outstandings" shall mean, at any time, the sum of
the aggregate principal amount of all Revolving Loans and Swingline Loans then
outstanding plus the aggregate amount of all Letter of Credit Outstandings at
such time.
"SEC" shall have the meaning provided in Section 8.01(g).
"Section 4.04(b)(ii) Certificate" shall have the meaning
provided in Section 4.04(b)(ii).
"Secured Creditors" shall have the meaning assigned that term
in the Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Securities Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.
"Security Agreements" shall have the meaning provided in
Section 5.09.
"Security Agreement Collateral" shall mean all "Collateral" as
defined in, or in which a security interest has been granted pursuant to, any
Security Agreement.
"Security Document" shall mean and include each of the
Security Agreements, the Pledge Agreements and the Additional Security and
Guaranty Documents.
"Senior Financial Officer" of the US Borrower shall mean any
of the chief financial officer, treasurer or corporate controller of the US
Borrower.
"Senior Subordinated Note Documents" shall mean the Senior
Subordinated Note Indenture, the Senior Subordinated Notes and each other
document or agreement relating to the issuance of the Senior Subordinated Notes.
"Senior Subordinated Note Indenture" shall mean the Indenture,
dated as of March 10, 1998 by and among the US Borrower, the Subsidiary
Guarantors party thereto and The First National Bank of Maryland, as trustee.
"Senior Subordinated Notes" shall mean the US Borrower's
9-1/4% Senior Subordinated Notes due 2006.
"Start Date" shall mean, with respect to any Margin Reduction
Period, the first day of such Margin Reduction Period.
"Stated Amount" of each Letter of Credit shall mean, at any
time, the maximum amount available to be drawn thereunder (in each case
determined without regard to whether any conditions to drawing could then be
met); provided that the "Stated Amount" of each Letter of Credit denominated in
a currency other than Dollars shall be, on any date of calculation, the
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Dollar Equivalent of the maximum amount available to be drawn in the respective
currency thereunder (determined without regard to whether any conditions to
drawing could then be met).
"Sterling Equivalent" shall mean, at any time for the
determination thereof, the amount of Pounds Sterling which could be purchased
with the amount of Dollars involved in such computation at the spot exchange
rate therefor as quoted by the Administrative Agent as of 11:00 A.M. (London
time) on the date two Business Days prior to the date of any determination
thereof for purchase on such date (or, in the case of any determination pursuant
to Section 29 of the Foreign Subsidiaries Guaranty, on the date of
determination).
"Sterling LIBOR" shall mean, with respect to each Interest
Period for any Foreign Currency Loan denominated in Pounds Sterling, (i) the
rate per annum that appears on page 3750 of the Dow Jones Telerate Screen (or
any successor page) for Pounds Sterling deposits with maturities comparable to
the Interest Period applicable to the Foreign Currency Loans subject to the
respective Interest Period as of 11:00 a.m. (London time) on the date which
occurs two Business Days prior to the date of the proposed commencement of such
Interest Period or (ii) if such a rate does not appear on page 3750 of the Dow
Jones Telerate Screen (or any successor page), the offered quotation to
first-class banks in the London interbank market by the Administrative Agent for
Pounds Sterling deposits of amounts in immediately available funds comparable to
the principal amount of the Foreign Currency Loan to be made by the
Administrative Agent as part of such Borrowing with maturities comparable to the
Interest Period applicable to such Foreign Currency Loan as of 11:00 a.m.
(London time) on the date which occurs two Business Days prior to the date of
the proposed commencement of such Interest Period, provided that in the event
the Administrative Agent has made any determination pursuant to Section
1.10(a)(i) in respect of Foreign Currency Loans denominated in Pounds Sterling,
or in the circumstances described in clause (i) to the proviso to Section
1.10(b) in respect of Foreign Currency Loans denominated in Pounds Sterling,
Sterling LIBOR determined pursuant to this definition shall instead be the rate
determined by the Administrative Agent as the all-in-cost of funds for the
Administrative Agent to fund such Foreign Currency Loan with maturities
comparable to the Interest Period applicable thereto.
"Subsidiaries Guaranty" shall mean each of the US Subsidiaries
Guaranty, the Foreign Subsidiaries Guaranty and each Additional Security and
Guaranty Document.
"Subsidiary" shall mean, as to any Person, (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person and/or
one or more Subsidiaries of such Person has more than a 50% equity interest at
the time; provided that Grupo SITEL de Mexico, S.A. de C.V. shall be considered
a Subsidiary of the US Borrower under this Agreement so long as the US Borrower
or a Wholly Owned Subsidiary thereof owns at least 49% of the equity interest
thereof and controls the Board of Directors of such Person.
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"Subsidiary Guarantor" shall mean (i) each Wholly-Owned
Domestic Subsidiary of the US Borrower, (ii) each Initial Foreign Credit Party
in its capacity as a guarantor and (iii) each other Wholly-Owned Foreign
Subsidiary of the US Borrower required to execute a counterpart of any
Subsidiaries Guaranty pursuant to the terms of this Agreement.
"Swingline Lender" shall mean BTCo.
"Swingline Expiry Date" shall mean that date which is five
Business Days prior to the Final Maturity Date.
"Swingline Loan" shall have the meaning provided in Section
1.01(b).
"Swingline Note" shall have the meaning provided in Section
1.05(a).
"Taxes" shall have the meaning provided in Section 4.04(a).
"Test Date" shall mean, with respect to any Start Date, the
last day of the most recent fiscal quarter of the US Borrower ended immediately
prior to such Start Date.
"Test Period" shall mean, at any time, each period of four
consecutive fiscal quarters of the US Borrower then last ended (in each case
taken as one accounting period).
"Total Revolving Loan Commitment" shall mean, at any time, the
sum of the Revolving Loan Commitments of each of the Lenders.
"Total Unutilized Revolving Loan Commitment" shall mean, at
any time, an amount equal to the remainder of (x) the Total Revolving Loan
Commitment then in effect less (y) the sum of the aggregate Principal Amount of
all Revolving Loans and Swingline Loans then outstanding plus the then aggregate
amount of all Letter of Credit Outstandings.
"Type" shall mean (i) in the case of a Dollar Loan, the type
of such Dollar Loan determined with regard to the interest option applicable
thereto, i.e., whether a Base Rate Loan or a Eurodollar Loan, and (ii) in the
case of a Foreign Currency Loan, the Approved Currency of such Foreign Currency
Loan.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the
amount, if any, by which the actuarial present value of the accumulated plan
benefits under the Plan as of the close of its most recent plan year, determined
in accordance with actuarial assumptions at such time consistent with Statement
of Financial Accounting Standards No. 87, exceeds the market value of the assets
allocable thereto.
"United States" and "U.S." shall each mean the United States
of America.
"Unpaid Drawing" shall have the meaning provided for in
Section 2.05(a).
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"Unutilized Revolving Loan Commitment" shall mean, with
respect to any Lender at any time, such Lender's Revolving Loan Commitment at
such time less the sum of (i) the aggregate outstanding Principal Amount of all
Revolving Loans made by such Lender at such time and (ii) such Lender's
Percentage of the Letter of Credit Outstandings at such time.
"US Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"US Credit Party" shall mean each of the US Borrower and each
Subsidiary Guarantor that is also a Wholly-Owned Domestic Subsidiary.
"US Subsidiaries Guaranty" shall have the meaning provided in
Section 5.10(a).
"Wholly-Owned Domestic Subsidiary" shall mean each Domestic
Subsidiary of the US Borrower that is also a Wholly-Owned Subsidiary of the US
Borrower.
"Wholly-Owned Foreign Subsidiary" shall mean each Foreign
Subsidiary of the US Borrower that is also a Wholly-Owned Subsidiary of the US
Borrower.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i)
any corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, limited liability company,
association, joint venture or other entity in which such Person and/or one or
more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such
time.
SECTION 12. The Administrative Agent.
12.01 Appointment. The Lenders hereby irrevocably designate
BTCo as Administrative Agent (for purposes of this Section 12, the term
"Administrative Agent" also shall include BTCo in its capacity as Collateral
Agent pursuant to the Security Documents and any lending affiliate of BTCo
performing any of the duties or functions of the Administrative Agent hereunder
or under any other Credit Document) to act as specified herein and in the other
Credit Documents. Each Lender hereby irrevocably authorizes, and each holder of
any Note by the acceptance of such Note shall be deemed irrevocably to
authorize, the Administrative Agent to take such action on their behalf under
the provisions of this Agreement, the other Credit Documents and any other
instruments and agreements referred to herein or therein and to exercise such
powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Administrative Agent by the terms hereof and
thereof and such other powers as are reasonably incidental thereto (including,
without limitation, acting on behalf of and for the account of each Lender and
each holder of any Note, in the creation, execution, perfection, delivery and
enforcement of the Security Documents). The Administrative Agent may perform any
of its duties hereunder by or through its officers, directors, agents, employees
or affiliates.
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12.02 Nature of Duties. The Administrative Agent shall not
have any duties or responsibilities except those expressly set forth in this
Agreement and in the other Credit Documents. Neither the Administrative Agent
nor any of its officers, directors, agents, employees or affiliates shall be
liable for any action taken or omitted by them hereunder or under any other
Credit Document or in connection herewith or therewith, unless caused by its or
their gross negligence or willful misconduct (as determined by a court of
competent jurisdiction in a final and non-appealable decision). The duties of
the Administrative Agent shall be mechanical and administrative in nature; the
Administrative Agent shall not have by reason of this Agreement or any other
Credit Document a fiduciary relationship in respect of any Lender or the holder
of any Note; and nothing in this Agreement or any other Credit Document,
expressed or implied, is intended to or shall be so construed as to impose upon
the Administrative Agent any obligations in respect of this Agreement or any
other Credit Document except as expressly set forth herein or therein.
12.03 Lack of Reliance on the Administrative Agent.
Independently and without reliance upon the Administrative Agent, each Lender
and the holder of each Note, to the extent it deemed or deems appropriate, has
made and shall continue to make (i) its own independent investigation of the
financial condition and affairs of the US Borrower and its Subsidiaries in
connection with the making and the continuance of the Loans and the taking or
not taking of any action in connection herewith and (ii) its own appraisal of
the creditworthiness of the US Borrower and its Subsidiaries and, except as
expressly provided in this Agreement, the Administrative Agent shall not have
any duty or responsibility, either initially or on a continuing basis, to
provide any Lender or the holder of any Note with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Loans or at any time or times thereafter. The Administrative Agent
shall not be responsible to any Lender or the holder of any Note for any
recitals, statements, information, representations or warranties herein or in
any document, certificate or other writing delivered in connection herewith or
for the execution, effectiveness, genuineness, validity, enforceability,
perfection, collectability, priority or sufficiency of this Agreement or any
other Credit Document or the financial condition of the US Borrower or any of
its Subsidiaries or be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of this
Agreement or any other Credit Document, or the financial condition of the US
Borrower or any of its Subsidiaries or the existence or possible existence of
any Default or Event of Default.
12.04 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Lenders or all
of the Lenders, as applicable, with respect to any act or action (including
failure to act) in connection with this Agreement or any other Credit Document,
the Administrative Agent shall be entitled to refrain from such act or taking
such action unless and until the Administrative Agent shall have received
instructions from the Required Lenders or all of the Lenders, as applicable; and
the Administrative Agent shall not incur liability to any Lender by reason of so
refraining. Without limiting the foregoing, no Lender or the holder of any Note
shall have any right of action whatsoever against the Administrative Agent as a
result of the Administrative Agent acting or refraining from acting hereunder or
under any other Credit Document in accordance with the instructions of the
Required Lenders or all of the Lenders, as applicable.
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12.05 Reliance. The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by any Person that the Administrative Agent believed to be
the proper Person, and, with respect to all legal matters pertaining to this
Agreement and any other Credit Document and its duties hereunder and thereunder,
upon advice of counsel selected by the Administrative Agent.
12.06 Indemnification. To the extent the Administrative Agent
is not reimbursed and indemnified by the US Borrower or any of the Subsidiary
Guarantors, the Lenders will reimburse and indemnify the Administrative Agent in
proportion to their respective "percentage" as used in determining the Required
Lenders for and against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, judgments, costs, expenses or disbursements of
whatsoever kind or nature which may be imposed on, asserted against or incurred
by the Administrative Agent in performing its duties hereunder or under any
other Credit Document or in any way relating to or arising out of this Agreement
or any other Credit Document; provided that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct (as determined by
a court of competent jurisdiction in a final non-appealable decision).
12.07 The Administrative Agent in its Individual Capacity.
With respect to its obligation to make Loans, or issue or participate in Letters
of Credit, under this Agreement, the Administrative Agent shall have the rights
and powers specified herein for a "Lender" and may exercise the same rights and
powers as though it were not performing the duties specified herein; and the
term "Lenders," "Required Lenders," "holders of Notes" or any similar terms
shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative Agent and
its affiliates may accept deposits from, lend money to, and generally engage in
any kind of banking, investment banking, trust or other business with, or
provide debt financing, equity capital or other services (including financial
advisory services) to, any Credit Party or any Affiliate of any Credit Party (or
any Person engaged in a similar business with any Credit Party or any Affiliate
thereof) as if they were not performing the duties specified herein, and may
accept fees and other consideration from any Credit Party or any Affiliate of
any Credit Party for services in connection with this Agreement and otherwise
without having to account for the same to the Lenders.
12.08 Holders. The Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes hereof unless and until
a written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. 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, assignee or indorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
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12.09 Resignation by the Administrative Agent. (a) The
Administrative Agent may resign from the performance of all its respective
functions and duties hereunder and/or under the other Credit Documents at any
time by giving 60 days' prior written notice to the Borrowers and the Lenders.
Such resignation shall take effect upon the appointment of a successor
Administrative Agent pursuant to clauses (b) and (c) below or as otherwise
provided below.
(b) Upon any such notice of resignation by the Administrative
Agent, the Required Lenders shall appoint a successor Administrative Agent
hereunder or thereunder who shall be a commercial bank or trust company
reasonably acceptable to the Borrowers, which acceptance shall not be
unreasonably withheld or delayed (provided that the Borrowers' approval shall
not be required if an Event of Default then exists).
(c) If a successor Administrative Agent shall not have been so
appointed within such 60 day period, the Administrative Agent with the consent
of the Borrowers (which consent shall not be unreasonably withheld or delayed,
provided that the Borrowers' consent shall not be required if an Event of
Default then exists), shall then appoint a successor Administrative Agent who
shall serve as Administrative Agent hereunder or thereunder until such time, if
any, as the Required Lenders appoint a successor Administrative Agent as
provided above.
(d) If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) above by the 65th day after the date such notice
of resignation was given by the Administrative Agent, the Administrative Agent's
resignation shall become effective and the Required Lenders shall thereafter
perform all the duties of the Administrative Agent hereunder and/or under any
other Credit Document until such time, if any, as the Required Lenders appoint a
successor Administrative Agent as provided above.
12.10 Syndication and Documentation Agents. Notwithstanding
any other provision hereof, each of Bank of America, N.A., as syndication agent
and First Union National Bank, as documentation agent, in their respective
capacities as such, shall have no duties or responsibilities under the Credit
Documents and shall incur no liability under this Agreement or the other Credit
Documents in such capacities.
SECTION 13. Miscellaneous.
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13.01 Payment of Expenses, etc. The Borrowers, jointly and
severally, agree to: (i) whether or not the transactions herein contemplated are
consummated, pay all reasonable out-of-pocket costs and expenses of the
Administrative Agent (including, without limitation, the reasonable fees and
disbursements of White & Case LLP and other counsel to the Administrative Agent)
in connection with the preparation, execution and delivery of this Agreement and
the other Credit Documents and the documents and instruments referred to herein
and therein and any amendment, waiver or consent relating hereto or thereto, of
the Administrative Agent in connection with its syndication efforts with respect
to this Agreement and of the Administrative Agent and, after the occurrence of
an Event of Default, each of the Lenders in connection with the enforcement of
this Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein or in connection with any refinancing or
restructuring of the credit arrangements provided under this Agreement in the
nature of a "work-out" or
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pursuant to any insolvency or bankruptcy proceedings (including, in each case
without limitation, the reasonable fees and disbursements of counsel and
consultants for the Administrative Agent and, after the occurrence of an Event
of Default, counsel for each of the Lenders); (ii) pay and hold the
Administrative Agent, each of the Issuing Lenders and each of the Lenders
harmless from and against any and all present and future stamp, excise and other
similar documentary taxes with respect to the foregoing matters and save each of
the Administrative Agent, each of the Issuing Lenders and each of the Lenders
harmless from and against any and all liabilities with respect to or resulting
from any delay or omission (other than to the extent attributable to the
Administrative Agent, such Issuing Lender or such Lender) to pay such taxes; and
(iii) indemnify the Administrative Agent, each Issuing Lender and each Lender,
and each of their respective officers, directors, employees, representatives,
agents and affiliates from and hold each of them harmless against any and all
liabilities, obligations (including removal or remedial actions), losses,
damages, penalties, claims, actions, judgments, suits, costs, expenses and
disbursements (including reasonable attorneys' and consultants' fees and
disbursements) incurred by, imposed on or assessed against any of them as a
result of, or arising out of, or in any way related to, or by reason of, (a) any
investigation, litigation or other proceeding (whether or not the Administrative
Agent, any Issuing Lender or any Lender is a party thereto and whether or not
such investigation, litigation or other proceeding is brought by or on behalf of
any Credit Party) related to the entering into and/or performance of this
Agreement or any other Credit Document or the use of any Letter of Credit or the
proceeds of any Loans hereunder or the consummation of any of the transactions
contemplated herein or in any other Credit Document or the exercise of any of
their rights or remedies provided herein or in the other Credit Documents, or
(b) the actual or alleged presence of Hazardous Materials in the air, surface
water or groundwater or on the surface or subsurface of any Real Property owned,
leased or at any time operated by the US Borrower or any of its Subsidiaries,
the generation, storage, transportation, handling or disposal of Hazardous
Materials by the US Borrower or any of its Subsidiaries at any location, whether
or not owned, leased or operated by the US Borrower or any of its Subsidiaries,
the non-compliance of any Real Property with foreign, federal, state and local
laws, regulations, and ordinances (including applicable permits thereunder)
applicable to any Real Property, or any Environmental Claim asserted against the
US Borrower, any of its Subsidiaries or any Real Property owned, leased or at
any time operated by the US Borrower or any of its Subsidiaries, including, in
each case, without limitation, the reasonable fees and disbursements of counsel
and other consultants incurred in connection with any such investigation,
litigation or other proceeding (but excluding any losses, liabilities, claims,
damages or expenses to the extent incurred by reason of the gross negligence,
bad faith or willful misconduct of the Person to be indemnified (as determined
by a court of competent jurisdiction in a final and non-appealable decision)).
To the extent that the undertaking to indemnify, pay or hold harmless the
Administrative Agent, any Issuing Lender or any Lender set forth in the
preceding sentence may be unenforceable because it is violative of any law or
public policy, the Borrowers shall make the maximum contribution to the payment
and satisfaction of each of the indemnified liabilities which is permissible
under applicable law.
13.02 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
an Event of Default, each Lender is hereby authorized at any time
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or from time to time, without presentment, demand, protest or other notice of
any kind to any Credit Party or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and apply any and all
deposits (general or special) and any other Indebtedness at any time held or
owing by such Lender (including, without limitation, by branches and agencies of
such Lender wherever located) to or for the credit or the account of any Credit
Party against and on account of the Obligations and liabilities of the Credit
Parties to such Lender under this Agreement or under any of the other Credit
Documents, including, without limitation, all interests in Obligations purchased
by such Lender pursuant to Section 13.06(b), and all other claims of any nature
or description arising out of or connected with this Agreement or any other
Credit Document, irrespective of whether or not such Lender shall have made any
demand hereunder and although said Obligations, liabilities or claims, or any of
them, shall be contingent or unmatured.
13.03 Notices. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: if to any Credit Party,
at the address specified opposite its signature below or in the other relevant
Credit Documents (in each case with a copy to the US Borrower); if to the
Lender, at its address specified on Schedule II; and if to the Administrative
Agent, at the Notice Office; or, as to any Credit Party or the Administrative
Agent, at such other address as shall be designated by such party in a written
notice to the other parties hereto and, as to each Lender, at such other address
as shall be designated by such Lender in a written notice to the Borrower and
the Administrative Agent. All such notices and communications shall, when
mailed, telegraphed, telexed, telecopied, or cabled or sent by overnight
courier, be effective when deposited in the mails, delivered to the telegraph
company, cable company or overnight courier, as the case may be, or sent by
telex or telecopier, except that notices and communications to the
Administrative Agent and any Borrower shall not be effective until received by
the Administrative Agent or such Borrower, as the case may be.
13.04 Benefit of Agreement; Assignments; Participations. (a)
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto;
provided, however, no Credit Party may assign or transfer any of its rights,
obligations or interest hereunder without the prior written consent of each of
the Lenders and, provided further, that, although any Lender may transfer,
assign or grant participations in its rights hereunder, such Lender shall remain
a "Lender" for all purposes hereunder (and may not transfer or assign all or any
portion of its Revolving Loan Commitment hereunder except as provided in
Sections 1.13 and 13.04(b)) and the transferee, assignee or participant, as the
case may be, shall not constitute a "Lender" hereunder and, provided further,
that no Lender shall transfer or grant any participation under which the
participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Credit Document except to the extent such amendment or
waiver would (i) extend the final scheduled maturity of any Revolving Loan, Note
or Letter of Credit (unless such Letter of Credit is not extended beyond the
Final Maturity Date) in which such participant is participating, or reduce the
rate or extend the time of payment of interest or Fees thereon (except in
connection with a waiver of applicability of any post-default increase in
interest rates) or reduce the principal amount thereof
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(it being understood that any amendment or modification to the financial
definitions in this Agreement or to Section 13.07(a) shall not constitute a
reduction in the rate of interest or Fees payable hereunder), or increase the
amount of the participant's participation over the amount thereof then in effect
(it being understood that a waiver of any Default or Event of Default or of a
mandatory reduction in the Total Revolving Loan Commitment shall not constitute
a change in the terms of such participation, and that an increase in any
Revolving Loan Commitment or Revolving Loan shall be permitted without the
consent of any participant if the participant's participation is not increased
as a result thereof), (ii) consent to the assignment or transfer by any Borrower
of any of its rights and obligations under this Agreement or (iii) release all
or substantially all of the Collateral (except as expressly provided in the
Credit Documents) supporting the Loans hereunder in which such participant is
participating. In the case of any such participation, the participant shall not
have any rights under this Agreement or any of the other Credit Documents (the
participant's rights against such Lender in respect of such participation to be
those set forth in the agreement executed by such Lender in favor of the
participant relating thereto) and all amounts payable by the Borrowers hereunder
shall be determined as if such Lender had not sold such participation.
(b) Notwithstanding the foregoing, any Lender (or any Lender
together with one or more other Lenders) may (x) assign all or a portion of its
Revolving Loan Commitment and related outstanding Obligations hereunder to (i)
its parent company and/or any affiliate of such Lender which is at least 50%
owned by such Lender or its parent company or to one or more Lenders or (ii) in
the case of any Lender that is a fund that invests in bank loans, any other fund
that invests in bank loans and is managed or advised by the same investment
advisor of such Lender or by an Affiliate of such investment advisor or (y)
assign all, or if less than all, a portion equal to at least $5,000,000 in the
aggregate for the assigning Lender or assigning Lenders, of such Revolving Loan
Commitment or Revolving Loan Commitments and related outstanding Obligations
hereunder to one or more Eligible Transferees (treating any fund that invests in
bank loans and any other fund that invests in bank loans and is managed or
advised by the same investment advisor of such fund or by an Affiliate of such
investment advisor as a single Eligible Transferee), each of which assignees
shall become a party to this Agreement as a Lender by execution of an Assignment
and Assumption Agreement, provided that, (i) at such time Schedule I shall be
deemed modified to reflect the Revolving Loan Commitments of such new Lender and
of the existing Lenders, (ii) upon the surrender of the relevant Revolving Notes
by the assigning Lender (or, upon such assigning Lender's indemnifying the
applicable Borrower or Borrowers for any lost Revolving Note pursuant to a
customary indemnification agreement) new Revolving Notes will be issued, at the
Borrowers' expense, to such new Lender and to the assigning Lender upon the
request of such new Lender or assigning Lender, such new Revolving Note to be in
conformity with the requirements of Section 1.05 (with appropriate
modifications) to the extent needed to reflect the revised Revolving Loan
Commitments and/or outstanding Revolving Loans, as the case may be, (iii) the
consent of the Administrative Agent shall be required in connection with any
assignment to an Eligible Transferee pursuant to clause (y) above (which consent
shall not be unreasonably withheld or delayed), (iv) the Administrative Agent
shall receive at the time of each such assignment, from the assigning or
assignee Lender, the payment of a non-refundable assignment fee of $3,500 and
(v) no such transfer or assignment will be effective until recorded by the
Administrative Agent on the Register pursuant to Section 13.15. To the extent of
any
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assignment pursuant to this Section 13.04(b), the assigning Lender shall be
relieved of its obligations hereunder with respect to its assigned Revolving
Loan Commitment, its outstanding Revolving Loans and its other obligation
hereunder. In the case of Loans to the US Borrower, at the time of each
assignment of such Loan pursuant to this Section 13.04(b) to a Person which is
not already a Lender hereunder, which is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) for Federal income tax
purposes, the respective assignee Lender shall, to the extent legally entitled
to do so, provide to the US Borrower the appropriate Internal Revenue Service
Forms (and, if applicable, a Section 4.04(b)(ii) Certificate) described in
Section 4.04(b). In the case of Loans to the English Borrower, at the time of
each assignment of such Loan pursuant to this Section 13.04(b) to a Person which
is not already a Lender hereunder, which is not a resident of the United Kingdom
for United Kingdom tax purposes, the respective assignee Lender shall, to the
extent legally entitled to do so, provide to the English Borrower the
appropriate forms, declarations or other certification described in Section
4.04(c). In the case of Loans to the Irish Borrower, at the time of each
assignment of such Loan pursuant to this Section 13.04(b) to a Person which is
not already a Lender hereunder, which is not a resident of Ireland for Irish tax
purposes, the respective assignee Lender shall, to the extent legally entitled
to do so, provide to the Irish Borrower the appropriate certificate or document
described in Section 4.04(d). To the extent that an assignment of all or any
portion of a Lender's Revolving Loan Commitment and related outstanding
Obligations pursuant to Section 1.13 or this Section 13.04(b) would, at the time
of such assignment, result in increased costs under Section 1.10, 2.06 or 4.04
from those being charged by the respective assigning Lender prior to such
assignment, then the Borrowers shall not be obligated to pay such increased
costs (although the Borrowers, in accordance with and pursuant to the other
provisions of this Agreement, shall be obligated to pay any other increased
costs of the type described above resulting from changes after the date of the
respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit any
Lender from pledging its Revolving Loans and Revolving Notes hereunder to a
Federal Reserve Bank in support of borrowings made by such Lender from such
Federal Reserve Bank and, with the consent of the Administrative Agent, any
Lender which is a fund may pledge all or any portion of its Revolving Loans and
Revolving Notes to its trustee in support of its obligations to its trustee. No
pledge pursuant to this clause (c) shall release the transferor Lender from any
of its obligations hereunder.
13.05 No Waiver; Remedies Cumulative. No failure or delay on
the part of the Administrative Agent, the Collateral Agent, any Issuing Lender
or any Lender in exercising any right, power or privilege hereunder or under any
other Credit Document and no course of dealing between any Borrower or any other
Credit Party and the Administrative Agent, the Collateral Agent, any Issuing
Lender or any Lender shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other
Credit Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder or thereunder. The rights,
powers and remedies herein or in any other Credit Document expressly provided
are cumulative and not exclusive of any rights, powers or remedies which the
Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender
would otherwise have. No notice to or demand on any Credit Party in any case
shall entitle any Credit
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Party to any other or further notice or demand in similar or other circumstances
or constitute a waiver of the rights of the Administrative Agent, the Collateral
Agent, any Issuing Lender or any Lender to any other or further action in any
circumstances without notice or demand.
13.06 Payments Pro Rata. (a) Except as otherwise provided in
this Agreement, the Administrative Agent agrees that promptly after its receipt
of each payment from or on behalf of any Borrower in respect of any Obligations
hereunder, it shall distribute such payment to the Lenders (other than any
Lender that has consented in writing to waive its pro rata share of any such
payment) pro rata based upon their respective shares, if any, of the Obligations
with respect to which such payment was received.
(b) Each of the Lenders agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security, by
the exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Revolving Loans, Unpaid Drawings, Commitment Commission or Letter of
Credit Fees, of a sum which with respect to the related sum or sums received by
other Lenders is in a greater proportion than the total of such Obligation then
owed and due to such Lender bears to the total of such Obligation then owed and
due to all of the Lenders immediately prior to such receipt, then such Lender
receiving such excess payment shall purchase for cash without recourse or
warranty from the other Lenders an interest in the Obligations of the respective
Credit Party to such Lenders in such amount as shall result in a proportional
participation by all the Lenders in such amount; provided that if all or any
portion of such excess amount is thereafter recovered from such Lender, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein,
the provisions of the preceding Sections 13.06(a) and (b) shall be subject to
the express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.
13.07 Calculations; Computations; Accounting Terms. (a) The
financial statements to be furnished to the Lenders pursuant hereto shall be
made and prepared in accordance with generally accepted accounting principles in
the United States consistently applied throughout the periods involved (except
as set forth in the notes thereto or as otherwise disclosed in writing by the US
Borrower to the Lenders); provided that, (i) except as otherwise specifically
provided herein, all computations and all definitions used in determining
compliance with Sections 9.07 through 9.10, inclusive, shall utilize accounting
principles and policies in conformity with those used to prepare the historical
financial statements of the US Borrower referred to in Section 7.05(a) and (ii)
the aggregate Stated Amount of all Letters of Credit issued in support of
Foreign Subsidiary Third Party Borrowings (and the interest expense related to
such Letters of Credit) shall be excluded from the calculation of the financial
covenants set forth in Sections 9.08 and 9.09 to the extent, but only to the
extent, of the outstanding principal amount of such Foreign Subsidiary Third
Party Borrowings at the time of any such calculation.
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Notwithstanding the foregoing, to the extent expressly required pursuant to the
provisions of this Agreement, certain calculations shall be made on a Pro Forma
Basis.
(b) All computations of interest, Commitment Commission and
other Fees hereunder shall be made on the basis of a year of 360 days (or 365
days in the case of Foreign Currency Loans denominated in Pounds Sterling) for
the actual number of days (including the first day but excluding the last day;
except that in the case of Letter of Credit Fees, the last day shall be
included) occurring in the period for which such interest, Commitment Commission
or other Fees are payable.
(c) Except as provided in Section 13.07(d), for purposes of
this Agreement, the Dollar Equivalent of each Loan that is a Foreign Currency
Loan and each Letter of Credit denominated in a Foreign Currency shall be
calculated on the date when any such Foreign Currency Loan is made or Letter of
Credit is issued, on the second Business Day of each month and at such other
times as may be designated by the Administrative Agent. Such Dollar Equivalent
shall remain in effect until the same is recalculated by the Administrative
Agent as provided above and notice of such recalculation is received by the
Borrowers, it being understood that until such notice is received, the Dollar
Equivalent shall be that Dollar Equivalent as last reported to the Borrowers by
the Administrative Agent. The Administrative Agent shall promptly notify the
Borrowers and the Lenders of each such determination of the Dollar Equivalent.
(d) For the purposes of determining the US Borrower's
obligation to reimburse in Dollars a Drawing under a Letter of Credit
denominated in a Foreign Currency (and each Participant's obligation to fund its
Participation with respect to any such Letter of Credit), such determination
shall be made by the Administrative Agent by converting the amount of the Unpaid
Drawing into Dollars based on the Dollar Equivalent thereof on the day on which
the Drawing is honored by the respective Issuing Lender. For the purposes of
determining the US Borrower's obligation to pay Letter of Credit Fees and Facing
Fees with respect to Letters of Credit denominated in a Foreign Currency, such
determination shall be made by using the Dollar Equivalent in effect from time
to time during the term of any such Letter of Credit as determined by the
provisions of Section 13.07(c).
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS
EXPRESSLY PROVIDED IN CERTAIN OF THE OTHER CREDIT DOCUMENTS, BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT, EACH BORROWER HEREBY IRREVOCABLY ACCEPTS
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
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JURISDICTION OF THE AFORESAID COURTS. EACH BORROWER HEREBY FURTHER IRREVOCABLY
WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER IT, AND
AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENTS BROUGHT IN ANY OF THE
AFOREMENTIONED COURTS, THAT SUCH COURTS LACK PERSONAL JURISDICTION OVER IT. EACH
BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF
THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT ITS
ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE
30 DAYS AFTER SUCH MAILING. IN ADDITION, EACH BORROWER HEREBY IRREVOCABLY
DESIGNATES, APPOINTS AND EMPOWERS CT CORPORATION SYSTEM, WITH OFFICES ON THE
DATE HEREOF LOCATED AT 111 EIGHTH AVENUE, NEW YORK, NEW YORK 10011, AS ITS AGENT
FOR SERVICE OF PROCESS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING. EACH
BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR
PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SERVICE
OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT
THE RIGHT OF THE AGENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST THE BORROWER IN ANY OTHER JURISDICTION.
(b) EACH BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE
AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN
CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT
ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.09 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the
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same instrument. A set of counterparts executed by all the parties hereto shall
be lodged with the Borrowers and the Administrative Agent.
13.10 Effectiveness. This Agreement shall become effective on
the date (the "Effective Date") on which (i) each Borrower, the Administrative
Agent and the Lenders shall have signed a counterpart hereof (whether the same
or different counterparts) and shall have delivered the same to the
Administrative Agent at the Notice Office or, in the case of the Lenders, shall
have given to the Administrative Agent telephonic (confirmed in writing),
written or telex notice (actually received) at such office that the same has
been signed and mailed to it and (ii) the conditions set forth in Section 5 are
met to the satisfaction of the Administrative Agent and the Required Lenders.
Unless the Administrative Agent has received actual notice from any Lender that
the conditions contained in Section 5 have not been met to its satisfaction,
upon the satisfaction of the condition described in clause (i) of the
immediately preceding sentence and upon the Administrative Agent's good faith
determination that the conditions described in clause (ii) of the immediately
preceding sentence have been met, then the Effective Date shall have been deemed
to have occurred, regardless of any subsequent determination that one or more of
the conditions thereto had not been met (although the occurrence of the
Effective Date shall not release any Borrower from any liability for failure to
satisfy one or more of the applicable conditions contained in Section 5). The
Administrative Agent will give each Borrower and each Lender prompt written
notice of the occurrence of the Effective Date.
13.11 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
13.12 Amendment or Waiver; etc. (a) Neither this Agreement nor
any other Credit Document nor any terms hereof or thereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or
termination is in writing signed by the respective Credit Parties party thereto
and the Required Lenders, provided that no such change, waiver, discharge or
termination shall, without the consent of each Lender directly affected thereby
(other than a Defaulting Lender), (i) extend the final scheduled maturity of any
Loan or Note or extend the stated expiration date of any Letter of Credit beyond
the Final Maturity Date, or reduce the rate or extend the time of payment of
interest or Fees thereon, or reduce the principal amount thereof (except to the
extent repaid in cash) (it being understood that any amendment or modification
to the financial definitions in this Agreement or to Section 13.07(a) shall not
constitute a reduction in the rate of interest or Fees for the purposes of this
clause (i) so long as the principal purpose of such amendment or modification
was not to reduce the rate of interest or Fees), (ii) release all or
substantially all of the Collateral (except as expressly provided in the Credit
Documents), (iii) amend, modify or waive any provision of this Section 13.12
(except for technical amendments with respect to additional extensions of credit
pursuant to this Agreement which afford the protections to such additional
extensions of credit of the type provided to the Revolving Loan Commitments on
the Effective Date), (iv) reduce the percentage specified in the definition of
Required Lenders (it being understood that, with the consent of the Required
Lenders, additional extensions of credit pursuant to this Agreement may be
included in the determination of the Required Lenders on substantially the same
basis as the Revolving Loan
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Commitments are included on the Effective Date) or (v) consent to the assignment
or transfer by any Borrower of any of its rights and obligations under this
Agreement; provided further, that no such change, waiver, discharge or
termination shall (v) increase the Revolving Loan Commitment of any Lender over
the amount thereof then in effect without the consent of such Lender (it being
understood that waivers or modifications of conditions precedent, covenants,
Defaults or Events of Default or of a mandatory reduction in the Total Revolving
Loan Commitment shall not constitute an increase of the Revolving Loan
Commitment of any Lender, and that an increase in the available portion of any
Revolving Loan Commitment of any Lender shall not constitute an increase of the
Revolving Loan Commitment of such Lender), (w) without the consent of any
Issuing Lender, amend, modify or waive any provision of Section 2 or alter its
rights or obligations with respect to Letters of Credit, (x) without the consent
of the Swingline Lender, alter the Swingline Lender's rights or obligations with
respect to Swingline Loans, (y) without the consent of the Administrative Agent,
amend, modify or waive any provision of Section 12 or any other provision as
same relates to the rights or obligations of the Administrative Agent, or (z)
without the consent of the Collateral Agent, amend, modify or waive any
provision relating to the rights or obligations of the Collateral Agent.
(b) If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by clauses (i) through (v), inclusive, of the first proviso to
Section 13.12(a), the consent of the Required Lenders is obtained but the
consent of one or more of such other Lenders whose consent is required is not
obtained, then the Borrowers shall have the right, so long as all non-consenting
Lenders whose individual consent is required are treated as described in either
clauses (A) or (B) below, to either (A) replace each such non-consenting Lender
or Lenders with one or more Replacement Lenders pursuant to Section 1.13 so long
as at the time of such replacement, each such Replacement Lender consents to the
proposed change, waiver, discharge or termination or (B) terminate such
non-consenting Lender's Revolving Loan Commitment and/or repay the outstanding
Revolving Loans of such Lender and cash collateralize its applicable Percentage
of the Letter of Credit Outstandings in accordance with Sections 3.02(b) and
4.01(b), provided that, unless the Revolving Loan Commitment that is terminated,
and Revolving Loans repaid, pursuant to preceding clause (B) are immediately
replaced in full at such time through the addition of new Lenders or the
increase of the Revolving Loan Commitments and/or outstanding Revolving Loans of
existing Lenders (who in each case must specifically consent thereto), then in
the case of any action pursuant to preceding clause (B) the Required Lenders
(determined after giving effect to the proposed action) shall specifically
consent thereto, provided further, that in any event the Borrowers shall not
have the right to replace a Lender, terminate its Revolving Loan Commitment or
repay its Revolving Loans solely as a result of the exercise of such Lender's
rights (and the withholding of any required consent by such Lender) pursuant to
the second proviso to Section 13.12(a).
(c) Notwithstanding anything to the contrary contained above
in this Section 13.12, the Administrative Agent and the Collateral Agent may (i)
enter into amendments to the Subsidiaries Guaranties and the Security Documents
for the purpose of adding additional Subsidiaries of the US Borrower or other
Credit Parties as parties thereto and (ii) enter into security documents and
guaranty agreements to satisfy the requirements of Sections 8.11, 8.12, 8.14 and
8.15, in each case without the consent of the Required Lenders.
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13.13 Survival. All indemnities set forth herein including,
without limitation, in Sections 1.10, 1.11, 2.06, 4.04, 12.06 and 13.01 shall
survive the execution, delivery and termination of this Agreement and the Notes
and the making and repayment of the Obligations.
13.14 Domicile of Loans. Each Lender may transfer and carry
its Loans at, to or for the account of any office, Subsidiary or Affiliate of
such Lender. Notwithstanding anything to the contrary contained herein, to the
extent that a transfer of Loans pursuant to this Section 13.14 would, at the
time of such transfer, result in increased costs under Section 1.10, 2.06 or
4.04 from those being charged by the respective Lender prior to such transfer,
then the Borrowers shall not be obligated to pay such increased costs (although
the Borrowers shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
transfer).
13.15 Register. Each Borrower hereby designates the
Administrative Agent to serve as such Borrower's agent, solely for purposes of
this Section 13.15, to maintain a register (the "Register") on which it will
record the Revolving Loan Commitments from time to time of each of the Lenders,
the Revolving Loans made by each of the Lenders and each repayment in respect of
the principal amount of the Revolving Loans of each Lender. Failure to make any
such recordation, or any error in such recordation, shall not affect the
Borrowers' obligations in respect of such Revolving Loans. With respect to any
Lender, the transfer of the Revolving Loan Commitment of such Lender and the
rights to the principal of, and interest on, any Revolving Loan made pursuant to
such Revolving Loan Commitment shall not be effective until such transfer is
recorded on the Register maintained by the Administrative Agent with respect to
ownership of such Revolving Loan Commitment and Revolving Loans and prior to
such recordation all amounts owing to the transferor with respect to such
Revolving Loan Commitment and Revolving Loans shall remain owing to the
transferor. The registration of assignment or transfer of all or part of any
Revolving Loan Commitments and Revolving Loans shall be recorded by the
Administrative Agent on the Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement pursuant to Section 13.04(b). Coincident with the delivery
of such an Assignment and Assumption Agreement to the Administrative Agent for
acceptance and registration of assignment or transfer of all or part of a
Revolving Loan, or as soon thereafter as practicable, the assigning or
transferor Lender shall surrender the Revolving Note evidencing such Revolving
Loan, and thereupon one or more new Revolving Notes in the same aggregate
principal amount shall be issued to the assigning or transferor Lender and/or
the new Lender. The Borrowers, jointly and severally, agree to indemnify the
Administrative Agent from and against any and all losses, claims, damages and
liabilities of whatsoever nature which may be imposed on, asserted against or
incurred by the Administrative Agent in performing its duties under this Section
13.15.
13.16 Confidentiality. (a) Subject to the provisions of clause
(b) of this Section 13.16, each Lender agrees that it will use its reasonable
efforts not to disclose without the prior consent of the US Borrower (other than
to its employees, auditors, advisors or counsel or to another Lender if such
Lender or such Lender's holding or parent company in its sole discretion
determines that any such party should have access to such information, provided
such Persons shall be subject to the provisions of this Section 13.16 to the
same extent as such Lender) any
<PAGE>
information with respect to the US Borrower or any of its Subsidiaries which is
now or in the future furnished pursuant to this Agreement or any other Credit
Document and which is designated by the US Borrower to the Lenders in writing as
confidential, provided that any Lender may disclose any such information (i) as
has become generally available to the public other than by virtue of a breach of
this Section 13.16(a) by the respective Lender, (ii) as may be required or
appropriate in any report, statement or testimony submitted to any municipal,
state or Federal regulatory body having or claiming to have jurisdiction over
such Lender or to the Federal Reserve Board or the Federal Deposit Insurance
Corporation or similar organizations (whether in the United States or elsewhere)
or their successors, (iii) as may be required or appropriate in respect to any
summons or subpoena or in connection with any litigation, (iv) in order to
comply with any law, order, regulation or ruling applicable to such Lender, (v)
to the Administrative Agent or the Collateral Agent and (vi) to any prospective
or actual transferee or participant in connection with any contemplated transfer
or participation of any of the Revolving Notes or Revolving Loan Commitments or
any interest therein by such Lender, provided that such prospective transferee
or participant agrees to be bound by the confidentiality provisions contained in
this Section 13.16.
(b) Each Borrower hereby acknowledges and agrees that each
Lender may share with any of its affiliates any information related to the US
Borrower or any of its Subsidiaries (including, without limitation, any
nonpublic customer information regarding the creditworthiness of the US Borrower
and its Subsidiaries), provided such Persons shall be subject to the provisions
of this Section 13.16 to the same extent as such Lender.
13.17 Judgment Currency. (a) Each Borrower's obligation
hereunder and under the other Credit Documents to make payments in Dollars or,
(x) in the case of a Letter of Credit issued in a Foreign Currency, the Dollar
Equivalent thereof or (y) in the case of a Foreign Currency Loan, the applicable
Foreign Currency (in any such case, the "Obligation Currency") shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the Obligation Currency,
except to the extent that such tender or recovery results in the effective
receipt by the Administrative Agent, the Collateral Agent, the respective
Issuing Lender or the respective Lender of the full amount of the Obligation
Currency expressed to be payable to the Administrative Agent, the Collateral
Agent, such Issuing Lender or such Lender under this Agreement or the other
Credit Documents. If for the purpose of obtaining or enforcing judgment against
any Borrower in any court or in any jurisdiction, it becomes necessary to
convert into or from any currency other than the Obligation Currency (such other
currency being hereinafter referred to as the "Judgment Currency") an amount due
in the Obligation Currency, the conversion shall be made, at the Relevant
Currency Equivalent thereof or, in the case of conversions into other
currencies, at the rate of exchange quoted by the Administrative Agent,
determined, in each case, as of the date immediately preceding the day on which
the judgment is given (such Business Day being hereinafter referred to as the
"Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing
between the Judgment Currency Conversion Date and the date of actual payment of
the amount due, each Borrower covenants and agrees to pay, or cause to be paid,
such additional amounts, if any (but in any
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event not a lesser amount) as may be necessary to ensure that the amount paid in
the Judgment Currency, when converted at the rate of exchange prevailing on the
date of payment, will produce the amount of the Obligation Currency which could
have been purchased with the amount of Judgment Currency stipulated in the
judgment or judicial award at the rate of exchange prevailing on the Judgment
Currency Conversion Date.
(c) For purposes of determining the Relevant Currency
Equivalent or any other rate of exchange for this Section 13.17, such amounts
shall include any premium and costs payable in connection with the purchase of
the Obligation Currency.
13.18 Euro. (a) If at any time that a Foreign Currency Loan is
outstanding, the relevant Foreign Currency is replaced as the lawful currency of
the country that issued such Approved Currency (the "Issuing Country") by the
Euro so that all payments are to be made in the Issuing Country in Euros and not
in the Foreign Currency previously the lawful currency of such country, then
such Foreign Currency Loan shall be automatically converted into a Foreign
Currency Loan denominated in Euros in a principal amount equal to the amount of
Euros into which the principal amount of such Foreign Currency Loan would be
converted pursuant to the EMU Legislation and thereafter no further Foreign
Currency Loans will be available in such Foreign Currency, with the basis of
accrual of interest, notice requirements and payment offices with respect to
such converted Foreign Currency Loans to be that consistent with the convention
and practices in the Euro-zone interbank market for Euro denominated loans.
(b) In each case, to the maximum extent permitted under
applicable law, the applicable Borrowers shall from time to time, at the request
of any Lender, pay to such Lender the amount of any losses, damages,
liabilities, claims, reduction in yield, additional expense, increased cost,
reduction in any amount payable, reduction in the effective return of its
capital, the decrease or delay in the payment of interest or any other return
forgone by such Lender or its affiliates with respect to a Foreign Currency Loan
affected by this Section 13.18 as a result of the tax or currency exchange
resulting from the introduction, changeover to or operation of the Euro in any
applicable nation or eurocurrency market.
13.19 European Reorganization. Notwithstanding anything to the
contrary contained in this Agreement, the US Borrower shall be permitted, with
the prior consent of the Administrative Agent in each instance, to reorganize
the ownership structure of the equity of its European Subsidiaries so long as
(i) any such reorganization could not reasonably be expected to result in any
material adverse tax or other consequences to the US Borrower or any of its
Subsidiaries, (ii) any such reorganization could not reasonably be expected to
be adverse to the interests of the Lenders in any material respect and (iii) the
Collateral Agent's security interest in the equity of any such European
Subsidiaries subject to any such reorganization remains fully perfected and in
full force and effect at least to the same extent as such security interest was
perfected immediately prior to any such reorganization.
SECTION 14. Parent Guaranty.
---------------
14.01 The Guaranty. In order to induce the Lenders to enter
into this Agreement and to extend credit hereunder and in recognition of the
direct benefits to be received by the U.S.
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Borrower from the proceeds of the Foreign Loans, the US Borrower hereby agrees
with the Lenders as follows: The US Borrower hereby unconditionally and
irrevocably guarantees, as primary obligor and not merely as surety, the full
and prompt payment when due, whether upon maturity, acceleration or otherwise,
of any and all of the Guaranteed Obligations. If any or all of the Guaranteed
Obligations becomes due and payable hereunder, the US Borrower unconditionally
promises to pay such indebtedness to the Guaranteed Creditors, or order, on
demand, together with any and all expenses which may be incurred by the
Guaranteed Creditors in collecting any of the Guaranteed Obligations. This
Guaranty is a guaranty of payment and not of collection. If claim is ever made
upon any Guaranteed Creditor for repayment or recovery of any amount or amounts
received in payment or on account of any of the Guaranteed Obligations and any
of the aforesaid payees repays all or part of said amount by reason of (i) any
judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property or (ii) any settlement or
compromise of any such claim effected by such payee with any such claimant
(including any Subsidiary of the US Borrower), then and in such event the US
Borrower agrees that any such judgment, decree, order, settlement or compromise
shall be binding upon the US Borrower, notwithstanding any revocation of this
Guaranty or any other instrument evidencing any liability of any Subsidiary of
the US Borrower, and the US Borrower shall be and remain liable to the aforesaid
payees hereunder for the amount so repaid or recovered to the same extent as if
such amount had never originally been received by any such payee.
14.02 Bankruptcy. Additionally, the US Borrower
unconditionally and irrevocably guarantees the payment of any and all of the
Guaranteed Obligations whether or not due or payable by any Subsidiary of the US
Borrower upon the occurrence of any of the events specified in Section 10.05,
and unconditionally promises to pay such indebtedness to the Guaranteed
Creditors, or order, on demand, in the respective Approved Currency.
14.03 Nature of Liability. The liability of the US Borrower
hereunder is exclusive and independent of any security for or other guaranty of
the Foreign Guaranteed Obligations whether executed by the US Borrower, any
other guarantor or by any other party, and the liability of the US Borrower
hereunder is not affected or impaired by (a) any direction as to application of
payment by any Subsidiary of the US Borrower or by any other party, or (b) any
other continuing or other guaranty, undertaking or maximum liability of a
guarantor or of any other party as to the Guaranteed Obligations, or (c) any
payment on or in reduction of any such other guaranty or undertaking, or (d) any
dissolution, termination or increase, decrease or change in personnel by any
Subsidiary of the US Borrower, or (e) any payment made to the Guaranteed
Creditors on the Guaranteed Obligations which any such Guaranteed Creditor
repays to any Subsidiary of the US Borrower pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and the US Borrower waives any right to the deferral or modification
of its obligations hereunder by reason of any such proceeding or (f) any action
or inaction of the type described in Section 14.05.
14.04 Independent Obligation. The obligations of the US
Borrower hereunder are independent of the obligations of any other guarantor,
any other party or any Subsidiary of the US Borrower, and a separate action or
actions may be brought and prosecuted against the US Borrower whether or not
action is brought against any other guarantor, any other party or any
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Subsidiary of the US Borrower and whether or not any other guarantor, any other
party or such Subsidiary be joined in any such action or actions. The US
Borrower waives, to the full extent permitted by law, the benefit of any statute
of limitations affecting its liability hereunder or the enforcement thereof. Any
payment by any Subsidiary of the US Borrower or other circumstance which
operates to toll any statute of limitations as to such Subsidiary shall operate
to toll the statute of limitations as to the US Borrower.
14.05 Authorization. The US Borrower authorizes the Guaranteed
Creditors without notice or demand (except as shall be required by applicable
statute and cannot be waived), and without affecting or impairing its liability
hereunder, from time to time to:
(a) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew, increase, accelerate or
alter, any of the Guaranteed Obligations (including any increase or
decrease in the rate of interest thereon), any security therefor, or
any liability incurred directly or indirectly in respect thereof, and
the Guaranty herein made shall apply to the Guaranteed Obligations as
so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, impair, surrender, realize
upon or otherwise deal with in any manner and in any order any property
by whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Foreign Guaranteed Obligations or any liabilities
(including any of those hereunder) incurred directly or indirectly in
respect thereof or hereof, and/or any offset there against;
(c) exercise or refrain from exercising any rights against any
Subsidiary of the US Borrower, any other Credit Party or others or
otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers,
guarantors, any Subsidiary of the US Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or
hereof, and may subordinate the payment of all or any part thereof to
the payment of any liability (whether due or not) of any Subsidiary of
the US Borrower to its creditors other than the Guaranteed Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to
any liability or liabilities of any Subsidiary of the US Borrower to
the Guaranteed Creditors regardless of what liability or liabilities of
such Subsidiary remain unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, this Agreement, any other Credit Document, any Interest
Rate Protection Agreement or Other Hedging Agreement or any of the
instruments or agreements referred to herein or therein, or otherwise
amend, modify or supplement this Agreement, any other Credit
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Document, any Interest Rate Protection Agreement or Other Hedging
Agreement or any of such other instruments or agreements; and/or
(h) take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or equitable
discharge of the US Borrower from its liabilities under this Guaranty.
14.06 Reliance. It is not necessary for the Guaranteed
Creditors to inquire into the capacity or powers of any Subsidiary of the US
Borrower or the officers, directors, partners or agents acting or purporting to
act on their behalf, and any Guaranteed Obligations made or created in reliance
upon the professed exercise of such powers shall be guaranteed hereunder.
14.07 Subordination. Any indebtedness of any Subsidiary of the
US Borrower now or hereafter owing to the US Borrower is hereby subordinated to
the Guaranteed Obligations of such Subsidiary owing to the Guaranteed Creditors;
and if the Administrative Agent so requests at a time when an Event of Default
exists, all such indebtedness of such Subsidiary to the US Borrower shall be
collected, enforced and received by the US Borrower for the benefit of the
Guaranteed Creditors and be paid over to the Administrative Agent on behalf of
the Guaranteed Creditors on account of the Guaranteed Obligations to the
Guaranteed Creditors, but without affecting or impairing in any manner the
liability of the US Borrower under the other provisions of this Guaranty. Prior
to the transfer by the US Borrower of any note or negotiable instrument
evidencing any of the indebtedness of any Subsidiary of the US Borrower to the
US Borrower, the US Borrower shall mark such note or negotiable instrument with
a legend that the same is subject to this subordination. Without limiting the
generality of the foregoing, the US Borrower hereby agrees with the Guaranteed
Creditors that it will not exercise any right of subrogation which it may at any
time otherwise have as a result of this Guaranty (whether contractual, under
Section 509 of the Bankruptcy Code or otherwise) until all Guaranteed
Obligations have been irrevocably paid in full in cash.
14.08 Waiver. (a) The US Borrower waives any right (except as
shall be required by applicable statute and cannot be waived) to require any
Guaranteed Creditor to (i) proceed against any Subsidiary of the US Borrower,
any other guarantor or any other party, (ii) proceed against or exhaust any
security held from any Subsidiary of the US Borrower, any other guarantor or any
other party or (iii) pursue any other remedy in any Guaranteed Creditor's power
whatsoever. The US Borrower waives any defense based on or arising out of any
defense of any Subsidiary of the US Borrower, any other guarantor or any other
party, other than payment in full of the Guaranteed Obligations, based on or
arising out of the disability of any Subsidiary of the US Borrower, any other
guarantor or any other party, or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of any Borrower other than payment in full of the Guaranteed
Obligations. The Guaranteed Creditors may, at their election, foreclose on any
security held by the Administrative Agent, the Collateral Agent or any other
Guaranteed Creditor by one or more judicial or nonjudicial sales, whether or not
every aspect of any such sale is commercially reasonable (to the extent such
sale is permitted by applicable law), or exercise any other right or remedy the
Guaranteed Creditors may have against any Subsidiary of the US Borrower or any
other party, or any security, without
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affecting or impairing in any way the liability of the US Borrower hereunder
except to the extent the Guaranteed Obligations have been paid in cash. The US
Borrower waives any defense arising out of any such election by the Guaranteed
Creditors, even though such election operates to impair or extinguish any right
of reimbursement or subrogation or other right or remedy of the US Borrower
against any Foreign Borrower or any other party or any security.
(b) The US Borrower waives all presentments, demands for
performance, protests and notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Guaranty, and notices of the existence, creation or incurring of new or
additional Guaranteed Obligations. The US Borrower assumes all responsibility
for being and keeping itself informed of any Subsidiary of the US Borrower's
financial condition and assets, and of all other circumstances bearing upon the
risk of nonpayment of the Guaranteed Obligations and the nature, scope and
extent of the risks which the US Borrower assumes and incurs hereunder, and
agrees that the Guaranteed Creditors shall have no duty to advise the US
Borrower of information known to them regarding such circumstances or risks.
14.09 Nature of Liability. It is the desire and intent of the
US Borrower and the Guaranteed Creditors that this Guaranty shall be enforced
against the US Borrower to the fullest extent permissible under the laws and
public policies applied in each jurisdiction in which enforcement is sought. If,
however, and to the extent that, the obligations of the US Borrower under this
Guaranty shall be adjudicated to be invalid or unenforceable for any reason
(including, without limitation, because of any applicable state or federal law
relating to fraudulent conveyances or transfers), then the amount of the
Guaranteed Obligations of the US Borrower shall be deemed to be reduced and the
US Borrower shall pay the maximum amount of the Guaranteed Obligations which
would be permissible under applicable law.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
-------
111 South Calvert Street SITEL CORPORATION
Suite 1900
Baltimore, Maryland 21202
Telephone: (410) 246-1505
Telecopier: (410) 246-0200
Attention: President By: /s/ Nan A. Kreamer
-------------------
Title: Vice President
South Bar House SITEL EUROPE PLC South Bar Street SIGNED by SITEL EUROPE PLC
Banbury Oxfordshire OX16 9AB acting by its Attorney United Kingdom
Telephone: 44-1295-225-799
Telecopier: 44-1295-264-818
Attention: Ian Ford By: /s/ Nan A. Kreamer
-------------------
Title: Attorney
SITEL House, Wolsey Business Park SITEL TMS LIMITED
Tolpits Lane Watford HERTS WD1 8GJ
United Kingdom
Telephone: 44-1923-715-639
Telecopier: 44-1923-474-557 By: /s/ Nan A. Kreamer
-------------------
Attention: Ian Ford SIGNED AND SEALED by Nan Kreamer
as duly authorised attorney for SITEL TMS
with a copy to LIMITED in the presence of:
SITEL Europe plc
at the above address
/s/ Teresa A. Beaufait
------------------------
<PAGE>
BANKERS TRUST COMPANY,
Individually and as Administrative
Agent
By: /s/ Pam Divino
---------------------------------
Title: Vice President
BANK OF AMERICA, N.A., Individually and
as Syndication Agent
By: /s/ Monica Brandes
---------------------------------
Title: Senior Vice President
FIRST UNION NATIONAL BANK, Individually
and as Documentation Agent
By: /s/ Douglas A. Nickel
----------------------------------
Title: Vice President
US BANK NATIONAL ASSOCIATION
By: /s/ David A. Draxler
----------------------------------
Title: Vice President
BANK ONE, NA
(Main Office Chicago)
By: /s/ Nathan L. Bloch
----------------------------------
Title: First Vice President
<PAGE>
SCHEDULE I
----------
REVOLVING LOAN COMMITMENTS
--------------------------
Revolving Loan
Lender Commitment
------ ----------
Bankers Trust Company $15,000,000.00
Bank of America, N.A. $15,000,000.00
First Union National Bank $15,000,000.00
US Bank National Association $15,000,000.00
Bank One, NA $15,000,000.00
TOTAL: $75,000,000.00
=============
<PAGE>
SCHEDULE II
LENDER ADDRESSES
----------------
Bank Address
---- -------
Bankers Trust Company 130 Liberty Street
New York, NY 10006
Attn: David Bell
Tel. No.: (212) 250-9048
Fax No.: (212) 250-7218
Bank of America, N.A. 10 Light Street
Mail Code 4-302-1601
Baltimore, MD 21202
Attn: Monica Brandes
Tel. No.: (410) 605-8019
Fax No.: (410) 539-7508
First Union National Bank 201 South College Street
CP6, 6th Floor
Mailstop: NC0760
Charlotte, NC 28270
Attn: Douglas Nickel
Tel. No.: (704) 383-4003
Fax No.: (704) 715-1117
US Bank National Association US Bank Place
MPFPO607
601 2nd Avenue South
Minneapolis, MN 55402-4302
Attn: David Draxler
Tel. No.: (612) 973-0539
Fax No.: (612) 973-0395
Bank One, NA 1 Bank One Plaza
14th Floor
Main Suite IL1-0573
Chicago, IL 60670-0573
Attn: Nathan Bloch
Tel. No.: (312) 732-2243
Fax No.: (312) 732-1117
and for Foreign Currency Loans:
<PAGE>
SCHEDULE II
Page 2
Bank Address
---- -------
Bank One, NA
London Branch
1 Triton Square
London NW1 3FN
England
Attn: Dorothy O'Flaharty
Tel No.: 44-171-903-4150
Fax No.: 44-171-903-4148
<PAGE>
SCHEDULE III
SCHEDULE III
to
CREDIT AGREEMENT
SUBSIDIARIES
------------
(all 100% owned unless otherwise indicated)
ASIA PACIFIC
(first indented companies are direct subsidiaries of SITEL International,
Inc.)
-SITEL Asia Pacific Investments Pte Limited {Singapore}
-SITEL Asia Pacific Holdings Pte Limited {Singapore}
-SITEL Singapore Pte Ltd. {Singapore}
-SITEL Japan KK {Japan}
-SITEL Hong Kong Limited {Hong Kong}
-SITEL New Zealand Limited {New Zealand}
-SITEL Australia Pty Ltd. {Australia}
-SITEL Australia Holdings Pty Ltd. {Australia}
-SITEL Telebusiness New Zealand Limited {New Zealand}
CANADA
(first indented companies are direct subsidiaries of SITEL International,
Inc.)
-SITEL Teleservices Canada Inc. {Canada}
EUROPE
(first indented companies are direct subsidiaries of SITEL International,
Inc.)
-SITEL Europe plc {United Kingdom} 1/ 1/ One share of SITEL Europe plc
is owned by SITEL Corporation -SITEL Belgium NV {Belgium}2/ 2/ One
share is owned by SITEL International, Inc. -SITEL France Holdings
SAS {France}3/ 3/ One share is owned by SITEL Stratford Limited
-SITEL Corporation France SA {France}4/ 4/ One share is
owned by each of the company's 5 directors -SITEL
France SA {France}5/ 5/ One share is owned by each of
the company's 5 directors -SITEL France Consumer
Services SA {France}6/ 6/ One share is owned by each
of the company's 6 directors
-SITEL GmbH {Germany}
-SITEL TMS Limited {Ireland}
-Telephone Marketing Services (International) Limited {Ireland}
-Systems Integrated Telemarketing Netherlands B.V. {Netherlands}
-SITEL Nordic AB {Sweden}
-SITEL Consulting Limited {United Kingdom}
-Leiderman and Roncoroni Limited {United Kingdom}
-The Training Works Limited {United Kingdom}
-SITEL Kingston Limited {United Kingdom}
-SITEL Moor Park Limited {United Kingdom}
-SITEL Stratford Limited {United Kingdom}
-SITEL UK Limited {United Kingdom}
-B's Telemarketing Limited {United Kingdom}
-SITEL Kingston (Services) Limited {United Kingdom}
-SITEL Moor Park (Services) Limited {United Kingdom}
-SITEL Stratford (Services) Limited {United Kingdom}
<PAGE>
SCHEDULE III
Page 2
LATIN AMERICA
(first indented companies are direct subsidiaries of SITEL International,
Inc.)
-SITEL (BVI) International, Inc. {BVI}
-SITEL Mexico Holdings LLC {Nebraska}
-Grupo SITEL de Mexico, S.A. de C.V. (49%) {Mexico}
-SITEL de Colombia, S.A. (94%) {Colombia}
-SITEL do Brasil Ltda. {Brazil}
SPAIN
(first indented companies are direct subsidiaries of SITEL International,
Inc.)
-SITEL Iberica Teleservices, S.A. {Spain}
-Action Servicos de Publicidade S.A. {Portugal}
-Teleaction Hispanica S.A. {Spain}
-Telepromotion S.A. {Spain}
U.S.
(all direct subsidiaries of SITEL Corporation except SITEL Mexico Holdings
LLC whose direct parent is shown under Latin America)
-National Action Financial Services, Inc. {Georgia}
-Financial Insurance Services, Inc. {Nebraska}
-Seek the Geek, Inc. {Nebraska}
-SITEL Insurance Marketing Services, Inc. {Nebraska}
-SITEL Insurance Services, Inc. {Nebraska}
-SITEL International, Inc. {Nebraska}
-SITEL Mexico Holdings LLC {Nebraska}
<PAGE>
SCHEDULE IV
SITEL CORPORATION
SCHEDULE OF EXISTING
INDEBTEDNESS
10-Apr-2000
<TABLE>
<CAPTION>
BORROWER BANK/COUNTERPARTY FACILITY TYPE PURPOSE MATURITY BALANCE USD
-------- ----------------- ------------- ------- -------- ------- ---
BALANCE
<S> <C> <C> <C> <C> <C> <C>
SITEL Corporation Mellon US Leasing Finance Lease Fixed Oct-02 $826,597 $826,597
Assets
SITEL Corporation Mellon US Leasing Finance Lease Fixed Nov-02 $159,321 $159,321
Assets
SITEL Corporation MLC Leasing Finance Lease Fixed Jun-02 $1,776,442 $1,776,442
Assets
SITEL Corporation MLC Leasing Finance Lease Fixed Dec-01 $1,243,895 $1,243,895
Assets
SITEL Corporation GE Capital Finance Lease Fixed May-04 $452,089 $452,089
Assets
SITEL Corporation GE Capital Finance Lease Fixed Oct-04 $959,543 $959,543
Assets
SITEL Corporation GE Capital Finance Lease Fixed Dec-04 $739,359 $739,359
Assets
National Action Lucent Finance Lease Fixed Sep-00 $39,334 $39,334
Financial Services Technologies Assets
Grupo Sitel de Mexico INVEX Revolving Cash Flow Renewable 2,916,710 $291,671
SITEL Australia National Term Deposit Collateral N/A A$2,285,173 $1,413,567
Australia Bank
SITEL Australia National Finance Lease Fixed Feb-01 A$ $638,461
Australia Bank Assets 1,032,136
SITEL Australia National Overdraft and Working Working Apr-00 A $0 $0
Australia Bank Capital Facility Capital
SITEL Australia National Commercial Bills Working Apr-00 A$ $3,711,493
Australia Bank Capital 6,000,000
SITEL Singapore Compaq Finance Lease Fixed May-02 S$ 660,017 $382,952
Assets
SITEL Singapore Compaq Finance Lease Fixed Nov-02 S$ 225,917 $131,080
Assets
SITEL Singapore HSBC Finance Lease Fixed Sep-00 S$ 152,590 $88,535
Assets
SITEL New Zealand Westpac Multi-Option Regional Working Renewable $0 $0
Support Facility Capital
SITEL UK Barclays Finance Lease Telecoms May-00 48387.49 $77,013
Mercantile Equipment
SITEL UK Barclays Finance Lease Computer Mar-00 295759.09 $470,729
Mercantile Equip
SITEL UK Barclays Finance Lease Telecoms Mar-00 274512.97 $436,914
Mercantile Equipment
SITEL Europe plc Barclays Hire purchase agreement Motor Oct-00 18344.84 $29,198
Mercantile vehicles
Systems Integrated ABN AMRO Amortizing Loan Fixed May-02 2,000,000 $869,565
Telemarketing Assets
Netherlands B.V.
SITEL Belgium ING Lease Finance Lease Warehouse Oct-02 1746913 $42,298
Equip
SITEL Belgium J. Van Breda Finance Lease Computer Apr-00 247372 $5,990
Equip
SITEL Belgium J. Van Breda Finance Lease Computer May-00 39439 $955
Equip
SITEL Belgium J. Van Breda Finance Lease Office Jan-02 158359 $3,834
Equip
<PAGE>
SITEL Belgium J. Van Breda Finance Lease Office Apr-02 370809 $8,978
Equip
SITEL Belgium J. Van Breda Finance Lease Office Jun-02 187178 $4,532
Equip
SITEL Belgium J. Van Breda Finance Lease Fulfilment Dec-03 1586767 $38,421
Printer
SITEL Belgium Eurolease Finance Lease Building Oct-02 9376925 $227,044
Improv.
SITEL Belgium EMG Finance Lease Local Area Dec-02 4163686 $100,816
Network
SITEL France Etica Finance Lease Pabx Apr-03 1133617 $165,219
SITEL Nordic Handelsbanken Overdraft and loan facility Working N/A 0 $0
Capital
SITEL Iberica Banco Santander GENERALITAT CATALUNYA Service N/A 168034 $974
Teleservices,S.A. Central Hispano Guaranty
SITEL Iberica Deutsche Bank AYUNTAMIENTO DE ALMUNECAR Service N/A 144910 $840
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank AYUNTAMIENTO DE MOTRIL Service N/A 158670 $920
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank AYUNTAMIENTO DE LA CORUNA Service N/A 720000 $4,174
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank AYUNTAMIENTO DE SAN CUGAT Service N/A 400000 $2,319
Teleservices,S.A. DEL VALLES Guaranty
SITEL Iberica Deutsche Bank GENERALITAT DE CATALUNYA Service N/A 480000 $2,783
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank ELECTRICAS REUNIDAS DE Service N/A 13000000 $75,362
Teleservices,S.A. ZARAGOZA Guaranty
SITEL Iberica Deutsche Bank EMPRESA PUBLICA DE Service N/A 5700000 $33,043
Teleservices,S.A. EMRGENCIAS SANITARIAS Guaranty
SITEL Iberica Deutsche Bank AYUNTAMIENTO DE BILBAO Service N/A 130226 $755
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank DIPUTACION DE VALENCIA Service N/A 720000 $4,174
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank AYUNTAMIENTO DE VALENCIA Service N/A 2800000 $16,232
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank SERVEI COORDINACIO URGENCIAS Service N/A 10320000 $59,826
Teleservices,S.A. DE BARCELONA Guaranty
SITEL Iberica Deutsche Bank GENERALITAT VALENCIANA Service N/A 620000 $3,594
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank GENERALITAT VALENCIANA Service N/A 2400000 $13,913
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank AYUNTAMIENTO DE REQUENA Service N/A 360000 $2,087
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank GENERALITAT VALENCIANA Service N/A 180000 $1,043
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank EMPRESA PUBLICA DE Service N/A 450379 $2,611
Teleservices,S.A. EMRGENCIAS SANITARIAS Guaranty
SITEL Iberica Deutsche Bank GENERALITAT VALENCIANA Service N/A 1199320 $6,953
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank GENERALITAT VALENCIANA Service N/A 340164 $1,972
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank GENERALITAT VALENCIANA Service N/A 1340000 $7,768
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank GENERALITAT VALENCIANA Service N/A 883383 $5,121
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank INSTITUT VALNCIA DE LA Service N/A 396000 $2,296
Teleservices,S.A. JOVENTOT Guaranty
SITEL Iberica Deutsche Bank GENERALITAT VALENCIANA Service N/A 4160000 $24,116
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank JUNTA CASTILLA LA MANCHA Service N/A 2200000 $12,754
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank EMASESA Service N/A 456280 $2,645
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank GAS NATURAL, SDG Service N/A 4800000 $27,826
Teleservices,S.A. Guaranty
<PAGE>
SITEL Iberica Deutsche Bank EMPRESA PUBLICA DE Service N/A 4440000 $25,739
Teleservices,S.A. EMRGENCIAS SANITARIAS Guaranty
SITEL Iberica Deutsche Bank GENERALITAT VALENCIANA Service N/A 1320000 $7,652
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank GENERALITAT DE CATALUNYA Service N/A 336343 $1,950
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank CONSEJERIA DE GOVERNACION, Service N/A 9511200 $55,137
Teleservices,S.A. SERVICIO DE PROTECCION CIVIL Guaranty
SITEL Iberica Banco Santander CANAL DE ISABEL II Service N/A 871728 $5,053
Teleservices,S.A. Central Hispano Guaranty
SITEL Iberica Banco Santander AYUNTAMIENTO DE BILBAO Service N/A 1416000 $8,209
Teleservices,S.A. Central Hispano Guaranty
SITEL Iberica Banco Santander TRIBUNAL ECONOMICO Service N/A 1578212 $9,149
Teleservices,S.A. Central Hispano ADMINISTRATIVO Guaranty
SITEL Iberica Banco Santander AYUNTAMIENTO DE JEREZ Service N/A 364240 $2,112
Teleservices,S.A. Central Hispano Guaranty
SITEL Iberica Banco Santander HOSPITAL DE SIERRALLANA Service N/A 679200 $3,937
Teleservices,S.A. Central Hispano Guaranty
SITEL Iberica Barclays Bank TELEFONICA DE ESPANA Service N/A 4000000 $23,188
Teleservices,S.A. Guaranty
SITEL Iberica Barclays Bank TELEFONICA DE ESPANA Service N/A 1000000 $5,797
Teleservices,S.A. Guaranty
SITEL Iberica Barclays Bank TRIBUNAL ECONOMICO Service N/A 1383080 $8,018
Teleservices,S.A. ADMINISTRATIVO Guaranty
SITEL Iberica Barclays Bank CONSEJERIA DE GOVERNACION, Service N/A 2592180 $15,027
Teleservices,S.A. SERVICIO DE PROTECCION CIVIL Guaranty
SITEL Iberica Barclays Bank XUNTA DE GALICIA Service N/A 5398787 $31,297
Teleservices,S.A. Guaranty
SITEL Iberica Barclays Bank AYUNTAMIENTO DE OVIEDO Service N/A 2910600 $16,873
Teleservices,S.A. Guaranty
SITEL Iberica Barclays Bank AYUNTAMIENTO DE OLEIROS Service N/A 252841 $1,466
Teleservices,S.A. Guaranty
SITEL Iberica Barclays Bank COMUNIDAD DE MADRID Service N/A 4731104 $27,427
Teleservices,S.A. Guaranty
SITEL Iberica Barclays Bank NORTH FISHING CORPORATION Service N/A 6000000 $34,783
Teleservices,S.A. Guaranty
SITEL Iberica Barclays Bank GENERALITAT VALENCIANA Service N/A 1400000 $8,116
Teleservices,S.A. Guaranty
SITEL Iberica Barclays Bank GENERALITAT VALENCIANA Service N/A 182822 $1,060
Teleservices,S.A. Guaranty
SITEL Iberica Bankinter GENERALITAT VALENCIANA Service N/A 4800000 $27,826
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank COMUNIDAD DE MADRID Service N/A 4816264 $27,920
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank INSALUD ,061 DE LA RIOJA Service N/A 1467720 $8,509
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank JUNTA CASTILLA LA MANCHA061 Service N/A 2400000 $13,913
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank CENTRO COORDINADOR DE LA Service N/A 2208000 $12,800
Teleservices,S.A. GERENCIA DEL 061 DE ARAGON Guaranty
SITEL Iberica Deutsche Bank GENERALITAT VALENCIANA Service N/A 2600000 $15,072
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank GENERALITAT VALENCIANA Service N/A 218106 $1,264
Teleservices,S.A. Guaranty
SITEL Iberica Deutsche Bank PROMOCIONES OROTAVA Service N/A 601600 $3,488
Teleservices,S.A. Guaranty
SITEL Iberica Barclays Bank ACTION SERVICOS DE Service N/A 40000000 $192,456
Teleservices,S.A. PUBLICIDADE, S.A. Guaranty
Telepromotion,S.A. Barclays Bank DIPUTACION FORAL DE VIZCAYA Service N/A 320000 $1,855
Guaranty
<PAGE>
Telepromotion,S.A. Barclays Bank GOBIERNO VASCO Service N/A 160000 $928
Guaranty
Telepromotion,S.A. Barclays Bank GOBIERNO VASCO Service N/A 260000 $1,507
Guaranty
Telepromotion,S.A. Barclays Bank AYUNTAMIENTO DE BILBAO Service N/A 6826692 $39,575
Guaranty
Telepromotion,S.A. Barclays Bank AYUNTAMIENTO DE BILBAO Service N/A 3413346 $19,788
Guaranty
Telepromotion,S.A. Barclays Bank GOBIERNO VASCO Service N/A 240000 $1,391
Guaranty
Telepromotion,S.A. Barclays Bank GOBIERNO VASCO Service N/A 142000 $823
Guaranty
Telepromotion,S.A. Barclays Bank GOBIERNO VASCO Service N/A 3400000 $19,710
Guaranty
Telepromotion,S.A. Barclays Bank CONSORCIO DE AGUAS DE BILBAO Service N/A 1000000 $5,797
Guaranty
</TABLE>
<PAGE>
SCHEDULE V
<TABLE>
<CAPTION>
EXISTING LIENS
SCHEDULE V
DEBTOR FILING FILE NO. ORIGINAL SECURED PARTY COLLATERAL DESCRIPTION
LOCATION DATE FILED
<S> <C> <C> <C> <C>
SITEL Teleservices
Canada, Inc. Canada 850558383 4/3/1999 Ricoh Canada, Inc. **Specific Photocopy Equipment
P.O. Box 37, Station A
Mississagua, ON L5A 279
SITEL Teleservices
Canada, Inc. Canada 860655843 4/9/2000 Xerox Canda Ltd. **Specific Photocopy Equipment
5650 Yonge Street
North York, ON M2M467
SITEL Teleservices
Canada, Inc. Canada 841041522 6/19/1998 Newcourt Financial Ltd. **Photocopier Lease Equipment
5050 South Service Road
Burlington, ON L7R 4C8
SITEL Teleservices
Canada, Inc. Canada 841041523 6/20/1998 Newcourt Financial Ltd. **Photocopier Lease Equipment
5050 South Service Road
Burlington, ON L7R 4C9
SITEL UK Limited UK 4/19/1999 Renison Investment Corp. Security deposit for a lease
Number 7, 27 St. James St. (pound)33,750
London SW1A 1HA
SITEL Corporation Alabama 1037 1/7/2000 GE Capital Corporation Specific Leased Equipment
44 Old Ridgebury Road
Danbury, CT 06810
SITEL Corporation Georgia 121-99-004685 12/1/1999 General Electric Capital Corp. Specific Leased Equipment
5400 LBJ Freeway, Ste 1280
Dallas, TX 75240
SITEL Corporation Georgia 121-00-000077 1/6/2000 General Electric Capital Corp. Specific Leased Equipment
5400 LBJ Freeway, Ste 1280
Dallas, TX 75240
SITEL Corporation Georgia 121-00-000272 1/21/2000 General Electric Capital Corp. Specific Leased Furniture
5400 LBJ Freeway, Ste 1280
Dallas, TX 75240
SITEL Corporation Georgia 121-00-000480 2/7/2000 Mellon US Leasing Specific Leased Equipment
525 Market St., Ste 3500
San Francisco, CA 94105-2743
SITEL Corporation Georgia 121-00-000482 2/7/2000 Mellon US Leasing Specific Leased Equipment
525 Market St., Ste 3500
San Francisco, CA 94105-2743
SITEL Corporation Georgia 121-00-000481 2/7/2000 Mellon US Leasing Specific Leased Equipment
525 Market St., Ste 3500
San Francisco, CA 94105-2743
<PAGE>
SITEL Corporation Georgia 121-00-000483 2/7/2000 Mellon US Leasing Specific Leased Equipment
525 Market St., Ste 3500
San Francisco, CA 94105-2743
SITEL Corporation Kansas 2424561 2/2/1998 Pitney Bowes Credit Corp. Specific Leased Equipment
27 Waterview Dr.
Shelton, CT 06484
SITEL Corporation Nebraska 9991527333 Continued Business Leasing, Inc. Specific Sharp Equipment
6/4/96 7929 West Center Road
Omaha, NE 68124
SITEL Corporation Nebraska 9995660502 6/21/1995 Pitney Bowes Credit Corp. Specific Leased Equipment
201 Merritt Seven
Norwalk, CT 06856
SITEL Corporation Nebraska 9995660504 6/21/1995 Pitney Bowes Credit Corp. Specific Leased Equipment
201 Merritt Seven
Norwalk, CT 06856
SITEL Corporation Nebraska 9995671643 6/25/1995 Douglas County Bank & Trust Specific Canon Equipment
6015 NW Radial Highway
Omaha, NE 68104
SITEL Corporation Nebraska 9996685039 3/11/1996 Pitney Bowes Credit Corp. Specific Leased Equipment
201 Merritt Seven
Norwalk, CT 096856
SITEL Corporation Nebraska 9996694626 6/3/1996 Pitney Bowes Credit Corp. Specific Leased Equipment
201 Merritt Seven
Norwalk, CT 096856
SITEL Corporation Nebraska 9996697544 7/1/1996 Business Credit Leasing Specific Leased Equipment
115 W. College Drive
Marshall, MN 56258
SITEL Corporation Nebraska 9996707775 10/11/1996 Pitney Bowes Credit Corp. Specific Leased Equipment
201 Merritt Seven
Norwalk, CT 096856
SITEL Corporation Nebraska 9996707776 10/11/1996 Pitney Bowes Credit Corp. Specific Leased Equipment
201 Merritt Seven
Norwalk, CT 096856
<PAGE>
SITEL Corporation Nebraska 9997724038 3/10/1997 Business Credit Leasing Specific Minolta Equipment
115 W. College Drive
Marshall, MN 56258
SITEL Corporation Nebraska 9997747067 10/14/1997 Pitney Bowes Credit Corp. Specific Leased Equipment
27 Waterview Drive
Shelton, CT 06484
SITEL Corporation Nebraska 9997752591 12/8/1997 Sharp Electronic Credit Co. Specific Sharp Equipment
1055 Westlakes Drive
Berwyn, PA 19312
SITEL Corporation Nebraska 9998760454 2/24/1998 Pitney Bowes Credit Corp. Specific Leased Equipment
27 Waterview
Drive
Shelton, CT 06484
SITEL Corporation Nebraska 9999811056 6/22/1999 General Electric Capital Corp. Specific Leased Equipment
5400 LBJ Freeway, Ste 1280
Dallas, TX 75240
SITEL Corporation Nebraska 9999906687 11/8/1999 General Electric Capital Corp. Specific Telephone Equipment
5400 LBJ Freeway, Ste 1280
Dallas, TX 75240
SITEL Corporation Nebraska 9900009540 1/6/2000 General Electric Capital Corp. Specific Telephone Switch
5400 LBJ Freeway, Ste 1280
Dallas, TX 75240
SITEL Corporation Nebraska 9900010342 1/7/2000 General Electric Capital Corp. Specific Leased Equipment
5400 LBJ Freeway, Ste 1280
Dallas, TX 75240
SITEL Corporation Nebraska 9900012178 1/11/2000 General Electric Capital Corp. Specific Leased Equipment
5400 LBJ Freeway, Ste 1280
Dallas, TX 75240
SITEL Corporation Maryland 181032278 1/7/2000 GE Capital Corporation Specific Leased Equipment
44 Old Ridgebury Road
Danbury, CT 06810
SITEL Corporation Maryland 181032282 1/7/2000 IBJ Whitehall Business Credit Corp. Specific Leased Equipment
One State Street
New York, NY 10004
SITEL Corporation Maryland 181032283 1/7/2020 GE Capital Corporation Specific Leased Equipment
44 Old Ridgebury Road
Danbury, CT 06810
SITEL Corporation Maryland 181032285 1/7/2000 IBJ Whitehall Business Credit Corp. Specific Leased Equipment
One State Street
New York, NY 10004
<PAGE>
SITEL Corporation Maryland 181032286 1/7/2000 GE Capital Corporation Specific Leased Equipment
44 Old Ridgebury Road
Danbury, CT 06810
SITEL Corporation Maryland 181033077 1/18/2000 IBJ Whitehall Business Credit Corp. Specific Leased Equipment
One State Street
New York, NY 10004
SITEL Corporation Tennessee 971-525317 12/9/1997 Sharp Electronic Credit Co. Leased Copier and Fax Machine
1055 Westlakes Drive
Berwyn, PA 19312
SITEL Corporation Tennessee 993-034242 6/23/1999 General Electric Capital Corp. Leased Telephone Switch and
5400 LBJ Freeway, Ste 1280 Accessories
Dallas, TX 75240
SITEL Corporation Texas 411769 1/14/2000 MLC Group, Inc. Specific Leased Equipment
400 Herndon Parkway
Herndon, VA 26170
SITEL Corporation Texas 411770 1/14/2000 MLC Group, Inc. Specific Leased Equipment
400 Herndon Parkway
Herndon, VA 26170
SITEL Corporation Texas 411771 1/14/2000 MLC Group, Inc. Specific Leased Equipment
400 Herndon Parkway
Herndon, VA 26170
SITEL Corporation Texas 411772 1/14/2000 MLC Group, Inc. Specific Leased Equipment
400 Herndon Parkway
Herndon, VA 26170
SITEL Corporation Texas 411959 1/14/2000 MLC Group, Inc. Specific Leased Equipment
400 Herndon Parkway
Herndon, VA 26170
SITEL Corporation Texas 80117 4/26/1995 American National Bank Specific Leased Copier and a
8990 W. Dodge Road Stapler/Sorter
Omaha, NE 68114-3383
SITEL Corporation Virginia 1077282 1/7/2000 GE Capital Corporation Specific Leased Equipment
44 Old Ridgebury Road
Danbury, CT 06810
SITEL Corporation Wisconsin 7501753415 4/22/1998 AT&T Credit Corporation Specific Leased Equipment
2 Gatehall Drive
Parsippany, NJ 07054
SITEL Corporation Wisconsin 7501854528 6/14/1999 Newcourt Communications Finance Corp. Specific Leased Equipment
2 Gatehall Drive
Parsippany, NJ 07054
<PAGE>
SITEL Corporation Wisconsin 7501915536 1/7/2000 IBJ Whitehall Business Credit Corp. Specific Leased Equipment
One State Street
New York, NY 10004
SITEL Corporation Wisconsin 7501915539 1/7/2000 GE Capital Corporation Specific Leased Equipment
44 Old Ridgebury Road
Danbury, CT 06810
National Action
Financial Services Georgia 6019950731 4/24/1995 AT&T Credit Corporation Specific Leased Equipment
2 Gatehall Drive
Parsippany, NJ 07054
National Action
Financial Services New York 199509 10/3/1995 AT&T Credit Corporation Specific Leased Equipment
2 Gatehall Drive
Parsippany, NJ 07054
National Action
Financial Services Georgia 044-95-007858 8/21/1995 American Business Credit Corp. Specific Leased Equipment
11201 Danka Circle North
St. Petersburg, FL 33716
Assigned to:
Bennet Leasing Corp.
Two Clinton Square
Syracuse, NY 13202
National Action
Financial Services Georgia 044-95-011352 12/4/1995 AT&T Credit Corporation Specific Leased Equipment
2 Gatehall Drive
Parsippany, NJ 07054
Grupo Sitel de Mexico Mexico Attachment 4 1/1/1996 El Camino Resources Leased Telephone Equipment
USD 292,776 Total
Grupo Sitel de Mexico Mexico Attachment 15 8/1/1999 El Camino Resources Leased Computers
USD 50,675 Total
Grupo Sitel de Mexico Mexico Attachment 16 9/1/1999 El Camino Resources Leased Telephone Equipment
USD 85,988 Total
Grupo Sitel de Mexico Mexico Attachment 17 9/1/1999 El Camino Resources Leased furniture
USD 66,751 Total
SITEL Europe plc U.K. Barclays Mercantile Motor Vehicles Hire Purchase
SITEL UK Limited U.K. Barclays Mercantile Agreement
Telecom and Computer Equipment
SITEL UK Limited U.K. Barclays Mercantile
Telecom and Computer Equipment
SITEL Belgium, NV Belgium ING Lease
Warehouse Equipment
SITEL Belgium, NV Belgium J. Van Breda
Computer Equipment
<PAGE>
SITEL Belgium, NV Belgium J. Van Breda
Computer Equipment
SITEL Belgium, NV Belgium J. Van Breda
Office Equipment
SITEL Belgium, NV Belgium J. Van Breda
Office Equipment
SITEL Belgium, NV Belgium J. Van Breda
Office Equipment
SITEL Belgium, NV Belgium J. Van Breda
Office Equipment
SITEL Belgium, NV Belgium Eurolease
Building Improvements
SITEL Belgium, NV Belgium EMG
Local Area Network
LIENS TO BE TERMINATED AT
CLOSING AND RELEASED AS A
MATTER OF RECORD POST-CLOSING
SITEL Corporation Nebraska 9997739798 7/28/1997 Bankers Trust Company Stock Notes, Partnership and LLC
130 Liberty Street Interests
New York, NY 10006
SITEL Corporation Nebraska 9997739801 7/28/1997 Bankers Trust Company Stock Notes, Partnership and LLC
130 Liberty Street Interests
New York, NY 10006
SITEL Corporation Maryland 180768113 3/16/1998 Bankers Trust Company Capital Stock and Equity Interests
130 Liberty Street
New York, NY 10006
SITEL Corporation Maryland 180768114 3/16/1998 Bankers Trust Company Accounts
130 Liberty Street
New York, NY 10006
SITEL Corporation Nebraska 9997739799 07/28/1997 Bankers Trust Company Stock, Partnership and LLC Interests
Amended 130 Liberty Street
3/16/98 New York, NY 10006
SITEL International, Inc. Nebraska 9998762901 3/16/1998 Bankers Trust Company Stock, Partnership and LLC Interests
130 Liberty Street
New York, NY 10006
<PAGE>
SITEL Insurance Services, Inc. Nebraska 9997739800 Amended Bankers Trust Company Stock, Partnership and LLC Interests
3/16/98 130 Liberty Street
New York, NY 10006
SITEL Insurance Services, Inc. Nebraska 9997739801 07/28/1997 Bankers Trust Company Same as above
Amended 130 Liberty Street
3/16/98 New York, NY 10006
SITEL Insurance Services, Inc. Nebraska 9998762900 3/16/1998 Bankers Trust Company Accounts
130 Liberty Street
New York, NY 10006
Financial Insurance Services, Nebraska 9997739802 07/28/1997 Bankers Trust Company Stock, Partnership and LLC Interests
Inc. Amended 130 Liberty Street
3/11/98 New York, NY 10006
Financial Insurance Services, Nebraska 9997739803 07/28/1997 Bankers Trust Company Stock, Notes & Partnership or Member
Inc. Amended 130 Liberty Street Interests
3/11/98 New York, NY 10006
Financial Insurance Services, Nebraska 9998762899 3/16/1998 Bankers Trust Company Accounts
Inc. 130 Liberty Street
New York, NY 10006
Financial Insurance Services, Nebraska 9997739804 7/28/1997 Bankers Trust Company Stock, Notes & Partnership or Member
Inc. 130 Liberty Street Interests
New York, NY 10006
National Action Financial Georgia 067-97-009122 8/1/1997 Bankers Trust Company Stock, Notes & Partnership or Member
Services 130 Liberty Street Interests
New York, NY 10006
National Action Financial Georgia 067-98-007295 6/15/1998 Bankers Trust Company Accounts, Equipment, Inventory
Services 130 Liberty Street
New York, NY 10006
SITEL Insurance Marketing Nebraska 9997739795 07/28/1997 Bankers Trust Company Stock, Notes & Partnership or Member
Services, Inc. Amended 130 Liberty Street Interests
3/17/98 New York, NY 10006
National Action Financial Nebraska 9997739804 7/28/1997 Bankers Trust Company Accounts
Services 130 Liberty Street
New York, NY 10006
SITEL Insurance Marketing Serv. Nebraska 9998762896 3/16/1998 Bankers Trust Company Accounts
130 Liberty Street
New York, NY 10006
SITEL Mexico Holdings LLC Nebraska 9998782132 9/14/1998 Bankers Trust Company Accounts Receivable and Contract
130 Liberty Street Rights
New York, NY 10006
<PAGE>
LIENS TO BE TERMINATED AND
RELEASED POST-CLOSING
National Action Financial Fulton 060-95-008824 5/16/1995 Provident Capital Group, Inc. Specific Leased Equipment
Services County 1406 1405h Place NE, #200
Georgia Bellevue, WA 98007
Assigned to:
Colonial Pacific Leasing
P.O. Box 1100
Tualatin, OR 97062
National Action Financial DeKalb 044-95-005489 5/16/1995 First Union National Bank of Acccounts and Specific
Services County amended Georgia Leased Equipment
Georgia 044-96-001472 999 Peachtree
Street
Atlanta, GA 30309
National Action Financial Alabama 48852 11/26/1999 IBM All computer, information processing
Services Corporation and other purchased equipment and goods
1133 Westchester Ave. referenced on IBM Supplement #013148
White Plains, NY 10604 dated 11/15/97
National Action Financial Gwinnett Book 5/7/1998 Georgia Higher Education Assistance Judgment Lien $4,361.73
Services County 897 Corporation
Georgia Page 103 285 Peachtree Center Avenue
NE
Atlanta, GA 30303-1229
SITEL Corporation Colorado 19972048421 6/12/1997 IBM Corporation IBM Equipment specified on IBM
1133 Westchester Avenue Supplement #012228 dated 6/3/97
White Plains, N Y 10604
SITEL Corporation Georgia 007-97-004171 6/12/1997 IBM Corporation Equipment
1133 Westchester Avenue
White Plains, N Y 10604
SITEL Corporation Nebraska 9997735431 6/12/1997 IBM Corporation Specific IBM Equipment
1133 Westchester Avenue
White Plains, N Y 10604
SITEL Corporation Texas 122818 6/17/1997 IBM Credit Corporation Specific Equipment
1133 Westchester Ave.
White Plains, NY 10604
SITEL Corporation Texas 122819 6/12/1997 IBM Credit Corporation Specific Equipment
1133 Westchester Ave.
White Plains, NY 10604
SITEL TMS Limited Ireland 1/23/1997 Allied Irish Banks PLC Mortgage on 48 Western Parkway
Business Centre, Ballymount, Dublin
<PAGE>
SITEL Consulting Limited
(f/k/a L&R Group) UK 9/5/1994 Barclays Bank All freehold and leasehold property,
54 Lombard Street fixtures, machinery, goodwill, book
London EC3P 3AH debts
SITEL Consulting Limited
(f/k/a the L&R Group Limited) UK 3/18/1998 The Royal Bank of Scotland PLC ***All freehold and leasehold property,
36 St. Andrew Square fixtures, machinery, goodwill,
Edinburgh EH2 24B intellectual property rights, stock
book debts, bank accounts
SITEL Consulting Limited UK 1/26/2000 Barclays Bank All freehold and leasehold property,
54 Lombard Street fixtures, machinery, goodwill,
London EC3P 3AH intellectual property rights, stock
book debts, bank accounts
Mitre PLC (SITEL Europe plc) UK 5/12/1994 The Royal Bank of Scotland PLC
36 St. Andrew Square ***Equipment, machinery, furniture,
Edinburgh EH2 24B fixtures, goodwill, stock, Intellectual
property rights, book debts
SITEL Europe plc UK 1/26/2000 Barclays Bank Freehold and leasehold property,
54 Lombard Street machinery, goodwill, book debts
London EC3P 3AH
SITEL UK PLC UK 1/23/1998 The Royal Bank of Scotland PLC ***All freehold and leasehold property,
36 St. Andrew Square fixtures, machinery, goodwill,
Edinburgh EH2 24B Intellectual property rights, stock,
book debts, bank accounts
SITEL UK Limited UK 1/26/2000 Barclays Bank Freehold and leasehold property,
54 Lombard Street machinery, goodwill, book debts
London EC3P 3AH
SITEL Moor Park Limited UK 9/20/1995 The Royal Bank of Scotland PLC ***Fixed and floating charges over the
36 St. Andrew Square undertaking and all property and assets
Edinburgh EH2 24B present and future, including goodwill,
bookdebts, uncalled capital, buildings,
fixtures, fixed plan and machinery
SITEL Moor Park (Services) UK 3/3/1998 The Royal Bank of Scotland PLC ***Fixed and floating charges over the
Limited 36 St. Andrew Square undertaking and all property and assets
Edinburgh EH2 24B present and future, including goodwill,
bookdebts, uncalled capital, buildings,
fixtures, fixed plan and machinery
<PAGE>
SITEL Stratford Limited UK 4/6/1994 Barclays Mercantile Business A vax mainframe computer syste with all
Finance Limited component parts as detailed on invoices
from Merit Support Limited
SITEL Stratford Limited UK 5/12/1994 The Royal Bank of Scotland PLC ***Fixed and floating charges over the
36 St. Andrew Square undertaking and all property and assets
Edinburgh EH2 24B present and future, including goodwill,
bookdebts, uncalled capital, buildings,
fixtures, fixed plan and machinery
SITEL Stratford Limited UK 5/12/1994 The Royal Bank of Scotland PLC ***Land on the south west side of
36 St. Andrew Square Timothy's Bridge Road Strateford Upon
Edinburgh EH2 24B Avon Warwickshire together with the
benefits of all covenants and rights
affecting or concerning the property,
the present and future goodwill of any
business carried on at the proper
SITEL Stratford (Services) UK 3/3/1998 The Royal Bank of Scotland PLC ***Fixed and floating charges over the
Limited 36 St. Andrew Square undertaking and all property and assets
Edinburgh EH2 24B present and future, including goodwill,
bookdebts, uncalled capital, buildings,
fixtures, fixed plan and machinery
SITEL Kingston (Services) UK 3/3/1998 The Royal Bank of Scotland PLC ***Fixed and floating charges over the
Limited 36 St. Andrew Square undertaking and all property and assets
Edinburgh EH2 24B present and future, including goodwill,
bookdebts, uncalled capital, buildings,
fixtures, fixed plan and machinery
SITEL Corporation Georgia 025-97-001536 2/28/1997 First Bank National Association Accounts, General Intangibles
1700 Farnam
Omaha, NE 68102
SITEL Corporation Georgia 057-07-000771 3/3/1997 First Bank National Association Accounts, General Intangibles
1700 Farnam
Omaha, NE 68102
Merit Communications NV (now Belgium Brussels 10/26/1993 Fortis Bank All Business Assets
SITEL Belgium NV) Mortgage (Balance of 119,050 USD)
Registry
<PAGE>
Merit Communications NV (now Belgium Brussels 6/21/1994 KBC Bank All Business Assets
SITEL Belgium NV) Mortgage (Balance of 119,050 USD)
Registry
Merit Communications NV (now Belgium Brussels 6/9/1994 Fortis Bank All Business Assets
SITEL Belgium NV) Mortgage (Balance of 119,050 USD)
Registry
Merit Communications NV (now Belgium Brussels 6/5/1995 Fortis Bank All Business Assets
SITEL Belgium NV) Mortgage (Balance of 714,285 USD)
Registry
Merit Communications NV (now Belgium Brussels 4/11/1996 Deutsche Bank All Business Assets
SITEL Belgium NV) Mortgage (Balance of 297,620 USD)
Registry
Merit Communications NV (now Belgium Brussels 11/12/1996 Fortis Bank All Business Assets
SITEL Belgium NV) Mortgage (Balance of 119,050 USD)
Registry
**Canadian
Counsel is
preparing
an
acknowledgement
regarding
specific
type of
collateral.
</TABLE>
***Barclays is indemnifying Royal Bank of Scotland against the amount of the
obligation guaranteed by Royal Bank of Scotland (50,000 British pounds sterling)
in order to secure the termination and release of these security interests.
<PAGE>
SCHEDULE VI
-----------
EXISTING INVESTMENTS
490 shares of SITEL Insurance Services Canada Inc. common stock (49%) held by
SITEL Teleservices Canada Inc.
50 shares of Class A common stock of 3101223 Canada Inc. (50%) held by SITEL
Teleservices Canada Inc.
35.898% of International Research Pty Ltd. common stock held by SITEL Asia
Pacific Investments Pte Ltd. (this Investment has been written off)
35.898% of Software Associates Asia Ltd. common stock held by SITEL Asia Pacific
Investments Pte Ltd. (this Investment has been written off)
<PAGE>
SCHEDULE VII
EXISTING LETTERS OF CREDIT
--------------------------
<TABLE>
<CAPTION>
Borrower Issuing Lender Beneficiary Expiry Date Currency Stated Amount
-------- -------------- ----------- ----------- -------- -------------
<S> <C> <C> <C> <C> <C>
SITEL Corporation US Bank N.A. National Australia Bank 9/10/00 Dollars $3,200,000
</TABLE>
<PAGE>
SCHEDULE VIII
MANDATORY COSTS
CALCULATION OF MANDATORY COST
(a) The Mandatory Cost for a Lender for a Euro Rate Loan for each of
its Interest Periods (or any other period for which interest is calculated) is
the rate determined by the Administrative Agent to be equal to the arithmetic
mean (rounded upward, if necessary, to the nearest 1/16th of one per cent.) of
the respective rates notified by such Lender to the Administrative Agent and
calculated in accordance with the following formulae:
in relation to a Euro Rate Loan denominated in Sterling:
BY + S(Y-Z) + F x 0.01 % per annum = Mandatory Cost 100-(B +
S) in relation to any other Euro Rate Loan:
F x 0.01 % per annum = Mandatory Cost
--------
300
where on the day of application of the relevant formula:
B is the percentage of that Lender's eligible
liabilities (assuming them to be in excess of any
stated minimum) which the Bank of England requires
that Lender to hold on a non-interest-bearing deposit
account in accordance with its cash ration
requirements;
Y is the Euro Rate applicable to the relevant Interest
Period (or period);
S is the percentage of that Lender's eligible
liabilities which the Bank of England requires from
time to time that Lender to place as interest bearing
special deposits with the Bank of England;
Z is the interest rate per annum payable by the Bank of
England to that Lender on special interest bearing
deposits; and
F is the charge payable by that Lender to the Financial
Services Authority under paragraph 2.02 or 2.03 (as
appropriate) of the Fees Regulations but where for
this purpose, the figure in paragraph 2.02b and 2.03b
will be deemed to be zero expressed in Pounds
Sterling per (pound)1 million of the fee base of that
Lender.
b) For the purposes of this Exhibit E:
(i) "eligible liabilities" and "special deposits" have the
meaning given to them at the time of application of the
formula by the Bank of England;
(ii) "fee base" has the meaning given to it in the Fees
Regulations; and
<PAGE>
(iii)"Fees Regulations" means the Banking Supervision
(Fees) Regulations 1998 and/or any other regulations
governing the payment of fees for banking supervision.
(c) In the application of the formula, B, Y, S and Z are included in
the formula as figures and not as percentages, e.g., if B = 0.5% and Y = 15%, BY
is calculated as 0.5 x 15.
(d) (i) The formula is applied on the first day of each relevant
period comprised in the relevant Interest Period
(or period).
(ii) Each rate calculated in accordance with the formula
is, if necessary, rounded upward to the nearest
1/16th of one per cent.
(e) If the Administrative Agent determines that a change in
circumstances has rendered, or will render, the formula inappropriate, the
Administrative Agent (after consultation with the Lenders) shall notify the
Borrowers of the manner in which the Mandatory Cost will subsequently be
calculated. The manner of calculation so notified by the Administrative Agent
shall, in the absence of manifest error, be binding on all parties.
<PAGE>
SCHEDULE IX
SCHEDULE OF INDEBTEDNESS TO BE REFINANCED
<PAGE>
<TABLE>
<CAPTION>
Currency Borrower Bank/Counterparty Facility Type Purpose Maturity Balance
-------- -------- ----------------- ------------- ------- -------- -------
<S> <C> <C> <C> <C> <C> <C>
USD SITEL Corporation Bankers Trust Credit Facility 12,500,000.00
EUR Telepromotion, Deutsche Bank Loan Leasehold 4/8/02 613.193,77
S.A. improvement
EUR Telepromotion, Caja Madrid Loan Furniture and 6/15/02 347.599,08
S.A. computer
equipment
EUR SITEL Iberica Barclays Bank Loan Furniture 4/24/00 3.496,06
Teleservices,
S.A.
EUR SITEL Iberica Barclays Bank Loan Computer 7/24/00 48.463,94
Teleservices, equipment
S.A.
EUR SITEL Iberica Caja Madrid Loan Telephone 10/21/00 189.349,40
Teleservices, software
S.A.
EUR SITEL Iberica Caja Madrid Loan Telephone 6/15/02 695.198,19
Teleservices, hardware
S.A.
EUR Action ServiCos Barclays Bank Loan Leasehold 11/24/02 202.511,95
de Publicidade, improvement,
S.A.
EUR Telepromotion, Caja Madrid Overdraft Working capital 6/15/00 127.967.50
S.A.
EUR SITEL Iberica Barclays Bank Overdraft Working capital 6/9/00 1.083.306,29
Teleservices,
S.A.
EUR SITEL Iberica Caja Madrid Overdraft Working capital 6/15/00 1.073.714,13
Teleservices,
S.A.
EUR SITEL Belgium KBC Bank Overdraft and Working capital 4-7-00 1.273.539,00
Straight Loan
EUR SITEL Belgium Deutsche Bank Overdraft and Working capital 6-30-00 727.313,40
Straight Loan
EUR/USD/GBP SITEL Belgium Fortis Bank Overdraft and Working capital N/A 495.787,00
Straight Loan
EUR SITEL Belgium BBL Overdraft and Working capital 5-17-00 484.345,60
Straight Loan
<PAGE>
EUR SITEL Belgium ABN AMRO Overdraft Working capital N/A 554,58
EUR SITEL Gmbh Generale Bank Overdraft and Working capital N/A 150.000,00
Straight Loan
EUR SITEL Gmbh Commerzbank Overdraft Working capital N/A 0
EUR SITEL France Societe Generale Bank Overdraft Working capital N/A 0
EUR SITEL France S.N.V.B. Securitization Accounts 12-00 0
Receivable
EUR Systems ABN AMRO Overdraft Working capital N/A 0
Integrated
Telemarketing
Netherlands B.V.
GBP SITEL UK Barclays Bank Overdraft and Working Capital 12-00 0
Straight Loan
GBP SITEL Europe, plc Barclays Bank Overdraft Working Capital 12-00 0
GBP SITEL Consulting Barclays Bank Overdraft Working Capital 12-00 0
Ltd
</TABLE>
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. Amount and Terms of Credit..................................... 1
1.01 The Commitments............................................. 1
1.02 Minimum Amount of Each Borrowing............................ 3
1.03 Notice of Borrowing......................................... 3
1.04 Disbursement of Funds....................................... 4
1.05 Notes....................................................... 5
1.06 Conversions................................................. 6
1.07 Pro Rata Borrowings......................................... 6
1.08 Interest.................................................... 6
1.09 Interest Periods............................................ 7
1.10 Increased Costs, Illegality, etc............................ 8
1.11 Compensation................................................ 11
1.12 Change of Lending Office.................................... 11
1.13 Replacement of Lenders...................................... 12
SECTION 2. Letters of Credit.............................................. 13
2.01 Letters of Credit........................................... 13
2.02 Maximum Letter of Credit Outstandings; Final Maturities..... 14
2.03 Letter of Credit Requests; Minimum Stated Amount............ 14
2.04 Letter of Credit Participations............................. 15
2.05 Agreement to Repay Letter of Credit Drawings................ 17
2.06 Increased Costs............................................. 18
SECTION 3. Fees; Adjustments to the Total Revolving Loan Commitment....... 19
3.01 Fees........................................................ 19
3.02 Voluntary Termination of Unutilized Commitments............. 19
3.03 Mandatory Reduction of Commitments.......................... 20
3.04 Increase of the Total Revolving Loan Commitment............. 21
SECTION 4. Prepayments; Payments; Taxes................................... 22
4.01 Voluntary Prepayments....................................... 22
4.02 Mandatory Repayments........................................ 23
4.03 Method and Place of Payment................................. 24
4.04 Net Payments................................................ 24
<PAGE>
SECTION 5. Conditions Precedent to the Effective Date..................... 27
5.01 Execution of Agreement; Notes............................... 27
5.02 Officer's Certificate....................................... 27
5.03 Opinions of Counsel......................................... 28
5.04 Corporate Documents; Proceedings; etc....................... 28
5.05 Refinancing, etc............................................ 29
5.06 Adverse Change, etc......................................... 29
5.07 Litigation.................................................. 30
5.08 Pledge Agreements........................................... 30
5.09 Security Agreements......................................... 30
5.10 Subsidiary Guaranties....................................... 31
5.11 Financial Statements; Projections........................... 31
5.12 Solvency Certificate........................................ 31
5.13 Insurance Certificates...................................... 31
5.14 Fees, etc................................................... 32
5.15 Consent Letter.............................................. 32
SECTION 6. Conditions Precedent to All Credit Events...................... 32
6.01 Effective Date.............................................. 32
6.02 No Default; Representations and Warranties.................. 32
6.03 Notice of Borrowing; Letter of Credit Request............... 32
SECTION 7. Representations, Warranties and Agreements..................... 33
7.01 Status...................................................... 33
7.02 Power and Authority......................................... 33
7.03 No Violation................................................ 33
7.04 Approvals................................................... 34
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc............................... 34
7.06 Litigation.................................................. 35
7.07 True and Complete Disclosure................................ 35
7.08 Use of Proceeds; Margin Regulations......................... 35
7.09 Tax Returns and Payments.................................... 36
7.10 Compliance with ERISA....................................... 36
7.11 Security Documents.......................................... 37
7.12 Properties.................................................. 38
7.13 Capitalization.............................................. 38
7.14 Subsidiaries................................................ 38
7.15 Compliance with Statutes, etc............................... 38
7.16 Investment Company Act...................................... 39
7.17 Public Utility Holding Company Act.......................... 39
7.18 Environmental Matters....................................... 39
7.19 Labor Relations............................................. 39
7.20 Patents, Licenses, Franchises and Formulas.................. 40
7.21 Indebtedness................................................ 40
7.22 Senior Subordinated Notes................................... 40
7.23 Year 2000................................................... 40
<PAGE>
SECTION 8. Affirmative Covenants.......................................... 41
8.01 Information Covenants....................................... 41
8.02 Books, Records and Inspections; Annual Meetings............. 43
8.03 Maintenance of Property; Insurance.......................... 43
8.04 Corporate Franchises........................................ 44
8.05 Compliance with Statutes, etc............................... 44
8.06 Compliance with Environmental Laws.......................... 44
8.07 ERISA....................................................... 45
8.08 End of Fiscal Years; Fiscal Quarters........................ 46
8.09 Performance of Obligations.................................. 46
8.10 Payment of Taxes............................................ 46
8.11 Foreign Subsidiaries Security............................... 47
8.12 Additional Security; Further Assurances..................... 47
8.13 Margin Stock................................................ 49
8.14 Permitted Acquisitions...................................... 49
8.15 Certain Post-Closing Actions................................ 50
SECTION 9. Negative Covenants............................................. 51
9.01 Liens....................................................... 51
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc...... 54
9.03 Restricted Payments......................................... 56
9.04 Indebtedness................................................ 57
9.05 Advances, Investments and Loans............................. 58
9.06 Transactions with Affiliates................................ 61
9.07 Capital Expenditures........................................ 62
9.08 Consolidated Interest Coverage Ratio........................ 63
9.09 Maximum Leverage Ratio...................................... 63
9.10 Minimum Consolidated EBITDA................................. 64
9.11 Limitation on Modifications of Certificate of Incorporation,
By-Laws, and Senior Subordinated Note Documents; etc........ 64
9.12 Limitation on Certain Restrictions on Subsidiaries.......... 64
9.13 Limitation on Issuance of Capital Stock..................... 65
9.14 Business.................................................... 65
9.15 Limitation on Creation of Subsidiaries...................... 65
SECTION 10. Events of Default............................................. 65
10.01 Payments................................................... 65
10.02 Representations, etc....................................... 65
10.03 Covenants.................................................. 66
10.04 Default Under Other Agreements............................. 66
10.05 Bankruptcy, etc............................................ 66
10.06 ERISA...................................................... 66
10.07 Security Documents......................................... 67
10.08 Guaranties................................................. 67
10.09 Judgments.................................................. 68
10.10 Change of Control.......................................... 68
<PAGE>
SECTION 11. Definitions and Accounting Terms.............................. 68
11.01 Defined Terms.............................................. 68
SECTION 12. The Administrative Agent...................................... 93
12.01 Appointment................................................ 93
12.02 Nature of Duties........................................... 93
12.03 Lack of Reliance on the Administrative Agent............... 93
12.04 Certain Rights of the Administrative Agent................. 94
12.05 Reliance................................................... 94
12.06 Indemnification............................................ 94
12.07 The Administrative Agent in its Individual Capacity........ 94
12.08 Holders.................................................... 95
12.09 Resignation by the Administrative Agent.................... 95
12.10 Syndication and Documentation Agents....................... 96
SECTION 13. Miscellaneous................................................. 96
13.01 Payment of Expenses, etc................................... 96
13.02 Right of Setoff............................................ 97
13.03 Notices.................................................... 97
13.04 Benefit of Agreement; Assignments; Participations.......... 98
13.05 No Waiver; Remedies Cumulative............................. 100
13.06 Payments Pro Rata.......................................... 100
13.07 Calculations; Computations; Accounting Terms............... 101
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL....................................... 102
13.09 Counterparts............................................... 103
13.10 Effectiveness.............................................. 103
13.11 Headings Descriptive....................................... 103
13.12 Amendment or Waiver; etc................................... 103
13.13 Survival................................................... 105
13.14 Domicile of Loans.......................................... 105
13.15 Register................................................... 105
13.16 Confidentiality............................................ 106
13.17 Judgment Currency.......................................... 106
13.18 Euro....................................................... 107
13.19 European Reorganization.................................... 107
SECTION 14. Parent Guaranty............................................... 108
14.01 The Guaranty............................................... 108
14.02 Bankruptcy................................................. 108
14.03 Nature of Liability........................................ 108
14.04 Independent Obligation..................................... 109
14.05 Authorization.............................................. 109
14.06 Reliance................................................... 110
14.07 Subordination.............................................. 110
14.08 Waiver..................................................... 110
14.09 Nature of Liability........................................ 111
<PAGE>
SCHEDULE I Revolving Loan Commitments
SCHEDULE II Lender Addresses
SCHEDULE III Subsidiaries
SCHEDULE IV Existing Indebtedness
SCHEDULE V Existing Liens
SCHEDULE VI Existing Investments
SCHEDULE VII Existing Letters of Credit
SCHEDULE VIII Mandatory Costs
SCHEDULE IX Indebtedness to be Refinanced
EXHIBIT A Form of Notice of Borrowing
EXHIBIT B-1 Form of Revolving Note
EXHIBIT B-2 Form of Swingline Note
EXHIBIT C Form of Letter of Credit Request
EXHIBIT D Form of Section 4.04(b)(ii) Certificate
EXHIBIT E-1 Form of Opinion of Abrahams Kaslow & Cassman,
Special Counsel to the Credit Parties
EXHIBIT E-2 Form of Opinion of the General Counsel of the US Borrower
EXHIBIT E-3 Form of Opinion of Taylor Joynson Garrett Carmelite, special
United Kingdom counsel to the English Borrower
EXHIBIT E-4 Form of Opinion of Matheson Ormsby Prentice, special Irish counsel
to the Irish Borrower
EXHIBIT E-5 Form of Opinion of Buxeda & Asociados, special Spanish counsel to
the US Borrower
EXHIBIT F Form of Officers' Certificate
EXHIBIT G Form of Pledge Agreement
EXHIBIT H Form of Security Agreement
EXHIBIT I-1 Form of US Subsidiaries Guaranty
EXHIBIT I-2 Form of Foreign Subsidiaries Guaranty
EXHIBIT J Form of Solvency Certificate
EXHIBIT K Form of Assignment and Assumption Agreement
EXHIBIT L Form of Intercompany Note
EXHIBIT M Form of Subordination Provisions
EXHIBIT N Form of Consent Letter
<PAGE>
FORM OF NOTICE OF BORROWING - EXHIBIT A
[Date]
Bankers Trust Company,
as Administrative Agent for the Lenders party
to the Credit Agreement
referred to below
One Bankers Trust Plaza
130 Liberty Street
New York, New York 10006
Attention: ______________
with a copy to:
Bankers Trust Company
1 Appold Street
Broadgate, London EC2A HE
Attention: Loans Agency Department
Liz Keegan
Ladies and Gentlemen:
The undersigned, [SITEL Corporation] [SITEL Europe plc] [SITEL
TMS Limited], refers to the Credit Agreement, dated as of April 11, 2000 (as
amended, modified or supplemented from time to time, the "Credit Agreement," the
terms defined therein being used herein as therein defined), among SITEL
Corporation, SITEL Europe plc, SITEL TMS Limited, the lenders from time to time
party thereto (the "Lenders"), and you, as Administrative Agent for such
Lenders, and hereby gives you notice, irrevocably, pursuant to Section 1.03(a)
of the Credit Agreement, that the undersigned hereby requests a Borrowing under
the Credit Agreement, and in that connection sets forth below the information
relating to such Borrowing (the "Proposed Borrowing") as required by Section
1.03(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is ____________.1
-------------------
1 Shall be a Business Day at least one Business Day in the case of Base Rate
Loans, at least three Business Days in the case of Eurodollar Loans and at
least three Business Days in the case of Foreign Currency Loans, in each
case, after the date hereof provided that (in each case) any such notice
shall be deemed to have been given on a certain day only if given before
11:00 A.M. (Local time) on such day.
<PAGE>
(ii) The Proposed Borrowing shall consist of Revolving Loans
denominated in [Dollars] [Euros] [Pounds Sterling]2.
(iii)The aggregate principal amount of the Proposed Borrowing is
____________.3
[(iv)The Revolving Loans to be made pursuant to the Proposed
Borrowing shall be initially maintained as [Base Rate Loans]
[Eurodollar Loans].]4
[[(iv)][(v)] The initial Interest Period for the Proposed
Borrowing is [one][two][three][six] month(s).]5
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:
(A) the representations and warranties contained in
the Credit Agreement and in the other Credit Documents are and
will be true and correct in all material respects, both before
and after giving effect to the Proposed Borrowing and to the
application of the proceeds thereof, as though made on such
date, unless stated to relate to a specific earlier date, in
which case such representations and warranties shall be true
and correct in all material respects as of such earlier date;
and
(B) no Default or Event of Default has occurred and
is continuing, or would result from such Proposed Borrowing or
from the application of the proceeds thereof.
Very truly yours,
---------------
2 Dollars Revolving Loans are only available to the US Borrower, and Foreign
Currency Loans are only available to the Foreign Borrowers.
3 Shall be stated in Dollars in the case of the US Borrower and in Pounds
Sterling or Euros in the case of the English Borrower and the Irish
Borrower, as applicable.
4 To be provided in the case of Revolving Loans Denominated in Dollars.
5 To be included for a Proposed Borrowing of Euro Rate Loans.
<PAGE>
[NAME OF THE APPLICABLE BORROWER]
By________________________
Name:
Title:
<PAGE>
FORM OF REVOLVING NOTE - EXHIBIT B-1
$_____________ New York, New York
FOR VALUE RECEIVED, [NAME OF BORROWER], a ____________
corporation (the "Borrower"), hereby promises to pay to the order of
____________or its registered assigns (the "Lender"), [in lawful money of the
United States of America]6 [in lawful money of the respective Foreign Currency
(as defined in the Agreement referred to below) or Foreign Currencies of the
respective Foreign Currency Loans (as defined in the Agreement) evidenced hereby
from time to time],7 in immediately available funds, at the applicable Payment
Office (as defined in the Agreement referred to below) of Bankers Trust Company
(the "Administrative Agent") on the Final Maturity Date (as defined in the
Agreement) the principal sum of _______________ DOLLARS ($______________) or, if
less, the then unpaid principal amount of all Revolving Loans (as defined in the
Agreement) made by the Lender to the Borrower pursuant to the Agreement[,
provided that, notwithstanding the fact that the principal amount of this Note
is denominated in Dollars, to the extent provided in the Agreement, all payments
hereunder with respect to Foreign Currency Loans evidenced hereby shall be made
in the respective Foreign Currency or Foreign Currencies in which such Foreign
Currency Loans were made, whether or not the Dollar Equivalent (as defined in
the Agreement) of such amounts would exceed the stated principal amount of this
Note.]8
The Borrower also promises to pay interest on the unpaid
principal amount hereof in like money at said office from the date hereof until
paid at the rates and at the times provided in Section 1.08 of the Agreement.
All payments pursuant to this Note shall be made in accordance with the
requirements of Sections 4.03 and 4.04 of the Agreement.
-------------------
6 To be inserted in the Revolving Note for the US Borrower.
7 To be inserted in the Revolving Note for each Foreign Borrower.
8 To be inserted in the Revolving Note of each Foreign Borrower.
<PAGE>
This Note is one of the Revolving Notes referred to in the
Credit Agreement, dated as of April 11, 2000, by and among SITEL Corporation,
SITEL Europe plc, SITEL TMS Limited, the various lenders from time to time party
thereto (including the Lender) and Bankers Trust Company, as Administrative
Agent (as amended, modified or supplemented from time to time, the "Agreement"),
and is entitled to the benefits thereof and of the other Credit Documents (as
defined in the Agreement). This Note is secured by certain of the Security
Documents (as defined in the Agreement) and is entitled to the benefits of
certain of the Guaranties (as defined in the Agreement), as provided in the
Agreement. As provided in the Agreement, this Note is subject to voluntary
prepayment and mandatory repayment prior to the Final Maturity Date, in whole or
in part.
In case an Event of Default (as defined in the Agreement)
shall occur and be continuing, the principal of and accrued interest on this
Note may become or be declared to be due and payable in the manner and with the
effect provided in the Agreement.
The Borrower hereby waives presentment, demand, protest or
notice of any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
[NAME OF BORROWER]
By:______________________________
Title:
<PAGE>
FORM OF SWINGLINE NOTE - EXHIBIT B-2
$10,000,000 New York, New York
------------, -----
FOR VALUE RECEIVED, SITEL CORPORATION, a Minnesota
corporation, (the "Borrower"), hereby promises to pay to the order of Bankers
Trust Company (the "Lender") in lawful money of the United States of America in
immediately available funds, at the applicable Payment Office (as defined in the
Agreement) of Bankers Trust Company (the "Administrative Agent"), on the
Swingline Expiry Date (as defined in the Agreement) the principal sum of TEN
MILLION DOLLARS ($10,000,000) or, if less, the then unpaid principal amount of
all Swingline Loans (as defined in the Agreement) made by the Lender to the
Borrower pursuant to the Agreement.
The Borrower promises also to pay interest on the unpaid
principal amount of the Swingline Loans made to such Borrower by the Lender in
like money at said office from the date hereof until paid at the rates and at
the times provided in Section 1.08 of the Agreement referred to below. All
payments pursuant to this Note shall be made in accordance with the requirements
of Sections 4.03 and 4.04 of the Agreement.
This Note is the Swingline Note referred to in the Credit
Agreement, dated as of April 11, 2000, among the Borrower, SITEL Europe plc,
SITEL TMS Limited, the lenders from time to time party thereto (including the
Lender) and Bankers Trust Company, as Administrative Agent (as amended, modified
or supplemented from time to time, the "Agreement") and is entitled to the
benefits thereof and of the other Credit Documents. This Note is also secured by
certain of the Security Documents (as defined in the Agreement) and is entitled
to the benefits of the US Subsidiaries Guaranty (as defined in the Agreement),
as provided in the Agreement. As provided in the Agreement, this Note is subject
to voluntary prepayment and mandatory repayment prior to the Swingline Expiry
Date, in whole or in part.
In case an Event of Default (as defined in the Agreement)
shall occur and be continuing, the principal of and accrued interest on this
Note may become or be declared to be due and payable in the manner and with the
effect provided in the Agreement.
The Borrower hereby waives presentment, demand, protest or
notice of any kind in connection with this Note.
<PAGE>
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK.
SITEL CORPORATION
By:______________________________
Title:
<PAGE>
FORM OF LETTER OF CREDIT REQUEST - EXHIBIT C
No. 1 Dated 2
------ -------------
Bankers Trust Company, as Administrative Agent under the Credit Agreement (the
"Credit Agreement"), dated as of April 11, 2000, among SITEL Corporation,
SITEL Europe plc, SITEL TMS Limited, the lenders from time to time party
thereto, and Bankers Trust Company, as Administrative Agent
130 Liberty Street
New York, New York 10006
Attention:
[Name and Address of Issuing Lender]
Attention:
Dear Sirs:
We hereby request that _________________, in its individual
capacity, issue a [standby] [trade] Letter of Credit for the account of the
undersigned on 3 (the "Date of Issuance") in the aggregate stated amount of 4 .
The requested Letter of Credit shall be denominated in 5 .
-----------------
1 Letter of Credit Request number.
2 Date of Letter of Credit Request.
3 Date of Issuance which shall be at least five Business Days from the date
hereof (or such shorter period as is acceptable to the respective Issuing
Lender).
4 Aggregate initial Stated Amount of Letter of Credit which shall not be less
than $100,000 or the Dollar Equivalent thereof in the case of a Letter of
Credit issued in Foreign Currency or such lesser amount as is acceptable to
the respective Issuing Lender.
5 Specify Dollars, Euros, Canadian Dollars, British Pounds Sterling,
Australian Dollars or, to the extent approved by the Administrative Agent
and the respective Issuing Lender, any such other currency. Only standby
Letters of Credit, up to the Dollar Equivalent of $10,000,000 in the
aggregate, may be issued and outstanding in a currency other than Dollars
and such issuance is subject to the consent of the respective Issuing
Lender. Trade Letters of Credit may only be issued in Dollars.
<PAGE>
For purposes of this Letter of Credit Request, unless
otherwise defined herein, all capitalized terms used herein which are defined in
the Credit Agreement shall have the respective meaning provided therein.
The beneficiary of the requested Letter of Credit will be 6 , and such
Letter of Credit will be in support of 7 and will have a stated expiration date
of 8 .
We hereby certify that:
(1) the representations and warranties contained in the Credit
Agreement and in the other Credit Documents are and will be true and
correct in all material respects, both before and after giving effect
to the issuance of the Letter of Credit requested hereby, on the Date
of Issuance (it being understood and agreed that any representation or
warranty which by its terms is made as of a specified date shall be
required to be true and correct in all material respects only as of
such specified date); and
(2) no Default or Event of Default has occurred and is
continuing nor, after giving effect to the issuance of the Letter of
Credit requested hereby, would such a Default or an Event of Default
occur.
Copies of all documentation with respect to the supported
transaction are attached hereto.
SITEL CORPORATION
By_____________________________
Name:
Title:
------------
6 Insert name and address of beneficiary.
7 Insert description of L/C Supportable Obligations in the case of standby
letters of credit and insert description of commercial transaction in the
case of trade letters of credit.
8 Insert the last date upon which drafts may be presented which may not be
later than the earlier of (x) (A) in the case of standby Letters of Credit,
12 months after the Date of Issuance and (B) in the case of trade Letters
of Credit, 180 days after the Date of Issuance and (y) (i) the third
Business Day prior to the Final Maturity Date in the case of standby
Letters of Credit or (ii) the 30th day prior to the Final Maturity Date in
the case of trade Letters of Credit.
<PAGE>
FORM OF SECTION 4.04(b)(ii) CERTIFICATE - EXHIBIT D
Reference is hereby made to the Credit Agreement, dated as of
April 11, 2000, among SITEL Corporation, SITEL Europe plc, SITEL TMS Limited,
the lenders from time to time party thereto, and Bankers Trust Company, as
Administrative Agent (as amended from time to time, the "Credit Agreement").
Pursuant to the provisions of Section 4.04(b)(ii) of the Credit Agreement, the
undersigned hereby certifies that it is not a "bank" as such term is used in
Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended.
[NAME OF BANK]
By ____________________________
Name:
Title:
Date: _______________, ____
<PAGE>
EXHIBIT E-1
April 11, 2000
To the Administrative Agent, the Collateral Agent and each of the Lenders party
to the Credit Agreement referred to below
Ladies and Gentlemen:
We have acted as special counsel to each US Credit Party, including (i)
SITEL Corporation, a Minnesota corporation (the "US Borrower") and (ii) each
Domestic Subsidiary Guarantor as of the date hereof (each a "Domestic Subsidiary
Guarantor," and together with the US Borrower, each a "US Credit Party" and,
collectively, the "US Credit Parties"), in connection with the execution and
delivery of the Credit Agreement dated as of April 11, 2000 (the "Credit
Agreement"), among the US Borrower, SITEL Europe plc, SITEL TMS Limited, as
Borrowers, and the lenders party thereto (the "Banks"), Bankers Trust Company,
as Administrative Agent and Collateral Agent (the "Agent"), and the transactions
contemplated thereby. This opinion is delivered to you pursuant to Section 5.03
of the Credit Agreement and is limited to the US Credit Parties. Unless
otherwise indicated, capitalized terms used herein but not otherwise defined
herein shall have the respective meanings set forth in the Credit Agreement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of such documents as we
have deemed necessary or appropriate as a basis for the opinions set forth
herein, including, without limitation, the following: (a) the Credit Documents
applicable only to and executed by the US Credit Parties on or before the date
hereof; and (b) such other public and corporate documents and records as we deem
necessary or appropriate in connection with this opinion.
As used herein, the expression "to our knowledge" means a conscious
awareness of factual information by any current member of this firm who has been
actively involved with the legal work performed by this firm for the US Credit
Parties or in the preparation of this opinion.
In our examination, we have assumed the genuineness of all signatures
(other than as to any US Credit Party), the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, facsimile or photostatic copies and the
authenticity of the originals of those latter documents. As to questions of fact
not independently verified by us we have relied solely upon representations and
certificates of officers of each Credit Party, public officials and other
appropriate persons.
<PAGE>
Based upon and subject to the foregoing and to the qualifications
stated below, we are of the opinion that:
1. Each US Credit Party (i) is a duly organized and validly
existing corporation or limited liability company (as applicable) in good
standing under the laws of the jurisdiction of its organization, and (ii) has
the corporate or limited liability company power (as applicable) and corporate
or limited liability company authority (as applicable) to own its property and
assets and to transact the business in which it is engaged and presently
proposes to engage.
2. Each US Credit Party has the corporate or limited liability
company power (as applicable) and corporate or limited liability company
authority (as applicable) to execute, deliver and perform the terms and
provisions of each of the Credit Documents to which it is a party and has taken
all necessary corporate or limited liability company (as applicable) action to
authorize the execution, delivery and performance by it of each of the Credit
Documents to which it is a party. Each US Credit Party has duly executed and
delivered each Credit Document to which it is a party. Each Credit Document to
which any US Credit Party is a party constitutes the legal, valid and binding
obligation of such US Credit Party enforceable in accordance with its terms,
except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
3. The execution or delivery by any US Credit Party of the
Credit Documents to which it is a party will not violate any provision of the
articles of incorporation or bylaws (or equivalent organizational documents) of
such US Credit Party.
4. To our knowledge, there are no actions, suits or
proceedings pending or threatened (i) with respect to any Credit Document to
which a US Credit Party is a party, (ii) with respect to any material
Indebtedness of the US Borrower or any of its Domestic Subsidiaries or (iii)
that are reasonably likely to materially and adversely affect the business,
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of the US Borrower and its Subsidiaries taken as a whole. To our
knowledge, there does not exist any judgment, order, or injunction prohibiting
or imposing material adverse conditions upon the making of Loans or the issuance
of any Letter of Credit or the performance by any US Credit Party of its
respective obligations under the Credit Documents to which it is a party.
5. On the Effective Date, the authorized capital stock of the
US Borrower consists of 200,000,000 shares of common stock, $.001 par value per
share. All outstanding shares of capital stock of the US Borrower have been duly
and validly issued and are fully paid and non-assessable. Neither the US
Borrower nor any Domestic Subsidiary Guarantor has outstanding any securities
convertible into or exchangeable for capital stock or outstanding any rights to
subscribe for or to purchase, or any options for the purchase of, or any
agreement providing for the issuance (contingent or otherwise) of, or any calls,
commitments of any character relating to, capital stock, or any stock
appreciation or similar rights except for options or warrants to purchase the US
Borrower's common stock which may be issued from time to time.
<PAGE>
6. Each US Credit Party is the record owner of all of the
Stock of the Domestic Subsidiaries and the Pledged Notes (as each such term is
defined in the Pledge Agreement executed and delivered by the US Credit Parties)
listed on Annex B and Annex C, respectively, to such Pledge Agreement.
7. We have examined the financing statements (the "Security
Agreement Financing Statements") to be filed in the filing offices listed for
each US Credit Party on Schedule 1 attached hereto (the "Security Agreement
Filing Offices"), and upon the filing of such Security Agreement Financing
Statements in the Security Agreement Filing Offices and payment of the required
filing fees, and assuming that the representations made by each US Credit Party
in the Security Agreement with respect to the location of its chief executive
offices and the location of its Inventory and Equipment (as listed in Annex A
and Annex B, respectively, to the Security Agreement to which it is a party) are
and remain true and correct, the security interests granted by each such US
Credit Party in its Receivables, Contracts, Contract Rights, Inventory,
Equipment, Goods, General Intangibles and Chattel Paper (as such terms are
defined in the Security Agreement), and the proceeds thereof, will have been
accomplished and the security interests granted to the Collateral Agent pursuant
to the Security Agreement in and to such Receivables, Contracts, Contract
Rights, Inventory, Equipment, Goods, General Intangibles and Chattel Paper (and
the proceeds thereof) will constitute a perfected security interest therein in
each case to the extent that such Receivables, Contracts, Contract Rights,
Inventory, Equipment, Goods, General Intangibles and Chattel Paper consist of
the types of property in which a security interest may be perfected by filing a
financing statement under the Uniform Commercial Code (the "UCC") as in effect
in the States in which the Security Agreement Filing Offices are located (the
"Relevant States").
8. Assuming that the representation made by each US Credit
Party in Section 2.4 of the Security Agreement with respect to the location of
its chief executive office is and remains true and correct, under the UCC of
each Relevant State, the perfection of the security interests granted by each
such US Credit Party in its Receivables, Contracts, Contract Rights,
non-possessory Chattel Paper and General Intangibles is governed by the laws of
the State of where such Credit Party's chief executive office is located to the
extent that said Receivables, Contracts, Contract Rights, General Intangibles
and non-possessory Chattel Paper consist of "accounts," "chattel paper" and
"general intangibles" as described in the UCC of the respective Relevant State.
9. Assuming that the representation made by each US Credit
Party in Section 2.5 of the Security Agreement with respect to the location of
Inventory and Equipment as shown in Annex B to the Security Agreement is and
remains true and correct, under the UCC of each state where such Inventory and
Equipment is located as shown in Annex B to the Security Agreement, the
perfection of the security interests granted by each such US Credit Party in its
Inventory and Equipment is governed by the laws of the State of where such
Inventory and Equipment is located to the extent that said Inventory and
Equipment consist of "inventory" and "equipment" as described in the UCC of the
respective State where such Inventory and Equipment is located, as shown in
Annex B to such Security Agreement.
<PAGE>
10. No US Credit Party is an "investment company" or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended.
11. No US Credit Party 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.
12. Neither the execution, delivery or performance by any US
Credit Party of the Credit Documents to which it is a party, nor compliance by
them with the terms and provisions thereof, nor the consummation by them of the
Transactions contemplated therein will contravene any applicable provision of
Regulations T, U or X of the Board of Governors of the Federal Reserve System.
Our opinions above are subject to the following qualifications:
(a) Our opinion relating to validity, binding effect and
enforceability set forth in Paragraph 2 above is subject to (i)
Nebraska law restricting the right to collect attorneys fees from a
defaulting party, (ii) principles of equity which permit the exercise
of judicial discretion (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (iii) public policy
considerations or statutory provisions which may limit a party's right
to indemnification against liability for its own wrongful or negligent
acts and to obtain certain remedies. In applying principles of equity
referred to in the preceding clause (ii) a court, among other things,
may not strictly enforce certain covenants if it concludes that such
enforcement would be unreasonable under the then existing
circumstances; such principles of equity, as applied by a court, also
might include a requirement that a creditor act reasonably and in good
faith.
(b) We express no opinion as to the enforceability of
provisions of any of the Credit Documents (i) which purport to
establish evidentiary standards, (ii) which involve disclaimers,
liability limitations with respect to third parties, releases of legal
or equitable defenses, liquidated damages, or waivers of notices,
rights, or remedies, (iii) which impose penalties or forfeitures upon
delinquency or the occurrence of a default, (iv) which involve ipso
facto clauses pertaining to bankruptcy or insolvency of the parties to
the Credit Documents, or (vi) which involve a waiver of a claim of
forum non conveniens.
(c) Certain remedial provisions of the Security Agreement and
Pledge Agreement to which all or certain of the US Credit Parties are a
party may be unenforceable in whole or in part, but the inclusion of
such provisions does not affect the validity of such Security Agreement
and/or Pledge Agreement; however, the unenforceability of such
provisions may result in delays in the enforcement of certain rights
and remedies under such Security Agreement or Pledge Agreement (and we
express no opinion as to the economic consequences, if any, of such
delays).
<PAGE>
(d) The enforceability of provisions in the Credit Documents
to the effect that terms may not be waived or modified except in
writing may be limited under certain circumstances.
(e) Our opinions set forth in paragraphs 7, 8 and 9 above (to
the extent governed by the UCC of any jurisdiction other than the State
of Nebraska) are based solely upon our review of the UCC for each
Relevant State and State where Inventory and/or Equipment is located
contained in Uniform Commercial Code (U.L.A.) ss.ss.9-101 to end (West
Publishing Company 1999 supplement). We express no opinion as to the
priority of any security interests granted to the Collateral Agent.
(f) The perfection of the security interest created in favor
of the Collateral Agent in proceeds may be limited or otherwise
affected by the provisions of ss.9-306(3) of the UCC for each Relevant
State and the State where Equipment and Inventory is located.
We are members of the Bar of the State of Nebraska, and we do not hold
ourselves out as being conversant with, and express no opinion as to, the laws
of any jurisdiction other than (i) the State of Nebraska (ii) to the extent
applicable herein, the general corporate law of the State of Minnesota and (iii)
as otherwise provided in clause (e) above. We have assumed for the purposes of
rendering the opinions set forth in the last sentence of paragraph 2 above that
the laws of the State of New York are identical in all material respects to
those of the State of Nebraska.
This opinion is limited to the matters expressly set forth herein and
no opinion is implied or may be inferred beyond such matters. We make no
undertaking to supplement this opinion if facts or circumstances come to our
attention or changes in the law occur after the date of this letter which could
affect this opinion.
This opinion is rendered solely to the addressees and is solely for
their benefit and the benefit of their participants and assigns in connection
with the above-referenced transaction. This opinion may not be relied upon for
any other purpose, or relied upon by any other person, firm or corporation for
any purpose, without our prior written consent.
Very truly yours,
Abrahams Kaslow & Cassman
<PAGE>
SCHEDULE 1
<TABLE>
<CAPTION>
SECURITY AGREEMENT FILING OFFICES
DEBTOR STATE FILING OFFICE
------ ----- -------------
------------------------------------------------------- ---- ----------------- ---- -------------------------
<S> <C> <C>
SITEL Corporation Georgia Troup County
Richmond County
Gwinett County
Chatham County
Colorado Secretary of State
Alabama Secretary of State
Maryland Secretary of State
West Virginia Secretary of State
Wisconsin Secretary of State
Virginia Fairfax County
Secretary of State
Texas Secretary of State
Tennessee Secretary of State
South Dakota Secretary of State
Oregon Secretary of State
New York Erie County
Secretary of State
Nevada Secretary of State
Nebraska Secretary of State
Maine Secretary of State
Kansas Secretary of State
Iowa Secretary of State
Minnesota Secretary of State
------------------------------------------------------- ---- ----------------- ---- -------------------------
SITEL International, Inc. Maryland Secretary of State
Nebraska Secretary of State
------------------------------------------------------- ---- ----------------- ---- -------------------------
SITEL Insurance Services, Inc. Maryland Secretary of State
Nebraska Secretary of State
------------------------------------------------------- ---- ----------------- ---- -------------------------
Financial Insurance Services, Inc. Maryland Baltimore City
Secretary of State
Nebraska Secretary of State
------------------------------------------------------- ---- ----------------- ---- -------------------------
Heartland Insurance Services, Inc. Maryland Baltimore City
Secretary of State
------------------------------------------------------- ---- ----------------- ---- -------------------------
SITEL Insurance Marketing Services, Inc. Maryland Secretary of State
Nebraska Secretary of State
------------------------------------------------------- ---- ----------------- ---- -------------------------
National Action Financial Services, Inc. Georgia Gwinett County
New York Erie County
Secretary of State
Maryland Baltimore City
Secretary of State
------------------------------------------------------- ---- ----------------- ---- -------------------------
SITEL Mexico Holdings, LLC Maryland Secretary of State
Nebraska Secretary of State
------------------------------------------------------- ---- ----------------- ---- -------------------------
Seek the Geek, Inc. Maryland Secretary of State
Nebraska Secretary of State
------------------------------------------------------- ---- ----------------- ---- -------------------------
</TABLE>
<PAGE>
EXHIBIT E-2
April 11, 2000
To the Administrative Agent, the Collateral Agent and each of the Lenders party
to the Credit Agreement referred to below
Ladies and Gentlemen:
As corporate General Counsel for SITEL Corporation, a Minnesota
corporation (the "US Borrower"), I have been requested to render this opinion in
connection with the execution and delivery of the Credit Agreement dated as of
April 11, 2000 (the "Credit Agreement"), among the US Borrower, SITEL Europe plc
and SITEL TMS Limited, as Borrowers, the lenders party thereto (the "Lenders"),
and Bankers Trust Company, as Administrative Agent and Collateral Agent (the
"Agent"), and the transactions contemplated thereby. This opinion is delivered
to you pursuant to Section 5.03 of the Credit Agreement. Unless otherwise
indicated, capitalized terms used herein but not otherwise defined herein shall
have the respective meanings set forth in the Credit Agreement.
In connection with this opinion, I have examined originals or copies,
certified or otherwise identified to my satisfaction, of such documents as I
have deemed necessary or appropriate as a basis for the opinions set forth
herein, including, without limitation, the following: (a) the Credit Documents
applicable to and executed by the US Borrower and the Domestic Subsidiary
Guarantors (collectively, the "US Credit Parties")executed on or before the date
hereof, (b) and the Credit Agreement, Notes, and Foreign Subsidiary Guaranty
applicable to and executed by the Initial Foreign Credit Parties which by their
terms are governed by the law of the State of New York (collectively, the
"Certain Foreign Credit Documents"), and (c) such other public and corporate and
limited liability company documents and records as I deem necessary or
appropriate in connection with this opinion.
In my examination, I have assumed the genuineness of all signatures
(other than as to any Credit Party), the authenticity of all documents submitted
to me as originals, the conformity to original documents of all documents
submitted to me as certified or photostatic copies, and the authenticity of the
originals of such copies. As to questions of fact not independently verified by
me, I have relied, to the extent I have deemed appropriate, upon representations
and certificates of officers of each US Credit Party, public officials, and
other appropriate persons. As to the Certain Foreign Credit Documents, I have
assumed that each Initial Foreign Credit Party who is a party thereto has the
corporate or equivalent power and authority to execute, deliver and perform such
Certain Foreign Credit Documents, that it has taken all necessary corporate or
equivalent action to authorize the execution, delivery and performance thereof,
that it has duly executed and delivered such Certain Foreign Credit Document,
and I have further assumed and relied upon the correctness of the opinions,
including all assumptions and qualifications upon which such opinions are based
or to which they are subject, delivered by counsel to such Initial Foreign
Credit Parties to the Lenders on or before the date hereof.
<PAGE>
Based upon and subject to the foregoing, I am of the opinion that:
1. Each US Credit Party is duly qualified and is authorized to do
business and is in good standing in all jurisdictions where it is required to be
so qualified and where the failure to be so qualified could reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of the US Borrower and its Domestic Subsidiaries taken as a whole.
2. Neither the execution, delivery or performance by any Credit Party
of the Credit Documents to which it is a party, nor compliance by them with the
terms and provisions thereof, nor the consummation by them of the transactions
contemplated therein, (i) will contravene any applicable provision of the
Telephone Consumer Protection Act of 1991 or the rules and regulations
promulgated thereunder by the Federal Communications Commission, or the
Telemarketing and Consumer Fraud and Abuse Prevention Act of 1994 or the rules
and regulations promulgated thereunder by the Federal Trade Commission, or any
provision of any law, statute, rule or regulation of the State of Maryland which
in my experience would be applicable to a corporation or limited liability
company conducting activities of the nature being conducted by the Credit
Parties, or any order, writ, injunction or decree of any court or governmental
instrumentality pertaining to any US Credit Party or (ii) in the case of the US
Credit Parties only, will conflict or be inconsistent with or result in any
breach of, any of the terms, covenants, conditions or provisions of, or
constitute a default under, or (other than pursuant to the Pledge Agreement and
the Security Agreement executed by the US Credit Parties) result in the creation
or imposition of (or the obligation to create or impose) any Lien upon any of
the property or assets of any US Credit Party pursuant to the terms of any
indenture, mortgage, deed of trust, credit agreement, loan agreement, or any
other material agreement, or instrument to which such US Credit Party is a party
or by which it or any of its property or assets are bound or to which it may be
subject.
3. No order, consent, approval, license, authorization, or validation
of, or filing, recording or registration with, or exemption by, any United
States governmental or public body or authority, or any subdivision thereof
(except as have been made and obtained on or prior to the date hereof and which
remains in full force and effect on the date hereof, and except for the filing
of proper financing statements with all appropriate filing offices to perfect
the security interests granted to the Collateral Agent under the Pledge
Agreement or Security Agreement executed by the US Credit Parties), is required
to authorize, or is required in connection with, (i) the execution, delivery and
performance by any US Credit Party of any Credit Document to which it is a
party, (ii) the execution, delivery and performance by any Initial Foreign
Credit Party of any Certain Foreign Credit Document to which it is a party,
(iii) the legality, validity, binding effect or enforceability of any US Credit
Document against any US Credit Party or of any Certain Foreign Credit Document
against any Initial Foreign Credit Party.
4. After giving effect to the delivery to the Collateral Agent of the
Certificated Securities, Pledged Notes and Instruments, as such terms are
defined in the Pledge Agreement to which the US Credit Parties are a party, with
stock powers endorsed in blank attached to such Certificated Securities, and
assuming the continued possession by the Collateral Agent of such Certificated
Securities and stock powers, Pledged Notes and Instruments, the security
interest created in favor of the Collateral Agent under such Pledge Agreement to
which the US Credit Parties are a party constitutes a valid and enforceable
first perfected security interest in such Collateral (and the proceeds thereof)
in favor of the Collateral Agent for the benefit of the Secured Creditors,
subject to no other security interest. The perfection or priority of the
security interest created in favor of the Collateral Agent in proceeds may be
limited or otherwise affected by the provisions of ss.9-306(3) of the Uniform
Commercial Code ("UCC").
<PAGE>
I am a member of the Bar of the State of Maryland, and I do not hold
myself out as being conversant with, and express no opinion as to, the laws of
any jurisdiction other than those of the United States of America specified
herein and of the State of Maryland. I have assumed for the purposes of
rendering the opinions set forth in paragraph 3 above that the laws of the State
of New York (to the extent applicable) are identical in all material respects to
those of the State of Maryland.
This opinion is being furnished only to the addressees and is
solely for their benefit and the benefit of their participants and assigns in
connection with the above-referenced transaction. This opinion may not be relied
upon for any other purpose, or relied upon by any other person, firm or
corporation for any purpose, without my prior written consent.
Very truly yours,
W. Gar Richlin
General Counsel
SITEL Corporation
<PAGE>
EXHIBIT E-3
SWL
Bankers Trust Company
(in its capacities as administrative agent and collateral agent)
130 Liberty Street
New York, NY 10006
USA
and each Lender (as defined below)
Attention: David Bell
11 April 2000
Dear Sirs
SITEL Europe plc
1. INTRODUCTION
1.1 We have acted as legal advisers in England to SITEL Europe plc (Company
number: 2756274) ("SITEL Europe") and the other companies listed in
appendix 1 to this opinion (together with SITEL Europe, the "Companies"
and each a "Company") in connection with:
a credit agreement (the "Credit Agreement") dated as of 11 April
2000 between SITEL Corporation, SITEL Europe and SITEL TMS
Limited, the lenders from time to time party thereto (the
"Lenders") and Bankers Trust Company as administrative agent (the
"Agent");
revolving notes (the "Notes") dated 11 April 2000 issued by SITEL
Europe to each Lender in accordance with the terms of the Credit
Agreement;
a debenture (the "Debenture") dated 11 April 2000 given by the
Companies in favour of Bankers Trust Company as collateral agent
("Collateral Agent");
<PAGE>
a foreign subsidiaries guaranty (the "Guaranty") dated as of 11
April 2000 given by the Companies and certain other companies
named therein in favour of the Collateral Agent;
a share charge (the "TMS Share Charge") dated 11 April 2000 given by
SITEL Europe in favour of the Collateral Agent comprising a fixed
charge over shares in SITEL TMS Limited; and
a share charge (the "Share Charge") dated 11 April 2000 given by
SITEL Corporation, and SITEL International, Inc. (together the
"Shareholders") comprising a fixed charge over shares in SITEL
Europe.
The Credit Agreement, the Notes, the Debenture, the Guaranty, the TMS
Share Charge and the Share Charge are referred to herein as the
"Documents".
1.2 For the purposes of this opinion, we have examined the following:
a faxed copy of the Credit Agreement executed by SITEL Europe;
faxed copies of the Notes executed by SITEL Europe;
a faxed copy of the Debenture executed by the Companies;
a faxed copy of the Guaranty executed by the Companies;
a faxed copy of the Share Charge executed by the Shareholders;
a faxed copy of the TMS Share Charge executed by SITEL Europe;
a copy of the minutes of a meeting of the directors of SITEL Europe
held on 7 April 2000 at which there was passed a resolution
approving the Credit Agreement, the Notes, the Guaranty and the
Debenture and authorising the execution of the same on behalf of
SITEL Europe;
a copy of the minutes of a meeting of the directors of SITEL Europe
held on 10 April 2000 at which there was passed a resolution
approving the TMS Share Charge and authorising the execution of
the same on behalf of SITEL Europe;
a copy of the minutes of a meeting of the directors of each Company
(other than SITEL Europe) held on 7 April 2000 at which there was
passed a resolution approving the Debenture and the Guaranty and
authorising the execution of the same on behalf of each Company;
a copy of the memorandum and articles of association of each Company
obtained from the Companies Registration Office from our searches
referred to in paragraph 2.4; and
<PAGE>
faxedcopies of certificates from the Registrar of Companies in respect
of the Companies each dated 5 April 2000 (the "Certificates").
2. BASIS OF OPINION AND ASSUMPTIONS
2.1 This opinion relates solely to matters of English law in force on the
date of this opinion, and is based on legislation published, and cases
fully reported, before that date. We express no opinion as to any
matters of fact.
2.2 For the purposes of this opinion, we have not examined:
any contract (other than ones specifically referred to in this
opinion) which may affect the validity or enforceability of the
Documents; or
any of the corporate or other records of any Company or any
Shareholder (except as provided in paragraphs 1.2(g), (h), (i) and (j)
above)
nor have we made any other enquiries concerning any Company (apart from
the Companies Registration Office searches mentioned below) or any
Shareholder.
2.3 We have not made any enquiries concerning the property of any Company
or any Shareholder. In particular, we have not carried out any
investigation of any Company's title to any land or other property
which is covered by the Debenture or which is in the possession or
control of any Company or of any Shareholder's title to any property
covered by the Share Charge or of SITEL Europe's title to any property
covered by the TMS Share Charge.
2.4 On 17 March 2000 we carried out a Companies Registration Office search
in respect of the SITEL Europe, SITEL UK Limited and SITEL Consulting
Limited and on 28 March 2000 we carried out a Company Registration
Office Search in respect of the Companies (other than SITEL Europe,
SITEL Consulting Limited and SITEL UK Limited) which we updated by an
online search on 11 April 2000. We assume that the information obtained
in that search was accurate, did not fail to disclose any relevant
matter and that a further search would not reveal any change or new
matter which would affect this opinion.
<PAGE>
2.5 We have also assumed:
the genuineness of all signatures on, and the authenticity and
completeness of, all documents submitted to us;
the conformity to original documents and completeness of all documents
submitted to us as copies (including faxed copies) and the
authenticity of the originals where copies (including faxes
copies) have been submitted;
that the resolutions of the directors of each Company referred to above
were duly passed at a meeting of the directors duly convened and
held and throughout which a valid quorum of directors entitled to
vote on the resolution was present and that prior to execution no
signatory for and on behalf of the Companies received notice of
revocation of the authority under which that signatory executed
and delivered any Document;
that each Document is valid, binding and enforceable as regards each
of the parties to it other than the Companies;
that each of the Credit Agreement and each Note is valid, binding and
enforceable as regards SITEL Europe under the law of the State of
New York by which law it is stated to be governed, the Guaranty is
valid, binding and enforceable as regards the Companies under the
law of the State of New York by which law it is stated to be
governed and the TMS Share Charge is valid and binding and
enforceable as regards SITEL Europe under the laws of Ireland by
which law it is stated to be governed;
that the performance of any obligations under the Documents in any
jurisdiction outside England and Wales is not illegal under the
laws of such jurisdiction;
that none of the Companies has passed a winding-up resolution and that
no petition has been presented, or order made, for the winding-up
of any Company although the Certificates state that:
according to the documents on the file of the relevant Company
in the custody of the Registrar of Companies, that the
relevant Company has been in continuous and unbroken
existence since the date of its incorporation;
no action is currently (as at the date of the relevant
Certificate) being taken by the Registrar of Companies for
striking the relevant Company off the register and
dissolving it as defunct, and that as far as the Registrar
of Companies is aware:
the relevant Company is not in liquidation or subject to an
administration order; and
<PAGE>
no receiver or manager of the relevant Company's property has been
appointed;
that no administration order under the Insolvency Act 1986 in respect
of any Company has been made and no petition for such an order has
been presented although the Certificates state that:
according to the documents on the file of the relevant Company
in the custody of the Registrar of Companies, that the
relevant Company has been in continuous and unbroken
existence since the date of its incorporation;
no action is currently (as at the date of the relevant
Certificate) being taken by the Registrar of Companies for
striking the relevant Company off the register and
dissolving it as defunct, and that as far as the Registrar
of Companies is aware:
the relevant Company is not in liquidation or subject to an
administration order; and
no receiver or manager of the relevant Company's property has been
appointed;
that none of the Companies or the Shareholders is subject to any
insolvency procedure in a country other than England and Wales and
that no steps have been taken to subject it to such a procedure;
and
that no resolution amending the memorandum or articles of association
of any Company has been passed which has not been filed with the
Registrar of Companies.
3. OPINION
On the basis of the above and subject to the qualifications set out
below, we are of the opinion, so far as English law is concerned, as
follows:
each Company is a limited liability company duly incorporated in
England.
At the date of our Companies Registration Office search, no notice
of a winding-up, an administration order or an appointment of a
receiver or liquidator had been filed at the Companies
Registration Office in respect of any Company and in response to
an oral inquiry made by us today, the Central Registry of Winding
Up Petitions has confirmed that no petition for winding up any
Company has been presented within the period of six months prior
to such inquiry;
<PAGE>
each Company has the corporate capacity to enter into, and to perform
its obligations, under the Documents to which it is a party;
each Company has taken the necessary corporate action to authorise its
entry into, and the performance of its obligations under, the
Documents to which it is a party;
each Document constitutes valid, binding and enforceable obligations of
each Company which is a party thereto in accordance with its terms
and the Debenture and the Share Charge are in a form and in terms
appropriate to create valid security interests of the kind which
it purports to create assuming that each Company (in respect of
the Debenture) and each Shareholder (in respect of the Share
Charge) has good title to the assets which are subject to such
security interests free from any third party rights and interests.
It should be noted, however, that the term "enforceable" as used
in this opinion means that the obligations are of a type which are
capable of being enforced by the English courts and does not
necessarily mean that the obligations will be enforced in all
circumstances. We refer you to certain of the qualifications set
out below for specific (but not exhaustive) instances of
circumstances where the obligations of the Companies and the
Shareholders may not be enforceable;
to the extent that:
the indebtedness of SITEL Europe under the Credit Agreement
and the Notes is unsecured it would rank, in an English
winding up of SITEL Europe, equally with its other
unsecured indebtedness;
the indebtedness of the Company under the Guaranty is
unsecured it would rank, in an English winding up of the
relevant Company, equally with that Company's other
unsecured indebtedness;
the indebtedness of a Company under the Documents to which it
is a party is secured it would rank, in an English winding
up of that Company, ahead of its unsecured indebtedness,
in all such cases except debts which are preferential debts under
the Insolvency Act 1986 (for example, certain debts due to the
Inland Revenue or employees) and the expenses of the winding up;
no consent or approval of any governmental authority in England
applicable to companies generally is required by any Company in
connection with the Documents to which it is a party or by any
Shareholder in connection with the Share Charge and, apart from
registration of the Debenture, the TMS Share Charge and the Share
Charge under the Companies Act 1985 and the Debenture at H.M. Land
Registry under the Land Registration Act 1925, to the extent that
it relates to the property referred to in schedule 1 of the
Debenture it is not necessary to register any Document in any
public office in England;
<PAGE>
undercurrent law and Inland Revenue practice, all payments from any
Company in respect of interest due under the Documents may be made
without deduction of any United Kingdom tax provided that:
the recipient is a bank as defined in section 840A of the
Income and Corporation Taxes Act 1988 which, for the
purposes of section 349(3)(a) of that Act, is within the
charge to United Kingdom corporation tax as regards any
interest received by it under any Document; or
the recipient:
participates in the facilities under the Credit Agreement through a
facility office outside the United Kingdom; and
is entitled to receive payments of interest from the
relevant Company under the relevant Document
without deduction of United Kingdom income tax by
virtue of the operation of, and compliance with the
requirements of, an applicable double taxation
treaty;
none of the Documents is chargeable to United Kingdom stamp duty;
the choice of the law of the State of New York to govern the Credit
Agreement (as specified in Section 13.08 thereof), the Notes (as
specified therein) and the Guaranty (as specified in clause 20
thereof) is valid under English conflict of laws rules except
that, under the Rome Convention (which is given effect in the
United Kingdom by the Contracts (Applicable Law) Act 1990) if
proceedings were to be brought in England:
to the extent that the laws of England would be applicable
to the Credit Agreement, the Notes and/or the Guaranty
but for the relevant choice of law provisions referred
to above, rules of English law might nevertheless be
applied, as the law of the forum, where these are
mandatory irrespective of the laws of the State of New
York;
theapplication of the law of the State of New York might
be refused if such application is manifestly
incompatible with English public policy or "ordre
public"; and
to the extent that the Notes are promissory notes or other
negotiable instruments, then to the extent that the
obligations under the Notes arise out of their
negotiable character, the Rome Convention will not
apply and an English court would apply common law rules
to resolve which law is to determine issues relating to
the Notes;
<PAGE>
the choice of law of Ireland to govern the TMS Share Charge (as
specified in Section 16 thereof) is valid under English conflict
of laws rules except that, under the Rome Convention (which is
given effect in the United Kingdom by the Contracts (Applicable
Law) Act 1990) if proceedings were to be brought in England:
to the extent that the laws of England would be applicable
to the TMS Share Charge but for the relevant choice of
law provisions referred to above, rules of English law
might nevertheless be applied, as the law of the forum,
where these are mandatory irrespective of the laws of
Ireland; and
theapplication of the laws of Ireland might be refused if
such application is manifestly incompatible with
English public policy or "ordre public";
the acceptance by SITEL Europe under the Credit Agreement and the
Notes and by the Companies under the Guaranty of the jurisdiction
of the courts of the State of New York or of the United States for
the Southern District of New York is not void or unlawful under
English law. However it is possible (although unlikely) that an
English court would accept jurisdiction to the extent that it
viewed England as the more convenient and appropriate forum. The
jurisdiction of the said state and federal courts would be likely
to be recognised by an English court for the purpose of enforcing
in England at common law any final money judgment of such courts;
the acceptance by SITEL Europe under the TMS Share Charge of the
jurisdiction of the courts of Ireland is not void or unlawful
under English law. The English Courts are likely to accept
jurisdiction over any proceedings brought by the Collateral Agent
against SITEL Europe in England, provided that the Collateral
Agent has not previously brought the same proceedings in any other
European Community member's courts (including Ireland);
the execution, delivery and performance by each Company of the
Documents to which it is a party will not violate:
any existing law or regulation under the laws of England
applicable to companies generally; or
any provision of its memorandum or articles of association;
the execution, delivery and performance by each Shareholder of the
Share Charge will not violate any existing law or regulation under
the laws of England applicable to companies generally;
none of the Companies is entitled to any form of immunity from
legal proceedings, jurisdiction or execution of judgement;
the courts of England will, under common law rules, enforce a final
and conclusive judgment in relation to the Credit Agreement
entered against SITEL Europe and in relation to the Guaranty
entered against any Company for a debt or definite sum of money by
a court of competent jurisdiction of the State of New York or of
the United States of America provided that:
<PAGE>
the said judgment is not contrary to English public policy
and/or Section 5 of the Protection of Trading Interests
Act 1980;
the said judgment was not obtained by fraud and/or in breach of
the rules of natural justice;
the proceedings in the State of New York or of the United States
of America were not of a revenue or penal nature; and
thecourts of England decide that, under English conflict
of laws rules, the said court of the State of New York
had jurisdiction in the said proceedings;
each Document is in proper form for its enforcement in the courts
of England; and
details of the authorised and issued share capital of the Companies, as
revealed by the Companies Registration Office search referred to
in clause 2.4, is as set out in appendix 2 to this opinion.
4. QUALIFICATIONS
The qualifications to which this opinion is subject are as follows:
the validity, performance and enforceability of each Document may be
limited or affected by, or by laws applicable in, an insolvency,
administration, liquidation, voluntary arrangement or scheme of
arrangement or by other similar laws affecting creditors' rights
generally. Such laws may also require sums received from any
Company or any Shareholder under any Document to be repaid;
equitable remedies such as specific performance and injunctive relief
are only available at the discretion of a court. Moreover, the
exercise of legal rights may be affected by equitable
considerations. The court also has power to stay any proceedings
either of its own motion or on the application of any person;
in appropriate cases, English courts will give judgment in a currency
other than sterling, although a judgment would have to be
converted into sterling for the purposes of enforcement or for
claiming in a liquidation. There is no reported English authority
as to whether or not an English court would give effect to the
currency indemnity such as those in Section 13.17 of the Credit
Agreement, Section 29 of the Guaranty, Section 22 of the Share
Charge and Section 24 of the Debenture;
<PAGE>
the court may set aside a determination or the exercise of a power or
discretion under any Document which has been made or exercised
unreasonably or on a basis which is incorrect. This is so even if
the Document provides for the relevant determination or
certificate to be conclusive;
an indemnity in respect of stamp duty may not be valid;
a contractual provision that a party will pay certain costs, charges
and expenses will not cover costs unreasonably incurred or
unreasonable in amount nor override the court's discretion under
section 51 of the Supreme Court Act 1981 as to costs connected
with proceedings. Moreover, costs may be subject to quantification
by the court;
a clause in written standard terms of business which excludes or
restricts a duty of care or a liability for breach of such a duty
is of no effect unless it is shown to satisfy the requirement of
reasonableness under the Unfair Contract Terms Act 1977. Moreover,
such a clause, or a clause excluding or restricting a fiduciary or
similar duty or a clause which provides for an indemnity is to be
interpreted narrowly and against the party whom it is intended to
protect. In addition, a decision of the Court of Appeal suggests
that, if a clause requires a party to make payments without any
deduction in respect of any claims which it has against the payee,
and such claims could include a claim for negligence, the clause
as a whole will be of no effect unless it is shown to satisfy the
requirement of reasonableness under the Unfair Contract Terms Act.
Whether any of the Documents constitutes written standard terms of
business of any Lender, the Agent or the Collateral Agent is a
question of fact although it may be considered to be unlikely;
no opinion is expressed as to any clause which provides that a
variation or waiver is ineffective unless in writing;
no opinion is expressed as to any clause which provides that a notice
shall be deemed to have been served at a fixed time after dispatch
where it is proved that the notice was not in fact received by the
addressee;
the validity of a provision which stipulates that if any term of any
Document is invalid, illegal or unenforceable that the validity,
legality and enforceability of the remaining provisions of that
Document will not be affected or impaired will depend on the
nature of the illegality, invalidity or unenforceability in
question;
in an English winding up of any Company a provision such as Section
13.02 of the Credit Agreement (relating to set off) in respect of
SITEL Europe or Section 15.6 of the Debenture (relating to set
off) or Section 13.6 of the Share Charge may be ineffective in so
far as it purports to grant rights inconsistent with the operation
of rule 4.90 of the Insolvency Rules 1986 as amended;
<PAGE>
no opinion is expressed as to compliance by any Company with United
Kingdom or EC requirements relating to protection of the
environment, safety at work and similar matters;
no opinion is expressed in relation to the sufficiency or
adequacy of the consideration received by any Company under the
Guaranty; and
except as set out in paragraphs 3.1(g) and 3.1(h) no opinion is
expressed as to taxation.
5. OBLIGATIONS OF THE COMPANIES
5.1 The Administrative Agent, the Collateral Agent or a Lender may be
unable to enforce a transaction which it has entered into with any
Company if it knew or should have known (a) that the officers of that
Company were entering into the transaction for a purpose different from
the purposes for which that Company's constitution empowered them to
enter into transactions of that kind or (b) that no reasonable board of
directors could reasonably consider it to be in the best interests of
the relevant Company to enter into the transaction. In such
circumstances, the Administrative Agent, the Collateral Agent or that
Lender may be liable to repay amounts which it received from the
Company under the transaction.
5.2 This opinion is given on the assumption (which we have not verified)
that, after executing the Documents, each Company was fully solvent and
that the execution of the Documents will not cause any Company to cease
to be fully solvent. If this assumption is incorrect, the Guaranty
might be liable to be set aside as regards the Companies under general
company law principles relating to directors' duties or under section
238 of the Insolvency Act 1986 (transactions at an undervalue).
6. GENERAL QUALIFICATIONS AS TO SECURITY
6.1 The validity, enforceability or effectiveness of a security interest,
or its priority in relation to other rights and interests, may be
governed or affected by the law which governs, or is otherwise
applicable to, the asset which the security interest covers.
6.2 A security interest may be invalid or unenforceable if the terms
attaching to the asset which it covers, or on which that asset is held,
preclude the creation of security interests over it.
<PAGE>
6.3 A security interest over an asset may rank after:
rights or interests which a third party holds in relation to that asset
on the date on which the security interest is created; or
rights or interests which a third party later acquires without notice
of the existence of the security interest or, in the case of an
asset covered by a floating charge, with notice of the existence
of the floating charge but without notice of a restriction
precluding the owner of the asset from creating a right or
interest such as that acquired by the third party.
6.4 The effectiveness of a security interest over an amount receivable or
the benefit of a contract may be affected by a breach of contract by
the person granting the security interest or by the party who is
obliged to pay the receivable or to perform the contract, by the
insolvency of that party or by the relevant contract being discharged
by supervening impossibility. Such a security interest may also be
affected by a right of set off or similar right to which that party is
entitled.
6.5 A court might hold the security interests created by the Debenture to
be floating (and not fixed) charges as regards certain assets, for
example, some categories of plant and equipment, book and other debts,
and balances on current or deposit accounts with banks. We draw
attention to the fact that a floating charge is more vulnerable than a
fixed charge both to being set aside in a liquidation or administration
and to losing its priority to other rights and interests. A floating
charge will take effect subject to third party rights or interests
(including rights of set off) unless the third party concerned had
express notice that a term in the Debenture prohibited the type of
transaction which the relevant Company entered into with him or that
the floating charge had crystallised, and subject also to any
execution, distress or attachment completed before crystallisation.
Moreover, amounts produced in a liquidation or receivership by
realising assets subject to a floating charge must first be used to pay
certain preferential debts, for example, money owed to the Inland
Revenue for tax deducted at source, value added tax and remuneration of
employees. An administrator has wider powers to sell assets subject to
a floating charge than assets subject to a fixed charge.
6.6 A person who has created a security interest over certain types of
asset (assets covered by mortgages over which the Law of Property Act
1925 applies) is entitled, so far as English law is relevant, to apply
to the High Court for an order that the asset be sold, notwithstanding
that the person holding the security interest dissents.
<PAGE>
6.7 The enforcement of security interests is subject to certain rules of
law. For example, a person who holds a charge over property cannot sell
the property to himself and owes a duty to take reasonable care to
realise the property for a proper price.
6.8 No opinion is expressed as to the necessity or desirability, in
relation to certain types of asset (for example, patents, trade marks
and other intellectual property), to register or otherwise perfect the
security interests created by the Debenture.
7. FOREIGN LAW
7.1 We point out that the Credit Agreement, the Notes and the Guaranty are
expressed to be subject to the law of the State of New York and express
no opinion as to the effect of such law (including, without limitation,
specific references to Federal statutes or regulations or statutes or
regulations of the State of New York) on any of the matters covered in
this Opinion.
7.2 We point out that the TMS Share Charge is expressed to be subject to
the laws of Ireland and express no opinion as to the effect of such
laws (including, without limitation, specific references to statutes or
regulations of Ireland) on any of the matters covered in this opinion.
7.3 In particular:
we express no opinion about the validity or enforceability of any
Document under the law of any jurisdiction other than England and
Wales;
we express no opinion about any shares or other assets situate
outside England and Wales or about the validity or enforceability
of any security taken or purported to be taken over such shares or
assets. Any such security should be governed by the law of the
jurisdiction where the shares or assets are situate;
we have assumed that, if any obligation under a Document falls to be
performed in any jurisdiction other than England and Wales, its
performance will not be contrary to the laws of that jurisdiction;
and
we express no opinion as to whether a court in a jurisdiction other
than England would enforce or give effect to a Document in the
event that proceedings relating to that Document were to be
commenced in that jurisdiction.
<PAGE>
8. EXTENT OF OPINION
8.1 This opinion is given for the sole benefit of the persons to whom it is
addressed and may be relied on only for purposes directly connected
with the Credit Agreement and the other Documents.
Yours faithfully
TAYLOR JOYNSON GARRETT
<PAGE>
APPENDIX 1
SITEL Consulting Limited (Company number: 2558365)
Leiderman and Roncoroni Limited (Company number: 2364481)
The Training Works Limited (Company number: 2189776)
SITEL Kingston Limited (Company number: 1722848)
SITEL Moor Park Limited (Company number: 3029235)
SITEL Stratford Limited (Company number: 1880195)
SITEL UK Limited (Company number: 3450786)
B's Telemarketing Limited (Company number: 2573299)
SITEL Kingston (Services) Limited (Company number: 2533934)
SITEL Moor Park (Services) Limited (Company number: 3166414)
SITEL Stratford (Services) Limited (Company number: 2107257)
<PAGE>
APPENDIX 2
SHAREHOLDINGS IN THE COMPANIES
<TABLE>
<CAPTION>
Company Authorised Share Capital Issued Share Capital Shareholder
------- ------------------------ -------------------- -----------
<S> <C> <C> <C>
SITEL Europe plc (pound)20,000,000.00 (pound)18,710,864.00 SITEL International Inc. and
SITEL Corporation
SITEL Consulting Limited (pound)100,000.00 (pound)375,000.00
SITEL Europe plc
Leiderman and Roncoroni Limited (pound)1,000.00 (pound)100.00
SITEL Consulting Limited
The Training Works Limited (pound)1,000.00 (pound)100.00 (L&R Group Limited)
SITEL Kingston Limited (pound)157,851.00 (pound)4,973.20 SITEL Consulting Limited
SITEL Moor Park Limited (pound)100,000.00 (pound)100,000.00 SITEL Europe plc
SITEL Stratford Limited (pound)1,586,000.00 (pound)586,000.00 SITEL Europe plc
SITEL UK Limited (pound)7,000,000.00 (pound)7,000,000.00 SITEL Europe plc
B's Telemarketing Limited (pound)100.00 (pound)100.00 SITEL Europe plc
SITEL Kingston (Services) Limited (pound)100.00 (pound)2.00 SITEL Europe plc
SITEL Moor Park (Services) Limited (pound)1000.00 (pound)2.00 SITEL UK Limited
SITEL Stratford (Services) Limited (pound)100,000.00 (pound)2.00 SITEL Europe plc
(pound)20,000,000.00
SITEL UK Limited
</TABLE>
<PAGE>
EXHIBIT E-4
To each of the Administrative Agent, the Collateral Agent and each of the
Lenders party to the Credit Agreement referred to below
Our Ref Your Ref
11 April 2000
Dear Sirs
SITEL TMS LIMITED
(THE "OBLIGOR")
I. We have acted as legal advisers in Ireland to the Obligor in connection
with the transactions contemplated by the Credit Agreement, dated as of
April 11, 2000 (the "Credit Agreement"), by and among SITEL Corporation
(the "Parent"), SITEL Europe plc ("SITEL Europe"), the Obligor, various
lending institutions from time to time party thereto (the "Lenders")
and Bankers Trust Company, as Administrative Agent. This opinion is
being delivered pursuant to Section 5.03 of the Credit Agreement.
Unless otherwise indicated, capitalised terms used herein but not
otherwise defined herein shall have the respective meaning set forth in
the Credit Agreement.
II. For the purposes of this opinion we have examined the following documents:-
A. a faxed copy of a Charge of Shares dated as of 11 April 2000 between (1)
SITEL Europe and (2) the Collateral Agent (the "Shares Charge");
<PAGE>
B. (i) a faxed copy of a Foreign Subsidiaries Guarantee (the
"Guarantee") dated as of April 11, 2000 between (1) the
Obligor and certain other companies as Guarantors and (2) the
Collateral Agent, (ii) a faxed copy of the Credit Agreement
and (iii) faxed copies of Revolving Notes executed by the
Obligor in favour of each Lender (the "Revolving Notes");
C. a certified copy of the memorandum and articles of association of the
Obligor, including shareholders resolutions dated 7 April 2000 amending the
same (together the "Memorandum and Articles of Association") and its
Certificate of Incorporation;
D. faxed copies of searches which on 10 April 2000 were carried out in respect
of the Obligor at the Companies Registration Office in Dublin, the
Judgement Office in Dublin and the Central Office of the High Court in
Dublin for winding-up petitions (the "Searches");
E. a copy of a resolution of the Directors of the Obligor approving the
execution by it of, inter alia, the Credit Agreement, the Revolving Notes
and the Guarantee (the "Obligor Documents") and authorising a person or
persons to execute same on behalf of the Obligor;
F. a copy of a power of attorney dated 7 April 2000 executed by the Obligor
under seal pursuant to which Nick Wheeler and Nan Kraemer have been
appointed to execute, inter alia, the Obligor Documents;
G. a faxed copy of an officer's certificate executed by Nan Kraemer on behalf
of the Obligor and dated 11 April 2000 (the "Officer's Certificate");and
H. faxed copies of a certificate of the Secretary of the Obligor dated 11
April 2000 confirming that the Obligor is a subsidiary of SITEL Europe and
a certificate of the Secretary of SITEL Europe dated 11 April 2000
confirming that SITEL Europe is a subsidiary of the Parent.
III. In this opinion we refer to the Obligor Documents and the Shares Charge
collectively as the "Documents".
IV. In giving this opinion, we have relied on the results of the Searches. We
have also relied upon the copies of the documents referred to in paragraph
2 in respect of the accuracy of the material matters stated therein which
we have not independently verified and we have assumed:-
A. the genuineness of all signatures and the authenticity and completeness of
all documents submitted to us as originals;
B. the completeness and conformity to originals of all documents supplied to
us as certified or photostatic or telefaxed copies and the authenticity and
completeness of the originals of such documents and that such documents
have been executed in the form of the latest drafts reviewed by us for the
purpose of giving this opinion;
<PAGE>
C. that each of the parties to the Documents (other than the Obligor) is a
corporation duly organised, validly existing and in good standing under the
laws of its jurisdiction of incorporation and is not subject to any order
of the Irish Courts, with all requisite authority, corporate and other
power to enter into the Documents and to exercise its rights and perform
its obligations thereunder and all corporate and other action required to
authorise the execution of the Documents and the performance of its
obligations thereunder has been duly taken;
D. the due authorisation, execution and delivery of the Documents by all
parties thereto (other than the Obligor) and that all of the Documents and
all deeds, instruments, assignments, agreements and other documents in
relation to the matters contemplated by the Documents and/or this opinion
are:
(1) within the capacity and powers of, have been validly authorised, executed
and delivered by and are valid and legal obligations binding on the parties
thereto; and
(2) are not subject to avoidance by any person,
underall applicable laws and in all applicable jurisdictions other than (in the
case of the Obligor) the laws of Ireland and the jurisdiction of Ireland;
E. that no law other than the law of Ireland affects any of the assumptions in
this letter or the conclusions stated below;
F. that the Memorandum and Articles of Association (as amended through the
date hereof) are true and correct as of the date hereof and that there have
been no other amendments thereto;
G. that SITEL Europe has valid legal and beneficial title to the Shares (as
defined in the Shares Charge) and is or will be duly registered as owner of
the Shares at the time of their delivery to the Collateral Agent;
H. that the Obligor has entered into the Documents in good faith, for its
legitimate business purposes and for full commercial consideration and
believing on reasonable grounds that it was for its own commercial benefit;
I. that the proceedings described in the minutes referred to in paragraph 2.5
were conducted in the manner therein described, the meeting referred to
therein was properly convened and constituted and that the resolutions
referred to therein were duly passed and adopted, have not been amended or
rescinded, and are and will remain in full force and effect;
J. that all factual information contained in the certificates referred to at
paragraphs 2.7 and 2.8 is true and accurate in all respects;
<PAGE>
K. the absence of fraud and the presence of good faith on the part of all
parties to the Documents and their respective officers, employees, agents
and advisers;
L. that (a) the Obligor was fully solvent at the time of and immediately after
the execution and delivery of the Documents; (b) the Obligor would not as a
consequence of doing any act or thing which the Documents contemplates,
permits or requires such to do, be insolvent; (c) no resolution or petition
for the appointment of a liquidator or examiner has been passed or
presented in relation to the Obligor; and (d) no receiver has been
appointed in relation to any of the assets or undertaking of the Obligor;
M. that, by entering into the Documents or exercising its rights or performing
its obligations thereunder, the Obligor has not and will not give financial
assistance (whether direct or indirect) in connection with the subscription
for or purchase of shares in itself or any company which is its holding
company;
N. that the original certificate evidencing title to the Shares and share
transfer form relating thereto executed in blank have been deposited with
or will be deposited with the Collateral Agent;
O. that under all applicable laws (other than Irish law) the choice of the
laws of the State of New York as the governing law of the Obligor Documents
is a valid and binding selection which will be upheld, recognised and given
effect to by the courts of any relevant jurisdiction (other than those of
Ireland);
P. that all payments to be made by the Obligor under the Documents, will be
made to an entity which:
1. is carrying on a bona fide banking business in Ireland;or
2. is resident in a country with which Ireland has entered into a double
taxation treaty under which interest may be paid without deduction; or
3. is resident in a European Communities member state other than Ireland.
V. Based upon and subject to the foregoing assumptions and in reliance on the
matters stated above and further subject to the qualifications set out
below and any matters not expressly disclosed to us by the Obligor or SITEL
Europe, it is our opinion so far as the laws of Ireland as interpreted by
the courts of Ireland at the date of this opinion are concerned that:-
A. the Obligor is a private company duly incorporated with limited liability
under the laws of Ireland. The Obligor is incorporated for an indefinite
period as a separate legal entity and is subject to suit in its own name.
Based upon the Searches, no steps have been taken to appoint a receiver or
examiner to, or to wind up the Obligor;
B. the Obligor has full power to enter into the Obligor Documents and to
exercise its rights and perform its obligations thereunder, and all
corporate action required to authorise the execution and delivery of the
Obligor Documents and the performance of its obligations thereunder has
been duly taken;
<PAGE>
C. the execution and delivery by the Obligor of the Obligor Documents and its
exercise of its rights and performance of its obligations thereunder will
not violate (i) any existing law or regulation applicable to companies
generally, or (ii) any provision of its Memorandum or Articles of
Association;
D. each Obligor Document constitutes the legal, valid and binding obligations
of the Obligor and is enforceable in accordance with its terms;
E. the Shares Charge creates a legal, valid and binding security interest by
way of equitable mortgage over the Shares referred to therein;
F. no consent, approval or authorisation by any Irish authority is either
necessary or desirable insofar as the laws of Ireland are concerned in
connection with:-
1. the execution by the Obligor of the Obligor Documents, and by SITEL Europe
of the Shares Charge, and the performance of their respective obligations
thereunder; or
2. the validity or enforceability of the Documents;
G. There is no Irish law which will be contravened by the Obligor by
compliance with any provision of the Documents;
H. No step is either necessary or desirable under Irish law to (i) ensure that
the Shares Charge is valid or admissible in evidence in Ireland or to (ii)
ensure insofar as the laws of Ireland are concerned the effectiveness of
any security interested created by the Shares Charge save that:
1. the Shares Charge should be stamped with IR(pound)500 stamp duty within 30
days of its date;
2. it would be desirable to serve a "Stop Notice" on the Obligor;
3. in the event that SITEL Europe has an established place of business in
Ireland then a Form 8e should be filed in accordance with Section 111 of
the Companies Act, 1963 (as amended) in respect of the Shares Charge within
21 days of its execution;
I. under the laws of Ireland the choice of Irish law to govern the Shares
Charge and the submission therein of SITEL Europe to the jurisdiction of
the Irish Courts is valid;
J. the choice of the laws of the State of New York to govern the Obligor
Documents is a valid choice of law under the laws of Ireland, and
accordingly, New York law would generally be applied in an action brought
in the courts of Ireland in respect of a claim thereunder, except if and to
the extent that the relevant provisions of New York law are not
determinable to the satisfaction of the Irish courts;
<PAGE>
K. any judgement for a definite sum obtained against the Obligor in the courts
of the State of New York would be recognised and accepted by the Courts of
Ireland without any retrial or examination of the merits of the case;
L. in any proceedings taken in Ireland in relation to the Documents, the
Obligor will not be entitled to claim for itself or any of its assets
immunity from suit, execution, attachment or other legal process; and
M. under the laws of Ireland, the Obligor will not be required to make any
deduction or withholding from any payment it may be obliged to make under
the Obligor Documents.
VI. The opinions expressed herein are subject to the following qualifications:-
A. no opinion is expressed in relation to the Documents or any matter relating
thereto insofar as that documentation or matter is affected by the laws of
any jurisdiction other than Ireland in particular no opinion is expressed
about the validity or enforceability of any document under the law of any
country other than Ireland;
B. no opinion is expressed as to the title (whether legal or beneficial) of
SITEL Europe to the relevant Shares or the shares comprised therein. We
confirm that we have inspected a share certificate dated 22 December 1999
which certifies that SITEL Europe is the registered owner of 90,250 shares
in the Obligor;
C. the Shares Charge creates an equitable mortgage only over the Shares. An
equitable mortgage suffers certain disadvantages compared to a legal
mortgage. For example prior equitable interests will take priority over the
relevant Shares Charge;
D. a security interest over an asset may rank after:-
1. rights or interests which a third party holds in relation to that asset on
the date on which the security interest is created; or
2. rights or interests which a third party later acquires without notice of
the existence of the security interest or, in some cases, with notice of
the existence of the security interest but without notice of a restriction
precluding the owner of the asset from creating a right or interest such as
that acquired by the third party;
E. a person who has created a security interest over certain types of assets
(assets to which mortgages over the Conveyancing Act 1881 applies) is
entitled, so far as Irish law is relevant, to apply to the High Court for
an order that the asset be sold, notwithstanding that the person holding
the security interest dissents;
F. the enforcement of security interests is subject to certain rules of law.
For example, a person who holds a charge over property cannot sell the
property to himself and owes a duty to take reasonable care to realise the
property for a proper price. A receiver is obliged by the Companies Act,
1963 Section 316A to obtain the best price in accordance with that Section;
<PAGE>
G. the enforcement of the rights and obligations of the parties to each
Document may be limited by the provisions of the Irish law applicable to
contracts held to have been frustrated by events happening after execution;
H. where a party is vested with a discretion or may determine a matter in its
opinion the exercise of such discretion and the manner in which such
opinion is formed and the grounds on which it is based may nonetheless be
the subject of judicial enquiry and review;
I. any determination, calculation or certificate made or given pursuant to the
provisions of each Document which provides for such determination,
calculation or certificate to be final, conclusive or binding will not
prevent judicial enquiry into the merits of any claims by a third party
claiming to be aggrieved by same nor do such provisions exclude the
possibility of the same being amended by order of an Irish Court;
J. no opinion is given herein as to the availability of any specific remedy,
other than monetary damages, for the enforcement of any obligation of the
parties to each Document and this opinion should not be taken to imply that
an Irish Court will necessarily grant any remedy, the availability of which
is subject to equitable considerations or which is otherwise in the
discretion of the Court and, in particular, orders for specific performance
and injunctions which are discretionary remedies under Irish law, and
specific performance will not be available where damages are considered by
the Court to be an adequate alternative remedy;
K. the Irish Courts may stay proceedings if concurrent proceedings are brought
elsewhere;
L. an Irish Court may refuse to give effect to a purported contractual
obligation to pay costs imposed upon another party and an Irish Court may not
award by way of costs all of the expenditure incurred by a successful litigant
in proceedings brought before the Court and an undertaking by any party to a
Document to bear any indemnity in respect of any taxes or duties might not be
enforceable in respect of Irish stamp duties, pursuant to Section 131 of the
Stamp Duties Consolidation Act, 1999;
M. in the event of any claim being made in any Irish court in a currency
other than Irish Pounds, the court may give judgment in that currency but we
express no opinion as to whether the Court would always be bound to exercise its
discretion to award judgment in a currency other than Irish Pounds. Foreign
currency amounts claimed in an Irish liquidation must be converted into Irish
pounds at the rate prevailing at the commencement of the liquidation;
N. provisions as to severability may not be binding under Irish law and the
question of whether or not provisions relating to invalidity on account of
illegality may be severed from other provisions in order to save such other
provisions would be determined by an Irish Court at its discretion;
<PAGE>
O. claims may become barred under the Statute of Limitations Act, 1957 (as
amended), prescription or lapse of time or may be or become subject to defences
of set-off or counterclaim;
P. where an obligation is to be performed or observed or is based upon a
matter arising in a jurisdiction outside Ireland, or a party's obligations are
subject to the laws of a jurisdiction outside Ireland, such obligations may not
be enforceable under Irish law if the same would be unlawful, unenforceable or
contrary to public policy under the laws of such jurisdiction;
Q. except for where expressly stated in this opinion, we express no opinion
as to the taxation consequences of any of the items to which this opinion
relates;
R. except as set forth in paragraphs 5.5 and 5.8 we do not express any
opinion as to whether any security interests have been created over or are in
existence in respect of the Shares (other than in respect of the Shares Charge);
S. the Shares are shares in a private limited company and, accordingly, a
transfer of any such shares may only be effected by a duly executed and stamped
share transfer form being registered by the Obligor in its register of members.
Accordingly, it is possible, in practice, for a sale or transfer of any of the
Shares to be prevented, delayed or hindered by the inaction, non-co-operation or
refusal of the directors, officers, servants or agents of the Obligor. The
possibility of any such prevention, delay or hindrance occurring may have been
reduced by the adoption by SITEL Europe as sole shareholder of the Obligor of
the resolutions referred to in paragraph 2.3 above;
T. questions under the Mergers, Take-overs and Monopolies (Control) Acts
1978 (as amended) (the "Mergers Act") and the Competition Acts 1991 and 1996 may
need to be considered when enforcing the Shares Charge. Under the Mergers
Take-overs and Monopolies (Control) Acts a proposal to transfer 25 per cent or
more of the shareholding of a company must be notified to the Minister for
Enterprise and Employment where in the most recent financial year the value of
the gross assets of each of two or more of the enterprises involved in the
proposal is not less than IR(pound)10,000,000 or the turnover of each of those
two or more enterprises is not less than IR(pound)20,000,000 - where the Act
applies a transfer without the clearance from the Minister for Enterprise and
Employment shall be void. Under the Competition Acts 1990 and 1996 any
transaction which has as its object or effect the prevention, restriction or
distortion of competition in trade of any goods or services in Ireland or which
is an abuse of a dominant position is prohibited and void;
U. disposal of the Shares by the Collateral Agent (or its successor(s)) or
a receiver would require compliance by the Collateral Agent (or such
successor(s)) or the receiver with all applicable law;
V. the descriptions and obligations of this Opinion as "enforceable" refers
to the legal character or the obligations assumed by the relevant party under
the relevant instrument. It implies no more than the obligations are of a
character which Irish Law recognises and will in certain circumstances enforce.
In particular, it does not mean or imply that the relevant instrument will be
enforced in all circumstances in accordance with its terms or by or against
third parties or that any particular remedy will be available;
<PAGE>
W. in particular (without limiting the foregoing):-
1. enforcement may be limited by laws from time to time relating to
bankruptcy, insolvency, liquidation, receivership, reorganisation, moratoria,
court schemes, preferential creditors and similar laws of general application
relating to or affecting the rights of creditors;
2. an Irish Court may refuse to give effect to the undertaking to pay costs in
respect of unsuccessful litigation brought before an Irish Court or where
the court has itself an order for costs;
3. claims may be or become the subject of set-off or counterclaim;
4. enforcement may be limited by general principles of equity - for example
specific performance or other equitable remedies are discretionary and may
not be available where damages are considered by the court to be an
adequate remedy;
5. provisions (including provisions for default interest) imposing additional
obligations in the event of breach or default, or of payment or repayment
being made other than on an agreed date, may be unenforceable to the extent
that they are subsequently adjudicated to be penal in nature;
6. where the obligations are to be performed in a jurisdiction other than
Ireland, they may not be enforceable in Ireland to the extent that
performance would be illegal under the laws of that jurisdiction;
7. enforcement may also be limited as a result of:-
6.23.7.1 the provisions of Irish law applicable to contracts held to have become
frustrated by events happening after their execution; and
6.23.7.2 any breach of the terms of the Documents, or any ancillary document by
the party seeking to enforce the same;
8. a certificate, determination, notification or opinion of, or the exercise
of any discretion by, as to any matter provided in each of the Documents
might be held by the Irish Courts not to be conclusive if it could be shown
to have an unreasonable or arbitrary basis or in the event of manifest
error;
X. there is some possibility that an Irish court would hold that a judgement
in relation to a Document whether given in an Irish court or elsewhere,
would supersede that Document to all intents and purposes so that the
obligations set forth in that Document would not be held to survive such a
judgement;
<PAGE>
Y. this Opinion is expressly given upon the terms that no further document is
to be examined by us, whether or not referred to in the Documents, that no
further investigation or diligence in respect of any matter which may
appear on the files of the Obligor in the Companies Registration Office
after the date of the Searches or which may have appeared on the files of
the Obligor prior to the date of the Searches but was not available for
actual inspection by us as of such date is required of us by you;
Z. our opinion at paragraph 5.10 above should be read subject to the
qualification that the Rome Convention on The Law Applicable To Contractual
Obligations (the Rome Convention) (other than Article 7(1)) has force of
law in Ireland and that therefore the choice the laws of the State of New
York as the governing law of the Obligor Documents is subject to the
provisions of the Rome Convention. For example, the courts of Ireland may
apply any rule of Irish law which is mandatory irrespective of the
governing law and may refuse to apply a rule of the governing law if it is
manifestly incompatible with the public policy of Ireland. In addition,
Irish law will apply in relation to the liquidation and examinership of any
Irish incorporated companies such as the Obligor;
AA. in the case of a judgement obtained in the courts of the State of New York,
the opinion expressed at paragraph 5.11 should be read subject to the
qualification that a judgment of the Courts of New York will not be
directly enforceable in Ireland but, if the relevant judgment:-
(1) is based on personal action;
(2) is for a debt for a definitive sum of money;
(3) is final and conclusive;
(4) is not impeachable on the grounds of jurisdiction, fraud, public policy or
natural or constitutional justice;
(5) is not inconsistent with a judgment of the Courts of Ireland in relation to
the same matter; and
(6) enforcement proceedings are instituted in Ireland within six years of the
date of the judgment;
the plaintiff will be able to obtain summary judgment in a new action in
Ireland on the grounds that the defendant has no defence to the claim.
VII. This Opinion (which is limited to the matters stated herein and is not to
be read as extending by implication to any other matters not specifically
referred to herein) is addressed to and is for the benefit of the
Administrative Agent, Collateral Agent and the Lenders and their respective
successors and assigns and may not be relied upon by, or published to, any
other persons without our prior written consent. We do not assume any
obligation to update the opinions set forth in this letter.
<PAGE>
Yours faithfully
MATHESON ORMSBY PRENTICE
<PAGE>
EXHIBIT E-5
Madrid, April 11th, 2000
To each of the Administrative Agent, the Collateral Agent and each of the
Lenders party to the Credit Agreement referred to below
Ladies and Gentlemen:
We have acted as special counsel for SITEL Corporation (the
"Parent") and each of the entities listed on Schedule I hereto (collectively,
the "Covered Subsidiaries" and, together with the Parent, the "Covered
Entities") in connection with the transactions contemplated by the Credit
Agreement, dated as of April 11th, 2000 (the "Credit Agreement"), by and among
the Parent, SITEL Europe plc, SITEL TMS Limited, various lending institutions
from time to time party thereto (the "Lenders"), and Bankers Trust Company, as
Administrative Agent. This opinion is being delivered pursuant to Section 5.03
of the Credit Agreement. Unless otherwise indicated, capitalized terms used
herein but not otherwise defined herein shall have the respective meanings set
forth in the Credit Agreement.
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of such documents
as we have deemed necessary or appropriate as a basis for the opinions set forth
herein, including, without limitation, (a) the Escritura de Constitucion
[Articles of Association], the Estatutos [By-Laws] and other relevant governing
documents of the Covered Subsidiaries, (b) the documents listed on Schedule II
hereto (collectively, the "Documents") and (c) such other agreements,
certificates of public officials, certificates of officers of the Covered
Subsidiaries and others, and such other documents, certificates and corporate or
public records as we have deemed necessary or appropriate in connection with
this opinion.
In connection with this opinion, we have assumed the
genuineness of all signatures (other than as to any Covered Subsidiary) on
original or certified copies, the authenticity of documents submitted to us as
originals and the conformity to original or certified copies of all copies
submitted to us as certified or reproduction copies. We have also assumed that
each party to the Documents (other than the Covered Subsidiaries) has the legal
power and authority to enter into and perform its obligations under such
Documents, and that such Documents have been duly authorized, executed and
delivered by such persons, and that such Documents are the legal, valid and
binding obligations of such persons, enforceable against such persons in
accordance with their terms.
<PAGE>
Based upon the foregoing, and subject to the limitations set
forth herein, we are of the opinion that:
1. Each of the Covered Subsidiaries (i) is a duly organized
and validly existing Sociedad Anonima [Corporation], in good standing under the
laws of the jurisdiction of Spain, and is duly registered with the applicable
Registro Mercantil [Mercantile Register], (ii) has the power and authority to
own its property and assets and to transact the business in which it is engaged
and presently proposes to engage and (iii) is duly qualified and is authorized
to do business and is in good standing in each jurisdiction where such Covered
Subsidiary transacts business. No event of voluntary termination or dissolution
of any of the Covered Subsidiaries has, to our knowledge, occurred.
2. Each of the Covered Subsidiaries has the power and
authority to execute, deliver and perform the terms and provisions of each of
the Documents to which it is party and has taken all necessary action to
authorize the execution, delivery and performance by it of each of such
Documents. Each of the Covered Subsidiaries has duly executed and delivered each
of the Documents to which it is a party and each of such Documents constitutes
its legal, valid and binding obligation enforceable in accordance with its terms
except as the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting creditors' rights
generally and by general equitable principles.
3. Neither the execution, delivery or performance by any
Covered Subsidiary of the Documents to which it is a party, nor compliance by it
with the terms and provisions thereof, (i) will contravene any provision of any
law, statute, rule or regulation or any applicable order, writ, injunction or
decree of any court or governmental instrumentality, (ii) will conflict or be
inconsistent with or result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or impose) any Lien
(except pursuant to the Security Documents) upon any of the properties or assets
of such Covered Subsidiary pursuant to the terms of any indenture, mortgage,
deed of trust, credit agreement, loan agreement or any other material agreement,
contract or instrument, of which we are aware, to which such Covered Subsidiary
is a party or by which it or any of its property or assets is bound or to which
it may be subject or (iii) will violate any provision of the Escritura de
Constitucion [Articles of Association] or Estatutos [By-laws] of such Covered
Subsidiary.
4. No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except as have been
obtained or made), or exemption by, any governmental or public body or
authority, or any subdivision thereof, is required to authorize, or is required
in connection with, (i) the execution, delivery and performance of any Document
to which any Covered Subsidiary is a party or (ii) the legality, validity,
binding effect, enforceability or admissibility in evidence of any Document.
Without limiting the foregoing, it is not necessary, in order to ensure the
legality, validity, binding effect, enforceability or admissibility in evidence
of any Document, that any of the Documents be filed or registered with any court
or authority in Spain or that any stamp duty, transaction tax, levy, charge or
similar impost be paid in Spain on or in relation to any of the Documents.
<PAGE>
5. To our knowledge, there are no actions, suits or
proceedings pending or threatened with respect to any Covered Subsidiary (a)
that could reasonably be expected to have a material adverse effect on any
Covered Subsidiary or (b) that could reasonably be expected to have a material
adverse effect on the rights or remedies of the Administrative Agent or the
Lenders or on the ability of such Covered Subsidiary to perform its obligations
under the Documents to which it is a party, and to our knowledge there does not
exist any judgment, order or injunction prohibiting or imposing material adverse
conditions upon the performance of any Covered Subsidiary of its obligations
under the Documents to which it is a party.
6. The authorized capital stock of each Covered Subsidiary
consists of: (i) SITEL IBERICA TELESERVICES: 5,000 shares of common stock, par
value 60 euros per share; (ii) TELEPROMOTION: 13,350 shares of common stock, par
value 1,000 pesetas per share; and (iii) TELE ACTION HISPANICA: 20,000 shares of
common stock, par value 1,000 pesetas per share; all of which are issued (but
not physically printed, as it is not compulsory under Spanish Law). All such
shares of capital stock have been duly and validly authorized and issued, are
fully paid and non-assessable and are free of preemptive rights. To our
knowledge, none of the Covered Subsidiaries have outstanding any securities
convertible into or exchangeable for its capital stock or outstanding any rights
to subscribe for or to purchase, or any options for the purchase of, or any
agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, its capital stock. To
our knowledge, the Covered Subsidiaries have no Subsidiaries other than those
Subsidiaries listed on Schedule III to the Credit Agreement and the Portuguese
company ACTION SERVICOS DE PUBLICIDADE, S.A.
7. None of the provisions of the Documents violate any usury
law of Spain.
8. There are no restrictions or prohibitions on the transfer
and payment of amounts owing by any Covered Subsidiary under any of the
Documents in lawful money of the United States of America (or, to the extent
required by any of the Documents, any other currency) free and clear of any
withholdings or deductions on the terms or the place of payment as provided for
in the Documents. Without limiting the foregoing, there is no income or stamp or
other tax, duty, levy, charge or similar impost (imposed by withholding or
otherwise) which is or would be imposed on or applicable to any payment made by
any Covered Subsidiary to you pursuant to the Documents or is imposed on or by
virtue of the execution or delivery of the Documents, and the agreement of each
Covered Subsidiary to make payments under or pursuant to the Documents free and
clear of any such tax, duty, levy, charge or impost is legally valid and
effective.
9. Neither the Administrative Agent, the Collateral Agent nor
the Lenders are required to qualify to transact business in Spain nor will the
Administrative Agent, the Collateral Agent or any of the Lenders incur any tax
imposed by the Spanish Tax Authorities (including, without limitation, any tax
imposed by the Spanish Tax Authorities on interest or on revenue paid in respect
of the Notes) solely as the result of the transactions contemplated by the
Documents.
<PAGE>
10. Each of the Covered Subsidiaries is subject to commercial
law and is generally subject to suit and neither it nor any of its properties or
revenues enjoy any right of immunity from suit, attachment, setoff or execution
of a judgment in respect of its obligations under the Documents.
11. Each Covered Subsidiary may be sued in Spain by each of
the Administrative Agent, the Collateral Agent and the Lenders (either jointly
or individually) if the Administrative Agent, the Collateral Agent or the
Lenders have the right to sue such Covered Subsidiary under the laws of the
State of New York to obtain amounts due and payable but unpaid by such Covered
Subsidiary. There are no legal impediments to your access to the courts of
Spain, nor shall you be required to qualify under any statute of law or pay any
franchise tax or similar fee to gain such access, whether in respect of a direct
suit on any of the Documents or a proceeding to register a judgment obtained by
you before a court in the United States of America.
12. The courts of Spain will observe and give effect to the
choice of New York law as the law governing the Documents (to the extent
expressly designated so therein) in any proceedings in relation thereto.
13. The submission to jurisdiction provisions of the Documents
is legally valid and effective and enforceable against each Covered Subsidiary
and would be recognized by the courts of Spain.
14. A judgment rendered against any Covered Subsidiary by a
foreign court will be recognized and enforced by the courts of Spain in all
respects with no requirement that the matter be relitigated before a competent
court in Spain, provded that certain basic procedural rules have been fulfilled
by such foreign court.
15. The payment obligations of each Covered Subsidiary under
the Documents rank at least pari passu in priority of payment with all other
unsecured and unsubordinated liabilities of such Covered Subsidiary (other than
those liabilities preferred by mandatory operation of law and with the exception
of any rights of setoff or counterclaim that may be asserted against such
Covered Subsidiary).
We express no opinion as to matters governed by any law other
than the laws of Spain. This opinion speaks only as of the date hereof. We have
no obligation to advise the addressees (or any third party) of any changes in
the law or facts that may occur after the date of this opinion.
The opinions expressed herein are solely for your benefit and
those of the Lenders that are or may in the future become party to the Credit
Agreement and may not be relied upon in any manner or for any purpose by any
other person.
Very truly yours,
Jose M(a) Buxeda Maisterra
BUXEDA & ASOCIADOS
<PAGE>
SUBSIDIARIES
ORGANIZED IN SPAIN
SITEL IBERICA TELESERVICES, S.A. Sociedad Unipersonal
TELEPROMOTION, S.A. Sociedad Unipersonal
TELE ACTION HISPANICA, S.A. Sociedad Unipersonal
<PAGE>
DOCUMENTS
- Foreign Subsidiaries Guaranty, dated as of April 11th, 2000.
<PAGE>
Madrid, May 26, 2000
To each of the Administrative Agent, the Collateral Agent and each of the
Lenders party to the Credit Agreement referred to below
Ladies and Gentlemen:
We have acted as special counsel for SITEL Corporation (the "Parent")
and each of the entities listed on Schedule I hereto (collectively, the "Covered
Subsidiaries" and, together with the Parent, the "Covered Entities") in
connection with the transactions contemplated by the Credit Agreement, dated as
of April 11th, 2000 (the "Credit Agreement"), by and among the Parent, SITEL
Europe plc, SITEL TMS Limited, various lending institutions from time to time
party thereto (the "Lenders"), and Bankers Trust Company, as Administrative
Agent and in particular, in connection with the respective Pledge Agreements
(collectively, the "Pledge Agreements") entered into on the date hereof in
respect of the shares of each of the Covered Subsidiaries, between the
applicable Pledgor thereunder and Bankers Trust Company as Collateral Agent.
This opinion is being delivered pursuant to Section 5.03 of the Credit Agreement
and further to our opinion dated April 11, 2000. Unless otherwise indicated,
capitalized terms used herein but not otherwise defined herein shall have the
respective meanings set forth in the Pledge Agreements.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of such documents as we
have deemed necessary or appropriate as a basis for the opinions set forth
herein, including, without limitation, (a) the Escritura de Constitucion
[Articles of Association], the Estatutos [By-laws] and other relevant governing
documents of the Covered Subsidiaries and others and (b) such other documents,
certificates and corporate or public records as we have deemed necessary or
appropriate in connection with this opinion.
In connection with this opinion, we have assumed the genuineness of all
signatures (other than as to any Pledgor or Covered Subsidiary) on original or
certified copies, the authenticity of documents submitted to us as originals and
the conformity to original or certified copies of all copies submitted to us as
certified or reproduction copies. We have also assumed that the Collateral Agent
has the legal power and authority to enter into and perform its obligation under
each such Pledge Agreement, and that each such Pledge Agreement has been duly
authorized, executed and delivered by the Collateral Agent, and that each such
Pledge Agreement is the legal, valid and binding obligation of the Collateral
Agent, enforceable against it in accordance with their terms.
<PAGE>
Upon the basis of the aforesaid and subject to the reservations set
forth below, we are of the opinion that each Pledge Agreement creates a valid
and enforceable first priority perfected security interest in favor of the
Collateral Agent, and will entitle the Collateral Agent, in case of default by
the applicable Pledgor in respect of the Secured Obligations, to recover, with
preference over any other creditors, out of the proceeds obtained upon the
correct enforcement of the applicable Pledge, the amounts secured by it or only
part of such amounts to the extent the proceeds obtained do not cover the full
amount secured. No filing, registration or recording is required in the Kingdom
of Spain in order to perfect the security interests created under the Pledge
Agreements.
The opinion set forth above, insofar as it relates to the
enforceability of the Pledge Agreements is subject to applicable bankruptcy,
insolvency, suspension of payment and moratorium proceedings.
We express no opinion as to the enforceability of the Pledge Agreement
in a jurisdiction other than Spain nor as to matters governed by any law other
than the laws of Spain. This opinion speaks only as of the date hereof. We have
no obligation to advise the addressees (or any third party) of any changes in
the law or facts that may occur after the date of this opinion.
The opinions expressed herein are solely for your benefit and those of
the Lenders that are or may in the future become party to the Credit Agreement
and may not be relied upon in any manner or for any purpose by any other person
Very truly yours,
Jose M(a) Buxeda Maisterra
BUXEDA & ASOCIADOS
<PAGE>
SCHEDULE I
SUBSIDIARIES
ORGANIZED IN SPAIN
SITEL IBERICA TELESERVICES, S.A. Sociedad Unipersonal
TELEPROMOTION, S.A. Sociedad Unipersonal
TELE ACTION HISPANICA, S.A. Sociedad Unipersonal
<PAGE>
Exhibit F
FORM OF OFFICERS' CERTIFICATE
I, the undersigned, [Chairman of the Board/Chief Executive
Officer/President/Vice President/Director] of [Name of Credit Party], a
_________ organized and existing under the laws of ________ (the "Company"), do
hereby certify on behalf of the Company that:
1. This Certificate is furnished pursuant to Section 5 of the
Credit Agreement, dated as of April 11, 2000, among SITEL Corporation, SITEL
Europe plc, SITEL TMS Limited, the lenders from time to time party thereto, and
Bankers Trust Company, as Administrative Agent (such Credit Agreement, as in
effect on the date of this Certificate, being herein called the "Credit
Agreement"). Unless otherwise defined herein, capitalized terms used in this
Certificate shall have the meanings set forth in the Credit Agreement.
2. The following named individuals are elected officers of the
Company, each holds the office of the Company set forth opposite his or her name
and has held such office since _________ __, ____.1 The signature written
opposite the name and title of each such officer is his or her genuine
signature.
Name2 Office Signature
-------------- ----------- -------------
-------------- ----------- -------------
-------------- ----------- -------------
3. Attached hereto as Exhibit A is a certified copy of the
[[Certificate] [Articles] of Incorporation of the Company],3 as filed in the
Office of _______________ on ___________, ____, together with all amendments
thereto adopted through the date hereof.
------------------
1 Insert a date prior to the time of any corporate action relating to the
Credit Documents or related documentation.
2 Include name, office and signature of each officer who will sign any Credit
Document, including the officer who will sign the certification at the end
of this Certificate or related documentation.
<PAGE>
4. Attached hereto as Exhibit B is a true and correct copy of
the [By-Laws]4 of the Company which were duly adopted, are in full force and
effect on the date hereof, and have been in effect since _____________, ____.
5. Attached hereto as Exhibit C is a true and correct copy of
resolutions which were duly adopted on __________, 2000 [by unanimous written
consent of the Board of Directors of the Company] [by a meeting of the Board of
Directors of the Company at which a quorum was present and acting throughout],
and said resolutions have not been rescinded, amended or modified. Except as
attached hereto as Exhibit C, no resolutions have been adopted by the Board of
Directors of the Company which deal with the execution, delivery or performance
of any of the Documents to which the Company is party.
[6. On the date hereof, all of the applicable conditions set
forth in Sections 5.05, 5.06, 5.07 and 6.02 of the Credit Agreement have been
satisfied.]5
[6.][7.] On the date hereof, the representations and
warranties contained in the Credit Agreement and in the other Credit Documents
are true and correct in all material respects with the same effect as though
such representations and warranties had been made on the date hereof, both
before and after giving effect to the incurrence of Loans on the date hereof and
the application of the proceeds thereof, unless stated to relate to a specific
earlier date, in which case such representations and warranties were true and
correct in all material respects as of such earlier date.
[7.][8.] On the date hereof, no Default or Event of Default
has occurred and is continuing or would result from the Borrowing to occur on
the date hereof or from the application of the proceeds thereof.
[8.][9.] There is no proceeding for the dissolution or
liquidation of the Company or threatening its existence.
------------------------
3 Insert the name of the equivalent organizational document.
4 Insert the name of the equivalent governing document.
5 Insert in Officers' Certificate of each Borrower.
<PAGE>
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day
of ____, 2000.
[NAME OF CREDIT PARTY]
By ______________________________
Name:
Title:
<PAGE>
I, the undersigned, [Secretary/Assistant Secretary] of the
Company, do hereby certify on behalf of the Company that:
1. [Name of Person making above certifications] is the duly
elected and qualified [Chairman of the Board/Chief Executive
Officer/President/Vice President] of the Company and the signature above is his
or her genuine signature.
2. The certifications made by [name of Person making above
certifications] on behalf of the Company in Items 2, 3, 4, 5 and [8][9] above
are true and correct.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day
of _____, 2000.
[NAME OF CREDIT PARTY]
By ___________________________
Name:
Title:
<PAGE>
PLEDGE AGREEMENT - EXHIBIT G
PLEDGE AGREEMENT (as amended, modified or supplemented from
time to time, this "Agreement"), dated as of April 11, 2000, made by each of the
undersigned pledgors (each a "Pledgor" and, together with any other entity that
becomes a pledgor hereunder pursuant to Section 25 hereof, the "Pledgors") to
BANKERS TRUST COMPANY, as Collateral Agent (together with any successor
Collateral Agent, the "Pledgee"), for the benefit of the Secured Creditors (as
defined below). Except as otherwise defined herein, capitalized terms used
herein and defined in the Credit Agreement (as defined below) shall be used
herein as therein defined.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, SITEL Corporation (the "US Borrower"), SITEL Europe
plc (the "English Borrower"), SITEL TMS Limited (the "Irish Borrower" and,
together with the English Borrower and the US Borrower, the "Borrowers"), the
lenders from time to time party thereto (the "Lenders"), and Bankers Trust
Company, as Administrative Agent (together with any successor Administrative
Agent, the "Administrative Agent"), have entered into a Credit Agreement, dated
as of April 11, 2000 (as amended, modified or supplemented from time to time,
the "Credit Agreement"), providing for the making of Loans to the Borrowers, and
the issuance of Letters of Credit for the account of the US Borrower, in each
case as contemplated therein (the Lenders, the Administrative Agent, the Issuing
Lenders and the Pledgee are herein called the "Lender Creditors");
WHEREAS, any Pledgor or any Subsidiary thereof may at any time
and from time to time enter into one or more Interest Rate Protection Agreements
or Other Hedging Agreements with one or more Lenders or any affiliate thereof
(each such Lender or affiliate, even if the respective Lender subsequently
ceases to be a Lender under the Credit Agreement for any reason, together with
such Lender's or affiliate's successors and assigns, if any, collectively, the
"Other Creditors," and together with the Lender Creditors, the "Secured
Creditors");
WHEREAS, pursuant to each Guaranty, each Pledgor that is a
party thereto has guaranteed to the Secured Creditors the payment when due of
all Guaranteed Obligations as described in each such Guaranty;
WHEREAS, it is a condition to the making of Loans and the
issuance of Letters of Credit under the Credit Agreement that each Pledgor shall
have executed and delivered to the Pledgee this Agreement; and
WHEREAS, each Pledgor desires to enter into this Agreement in
order to satisfy the condition described in the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to each Pledgor, the receipt and sufficiency of which are
hereby acknowledged, each Pledgor hereby makes the following representations and
warranties to the Pledgee for the benefit of the Secured Creditors and hereby
covenants and agrees with the Pledgee for the benefit of the Secured Creditors
as follows:
<PAGE>
1. SECURITY FOR OBLIGATIONS. This Agreement is made by each Pledgor for the
benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and
indebtedness (including, without limitation, indemnities, Fees and
interest thereon) of such Pledgor to the Lender Creditors, whether now
existing or hereafter incurred under, arising out of, or in connection
with the Credit Agreement and the other Credit Documents to which such
Pledgor is a party (including all such obligations and indebtedness of
such Pledgor under each Guaranty to which it is a party) and the due
performance and compliance by such Pledgor with all of the terms,
conditions and agreements contained in the Credit Agreement and in such
other Credit Documents (all such obligations and liabilities under this
clause (i), except to the extent consisting of obligations or
indebtedness with respect to Interest Rate Protection Agreements or
Other Hedging Agreements, being herein collectively called the "Credit
Document Obligations");
(ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and
liabilities owing by such Pledgor to the Other Creditors under, or with
respect to (including by reason of any Guaranty to which such Pledgor
is a party), any Interest Rate Protection Agreement or Other Hedging
Agreement, whether such Interest Rate Protection Agreement or Other
Hedging Agreement is now in existence or hereafter arising, and the due
performance and compliance by such Pledgor with all of the terms,
conditions and agreements contained therein (all such obligations and
liabilities described in this clause (ii) being herein collectively
called the "Other Obligations");
(iii) any and all sums advanced by the Pledgee in order to
preserve the Collateral (as hereinafter defined) or preserve its
security interest in the Collateral;
(iv) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations or liabilities of such
Pledgor referred to in clauses (i) and (ii) above, after an Event of
Default (which term to mean and include any Event of Default under, and
as defined in, the Credit Agreement or any payment default by the US
Borrower or any of its Subsidiaries under any Interest Rate Protection
Agreement or Other Hedging Agreement and shall, in any event, include,
without limitation, any payment default on any of the Obligations (as
hereinafter defined)) shall have occurred and be continuing, the
reasonable expenses of retaking, holding, preparing for sale or lease,
selling or otherwise disposing of or realizing on the Collateral, or of
any exercise by the Pledgee of its rights hereunder, together with
reasonable attorneys' fees and court costs; and
<PAGE>
(v) all amounts paid by any Secured Creditor as to which such
Secured Creditor has the right to reimbursement under Section 11 of
this Agreement;
all such obligations, liabilities, sums and expenses set forth in clauses (i)
through (v) of this Section 1 being herein collectively called the
"Obligations," it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
2. DEFINITIONS. (a) Unless otherwise defined herein, all
capitalized terms used herein and defined in the Credit Agreement shall be used
herein as therein defined. Reference to singular terms shall include the plural
and vice versa.
(b) The following capitalized terms used herein shall have the
definitions specified below:
"Administrative Agent" has the meaning set forth in the
Recitals hereto.
"Adverse Claim" has the meaning given such term in Section
8-102(a)(1) of the UCC.
"Agreement" has the meaning set forth in the first paragraph
hereof.
"Borrowers" shall have the meaning provided in the Recitals
hereto.
"Certificated Security" has the meaning given such term in
Section 8-102(a)(4) of the UCC.
"Class" has the meaning set forth in Section 22 hereof.
"Clearing Corporation" has the meaning given such term in
Section 8-102(a)(5) of the UCC.
"Collateral" has the meaning set forth in Section 3.1 hereof.
"Collateral Accounts" means any and all accounts established
and maintained by the Pledgee in the name of any Pledgor to which Collateral may
be credited.
"Credit Agreement" has the meaning set forth in the Recitals
hereto.
"Credit Document Obligations" has the meaning set forth in
Section 1 hereof.
"Domestic Corporation" has the meaning set forth in the
definition of "Stock."
"English Borrower" shall have the meaning provided in the
Recitals hereto.
"Event of Default" has the meaning set forth in Section 1
hereof.
<PAGE>
"Financial Asset" has the meaning given such term in Section
8-102(a)(9) of the UCC.
"Foreign Corporation" has the meaning set forth in the
definition of "Stock."
"Indemnitees" has the meaning set forth in Section 11 hereof.
"Instrument" has the meaning given such term in Section
9-105(1)(i) of the UCC.
"Investment Property" has the meaning given such term in
Section 9-115(f) of the UCC.
"Irish Borrower" shall have the meaning provided in the
Recitals hereto.
"Lender Creditors" has the meaning set forth in the Recitals
hereto.
"Lenders" has the meaning set forth in the Recitals hereto.
"Limited Liability Company Assets" means all assets, whether
tangible or intangible and whether real, personal or mixed (including, without
limitation, all limited liability company capital and interest in other limited
liability companies), at any time owned or represented by any Limited Liability
Company Interest.
"Limited Liability Company Interests" means the entire limited
liability company membership interest at any time owned by any Pledgor in any
limited liability company.
"Non-Voting Stock" means all capital stock which is not Voting
Stock.
"Notes" means all promissory notes from time to time issued
to, or held by, each Pledgor (including each Intercompany Note).
"Obligations" has the meaning set forth in Section 1 hereof.
"Other Creditors" has the meaning set forth in the Recitals
hereto.
"Other Obligations" has the meaning set forth in Section 1
hereof.
"Partnership Assets" means all assets, whether tangible or
intangible and whether real, personal or mixed (including, without limitation,
all partnership capital and interest in other partnerships), at any time owned
or represented by any Partnership Interest.
"Partnership Interest" means the entire general partnership
interest or limited partnership interest at any time owned by any Pledgor in any
general partnership or limited partnership.
"Pledged Notes" has the meaning set forth in Section 3.5
hereof.
"Pledgee" has the meaning set forth in the first paragraph
hereof.
<PAGE>
"Pledgor" has the meaning set forth in the first paragraph
hereof.
"Proceeds" has the meaning given such term in Section 9-306(l)
of the UCC.
"Required Lenders" has the meaning given such term in the
Credit Agreement.
"Requisite Creditors" has the meaning set forth in Section 22
hereof.
"Secured Creditors" has the meaning set forth in the Recitals
hereto.
"Secured Debt Agreements" has the meaning set forth in Section
5 hereof.
"Securities Account" has the meaning given such term in
Section 8-501(a) of the UCC.
"Securities Act" means the Securities Act of 1933, as amended,
as in effect from time to time.
"Security" and "Securities" has the meaning given such term in
Section 8-102(a)(15) of the UCC and shall in any event also include all Stock
and all Notes.
"Security Entitlement" has the meaning given such term in
Section 8-102(a)(17) of the UCC.
"Stock" means (x) with respect to corporations incorporated
under the laws of the United States or any State or territory thereof (each a
"Domestic Corporation"), all of the issued and outstanding shares of capital
stock of any corporation at any time owned by any Pledgor of any Domestic
Corporation and (y) with respect to corporations not Domestic Corporations (each
a "Foreign Corporation"), all of the issued and outstanding shares of capital
stock at any time owned by any Pledgor of any Foreign Corporation.
"Termination Date" has the meaning set forth in Section 20
hereof.
"UCC" means the Uniform Commercial Code as in effect in the
State of New York from time to time; provided that all references herein to
specific sections or subsections of the UCC are references to such sections or
subsections, as the case may be, of the Uniform Commercial Code as in effect in
the State of New York on the date hereof.
"Uncertificated Security" has the meaning given such term in
Section 8-102(a)(18) of the UCC.
"US Borrower" shall have the meaning provided in the Recitals
hereto.
"Voting Stock" means all classes of capital stock of any
Foreign Corporation entitled to vote.
<PAGE>
3. PLEDGE OF SECURITIES, ETC.
3.1 Pledge. To secure the Obligations now or hereafter owed or
to be performed by such Pledgor, each Pledgor does hereby grant, pledge and
assign to the Pledgee for the benefit of the Secured Creditors, and does hereby
create a continuing security interest in favor of the Pledgee for the benefit of
the Secured Creditors in, all of the right, title and interest in and to the
following, whether now existing or hereafter from time to time acquired
(collectively, the "Collateral"):
(a) each of the Collateral Accounts, including any and all
assets of whatever type or kind deposited by such Pledgor in such
Collateral Account, whether now owned or hereafter acquired, existing
or arising, including, without limitation, all Financial Assets,
Investment Property, moneys, checks, drafts, Instruments, Securities or
interests therein of any type or nature deposited or required by the
Credit Agreement or any other Secured Debt Agreement to be deposited in
such Collateral Account, and all investments and all certificates and
other Instruments (including depository receipts, if any) from time to
time representing or evidencing the same, and all dividends, interest,
distributions, cash and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for
any or all of the foregoing;
(b) all Securities owned by such Pledgor from time to time and
all options or warrants owned by such Pledgor from time to time to
purchase Securities;
(c) all Limited Liability Company Interests owned by such
Pledgor from time to time and all of its right, title and interest in
each limited liability company to which each such interest relates,
whether now existing or hereafter acquired, including, without
limitation:
(A) all the capital thereof and its interest in all
profits, losses, Limited Liability Company Assets and other
distributions to which such Pledgor shall at any time be
entitled in respect of such Limited Liability Company
Interests;
(B) all other payments due or to become due to such
Pledgor in respect of Limited Liability Company Interests,
whether under any limited liability company agreement or
otherwise, whether as contractual obligations, damages,
insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges,
authority, options, security interests, liens and remedies, if
any, under any limited liability company agreement or
operating agreement, or at law or otherwise in respect of such
Limited Liability Company Interests;
(D) all present and future claims, if any, of such
Pledgor against any such limited liability company for moneys
loaned or advanced, for services rendered or otherwise;
<PAGE>
(E) all of such Pledgor's rights under any limited
liability company agreement or operating agreement or at law
to exercise and enforce every right, power, remedy, authority,
option and privilege of such Pledgor relating to such Limited
Liability Company Interests, including any power to terminate,
cancel or modify any limited liability company agreement or
operating agreement, to execute any instruments and to take
any and all other action on behalf of and in the name of any
of such Pledgor in respect of such Limited Liability Company
Interests and any such limited liability company, to make
determinations, to exercise any election (including, but not
limited to, election of remedies) or option or to give or
receive any notice, consent, amendment, waiver or approval,
together with full power and authority to demand, receive,
enforce, collect or receipt for any of the foregoing or for
any Limited Liability Company Asset, to enforce or execute any
checks, or other instruments or orders, to file any claims and
to take any action in connection with any of the foregoing;
and
(F) all other property hereafter delivered in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such
other 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;
(d) all Partnership Interests owned by such Pledgor from time
to time and all of its right, title and interest in each partnership to
which each such interest relates, whether now existing or hereafter
acquired, including, without limitation:
(G) all the capital thereof and its interest in all
profits, losses, Partnership Assets and other distributions to
which such Pledgor shall at any time be entitled in respect of
such Partnership Interests;
(H) all other payments due or to become due to such
Pledgor in respect of Partnership Interests, whether under any
partnership agreement or otherwise, whether as contractual
obligations, damages, insurance proceeds or otherwise;
(I) all of its claims, rights, powers, privileges,
authority, options, security interests, liens and remedies, if
any, under any partnership agreement or operating agreement,
or at law or otherwise in respect of such Partnership
Interests;
(J) all present and future claims, if any, of such
Pledgor against any such partnership for moneys loaned or
advanced, for services rendered or otherwise;
(K) all of such Pledgor's rights under any
partnership agreement or operating agreement or at law to
exercise and enforce every right, power, remedy, authority,
option and privilege of such Pledgor relating to such
Partnership Interests, including any power to terminate,
cancel or modify any partnership agreement or operating
agreement, to execute any instruments and to take any and all
other action on behalf of and in the name of any of such
Pledgor in respect of such Partnership Interests and any such
partnership, to make determinations, to exercise any election
(including, but not limited to, election of remedies) or
option or to give or receive any notice, consent, amendment,
waiver or approval, together with full power and authority to
demand, receive, enforce, collect or receipt for any of the
foregoing or for any Partnership Asset, to enforce or execute
any checks, or other instruments or orders, to file any claims
and to take any action in connection with any of the foregoing
and
<PAGE>
(L) all other property hereafter delivered in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such
other 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;
(e) all Security Entitlements owned by such Pledgor from
time to time in any and all of the foregoing;
(f) all Financial Assets and Investment Property owned by
such Pledgor from time to time; and
(g) all Proceeds of any and all of the foregoing.
Notwithstanding anything to the contrary contained in this
Section 3.1, (x) except as otherwise provided in Section 8.11 of the Credit
Agreement, no Pledgor (to the extent that it is the US Borrower or a Domestic
Subsidiary of the US Borrower) shall be required at any time to pledge hereunder
(and the Collateral of such Pledgor shall not include) more than 65% of the
Voting Stock of any Foreign Corporation to the extent (but only to the extent)
that such excess Collateral is to secure the Obligations of such Pledgor under
the Credit Agreement (other than under the Parent Guaranty) or under the US
Subsidiaries Guaranty and (y) each Pledgor shall be required to pledge hereunder
100% of any Non-Voting Stock at any time and from time to time acquired by such
Pledgor of any Foreign Corporation.
3.2 Procedures. (a) To the extent that any Pledgor at any time
or from time to time owns, acquires or obtains any right, title or interest in
any Collateral, such Collateral shall automatically (and without the taking of
any action by the respective Pledgor) be pledged pursuant to Section 3.1 of this
Agreement and, in addition thereto, such Pledgor shall (to the extent provided
below) take the following actions as set forth below (as promptly as practicable
and, in any event, within 20 days after it obtains such Collateral) for the
benefit of the Pledgee and the other Secured Creditors:
(i) with respect to a Certificated Security (other than a
Certificated Security credited on the books of a Clearing Corporation),
the respective Pledgor shall deliver such Certificated Security to the
Pledgee, indorsed to the Pledgee or indorsed in blank;
<PAGE>
(ii) with respect to an Uncertificated Security (other than an
Uncertificated Security credited on the books of a Clearing
Corporation), the respective Pledgor shall cause the issuer of such
Uncertificated Security (or, in the case of an issuer that is not a
Subsidiary of such Pledgor, will use its best efforts to cause such
issuer) to duly authorize and execute, and deliver to the Pledgee, an
agreement for the benefit of the Pledgee and the other Secured
Creditors substantially in the form of Annex G hereto (appropriately
completed to the reasonable satisfaction of the Pledgee and with such
modifications, if any, as shall be reasonably satisfactory to the
Pledgee) pursuant to which, subject to Section 5 hereof, such issuer
agrees to comply with any and all instructions originated by the
Pledgee without further consent by the registered owner and not to
comply with instructions regarding such Uncertificated Security (and
any Partnership Interests and Limited Liability Company Interests
issued by such issuer) originated by any other Person other than a
court of competent jurisdiction;
(iii) with respect to a Certificated Security, Uncertificated
Security, Partnership Interest or Limited Liability Company Interest
credited on the books of a Clearing Corporation (including a Federal
Reserve Bank, Participants Trust Company or The Depository Trust
Company), the respective Pledgor shall promptly notify the Pledgee
thereof and shall promptly take all actions required (i) to comply with
the applicable rules of such Clearing Corporation and (ii) to perfect
the security interest of the Pledgee under applicable law (including,
in any event, under Sections 9-115 (4)(a) and (b), 9-115 (1)(e) and
8-106 (d) of the UCC). Each such Pledgor further agrees to take such
actions as the Pledgee deems reasonably necessary or desirable to
effect the foregoing;
(iv) with respect to a Partnership Interest or a Limited
Liability Company Interest (other than (x) a Partnership Interest or
Limited Liability Interest credited on the books of a Clearing
Corporation or (y) a Limited Liability Company Interest of an Inactive
Subsidiary to the extent that same remains an "Inactive Subsidiary"),
(1) if such Partnership Interest or Limited Liability Company Interest
is represented by a certificate, the procedure set forth in Section
3.2(a)(i) hereof, and (2) if such Partnership Interest or Limited
Liability Company Interest is not represented by a certificate, the
procedure set forth in Section 3.2(a)(ii) hereof;
(v) with respect to any Note, delivery of such Note to the
Pledgee, indorsed to the Pledgee or indorsed in blank; and
(vi) with respect to cash, (i) establishment by the Pledgee of a
cash account in the name of such Pledgor over which the Pledgee shall
have exclusive and absolute control and dominion (and no withdrawals or
transfers may be made therefrom by any Person except with the prior
written consent of the Pledgee) and (ii) deposit of such cash in such
cash account.
(b) In addition to the actions required to be taken pursuant
to proceeding Section 3.2(a) hereof, each Pledgor shall take the following
additional actions with respect to the Securities and Collateral :
<PAGE>
(i) with respect to all Collateral of such Pledgor whereby or
with respect to which the Pledgee may obtain "control" thereof within
the meaning of Section 8-106 of the UCC (or under any provision of the
UCC as same may be amended or supplemented from time to time, or under
the laws of any relevant State other than the State of New York), the
respective Pledgor shall take all actions as may be reasonably
requested from time to time by the Pledgee so that "control" of such
Collateral is obtained and at all times held by the Pledgee; and
(ii) each Pledgor shall from time to time cause appropriate
financing statements (on Form UCC-1 or other appropriate form) under
the Uniform Commercial Code as in effect in the various relevant
States, on form covering all Collateral hereunder (with the form of
such financing statements to be satisfactory to the Pledgee), to be
filed in the relevant filing offices so that at all times the Pledgee
has a security interest in all Investment Property and other Collateral
which is perfected by the filing of such financing statements (in each
case to the maximum extent perfection by filing may be obtained under
the laws of the relevant States, including, without limitation, Section
9-115(4)(b) of the UCC).
3.3 Subsequently Acquired Collateral. Subject to the last
sentence of Section 3.1 hereof, if any Pledgor shall acquire (by purchase, stock
dividend or otherwise) any additional Collateral at any time or from time to
time after the date hereof, such Collateral shall automatically (and without any
further action being required to be taken) be subject to the pledge and security
interests created pursuant to Section 3.1 hereof and, furthermore, the Pledgor
will promptly thereafter take (or cause to be taken) all action with respect to
such Collateral in accordance with the procedures set forth in Section 3.2
hereof, and will promptly thereafter deliver to the Pledgee (i) a certificate
executed by a principal executive officer of such Pledgor describing such
Collateral and certifying that the same has been duly pledged in favor of the
Pledgee (for the benefit of the Secured Creditors) hereunder and (ii)
supplements to Annexes A through F hereto as are reasonably necessary to cause
such annexes to be complete and accurate at such time.
3.4 Transfer Taxes. Each pledge of Collateral under Section
3.1 or Section 3.3 hereof shall be accompanied by any transfer tax stamps
required in connection with the pledge of such Collateral.
3.5 Definition of Pledged Notes. All Notes at any time pledged
or required to be pledged hereunder are hereinafter called the "Pledged Notes".
3.6 Certain Representations and Warranties Regarding the
Collateral. Each Pledgor represents and warrants that on the date hereof: (i)
each Subsidiary of such Pledgor, and the direct ownership thereof, is listed in
Annex A hereto; (ii) the Stock (and any warrants or options to purchase Stock)
held by such Pledgor consists of the number and type of shares of the stock (or
warrants or options to purchase any stock) of the corporations as described in
Annex B hereto; (iii) such Stock constitutes that percentage of the issued and
outstanding capital stock of the issuing corporation as is set forth in Annex B
hereto; (iv) the Notes held by such Pledgor consist of the promissory notes
described in Annex C hereto where such Pledgor is listed as the lender; (v) the
Limited Liability Company Interests held by such Pledgor consist of the number
and type of interests of the Persons described in Annex D hereto; (vi) each such
Limited Liability Company Interest constitutes that percentage of the issued and
outstanding equity interest of the issuing Person as set forth in Annex D
hereto; (vii) the Partnership Interests held by such Pledgor consist of the
number and type of interests of the Persons described in Annex E hereto; (viii)
each such Partnership Interest constitutes that percentage or portion of the
entire partnership interest of the Partnership as set forth in Annex E hereto;
(ix) such Pledgor has complied with the respective procedure set forth in
Section 3.2(a) hereof with respect to each item of Collateral described in
Annexes A through E hereto; and (x) on the date hereof, such Pledgor owns no
other Securities, Limited Liability Company Interests or Partnership Interests.
<PAGE>
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. If and to the
extent necessary to enable the Pledgee to perfect its security interest in any
of the Collateral or to exercise any of its remedies hereunder, the Pledgee
shall have the right to appoint one or more sub-agents for the purpose of
retaining physical possession of the Collateral, which may be held (in the
discretion of the Pledgee) in the name of the relevant Pledgor, endorsed or
assigned in blank or in favor of the Pledgee or any nominee or nominees of the
Pledgee or a sub-agent appointed by the Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until
there shall have occurred and be continuing an Event of Default, each Pledgor
shall be entitled to exercise any and all voting and other consensual rights
pertaining to the Collateral owned by it, and to give consents, waivers or
ratifications in respect thereof; provided, that, in each case, no vote shall be
cast or any consent, waiver or ratification given or any action taken or omitted
to be taken which would violate or be inconsistent with any of the terms of this
Agreement, the Credit Agreement, any other Credit Document or any Interest Rate
Protection Agreement or Other Hedging Agreement (collectively, the "Secured Debt
Agreements"), or which would have the effect of impairing the value of the
Collateral or any part thereof or the position or interests of the Pledgee or
any other Secured Creditor in the Collateral. All such rights of each Pledgor to
vote and to give consents, waivers and ratifications shall cease in case an
Event of Default has occurred and is continuing, and Section 7 hereof shall
become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until there
shall have occurred and be continuing an Event of Default, all cash dividends,
cash distributions, cash Proceeds and other cash amounts payable in respect of
the Collateral shall be paid to the respective Pledgor. The Pledgee shall be
entitled to receive directly, and to retain as part of the Collateral:
(i) all other or additional stock, notes, limited liability
company interests, partnership interests, instruments or other
securities or property (including, but not limited to, cash dividends
other than as set forth above) paid or distributed by way of dividend
or otherwise in respect of the Collateral;
<PAGE>
(ii) all other or additional stock, notes, limited liability
company interests, partnership interests, instruments or other
securities or property (including, but not limited to, cash) paid or
distributed in respect of the Collateral by way of stock-split,
spin-off, split-up, reclassification, combination of shares or similar
rearrangement; and
(iii) all other or additional stock, notes, limited liability
company interests, partnership interests, instruments or other
securities or property (including, but not limited to, cash) which may
be paid in respect of the Collateral by reason of any consolidation,
merger, exchange of stock, conveyance of assets, liquidation or similar
corporate reorganization.
Nothing contained in this Section 6 shall limit or restrict in any way the
Pledgee's right to receive proceeds of the Collateral in any form in accordance
with Section 3 of this Agreement. All dividends, distributions or other payments
which are received by any Pledgor contrary to the provisions of this Section 6
and Section 7 hereof shall be received in trust for the benefit of the Pledgee,
shall be segregated from other property or funds of such Pledgor and shall be
forthwith paid over to the Pledgee as Collateral in the same form as so received
(with any necessary endorsement).
<PAGE>
7. REMEDIES IN CASE OF DEFAULT OR EVENT OF DEFAULT. If there
shall have occurred and be continuing an Event of Default, then and in every
such case, the Pledgee shall be entitled to exercise all of the rights, powers
and remedies (whether vested in it by this Agreement, any other Secured Debt
Agreement or by law) for the protection and enforcement of its rights in respect
of the Collateral, and the Pledgee shall be entitled to exercise all the rights
and remedies of a secured party under the Uniform Commercial Code as in effect
in any relevant jurisdiction and also shall be entitled, without limitation, to
exercise the following rights, which each Pledgor hereby agrees to be
commercially reasonable:
(i) to receive all amounts payable in respect of the Collateral
otherwise payable under Section 6 hereof to the respective Pledgor;
(ii) to transfer all or any part of the Collateral into the
Pledgee's name or the name of its nominee or nominees;
(iii) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other lawful action to collect
upon any Pledged Note (including, without limitation, to make any
demand for payment thereon);
(iv) to vote all or any part of the Collateral (whether or not
transferred into the name of the Pledgee) and give all consents,
waivers and ratifications in respect of the Collateral and otherwise
act with respect thereto as though it were the outright owner thereof
(each Pledgor hereby irrevocably constituting and appointing the
Pledgee the proxy and attorney-in-fact of such Pledgor, with full power
of substitution to do so);
(v) at any time and from time to time to sell, assign and
deliver, or grant options to purchase, all or any part of the
Collateral, or any interest therein, at any public or private sale,
without demand of performance, advertisement or notice of intention to
sell or of the time or place of sale or adjournment thereof or to
redeem or otherwise (all of which are hereby waived by each Pledgor),
for cash, on credit or for other property, for immediate or future
delivery without any assumption of credit risk, and for such price or
prices and on such terms as the Pledgee in its absolute discretion may
determine, provided that at least 10 days' written notice of the time
and place of any such sale shall be given to the respective Pledgor.
The Pledgee shall not be obligated to make any such sale of Collateral
regardless of whether any such notice of sale has theretofore been
given. Each Pledgor hereby waives and releases to the fullest extent
permitted by law any right or equity of redemption with respect to the
Collateral, whether before or after sale hereunder, and all rights, if
any, of marshalling the Collateral and any other security for the
Obligations or otherwise. At any such sale, unless prohibited by
applicable law, the Pledgee on behalf of the Secured Creditors may bid
for and purchase all or any part of the Collateral so sold free from
any such right or equity of redemption. Neither the Pledgee nor any
other Secured Creditor shall be liable for failure to collect or
realize upon any or all of the Collateral or for any delay in so doing
nor shall any of them be under any obligation to take any action
whatsoever with regard thereto; and
<PAGE>
(vi) to set-off any and all Collateral against any and all
Obligations, and to withdraw any and all cash or other Collateral from
any and all Collateral Accounts and to apply such cash and other
Collateral to the payment of any and all Obligations.
8. REMEDIES, CUMULATIVE, ETC. Each and every right, power and
remedy of the Pledgee provided for in this Agreement or in any other Secured
Debt Agreement, or now or hereafter existing at law or in equity or by statute
shall be cumulative and concurrent and shall be in addition to every other such
right, power or remedy. The exercise or beginning of the exercise by the Pledgee
or any other Secured Creditor of any one or more of the rights, powers or
remedies provided for in this Agreement or any other Secured Debt Agreement or
now or hereafter existing at law or in equity or by statute or otherwise shall
not preclude the simultaneous or later exercise by the Pledgee or any other
Secured Creditor of all such other rights, powers or remedies, and no failure or
delay on the part of the Pledgee or any other Secured Creditor to exercise any
such right, power or remedy shall operate as a waiver thereof. No notice to or
demand on any Pledgor in any case shall entitle it to any other or further
notice or demand in similar or other circumstances or constitute a waiver of any
of the rights of the Pledgee or any other Secured Creditor to any other or
further action in any circumstances without notice or demand. The Secured
Creditors agree that this Agreement may be enforced only by the action of the
Pledgee, in each case acting upon the instructions of the Required Lenders (or,
after the date on which all Credit Document Obligations have been paid in full,
the holders of at least the majority of the outstanding Other Obligations) and
that no other Secured Creditor shall have any right individually to seek to
enforce or to enforce this Agreement or to realize upon the security to be
granted hereby, it being understood and agreed that such rights and remedies may
be exercised by the Pledgee for the benefit of the Secured Creditors upon the
terms of this Agreement.
9. APPLICATION OF PROCEEDS. (b) All monies collected by the
Pledgee upon any sale or other disposition of the Collateral pursuant to the
terms of this Agreement, together with all other monies received by the Pledgee
hereunder, shall be applied in the manner provided in Section 7.4 of the
Security Agreement.
(c) It is understood and agreed that the Pledgors shall remain
jointly and severally liable to the extent of any deficiency between the amount
of the proceeds of the Collateral hereunder and the aggregate amount of the
Obligations.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral
by the Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Pledgee or such officer or be answerable in any way for the
misapplication or nonapplication thereof.
<PAGE>
11. INDEMNITY. Each Pledgor jointly and severally agrees (i)
to indemnify and hold harmless the Pledgee in such capacity and each other
Secured Creditor and their respective successors, assigns, employees, agents and
affiliates (individually an "Indemnitee," and collectively the "Indemnitees")
from and against any and all claims, demands, losses, judgments and liabilities
(including liabilities for penalties) of whatsoever kind or nature, and (ii) to
reimburse each Indemnitee for all reasonable costs and expenses, including
reasonable attorneys' fees, in each case growing out of or resulting from this
Agreement or the exercise by any Indemnitee of any right or remedy granted to it
hereunder or under any other Secured Debt Agreement (but excluding any claims,
demands, losses, judgments and liabilities or expenses to the extent incurred by
reason of gross negligence or willful misconduct of such Indemnitee). In no
event shall the Pledgee be liable, in the absence of gross negligence or willful
misconduct on its part, for any matter or thing in connection with this
Agreement other than to account for monies actually received by it in accordance
with the terms hereof. If and to the extent that the obligations of any Pledgor
under this Section 11 are unenforceable for any reason, such Pledgor hereby
agrees to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
12. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER.
(f) Nothing herein shall be construed to make the Pledgee or any other Secured
Creditor liable as a member of any limited liability company or as a partner of
any partnership and neither the Pledgee nor any other Secured Creditor by virtue
of this Agreement or otherwise (except as referred to in the following sentence)
shall have any of the duties, obligations or liabilities of a member of any
limited liability company or partnership. The parties hereto expressly agree
that, unless the Pledgee shall become the absolute owner of Collateral
consisting of a Limited Liability Company Interest or Partnership Interest
pursuant hereto, this Agreement shall not be construed as creating a partnership
or joint venture among the Pledgee, any other Secured Creditor, any Pledgor
and/or any other Person.
(b) Except as provided in the last sentence of paragraph (a)
of this Section 12, the Pledgee, by accepting this Agreement, did not intend to
become a member of any limited liability company or a partner of any partnership
or otherwise be deemed to be a co-venturer with respect to any Pledgor, any
limited liability company, partnership and/or any other Person either before or
after an Event of Default shall have occurred. The Pledgee shall have only those
powers set forth herein and the Secured Creditors shall assume none of the
duties, obligations or liabilities of a member of any limited liability company
or as a partner of any partnership or any Pledgor except as provided in the last
sentence of paragraph (a) of this Section 12.
(c) The Pledgee and the other Secured Creditors shall not be
obligated to perform or discharge any obligation of any Pledgor as a result of
the pledge hereby effected.
(d) The acceptance by the Pledgee of this Agreement, with all
the rights, powers, privileges and authority so created, shall not at any time
or in any event obligate the Pledgee or any other Secured Creditor to appear in
or defend any action or proceeding relating to the Collateral to which it is not
a party, or to take any action hereunder or thereunder, or to expend any money
or incur any expenses or perform or discharge any obligation, duty or liability
under the Collateral.
<PAGE>
13. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) Each Pledgor
agrees that it will join with the Pledgee in executing and, at such Pledgor's
own expense, file and refile under the Uniform Commercial Code or other
applicable law such financing statements, continuation statements and other
documents in such offices as the Pledgee may deem reasonably necessary and
wherever required by law in order to perfect and preserve the Pledgee's security
interest in the Collateral and hereby authorizes the Pledgee to file financing
statements and amendments thereto relative to all or any part of the Collateral
without the signature of such Pledgor where permitted by law, and agrees to do
such further acts and things and to execute and deliver to the Pledgee such
additional conveyances, assignments, agreements and instruments as the Pledgee
may reasonably require or deem necessary to carry into effect the purposes of
this Agreement or to further assure and confirm unto the Pledgee its rights,
powers and remedies hereunder.
(b) Each Pledgor hereby appoints the Pledgee such Pledgor's
attorney-in-fact, with full authority in the place and stead of such Pledgor and
in the name of such Pledgor or otherwise, to act from time to time solely after
the occurrence and during the continuance of an Event of Default in the
Pledgee's reasonable discretion to take any action and to execute any instrument
which the Pledgee may deem reasonably necessary or advisable to accomplish the
purposes of this Agreement.
14. THE PLEDGEE AS AGENT. The Pledgee will hold in accordance
with this Agreement all items of the Collateral at any time received under this
Agreement. It is expressly understood and agreed by each Secured Creditor that
by accepting the benefits of this Agreement each such Secured Creditor
acknowledges and agrees that the obligations of the Pledgee as holder of the
Collateral and interests therein and with respect to the disposition thereof,
and otherwise under this Agreement, are only those expressly set forth in this
Agreement. The Pledgee shall act hereunder on the terms and conditions set forth
herein and in Section 12 of the Credit Agreement.
15. TRANSFER BY THE PLEDGORS. No Pledgor will sell or
otherwise dispose of, grant any option with respect to, or mortgage, pledge or
otherwise encumber any of the Collateral or any interest therein (except as may
be permitted in accordance with the terms of the Credit Agreement).
16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS. (g) Each
Pledgor represents, warrants and covenants that:
(i) it is the legal, beneficial and record owner of, and has
good and marketable title to, all Collateral consisting of one or more
Securities and that it has sufficient interest in all Collateral in
which a security interest is purported to be created hereunder for such
security interest to attach (subject, in each case, to no pledge, lien,
mortgage, hypothecation, security interest, charge, option, Adverse
Claim or other encumbrance whatsoever, except the liens and security
interests created by this Agreement);
(ii) it has full power, authority and legal right to pledge all
the Collateral pledged by it pursuant to this Agreement;
<PAGE>
(iii) this Agreement has been duly authorized, executed and
delivered by such Pledgor and constitutes a legal, valid and binding
obligation of such Pledgor enforceable against such Pledgor in
accordance with its terms, except to the extent that the enforceability
hereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law);
(iv) except to the extent already obtained or made, no consent
of any other party (including, without limitation, any stockholder,
partner, member or creditor of such Pledgor or any of its Subsidiaries)
and no consent, license, permit, approval or authorization of,
exemption by, notice or report to, or registration, filing or
declaration with, any governmental authority is required to be obtained
by such Pledgor in connection with (a) the execution, delivery or
performance of this Agreement, (b) the validity or enforceability of
this Agreement, (c) the perfection or enforceability of the Pledgee's
security interest in the Collateral or (d) except for compliance with
or as may be required by applicable securities laws, the exercise by
the Pledgee of any of its rights or remedies provided herein;
(v) the execution, delivery and performance of this Agreement
will not violate any provision of any applicable law or regulation or
of any order, judgment, writ, award or decree of any court, arbitrator
or governmental authority, domestic or foreign, applicable to such
Pledgor, or of the certificate of incorporation, operating agreement,
limited liability company agreement, partnership agreement or by-laws
of such Pledgor or of any securities issued by such Pledgor or any of
its Subsidiaries, or of any mortgage, deed of trust, indenture, lease,
loan agreement, credit agreement or other material contract, agreement
or instrument or undertaking to which such Pledgor or any of its
Subsidiaries is a party or which purports to be binding upon such
Pledgor or any of its Subsidiaries or upon any of their respective
assets and will not result in the creation or imposition of (or the
obligation to create or impose) any lien or encumbrance on any of the
assets of such Pledgor or any of its Subsidiaries except as
contemplated by this Agreement;
(vi) all of the Collateral (consisting of Securities, Limited
Liability Company Interests or Partnership Interests) has been duly and
validly issued and acquired, is fully paid and non-assessable and is
subject to no options to purchase or similar rights;
(vii) each of the Pledged Notes constituting an Intercompany Note
constitutes, or when executed by the obligor thereof will constitute,
the legal, valid and binding obligation of such obligor, enforceable in
accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law);
(viii) the pledge and collateral assignment to, and possession by,
the Pledgee of the Collateral consisting of Certificated Securities and
Pledged Notes pursuant to this Agreement creates a valid and perfected
first priority security interest in such Certificated Securities and
Pledged Notes, and the proceeds thereof, subject to no prior Lien or
encumbrance or to any agreement purporting to grant to any third party
a Lien or encumbrance on the property or assets of such Pledgor which
would include the Securities and the Pledgee is entitled to all the
rights, priorities and benefits afforded by the UCC or other relevant
law as enacted in any relevant jurisdiction to perfect security
interests in respect of such Collateral; and
<PAGE>
(ix) "control" (as defined in Section 8-106 of the UCC) has been
obtained by the Pledgee over all Collateral consisting of Securities
(including Notes which are Securities) with respect to which such
"control" may be obtained pursuant to Section 8-106 of the UCC.
(h) Each Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to the Securities and the
proceeds thereof against the claims and demands of all persons whomsoever; and
each Pledgor covenants and agrees that it will have like title to and right to
pledge any other property at any time hereafter pledged to the Pledgee as
Collateral hereunder and will likewise defend the right thereto and security
interest therein of the Pledgee and the other Secured Creditors.
17. CHIEF EXECUTIVE OFFICE; RECORDS. The chief executive
office of each Pledgor is located at the address specified in Annex F hereto for
such Pledgor. Each Pledgor will not move its chief executive office except to
such new location as such Pledgor may establish in accordance with the last
sentence of this Section 17. The originals of all documents in the possession of
such Pledgor evidencing all Collateral, including but not limited to all Limited
Liability Company Interests and Partnership Interests, and the only original
books of account and records of such Pledgor relating thereto are, and will
continue to be, kept at such chief executive office as specified in Annex F
hereto for such Pledgor, or at such new locations as such Pledgor may establish
in accordance with the last sentence of this Section 17. All Limited Liability
Company Interests and Partnership Interests are, and will continue to be,
maintained at, and controlled and directed (including, without limitation, for
general accounting purposes) from, such chief executive office as specified in
Annex F hereto for such Pledgor, or such new locations as such Pledgor may
establish in accordance with the last sentence of this Section 17. No Pledgor
shall establish a new location for such offices unless (i) it shall give to the
Pledgee written notice thereof no later than 60 days after such change, clearly
describing such new location and providing such other information in connection
therewith as the Pledgee may reasonably request and (ii) with respect to such
new location, it shall take all action, satisfactory to the Pledgee, to maintain
the security interest of the Collateral Agent in the Collateral intended to be
granted hereby at all times fully perfected and in full force and effect.
Promptly after establishing a new location for such offices in accordance with
the immediately preceding sentence, the respective Pledgor shall deliver to the
Pledgee a supplement to Annex F hereto so as to cause such Annex F hereto to be
complete and accurate.
<PAGE>
18. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of
each Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (i) any renewal,
extension, amendment or modification of or addition or supplement to or deletion
from any Secured Debt Agreement or any other instrument or agreement referred to
therein, or any assignment or transfer of any thereof; (ii) any waiver, consent,
extension, indulgence or other action or inaction under or in respect of any
such agreement or instrument including, without limitation, this Agreement;
(iii) any furnishing of any additional security to the Pledgee or its assignee
or any acceptance thereof or any release of any security by the Pledgee or its
assignee; (iv) any limitation on any party's liability or obligations under any
such instrument or agreement or any invalidity or unenforceability, in whole or
in part, of any such instrument or agreement or any term thereof; or (v) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to any Pledgor or any Subsidiary
of any Pledgor, or any action taken with respect to this Agreement by any
trustee or receiver, or by any court, in any such proceeding, whether or not
such Pledgor shall have notice or knowledge of any of the foregoing.
19. REGISTRATION, ETC. (a) If there shall have occurred and be
continuing an Event of Default then, and in every such case, upon receipt by any
Pledgor from the Pledgee of a written request or requests that such Pledgor
cause any registration, qualification or compliance under any Federal or state
securities law or laws to be effected with respect to all or any part of the
Collateral consisting of Securities, Limited Liability Company Interests or
Partnership Interests, such Pledgor as soon as practicable and at its expense
will cause such registration to be effected (and be kept effective) and will
cause such qualification and compliance to be declared effected (and be kept
effective) as may be so requested and as would permit or facilitate the sale and
distribution of such Collateral, including, without limitation, registration
under the Securities Act, as then in effect (or any similar statute then in
effect), appropriate qualifications under applicable blue sky or other state
securities laws and appropriate compliance with any other government
requirements, provided, that the Pledgee shall furnish to such Pledgor such
information regarding the Pledgee as such Pledgor may reasonably request in
writing and as shall be required in connection with any such registration,
qualification or compliance. Such Pledgor will cause the Pledgee to be kept
advised in writing as to the progress of each such registration, qualification
or compliance and as to the completion thereof, will furnish to the Pledgee such
number of prospectuses, offering circulars or other documents incident thereto
as the Pledgee from time to time may reasonably request, and will indemnify the
Pledgee, each other Secured Creditor and all others participating in the
distribution of such Collateral against all claims, losses, damages and
liabilities caused by any untrue statement (or alleged untrue statement) of a
material fact contained therein (or in any related registration statement,
notification or the like) or by any omission (or alleged omission) to state
therein (or in any related registration statement, notification or the like) a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same may have been caused by an
untrue statement or omission based upon information furnished in writing to such
Pledgor by the Pledgee or such other Secured Creditor expressly for use therein.
<PAGE>
(b) If at any time when the Pledgee shall determine to
exercise its right to sell all or any part of the Collateral consisting of
Securities, Limited Liability Company Interests or Partnership Interests
pursuant to Section 7 hereof, and the Collateral or the part thereof to be sold
shall not, for any reason whatsoever, be effectively registered under the
Securities Act, as then in effect, the Pledgee may, in its sole and absolute
discretion, sell such Collateral, as the case may be, or part thereof by private
sale in such manner and under such circumstances as the Pledgee may deem
necessary or advisable in order that such sale may legally be effected without
such registration. Without limiting the generality of the foregoing, in any such
event the Pledgee, in its sole and absolute discretion (i) may proceed to make
such private sale notwithstanding that a registration statement for the purpose
of registering such Collateral or part thereof shall have been filed under such
Securities Act, (ii) may approach and negotiate with a single possible purchaser
to effect such sale, and (iii) may restrict such sale to a purchaser who will
represent and agree that such purchaser is purchasing for its own account, for
investment, and not with a view to the distribution or sale of such Collateral
or part thereof. In the event of any such sale, the Pledgee shall incur no
responsibility or liability for selling all or any part of the Collateral at a
price which the Pledgee, in its sole and absolute discretion, in good faith
deems reasonable under the circumstances, notwithstanding the possibility that a
substantially higher price might be realized if the sale were deferred until
after registration as aforesaid.
20. TERMINATION; RELEASE. (a) After the Termination Date, this
Agreement and the security interest created hereby shall terminate (provided
that all indemnities set forth herein including, without limitation, in Section
11 hereof shall survive any such termination), and the Pledgee, at the request
and expense of any Pledgor, will execute and deliver to such Pledgor a proper
instrument or instruments acknowledging the satisfaction and termination of this
Agreement, and will duly assign, transfer and deliver to such Pledgor (without
recourse and without any representation or warranty) such of the Collateral as
has not theretofore been sold or otherwise applied or released pursuant to this
Agreement, together with any monies at the time held by the Pledgee or any of
its sub-agents hereunder. As used in this Agreement, "Termination Date" shall
mean the date upon which the Total Revolving Loan Commitment and all Interest
Rate Protection Agreements and Other Hedging Agreements have been terminated, no
Note under the Credit Agreement is outstanding (and all Loans have been repaid
in full), all Letters of Credit have been terminated and all Obligations then
due and payable have been paid in full.
(b) In the event that any part of the Collateral is sold in
connection with a sale permitted by Section 9.02 of the Credit Agreement (other
than a sale to any Pledgor or any Subsidiary thereof) or is otherwise released
at the direction of the Required Lenders (or all Lenders if required by Section
13.12 of the Credit Agreement) and the proceeds of such sale or sales or from
such release are applied in accordance with the provisions of the Credit
Agreement, to the extent required to be so applied, the Pledgee, at the request
and expense of any Pledgor, will duly assign, transfer and deliver to such
Pledgor (without recourse and without any representation or warranty) such of
the Collateral (and releases therefor) as is then being (or has been) so sold or
released and has not theretofore been released pursuant to this Agreement.
<PAGE>
(c) At any time that a Pledgor desires that the Pledgee
assign, transfer and deliver Collateral (and releases therefor) as provided in
Section 20(a) or (b) hereof, it shall deliver to the Pledgee a certificate
signed by a principal executive officer of such Pledgor stating that the release
of the respective Collateral is permitted pursuant to such Section 20(a) or (b).
(d) The Pledgee shall have no liability whatsoever to any
other Secured Creditor as the result of any release of Collateral by it in
accordance with this Section 20.
21. NOTICES, ETC. All such notices and communications
hereunder shall be sent or delivered by mail, telegraph, telex, telecopy, cable
or overnight courier service and all such notices and communications shall, when
mailed, telegraphed, telexed, telecopied, or cabled or sent by overnight
courier, be effective when deposited in the mails, delivered to the telegraph
company, cable company or overnight courier, as the case may be, or sent by
telex or telecopier and when mailed shall be effective three Business Days
following deposit in the mail with proper postage, except that notices and
communications to the Pledgee or any Pledgor shall not be effective until
received by the Pledgee or such Pledgor, as the case may be. All notices and
other communications shall be in writing and addressed as follows:
(a) if to any Pledgor, at:
c/o SITEL Corporation
111 South Calvert Street
Suite 1900
Baltimore, Maryland 21202
Attention: President
Telephone No.: (410) 246-1505
Telecopier No.: (410) 246-0200
(b) if to the Pledgee, at:
Bankers Trust Company
One Bankers Trust Plaza
130 Liberty Street
New York, New York 10006
Attention: David Bell
Telephone No.: (212) 250-9048
Telecopier No.: (212) 250-7218;
(c) if to any Lender Creditor, either (x) to the
Administrative Agent, at the address of the Administrative Agent specified in
the Credit Agreement, or (y) at such address as such Lender Creditor shall have
specified in the Credit Agreement;
(d) if to any Other Creditor, at such address as such Other Creditor shall
have specified in writing to the Pledgors and the Pledgee;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
<PAGE>
22. WAIVER; AMENDMENT. None of the terms and conditions of
this Agreement may be changed, waived, modified or varied in any manner
whatsoever unless in writing duly signed by each Pledgor directly affected
thereby and the Pledgee (with the written consent of either (x) the Required
Lenders (or all of the Lenders to the extent required by Section 13.12 of the
Credit Agreement) at all times prior to the time on which all Credit Document
Obligations have been paid in full or (y) the holders of at least a majority of
the outstanding Other Obligations at all times after the time on which all
Credit Document Obligations have been paid in full); provided, that any change,
waiver, modification or variance affecting the rights and benefits of a single
Class (as defined below) of Secured Creditors (and not all Secured Creditors in
a like or similar manner) shall also require the written consent of the
Requisite Creditors (as defined below) of such affected Class. For the purpose
of this Agreement, the term "Class" shall mean each class of Secured Creditors,
i.e., whether (i) the Lender Creditors as holders of the Credit Document
Obligations or (ii) the Other Creditors as the holders of the Other Obligations.
For the purpose of this Agreement, the term "Requisite Creditors" of any Class
shall mean each of (i) with respect to the Credit Document Obligations, the
Required Lenders and (ii) with respect to the Other Obligations, the holders of
at least a majority of all obligations outstanding from time to time under the
Interest Rate Protection Agreements and Other Hedging Agreements.
23. MISCELLANEOUS. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of and be enforceable by each of the parties hereto and its
successors and assigns, provided that no Pledgor may assign any of its rights or
obligations under this Agreement without the prior consent of the Collateral
Agent. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF
THE STATE OF NEW YORK. EACH PLEDGOR IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY
JURY IN ANY ACTION PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. The headings in this
Agreement are for purposes of reference only and shall not limit or define the
meaning hereof. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which shall constitute one
instrument. In the event that any provision of this Agreement shall prove to be
invalid or unenforceable, such provision shall be deemed to be severable from
the other provisions of this Agreement which shall remain binding on all parties
hereto.
24. RECOURSE. This Agreement is made with full recourse to the
Pledgors and pursuant to and upon all the representations, warranties, covenants
and agreements on the part of the Pledgors contained herein and in the other
Secured Debt Agreements and otherwise in writing in connection herewith or
therewith.
25. ADDITIONAL PLEDGORS. It is understood and agreed that any
Subsidiary of the US Borrower that is required to execute a counterpart of this
Agreement after the date hereof pursuant to the Credit Agreement shall become a
Pledgor hereunder by executing a counterpart hereof and delivering the same to
the Pledgee.
* * * *
<PAGE>
IN WITNESS WHEREOF, each Pledgor and the Pledgee have caused
this Agreement to be executed by their duly elected officers duly authorized as
of the date first above written.
SITEL CORPORATION,
as a Pledgor
By: /s/ Nan A. Kreamer
Title: Vice President
NATIONAL ACTION FINANCIAL SERVICES, INC.,
as a Pledgor
By: /s/ Nan A. Kreamer
Title: Assistant Secretary
SEEK THE GEEK, INC.,
as a Pledgor
By: /s/ Nan A. Kreamer
Title: Vice President
SITEL INSURANCE MARKETING SERVICES, INC.,
as a Pledgor
By: /s/ Nan A. Kreamer
Title: Vice President
<PAGE>
SITEL INSURANCE SERVICES, INC.,
as a Pledgor
By: /s/ Nan A. Kreamer
Title: Vice President
SITEL INTERNATIONAL, INC.,
as a Pledgor
By: /s/ Nan A. Kreamer
Title: Vice President
FINANCIAL INSURANCE SERVICES, INC.,
as a Pledgor
By: /s/ Nan A. Kreamer
Title: Vice President
SITEL MEXICO HOLDINGS LLC,
as a Pledgor
By: SITEL (BVI) International, Inc.,
the sole member of SITEL Mexico Holdings LLC
By: SITEL International, Inc.,
the sole director of SITEL (BVI) International, Inc.
By: /s/ Nan A. Kreamer
Title: Vice President
<PAGE>
Accepted and Agreed to:
BANKERS TRUST COMPANY,
as Collateral Agent, Pledgee
By: /s/ Pam Divino
Title: Vice President
<PAGE>
ANNEX A
to
PLEDGE AGREEMENT
LIST OF SUBSIDIARIES
<PAGE>
ANNEX B
to
PLEDGE AGREEMENT
LIST OF STOCK
<PAGE>
ANNEX C
to
PLEDGE AGREEMENT
LIST OF NOTES
<PAGE>
ANNEX D
to
PLEDGE AGREEMENT
LIST OF LIMITED LIABILITY COMPANY INTERESTS
<PAGE>
ANNEX E
to
PLEDGE AGREEMENT
LIST OF PARTNERSHIP INTERESTS
<PAGE>
ANNEX F
to
PLEDGE AGREEMENT
LIST OF CHIEF EXECUTIVE OFFICES
<PAGE>
ANNEX G
to
PLEDGE AGREEMENT
Form of Agreement Regarding Uncertificated Securities, Limited Liability
Company Interests and Partnership Interests
AGREEMENT (as amended, modified or supplemented from time to
time, this "Agreement"), dated as of _______ __, ____, among the undersigned
pledgor (the "Pledgor"), Bankers Trust Company, not in its individual capacity
but solely as Collateral Agent (the "Pledgee"), and __________, as the issuer of
the Uncertificated Securities, Limited Liability Company Interests and/or
Partnership Interests (each as defined below) (the "Issuer").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Pledgor, certain of its affiliates and the
Pledgee have entered into a Pledge Agreement, dated as of April 11, 2000 (as
amended, amended and restated, modified or supplemented from time to time, the
"Pledge Agreement"), under which, among other things, in order to secure the
payment of the Obligations (as defined in the Pledge Agreement), the Pledgor
will pledge to the Pledgee for the benefit of the Secured Creditors (as defined
in the Pledge Agreement), and grant a security interest in favor of the Pledgee
for the benefit of the Secured Creditors in, all of the right, title and
interest of the Pledgor in and to any and all (1) "uncertificated securities"
(as defined in Section 8-102(a)(18) of the Uniform Commercial Code, as adopted
in the State of New York) ("Uncertificated Securities"), (2) Partnership
Interests (as defined in the Pledge Agreement) and (3) Limited Liability Company
Interests (as defined in the Pledge Agreement), in each case issued from time to
time by the Issuer, whether now existing or hereafter from time to time acquired
by the Pledgor (with all of such Uncertificated Securities, Partnership
Interests and Limited Liability Company Interests being herein collectively
called the "Issuer Pledged Interests"); and
WHEREAS, the Pledgor desires the Issuer to enter into this
Agreement in order to perfect the security interest of the Pledgee under the
Pledge Agreement in the Issuer Pledged Interests, to vest in the Pledgee control
of the Issuer Pledge Interests and to provide for the rights of the parties
under this Agreement;
NOW THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, and for other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. The Pledgor hereby irrevocably authorizes and directs the
Issuer, and the Issuer hereby agrees, to comply with any and all instructions
and orders originated by the Pledgee (and its successors and assigns) regarding
any and all of the Issuer Pledged Interests without the further consent by the
registered owner (including the Pledgor), and not to comply with any
instructions or orders regarding any or all of the Issuer Pledged Interests
originated by any person or entity other than the Pledgee (and its successors
and assigns) or a court of competent jurisdiction.
<PAGE>
2. The Issuer hereby certifies that (i) no notice of any
security interest, lien or other encumbrance or claim affecting the Issuer
Pledged Interests (other than the security interest of the Pledgee) has been
received by it, and (ii) the security interest of the Pledgee in the Issuer
Pledged Interests has been registered in the books and records of the Issuer.
3. The Issuer hereby represents and warrants that (i) the
pledge by the Pledgor of, and the granting by the Pledgor of a security interest
in, the Issuer Pledged Interests to the Pledgee, for the benefit of the Secured
Creditors, does not violate the charter, by-laws, partnership agreement,
membership agreement or any other agreement governing the Issuer or the Issuer
Pledged Interests, and (ii) the Issuer Pledged Interests are fully paid and
nonassessable.
4. All notices, statements of accounts, reports, prospectuses,
financial statements and other communications to be sent to the Pledgor by the
Issuer in respect of the Issuer will also be sent to the Pledgee at the
following address:
Bankers Trust Company
One Bankers Trust Plaza
130 Liberty Street
New York, New York 10006
Attention: David Bell
Tel: (212) 250-9048
Fax: (212) 250-7218
5. Until the Pledgee shall have delivered written notice to
the Issuer that all of the Obligations have been paid in full and this Agreement
is terminated, the Issuer will, upon receiving notice from the Pledgee stating
that an "Event of Default" has occurred and is continuing, send any and all
redemptions, distributions, interest or other payments in respect of the Issuer
Pledged Interests from the Issuer for the account of the Pledgor only by wire
transfers to the following address:
=====================
---------------------
ABA No.: ____________________
Account in the Name of: ___________
Account No.: ____________________
<PAGE>
6. Except as expressly provided otherwise in Sections 4 and 5,
all notices, shall be sent or delivered by mail, telegraph, telex, telecopy,
cable or overnight courier service and all such notices and communications
shall, when mailed, telegraphed, telexed, telecopied, or cabled or sent by
overnight courier, be effective when deposited in the mails, delivered to the
telegraph company, cable company or overnight courier, as the case may be, or
sent by telex or telecopier and when mailed shall be effective three Business
Days following deposit in the mail with proper postage, except that notices and
communications to the Pledgee, the Pledgor or the Issuer shall not be effective
until received by the Pledgee, the Pledgor or the Issuer, as the case may be.
All notices and other communications shall be in writing and addressed as
follows:
(k) if to the Pledgor, at:
c/o SITEL Corporation
111 South Calvert Street, Suite 1900
Baltimore, Maryland 21202
Attention: President
Tel: (410) 246-1505
Fax: (410) 246-0200
(l) if to the Pledgee, at:
Bankers Trust Company
One Bankers Trust Plaza
130 Liberty Street
New York, New York 10006
Attention: David Bell
Tel: (212) 250-9048
Fax: (212) 250-7218
(m) if to the Issuer, at:
=====================
---------------------
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder. As used in this
Section 6, "Business Day" means any day other than a Saturday, Sunday, or other
day in which banks in New York are authorized to remain closed.
7. This Agreement shall be binding upon the successors and
assigns of the Pledgor and the Issuer and shall inure to the benefit of and be
enforceable by the Pledgee and its successors and assigns. This Agreement may be
executed in any number of counterparts, each of which shall be an original, but
all of which shall constitute one instrument. In the event that any provision of
this Agreement shall prove to be invalid or unenforceable, such provision shall
be deemed to be severable from the other provisions of this Agreement which
shall remain binding on all parties hereto. None of the terms and conditions of
this Agreement may be changed, waived, modified or varied in the manner
whatsoever except in writing signed by the Pledgee, the Issuer and the Pledgor.
8. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to its
principles of conflict of laws.
* * *
<PAGE>
IN WITNESS WHEREOF, the Pledgor, the Pledgee and the Issuer
have caused this Agreement to be executed by their duly elected officers duly
authorized as of the date first above written.
[ ],
as Pledgor
By_____________________________
Name:
Title:
BANKERS TRUST COMPANY,
not in its individual capacity but
solely as Collateral Agent and Pledgee
By_____________________________
Name:
Title:
[ ],
the Issuer
By_____________________________
Name:
Title:
<PAGE>
EXHIBIT H
SECURITY AGREEMENT
among
SITEL CORPORATION,
CERTAIN OF ITS SUBSIDIARIES
and
BANKERS TRUST COMPANY,
as COLLATERAL AGENT
--------------------------------
Dated as of April 11, 2000
--------------------------------
<PAGE>
Exhibit H
FORM OF SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of April 11, 2000, made by each
of the undersigned assignors (each an "Assignor" and, together with any other
entity that becomes an assignor hereunder pursuant to Section 10.13 hereof, the
"Assignors") in favor of Bankers Trust Company, as Collateral Agent (together
with any successor collateral agent, the "Collateral Agent"), for the benefit of
the Secured Creditors (as defined below). Except as otherwise defined herein,
capitalized terms used herein and defined in the Credit Agreement (as defined
below) shall be used herein as so defined.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, SITEL Corporation (the "US Borrower"), SITEL Europe
plc (the "English Borrower"), SITEL TMS Limited (the "Irish Borrower" and,
together with the US Borrower and the English Borrower, the "Borrowers"), the
lenders party from time to time party thereto (the "Lenders"), and Bankers Trust
Company, as Administrative Agent (together with any successor administrative
agent, the "Administrative Agent"), have entered into a Credit Agreement, dated
as of April 11, 2000, providing for the making of Loans to the Borrowers, and
the issuance of Letters of Credit for the account of the US Borrower, in each
case as contemplated therein (as amended, modified or supplemented from time to
time, the "Credit Agreement") (the Lenders, the Administrative Agent, the
Issuing Lenders and the Collateral Agent are herein called the "Lender
Creditors");
WHEREAS, any Assignor or any Subsidiary thereof may at any
time and from time to time enter into one or more Interest Rate Protection
Agreements or Other Hedging Agreements with one or more Lenders or any affiliate
thereof (each such Lender or affiliate, even if the respective Lender
subsequently ceases to be a Lender under the Credit Agreement for any reason,
together with such Lender's or affiliate's successors and assigns, if any,
collectively, the "Other Creditors", and together with the Lender Creditors, are
herein called the "Secured Creditors");
WHEREAS, pursuant to each Guaranty, each Assignor that is a
party thereto has guaranteed to the Secured Creditors the payment when due of
all Guaranteed Obligations as described in each such Guaranty;
WHEREAS, it is a condition precedent to the making of Loans
and the issuance of Letters of Credit under the Credit Agreement that each
Assignor shall have executed and delivered to the Collateral Agent this
Agreement; and
<PAGE>
WHEREAS, each Assignor desires to enter into this Agreement in
order to satisfy the condition described in the preceding paragraph;
NOW, THEREFORE, in consideration of the benefits accruing to
each Assignor, the receipt and sufficiency of which are hereby acknowledged,
each Assignor hereby makes the following representations and warranties to the
Collateral Agent for the benefit of the Secured Creditors and hereby covenants
and agrees with the Collateral Agent for the benefit of the Secured Creditors as
follows:
ARTICLE I
SECURITY INTERESTS
1.1. Grant of Security Interests. (a) As security for the
prompt and complete payment and performance when due of all of its Obligations,
each Assignor does hereby assign, pledge, hypothecate and grant to the
Collateral Agent for the benefit of the Secured Creditors, a continuing security
interest in, all of the right, title and interest of such Assignor in, to and
under all of the following, whether now existing or hereafter from time to time
acquired: (i) each and every Receivable, (ii) all Contracts, together with all
Contract Rights arising thereunder, (iii) all Inventory, (iv) all Equipment, (v)
all Marks, together with the registrations and right to all renewals thereof,
and the goodwill of the business of such Assignor symbolized by the Marks, (vi)
all Patents and Copyrights and all reissues, renewals or extensions thereof,
(vii) all computer programs of such Assignor and all intellectual property
rights therein and all other Proprietary Information of such Assignor,
including, but not limited to, Trade Secret Rights, (viii) all other Goods,
General Intangibles, Investment Property, Permits, Chattel Paper, Documents,
Instruments and other assets (including cash), (ix) the Cash Collateral Account
and all monies, securities, instruments and other investments deposited or
required to be deposited in such Cash Collateral Account, (x) all other bank,
demand, time savings, cash management, passbook, certificates of deposit and
similar accounts maintained by such Assignor and all monies, securities,
instruments and other investments deposited or required to be deposited in any
of the foregoing accounts, and (xi) all Proceeds and products of any and all of
the foregoing (all of the above, collectively, the "Collateral").
Notwithstanding the foregoing, the security interest granted herein shall not
extend to and the term "Collateral" shall not include any property, rights or
licenses to the extent the granting of a security interest therein (1) would be
contrary to applicable law or (2) is prohibited by or would constitute a default
under any agreement or document governing such property, rights or licenses (but
only to the extent such prohibition is enforceable under applicable law and only
for so long as such prohibition exists).
(b) The security interest of the Collateral Agent under this
Agreement extends to all Collateral of the kind which is the subject of this
Agreement which any Assignor may acquire at any time during the term of this
Agreement.
1.2 . Power of Attorney. Each Assignor hereby constitutes and
appoints the Collateral Agent its true and lawful attorney, irrevocably, with
full power after the occurrence of and during the continuance of an Event of
Default (in the name of such Assignor or otherwise) to act, require, demand,
receive, compound and give acquittance for any and all moneys and claims for
moneys due or to become due to such Assignor under or arising out of the
Collateral, to endorse any checks or other instruments or orders in connection
therewith and to file any claims or take any action or institute any proceedings
which the Collateral Agent may deem to be necessary or advisable to protect the
interests of the Secured Creditors, which appointment as attorney is coupled
with an interest.
<PAGE>
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Assignor represents, warrants and covenants, which
representations, warranties and covenants shall survive execution and delivery
of this Agreement, as follows:
2.1. Necessary Filings. Upon the filing by the Collateral
Agent of appropriate financing statements in the applicable filing offices in
the jurisdictions set forth in Annexes A and B attached hereto, and upon the
filing of the appropriate Assignments of Security Interest in the form of Annex
G or H attached hereto in the United States Patent and Trademark Office or in
the United States Copyright Office, as applicable, all filings, registrations
and recordings necessary or appropriate to create, preserve and perfect the
security interest granted by such Assignor to the Collateral Agent hereby in
respect of the Collateral will have been accomplished and the security interest
granted to the Collateral Agent pursuant to this Agreement in and to the
Collateral will create a perfected security interest therein prior to the rights
of all other Persons therein and subject to no other Liens (other than Permitted
Liens) and will be entitled to all the rights, priorities and benefits afforded
by the Uniform Commercial Code or other relevant law as enacted in any relevant
jurisdiction to perfected security interests, in each case to the extent that
the Collateral consists of the type of property in which a security interest may
be perfected by filing a financing statement under the Uniform Commercial Code
as enacted in any relevant jurisdiction or in the United States Patent and
Trademark Office or in the United States Copyright Office.
2.2. No Liens. Such Assignor is, and as to Collateral
acquired by it from time to time after the date hereof such Assignor will be,
the owner of all Collateral free from any Lien, security interest, encumbrance
or other right, title or interest of any Person (other than Permitted Liens),
and such Assignor shall defend the Collateral against all claims and demands of
all Persons at any time claiming the same or any interest therein adverse to the
Collateral Agent.
2.3. Other Financing Statements. As of the date hereof, there
is no financing statement (or similar statement or instrument of registration
under the law of any jurisdiction) covering or purporting to cover any interest
of any kind in the Collateral (other than financing statements filed in respect
of Permitted Liens), and so long as the Termination Date has not occurred, such
Assignor will not execute or authorize to be filed in any public office any
financing statement (or similar statement or instrument of registration under
the law of any jurisdiction) or statements relating to the Collateral, except
financing statements filed or to be filed in respect of and covering the
security interests granted hereby by such Assignor or in connection with
Permitted Liens.
<PAGE>
2.4. Chief Executive Office, Record Locations. The chief
executive office of such Assignor is located at the address indicated on Annex A
hereto for such Assignor. Such Assignor will not move its chief executive office
except to such new location as such Assignor may establish in accordance with
the last sentence of this Section 2.4. The originals of all documents evidencing
all Receivables and Contract Rights of such Assignor and the only original books
of account and records of such Assignor relating thereto are, and will continue
to be, kept at such chief executive office, at one or more of the other
locations set forth on Annex A hereto or at such new locations as such Assignor
may establish in accordance with the last sentence of this Section 2.4. All
Receivables and Contract Rights of such Assignor are, and will continue to be,
maintained at, and controlled and directed (including, without limitation, for
general accounting purposes) from, the office locations described above or such
new location established in accordance with the last sentence of this Section
2.4. No Assignor shall establish new locations for such offices unless (i) it
shall give to the Collateral Agent written notice thereof no later than 60 days
after such change, clearly describing such new location and providing such other
information in connection therewith as the Collateral Agent may reasonably
request, and (ii) with respect to such new location, it shall take all action
reasonably satisfactory to the Collateral Agent to maintain the security
interest of the Collateral Agent in the Collateral intended to be granted hereby
at all times fully perfected and in full force and effect.
2.5. Location of Inventory and Equipment. All Inventory and
Equipment held on the date hereof by each Assignor is located at one of the
locations shown on Annex B hereto for such Assignor. Each Assignor agrees that
all Inventory and Equipment now held or subsequently acquired by it shall be
kept at (or shall be in transport to) any one of the locations shown on Annex B
hereto, or such new location as such Assignor may establish in accordance with
the last sentence of this Section 2.5. Any Assignor may establish a new location
for Inventory and Equipment only if (i) it shall give to the Collateral Agent
prior written notice thereof no later than 60 days after such change, clearly
describing such new location and providing such other information in connection
therewith as the Collateral Agent may reasonably request, and (ii) with respect
to such new location, it shall take all action reasonably satisfactory to the
Collateral Agent to maintain the security interest of the Collateral Agent in
the Collateral intended to be granted hereby at all times fully perfected and in
full force and effect.
2.6. Recourse. This Agreement is made with full recourse to
each Assignor (including, without limitation, with full recourse to all assets
of such Assignor) and pursuant to and upon all the warranties, representations,
covenants and agreements on the part of such Assignor contained herein, in the
other Secured Debt Agreements and otherwise in writing in connection herewith or
therewith.
2.7. Trade Names; Change of Name. No Assignor has or operates
in any jurisdiction under, or in the preceding one year has had or has operated
in any jurisdiction under, any trade names, fictitious names or other names
except its legal name and such other trade or fictitious names as are listed on
Annex C hereto for such Assignor. No Assignor shall change its legal name or
assume or operate in any jurisdiction under any trade, fictitious or other name
except those names listed on Annex C hereto for such Assignor and new names
established in accordance with the last sentence of this Section 2.7. No
Assignor shall assume or operate in any jurisdiction under any new trade,
fictitious or other name unless (i) it shall give to the Collateral Agent
written notice thereof no later than 60 days after such change, clearly
describing such new name and the jurisdictions in which such new name shall be
used and providing such other information in connection therewith as the
Collateral Agent may reasonably request, and (ii) with respect to such new name,
it shall take all action reasonably requested by the Collateral Agent to
maintain the security interest of the Collateral Agent in the Collateral
intended to be granted hereby at all times fully perfected and in full force and
effect.
<PAGE>
ARTICLE III
SPECIAL PROVISIONS CONCERNING RECEIVABLES;
CONTRACT RIGHTS; INSTRUMENTS; CHATTEL PAPER
3.1. Additional Representations and Warranties. As of the
time when each of its Receivables arises, each Assignor shall be deemed to have
represented and warranted that such Receivable, and all records, papers and
documents relating thereto (if any) are genuine and what they purport to be, and
that all papers and documents (if any) relating thereto (i) will, to the
knowledge of such Assignor, represent the genuine legal, valid and binding
obligation of the account debtor evidencing indebtedness unpaid and owed by the
respective account debtor arising out of the performance of labor or services or
the sale or lease and delivery of the inventory, materials, equipment or
merchandise listed therein, or both, and (ii) will, to the knowledge of such
Assignor, be in compliance and will conform in all material respects with all
applicable federal, state and local laws and applicable laws of any relevant
foreign jurisdiction.
3.2. Maintenance of Records. Each Assignor will keep and
maintain at its own cost and expense accurate records of its Receivables and
Contracts, including, but not limited to, originals of all documentation
(including each Contract) with respect thereto, records of all payments
received, all credits granted thereon, all merchandise returned and all other
dealings therewith, and such Assignor will make the same available on such
Assignor's premises to the Collateral Agent for inspection, at such Assignor's
own cost and expense, at any and all reasonable times upon prior notice to such
Assignor. Upon the occurrence and during the continuance of an Event of Default
and at the request of the Collateral Agent, such Assignor shall, at its own cost
and expense, deliver all tangible evidence of its Receivables and Contract
Rights (including, without limitation, all documents evidencing the Receivables
and all Contracts) and such books and records to the Collateral Agent or to its
representatives (copies of which evidence and books and records may be retained
by such Assignor). Upon the occurrence and during the continuance of an Event of
Default and if the Collateral Agent so directs, such Assignor shall legend, in
form and manner satisfactory to the Collateral Agent, the Receivables and the
Contracts, as well as books, records and documents (if any) of such Assignor
evidencing or pertaining to such Receivables and Contracts with an appropriate
reference to the fact that such Receivables and Contracts have been assigned to
the Collateral Agent and that the Collateral Agent has a security interest
therein.
<PAGE>
3.3. Direction to Account Debtors; Contracting Parties; etc.
Upon the occurrence and during the continuance of an Event of Default, if the
Collateral Agent so directs any Assignor, such Assignor agrees (x) to cause all
payments on account of the Receivables and Contracts to be made directly to the
Cash Collateral Account, (y) that the Collateral Agent may, at its option,
directly notify the obligors with respect to any Receivables and/or under any
Contracts to make payments with respect thereto as provided in the preceding
clause (x), and (z) that the Collateral Agent may enforce collection of any such
Receivables and Contracts and may adjust, settle or compromise the amount of
payment thereof, in the same manner and to the same extent as such Assignor.
Without notice to or assent by any Assignor, the Collateral Agent may, upon the
occurrence and during the continuance of an Event of Default, apply any or all
amounts then in, or thereafter deposited in, the Cash Collateral Account which
application shall be effected in the manner provided in Section 7.4 of this
Agreement. The reasonable costs and expenses (including reasonable attorneys'
fees) of collection, whether incurred by an Assignor or the Collateral Agent,
shall be borne by the relevant Assignor. The Collateral Agent shall deliver a
copy of each notice referred to in the preceding clause (y) to the relevant
Assignor, provided, that the failure by the Collateral Agent to so notify such
Assignor shall not affect the effectiveness of such notice or the other rights
of the Collateral Agent created by this Section 3.3.
3.4. Modification of Terms; etc. Except in accordance with
such Assignor's ordinary course of business and consistent with reasonable
business judgment or as permitted by the Credit Agreement, no Assignor shall
rescind or cancel any indebtedness evidenced by any Receivable or under any
Contract, or modify any term thereof or make any adjustment with respect
thereto, or extend or renew the same, or compromise or settle any material
dispute, claim, suit or legal proceeding relating thereto, or sell any
Receivable or Contract, or interest therein, without the prior written consent
of the Collateral Agent. No Assignor will do anything to impair the rights of
the Collateral Agent in the Receivables or Contracts.
3.5. Collection. Each Assignor shall endeavor in accordance
with reasonable business practices to cause to be collected from the account
debtor named in each of its Receivables or obligor under any Contract, as and
when due (including, without limitation, amounts which are delinquent, such
amounts to be collected in accordance with generally accepted lawful collection
procedures) any and all amounts owing under or on account of such Receivable or
Contract, and apply forthwith upon receipt thereof all such amounts as are so
collected to the outstanding balance of such Receivable or under such Contract,
except as otherwise directed by the Collateral Agent after the occurrence and
during the continuation of an Event of Default, any Assignor may allow in the
ordinary course of business as adjustments to amounts owing under its
Receivables and Contracts (i) an extension or renewal of the time or times of
payment, or settlement for less than the total unpaid balance, which such
Assignor finds appropriate in accordance with reasonable business judgment and
(ii) a refund or credit due as a result of returned or damaged merchandise or
improperly performed services or for other reasons which such Assignor finds
appropriate in accordance with reasonable business judgment. The reasonable
costs and expenses (including, without limitation, reasonable attorneys' fees)
of collection, whether incurred by an Assignor or the Collateral Agent, shall be
borne by the relevant Assignor.
3.6. Instruments. If any Assignor owns or acquires any
Instrument with a value of $10,000 or more constituting Collateral (other than
checks and other payment instruments received and collected in the ordinary
course of business), such Assignor will within 10 Business Days notify the
Collateral Agent thereof, and upon request by the Collateral Agent will promptly
deliver such Instrument to the Collateral Agent appropriately endorsed to the
order of the Collateral Agent as further security hereunder.
<PAGE>
3.7. Assignors Remain Liable Under Receivables. Anything
herein to the contrary notwithstanding, the Assignors shall remain liable under
each of the Receivables to observe and perform all of the conditions and
obligations to be observed and performed by it thereunder, all in accordance
with the terms of any agreement giving rise to such Receivables. Neither the
Collateral Agent nor any other Secured Creditor shall have any obligation or
liability under any Receivable (or any agreement giving rise thereto) by reason
of or arising out of this Agreement or the receipt by the Collateral Agent or
any other Secured Creditor of any payment relating to such Receivable pursuant
hereto, nor shall the Collateral Agent or any other Secured Creditor be
obligated in any manner to perform any of the obligations of any Assignor under
or pursuant to any Receivable (or any agreement giving rise thereto), to make
any payment, to make any inquiry as to the nature or the sufficiency of any
payment received by them or as to the sufficiency of any performance by any
party under any Receivable (or any agreement giving rise thereto), to present or
file any claim, to take any action to enforce any performance or to collect the
payment of any amounts which may have been assigned to them or to which they may
be entitled at any time or times.
3.8. Assignors Remain Liable Under Contracts. Anything herein
to the contrary notwithstanding, the Assignors shall remain liable under each of
the Contracts to observe and perform all of the conditions and obligations to be
observed and performed by them thereunder, all in accordance with and pursuant
to the terms and provisions of each Contract. Neither the Collateral Agent nor
any other Secured Creditor shall have any obligation or liability under any
Contract by reason of or arising out of this Agreement or the receipt by the
Collateral Agent or any other Secured Creditor of any payment relating to such
contract pursuant hereto, nor shall the Collateral Agent or any other Secured
Creditor be obligated in any manner to perform any of the obligations of any
Assignor under or pursuant to any Contract, to make any payment, to make any
inquiry as to the nature or the sufficiency of any performance by any party
under any Contract, to present or file any claim, to take any action to enforce
any performance or to collect the payment of any amounts which may have been
assigned to them or to which they may be entitled at any time or times.
3.9 . Protection of the Collateral Agent's Security. Each
Assignor will do nothing to impair the rights of the Secured Creditors in the
Collateral. Each Assignor assumes all liability and responsibility in connection
with the Collateral owned by it and the liability of each Assignor to pay the
Obligations shall in no way be affected or diminished by reason of the fact that
such Collateral may be lost, destroyed, stolen, damaged or for any reason
whatsoever unavailable to it.
3.10. Further Actions. Each Assignor will, at its own
expense, make, execute, endorse, acknowledge, file and/or deliver to the
Collateral Agent from time to time such vouchers, invoices, schedules,
confirmatory assignments, conveyances, financing statements, transfer
endorsements, certificates, reports and other assurances or instruments and take
such further steps relating to its Receivables, Contracts, Instruments and other
property or rights covered by the security interest hereby granted, as the
Collateral Agent may reasonably require.
<PAGE>
ARTICLE IV
SPECIAL PROVISIONS CONCERNING TRADEMARKS
4.1. Additional Representations and Warranties. Each Assignor
represents and warrants that it is the true and lawful owner of or otherwise has
the right to use the registered Marks listed in Annex D hereto for such Assignor
and that said listed Marks include all United States marks and applications for
United States marks registered in the United States Patent and Trademark Office
that such Assignor owns or uses in connection with its business as of the date
hereof. Each Assignor represents and warrants that it owns, is licensed to use
or otherwise has the right to use, all Marks that it uses. Each Assignor further
warrants that it has no knowledge of any material third party claim received by
it that any aspect of such Assignor's present or contemplated business
operations infringes or will infringe any trademark, service mark or trade name
of any other Person. Each Assignor represents and warrants that it is the true
and lawful owner of or otherwise has the right to use all U.S. trademark
registrations and applications listed in Annex D hereto and that said
registrations are valid, subsisting, have not been canceled and that such
Assignor is not aware of any material third-party claim that any of said
registrations is invalid or unenforceable, or is not aware that there is any
reason that any of said registrations is invalid or unenforceable. Each Assignor
hereby grants to the Collateral Agent an absolute power of attorney to sign,
upon the occurrence and during the continuance of an Event of Default, any
document which may be required by the United States Patent and Trademark Office
in order to effect an absolute assignment of all right, title and interest in
each Mark, and record the same.
4.2. Licenses and Assignments. Except as otherwise permitted
by the Secured Debt Agreements, each Assignor hereby agrees not to divest itself
of any right under any significant Mark absent prior written approval of the
Collateral Agent.
4.3. Infringements. Each Assignor agrees, promptly upon
learning thereof, to notify the Collateral Agent in writing of the name and
address of, and to furnish such pertinent information that may be available with
respect to, any party who may be infringing or diluting or otherwise violating
any of such Assignor's rights in and to any significant Mark, or with respect to
any party claiming that such Assignor's use of any Mark violates in any material
respect any property right of that party. Each Assignor further agrees to
prosecute diligently in accordance with reasonable business practices any Person
infringing any significant Mark.
4.4. Preservation of Marks. Each Assignor agrees to use or
license the use of its Marks in interstate commerce during the time in which
this Agreement is in effect and, except as otherwise permitted by the Credit
Agreement, to take all such other actions as are necessary to preserve such
Marks as trademarks or service marks under the laws of the United States.
<PAGE>
4.5. Maintenance of Registration. Each Assignor shall, at its
own expense, diligently process all documents required to maintain trademark
registrations, including but not limited to affidavits of use and applications
for renewals of registration in the United States Patent and Trademark Office
for all of its significant registered Marks, and shall pay all fees and
disbursements in connection therewith and shall not abandon any such filing of
affidavit of use or any such application of renewal prior to the exhaustion of
all administrative and judicial remedies without prior written consent of the
Collateral Agent (other than with respect to registrations and applications
deemed by such Assignor to be no longer prudent to pursue).
4.6. Future Registered Marks. If any Mark registration is
issued hereafter to any Assignor as a result of any application now or hereafter
pending before the United States Patent and Trademark Office, within 30 days of
receipt of such certificate, such Assignor shall deliver to the Collateral Agent
a copy of such certificate, and a grant of a security interest in such Mark, to
the Collateral Agent and at the expense of such Assignor, confirming the grant
of a security interest in such Mark to the Collateral Agent hereunder, the form
of such security to be substantially in the form of Annex G hereto or in such
other form as may be reasonably satisfactory to the Collateral Agent.
4.7. Remedies. If an Event of Default shall occur and be
continuing, the Collateral Agent may, by written notice to the relevant
Assignor, take any or all of the following actions: (i) declare and assign the
entire right, title and interest of such Assignor in and to each of the Marks,
together with all trademark rights and rights of protection to the same, vested
in the Collateral Agent for the benefit of the Secured Creditors, in which event
such rights, title and interest shall immediately vest, in the Collateral Agent
for the benefit of the Secured Creditors, and the Collateral Agent shall be
entitled to exercise the power of attorney referred to in Section 4.1 hereof to
execute, cause to be acknowledged and notarized and record said absolute
assignment with the applicable agency; (ii) take and use or sell the Marks and
the goodwill of such Assignor's business symbolized by the Marks and the right
to carry on the business and use the assets of such Assignor in connection with
which the Marks have been used; and (iii) direct such Assignor to refrain, in
which event such Assignor shall refrain, from using the Marks in any manner
whatsoever, directly or indirectly, and such Assignor shall execute such further
documents that the Collateral Agent may reasonably request to further confirm
this and to transfer ownership of the Marks and registrations and any pending
trademark application in the United States Patent and Trademark Office to the
Collateral Agent.
ARTICLE V
SPECIAL PROVISIONS CONCERNING
PATENTS, COPYRIGHTS AND TRADE SECRETS
5.1. Additional Representations and Warranties. Each Assignor
represents and warrants that it is the true and lawful owner of all rights in or
has the right to use (i) all Trade Secret Rights, (ii) the Patents listed in
Annex E hereto for such Assignor and that said Patents constitute all the United
States patents and applications for United States patents that such Assignor
owns as of the date hereof and (iii) the Copyrights listed in Annex F hereto for
such Assignor and that said Copyrights constitute all the United States
copyrights registered with the United States Copyright Office and applications
to United States copyrights that such Assignor owns as of the date hereof. Each
Assignor further warrants that it has no knowledge of any material third party
claim that any aspect of such Assignor's present or contemplated business
operations infringes or will infringe any patent of any other Person or such
Assignor has misappropriated any trade secret or proprietary information. Each
Assignor hereby grants to the Collateral Agent an absolute power of attorney to
sign, upon the occurrence and during the continuance of any Event of Default,
any document which may be required by the United States Patent and Trademark
Office in order to effect an absolute assignment of all right, title and
interest in each Patent, and to record the same.
<PAGE>
5.2. Licenses and Assignments. Except as otherwise permitted
by the Secured Debt Agreements, each Assignor hereby agrees not to divest itself
of any right under any Patent or Copyright acquired after the date hereof absent
prior written approval of the Collateral Agent.
5.3. Infringements. Each Assignor agrees, promptly upon
learning thereof, to furnish the Collateral Agent in writing with all pertinent
information available to such Assignor with respect to any infringement,
contributing infringement or active inducement to infringe or other violation of
such Assignor's rights in any significant Patent or significant Copyright or to
any claim that the practice of any Patent or use of any Copyright violates any
property right of a third party, or with respect to any misappropriation of any
Trade Secret Right or any claim that practice of any Trade Secret Right violates
any property right of a third party. Each Assignor further agrees, absent
direction of the Collateral Agent to the contrary, to diligently prosecute any
Person infringing any significant Patent or significant Copyright or any Person
misappropriating any significant Trade Secret Right in accordance with
reasonable business practices.
5.4. Maintenance of Patents or Copyrights. At its own
expense, each Assignor shall make timely payment of all post-issuance fees
required to maintain in force its rights under each Patent or Copyright, absent
prior written consent of the Collateral Agent, except to the extent that such
Assignor has determined in its reasonable business judgment that the maintenance
of such Patent or Copyright is no longer necessary in the conduct of its
business.
5.5. Prosecution of Patent Applications. At its own expense,
each Assignor shall diligently prosecute all significant applications for (i)
United States Patents listed in Annex E hereto and (ii) United States Copyrights
listed on Annex F hereto, in each case for such Assignor and shall not abandon
any such application prior to exhaustion of all administrative and judicial
remedies absent written consent of the Collateral Agent, except to the extent
that such Assignor has determined in its reasonable business judgment that such
application is no longer necessary in the conduct of its business.
5.6. Other Patents and Copyrights. Within 30 days of the
acquisition or issuance of a United States Patent, registration of a United
States Copyright, or acquisition of a registered United States Copyright, or of
filing of an application for a United States Patent or United States Copyright,
the relevant Assignor shall deliver to the Collateral Agent a copy of said
Copyright or certificate or registration of, or application therefor, said
Patents, as the case may be, with a grant of a security interest in such Patent
or Copyright, as the case may be, to the Collateral Agent and at the expense of
such Assignor, confirming the grant of a security interest, the form of such
grant of a security interest to be substantially in the form of Annex G or H
hereto, as appropriate, or in such other form as may be reasonably satisfactory
to the Collateral Agent.
<PAGE>
5.7. Remedies. If an Event of Default shall occur and be
continuing, the Collateral Agent may by written notice to the relevant Assignor,
take any or all of the following actions: (i) declare and assign the entire
right, title, and interest of such Assignor in each of the Patents and
Copyrights vested in the Collateral Agent for the benefit of the Secured
Creditors, in which event such right, title, and interest shall immediately vest
in the Collateral Agent for the benefit of the Secured Creditors, in which case
the Collateral Agent shall be entitled to exercise the power of attorney
referred to in Section 5.1 hereof to execute, cause to be acknowledged and
notarized and to record said absolute assignment with the applicable agency;
(ii) take and practice or sell the Patents and Copyrights; and (iii) direct such
Assignor to refrain, in which event such Assignor shall refrain, from practicing
the Patents and using the Copyrights directly or indirectly, and such Assignor
shall execute such further documents as the Collateral Agent may request further
to confirm this and to transfer ownership of the Patents and Copyrights to the
Collateral Agent for the benefit of the Secured Creditors.
ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL
6.1. Protection of Collateral Agent's Security. Each Assignor
will do nothing to impair the rights of the Collateral Agent in the Collateral.
Each Assignor will at all times keep its Inventory and Equipment insured in
favor of the Collateral Agent, at such Assignor's own expense to the extent and
in the manner provided in the Credit Agreement. Except to the extent otherwise
permitted to be retained by such Assignor or applied by such Assignor pursuant
to the terms of the Credit Agreement, the Collateral Agent shall, at the time
any proceeds of such insurance are distributed to the Secured Creditors, apply
such proceeds in accordance with Section 7.4 hereof. Each Assignor assumes all
liability and responsibility in connection with the Collateral acquired by it
and the liability of such Assignor to pay the Obligations shall in no way be
affected or diminished by reason of the fact that such Collateral may be lost,
destroyed, stolen, damaged or for any reason whatsoever unavailable to such
Assignor.
6.2. Warehouse Receipts Non-negotiable. To the extent
practicable, each Assignor agrees that if any warehouse receipt or receipt in
the nature of a warehouse receipt is issued with respect to any of its
Inventory, such Assignor shall request that such warehouse receipt or receipt in
the nature thereof shall not be "negotiable" (as such term is used in Section
7-104 of the Uniform Commercial Code as in effect in any relevant jurisdiction
or under other relevant law).
<PAGE>
6.3. Further Actions. Each Assignor will, at its own expense
and upon the reasonable request of the Collateral Agent, make, execute, endorse,
acknowledge, file and/or deliver to the Collateral Agent from time to time such
lists, descriptions and designations of its Collateral, warehouse receipts,
receipts in the nature of warehouse receipts, bills of lading, documents of
title, vouchers, invoices, schedules, confirmatory assignments, conveyances,
financing statements, transfer endorsements, certificates, reports and other
assurances or instruments and take such further steps relating to the Collateral
and other property or rights covered by the security interest hereby granted,
which the Collateral Agent deems reasonably appropriate or advisable to perfect,
preserve or protect its security interest in the Collateral.
6.4. Financing Statements. Each Assignor agrees to execute
and deliver to the Collateral Agent such financing statements, in form
reasonably acceptable to the Collateral Agent, as the Collateral Agent may from
time to time reasonably request or as are reasonably necessary or desirable in
the opinion of the Collateral Agent to establish and maintain a valid,
enforceable, first priority perfected security interest in the Collateral as
provided herein and the other rights and security contemplated hereby all in
accordance with the UCC as enacted in any and all relevant jurisdictions or any
other relevant law. Each Assignor will pay any applicable filing fees,
recordation taxes and related expenses relating to its Collateral. Each Assignor
hereby authorizes the Collateral Agent to file any such financing statements
without the signature of such Assignor where permitted by law.
ARTICLE VII
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
7.1. Remedies; Obtaining the Collateral Upon Default. Each
Assignor agrees that, if any Event of Default shall have occurred and be
continuing, then and in every such case, the Collateral Agent, in addition to
any rights now or hereafter existing under applicable law, shall have all rights
as a secured creditor under any UCC, and such additional rights and remedies to
which a secured creditor is entitled under the laws in effect, in all relevant
jurisdictions and may:
(i) personally, or by agents or attorneys, immediately take
possession of the Collateral or any part thereof, from such Assignor or
any other Person who then has possession of any part thereof with or
without notice or process of law, and for that purpose may enter upon
such Assignor's premises where any of the Collateral is located and
remove the same and use in connection with such removal any and all
services, supplies, aids and other facilities of such Assignor;
(ii) instruct the obligor or obligors on any agreement,
instrument or other obligation (including, without limitation, the
Receivables and the Contracts) constituting the Collateral to make any
payment required by the terms of such agreement, instrument or other
obligation directly to the Collateral Agent and may exercise any and
all remedies of such Assignor in respect of such Collateral;
(iii) withdraw all monies, securities and instruments in the Cash
Collateral Account for application to the Obligations in accordance
with Section 7.4 hereof;
<PAGE>
(iv) sell, assign or otherwise liquidate any or all of the
Collateral or any part thereof in accordance with Section 7.2 hereof,
or direct the relevant Assignor to sell, assign or otherwise liquidate
any or all of the Collateral or any part thereof, and, in each case,
take possession of the proceeds of any such sale or liquidation;
(v) personally, or by agents or attorneys, immediately take
possession of the Collateral or any part thereof, by directing the
relevant Assignor in writing to deliver the same to the Collateral
Agent at any reasonable place or places designated by the Collateral
Agent, in which event such Assignor shall at its own expense:
(x) forthwith cause the same to be moved to the place
or places so designated by the Collateral Agent and there
delivered to the Collateral Agent;
(y) store and keep any Collateral so delivered to the
Collateral Agent at such place or places pending further
action by the Collateral Agent as provided in Section 7.2
hereof; and
(z) while the Collateral shall be so stored and kept,
provide such guards and maintenance services as shall be
necessary to protect the same and to preserve and maintain
them in good condition; and
(vi) license or sublicense, whether on an exclusive or
nonexclusive basis, any Marks, Patents, Copyrights or Proprietary
Information included in the Collateral for such term and on such
conditions and in such manner as the Collateral Agent shall in its sole
judgment determine;
it being understood that each Assignor's obligation so to deliver the Collateral
is of the essence of this Agreement and that, accordingly, upon application to a
court of equity having jurisdiction, the Collateral Agent shall be entitled to a
decree requiring specific performance by such Assignor of said obligation. By
accepting the benefits of this Agreement, the Secured Creditors agree that this
Agreement may be enforced only by the action of the Collateral Agent acting upon
the instructions of the Required Secured Creditors and that no other Secured
Creditor shall have any right individually to seek to enforce this Agreement or
to realize upon the security to be granted hereby, it being understood and
agreed that such rights and remedies may be exercised by the Collateral Agent
for the benefit of the Secured Creditors upon the terms of this Agreement and
the Credit Agreement.
<PAGE>
7.2 Remedies; Disposition of the Collateral. If any Event of
Default shall have occurred and be continuing, then any Collateral repossessed
by the Collateral Agent under or pursuant to Section 7.1 hereof and any other
Collateral whether or not so repossessed by the Collateral Agent, may be sold,
assigned, leased or otherwise disposed of under one or more contracts or as an
entirety, and without the necessity of gathering at the place of sale the
property to be sold, and in general in such manner, at such time or times, at
such place or places and on such terms as the Collateral Agent may, in
compliance with any mandatory requirements of applicable law, determine to be
commercially reasonable. Any of the Collateral may be sold, leased or otherwise
disposed of, in the condition in which the same existed when taken by the
Collateral Agent or after any overhaul or repair at the expense of the relevant
Assignor which the Collateral Agent shall determine to be commercially
reasonable. Any such disposition which shall be a private sale or other private
proceedings permitted by such requirements shall be made upon not less than 10
days' prior written notice to the relevant Assignor specifying the time at which
such disposition is to be made and the intended sale price or other
consideration therefor, and shall be subject, for the 10 days after the giving
of such notice, to the right of the relevant Assignor or any nominee of such
Assignor to acquire the Collateral involved at a price or for such other
consideration at least equal to the intended sale price or other consideration
so specified. Any such disposition which shall be a public sale permitted by
such requirements shall be made upon not less than 10 days' prior written notice
to the relevant Assignor specifying the time and place of such sale and, in the
absence of applicable requirements of law, shall be by public auction (which
may, at the Collateral Agent's option, be subject to reserve), after publication
of notice of such auction (where required by applicable law) not less than 10
days prior thereto. The Collateral Agent may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for the sale, and such sale
may be made at any time or place to which the sale may be so adjourned. To the
extent permitted by any such requirement of law, the Collateral Agent may bid
for and become the purchaser of the Collateral or any item thereof, offered for
sale in accordance with this Section without accountability to the relevant
Assignor. If, under mandatory requirements of applicable law, the Collateral
Agent shall be required to make disposition of the Collateral within a period of
time which does not permit the giving of notice to the relevant Assignor as
hereinabove specified, the Collateral Agent need give such Assignor only such
notice of disposition as shall be reasonably practicable in view of such
mandatory requirements of applicable law. Each Assignor agrees to do or cause to
be done all such other acts and things as may be reasonably necessary to make
such sale or sales of all or any portion of the Collateral valid and binding and
in compliance with any and all applicable laws, regulations, orders, writs,
injunctions, decrees or awards of any and all courts, arbitrators or
governmental instrumentalities, domestic or foreign, having jurisdiction over
any such sale or sales, all at such Assignor's expense.
<PAGE>
7.3 Waiver of Claims. Except as otherwise provided in this
Agreement, EACH ASSIGNOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL AGENT'S
TAKING POSSESSION OR THE COLLATERAL AGENT'S DISPOSITION OF ANY OF THE
COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING
FOR ANY PREJUDGMENT REMEDY OR REMEDIES, and each Assignor hereby further waives,
to the extent permitted by law:
(i) all damages occasioned by such taking of possession except
any damages which are the direct result of the Collateral Agent's gross
negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision);
(ii) all other requirements as to the time, place and terms of
sale or other requirements with respect to the enforcement of the
Collateral Agent's rights hereunder; and
(iii) all rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any applicable
law in order to prevent or delay the enforcement of this Agreement or
the absolute sale of the Collateral or any portion thereof, and each
Assignor, for itself and all who may claim under it, insofar as it or
they now or hereafter lawfully may, hereby waives the benefit of all
such laws.
Any sale of, or the grant of options to purchase, or any other realization upon,
any Collateral shall operate to divest all right, title, interest, claim and
demand, either at law or in equity, of the relevant Assignor therein and
thereto, and shall be a perpetual bar both at law and in equity against such
Assignor and against any and all Persons claiming or attempting to claim the
Collateral so sold, optioned or realized upon, or any part thereof, from,
through and under such Assignor.
<PAGE>
7.4 Application of Proceeds. (a) All moneys collected by the
Collateral Agent (or, to the extent any Pledge Agreement or any other Security
Document require proceeds of collateral under such other Security Document to be
applied in accordance with the provisions of this Agreement, the Pledgee or
Collateral Agent under such other Security Document) upon any sale or other
disposition of the Collateral, together with all other moneys received by the
Collateral Agent hereunder, shall be applied as follows.
(i) first, to the payment of all amounts owing the Collateral
Agent of the type described in clauses (iii) and (iv) of the
definition of "Obligations";
(ii) second, to the extent proceeds remain after the application
pursuant to the preceding clause (i), an amount equal to the
outstanding Primary Obligations shall be paid to the Secured Creditors
as provided in Section 7.4(e) hereof, with each Secured Creditor
receiving an amount equal to such outstanding Primary Obligations or,
if the proceeds are insufficient to pay in full all such Primary
Obligations, its Pro Rata Share of the amount remaining to be
distributed;
(iii) third, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) and (ii), an amount equal to the
outstanding Secondary Obligations shall be paid to the Secured
Creditors as provided in Section 7.4(e) hereof, with each Secured
Creditor receiving an amount equal to its outstanding Secondary
Obligations or, if the proceeds are insufficient to pay in full all
such Secondary Obligations, its Pro Rata Share of the amount remaining
to be distributed; and
(iv) fourth, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) through (iii), inclusive, and
following the termination of this Agreement pursuant to Section 10.8(a)
hereof, to the relevant Assignor or to whomever may be lawfully
entitled to receive such surplus.
<PAGE>
(b) For purposes of this Agreement, (x) "Pro Rata Share" shall
mean, when calculating a Secured Creditor's portion of any distribution or
amount, that amount (expressed as a percentage) equal to a fraction the
numerator of which is the then unpaid amount of such Secured Creditor's Primary
Obligations or Secondary Obligations, as the case may be, and the denominator of
which is the then outstanding amount of all Primary Obligations or Secondary
Obligations, as the case may be, (y) "Primary Obligations" shall mean (i) in the
case of the Credit Document Obligations, all principal of, premium, fees and
interest on, all Loans, all Unpaid Drawings theretofore made (together with all
interest accrued thereon), the aggregate Stated Amount of all Letters of Credit
issued or deemed issued under the Credit Agreement and all Fees and (ii) in the
case of the Other Obligations, all amounts due under such Interest Rate
Protection Agreements or Other Hedging Agreements (other than indemnities, fees
(including, without limitation, attorneys' fees) and similar obligations and
liabilities) and (z) "Secondary Obligations" shall mean all Obligations other
than Primary Obligations.
(c) When payments to Secured Creditors are based upon their
respective Pro Rata Shares, the amounts received by such Secured Creditors
hereunder shall be applied (for purposes of making determinations under this
Section 7.4 only) (i) first, to their Primary Obligations and (ii) second, to
their Secondary Obligations. If any payment to any Secured Creditor of its Pro
Rata Share of any distribution would result in overpayment to such Secured
Creditor, such excess amount shall instead be distributed in respect of the
unpaid Primary Obligations or Secondary Obligations, as the case may be, of the
other Secured Creditors, with each Secured Creditor whose Primary Obligations or
Secondary Obligations, as the case may be, have not been paid in full to receive
an amount equal to such excess amount multiplied by a fraction the numerator of
which is the unpaid Primary Obligations or Secondary Obligations, as the case
may be, of such Secured Creditor and the denominator of which is the unpaid
Primary Obligations or Secondary Obligations, as the case may be, of all Secured
Creditors entitled to such distribution.
(d) Each of the Secured Creditors, by their acceptance of the
benefits hereof, agrees and acknowledges that if the Lender Creditors are to
receive a distribution on account of undrawn amounts with respect to Letters of
Credit issued under the Credit Agreement (which shall only occur after all
outstanding Loans and Unpaid Drawings with respect to such Letters of Credit
have been paid in full), such amounts shall be paid to the Administrative Agent
under the Credit Agreement and held by it, for the equal and ratable benefit of
the Lender Creditors, as cash security for the repayment of Obligations owing to
the Lender Creditors as such. If any amounts are held as cash security pursuant
to the immediately preceding sentence, then upon the termination of all
outstanding Letters of Credit, and after the application of all such cash
security to the repayment of all Obligations owing to the Lender Creditors after
giving effect to the termination of all such Letters of Credit, if there remains
any excess cash, such excess cash shall be returned by the Administrative Agent
to the Collateral Agent for distribution in accordance with Section 7.4(a)
hereof.
<PAGE>
(e) All payments required to be made hereunder shall be made
(x) if to the Lender Creditors, to the Administrative Agent under the Credit
Agreement for the account of the Lender Creditors, and (y) if to the Other
Creditors, to the trustee, paying agent or other similar representative (each a
"Representative") for the Other Creditors or, in the absence of such a
Representative, directly to the Other Creditors.
(f) For purposes of applying payments received in accordance
with this Section 7.4, the Collateral Agent shall be entitled to rely upon (i)
the Administrative Agent under the Credit Agreement and (ii) the Representative
for the Other Creditors or, in the absence of such a Representative, upon the
Other Creditors for a determination (which the Administrative Agent, each
Representative for any Other Creditors and the Secured Creditors agree (or shall
agree) to provide upon request of the Collateral Agent) of the outstanding
Primary Obligations and Secondary Obligations owed to the Lender Creditors or
the Other Creditors, as the case may be. Unless it has actual knowledge
(including by way of written notice from a Lender Creditor or an Other Creditor)
to the contrary, the Administrative Agent and each Representative, in furnishing
information pursuant to the preceding sentence, and the Collateral Agent, in
acting hereunder, shall be entitled to assume that no Secondary Obligations are
outstanding. Unless it has actual knowledge (including by way of written notice
from an Other Creditor) to the contrary, the Collateral Agent, in acting
hereunder, shall be entitled to assume that no Interest Rate Protection
Agreements or Other Hedging Agreements are in existence.
(g) It is understood that the Assignors shall remain jointly
and severally liable to the extent of any deficiency between the amount of the
proceeds of the Collateral and the aggregate amount of the Obligations.
7.5 Remedies Cumulative. Each and every right, power and
remedy hereby specifically given to the Collateral Agent shall be in addition to
every other right, power and remedy specifically given under this Agreement, the
other Secured Debt Agreements or now or hereafter existing at law, in equity or
by statute and each and every right, power and remedy whether specifically
herein given or otherwise existing may be exercised from time to time or
simultaneously and as often and in such order as may be deemed expedient by the
Collateral Agent. All such rights, powers and remedies shall be cumulative and
the exercise or the beginning of the exercise of one shall not be deemed a
waiver of the right to exercise any other or others. No delay or omission of the
Collateral Agent in the exercise of any such right, power or remedy and no
renewal or extension of any of the Obligations shall impair any such right,
power or remedy or shall be construed to be a waiver of any Default or Event of
Default or an acquiescence therein. No notice to or demand on any Assignor in
any case shall entitle it to any other or further notice or demand in similar or
other circumstances or constitute a waiver of any of the rights of the
Collateral Agent to any other or further action in any circumstances without
notice or demand. In the event that the Collateral Agent shall bring any suit to
enforce any of its rights hereunder and shall be entitled to judgment, then in
such suit the Collateral Agent may recover reasonable expenses, including
reasonable attorneys' fees, and the amounts thereof shall be included in such
judgment.
<PAGE>
7.6 Discontinuance of Proceedings. In case the Collateral
Agent shall have instituted any proceeding to enforce any right, power or remedy
under this Agreement by foreclosure, sale, entry or otherwise, and such
proceeding shall have been discontinued or abandoned for any reason or shall
have been determined adversely to the Collateral Agent, then and in every such
case the relevant Assignor, the Collateral Agent and each holder of any of the
Obligations shall be restored to their former positions and rights hereunder
with respect to the Collateral subject to the security interest created under
this Agreement, and all rights, remedies and powers of the Collateral Agent
shall continue as if no such proceeding had been instituted.
ARTICLE VIII
INDEMNITY
8.1. Indemnity. (a) Each Assignor jointly and severally
agrees to indemnify, reimburse and hold the Collateral Agent, each other Secured
Creditor and their respective successors, permitted assigns, employees and
agents (hereinafter in this Section 8.1 referred to individually as
"Indemnitee," and collectively as "Indemnitees") harmless from any and all
liabilities, obligations, damages, injuries, penalties, claims, demands,
actions, suits, judgments and any and all costs, expenses or disbursements
(including reasonable attorneys' fees and expenses) (for the purposes of this
Section 8.1 the foregoing are collectively called "expenses") of whatsoever kind
and nature imposed on, asserted against or incurred by any of the Indemnitees in
any way relating to or arising out of this Agreement, any other Secured Debt
Agreement or any other document executed in connection herewith or therewith or
in any other way connected with the administration of the transactions
contemplated hereby or thereby or the enforcement of any of the terms of, or the
preservation of any rights under any thereof, or in any way relating to or
arising out of the manufacture, ownership, ordering, purchase, delivery,
control, acceptance, lease, financing, possession, operation, condition, sale,
return or other disposition, or use of the Collateral (including, without
limitation, latent or other defects, whether or not discoverable), the violation
of the laws of any country, state or other governmental body or unit, any tort
(including, without limitation, claims arising or imposed under the doctrine of
strict liability, or for or on account of injury to or the death of any Person
(including any Indemnitee), or property damage), or contract claim; provided
that no Indemnitee shall be indemnified pursuant to this Section 8.1 for losses,
damages or liabilities to the extent caused by the gross negligence or willful
misconduct of such Indemnitee (as determined by a court of competent
jurisdiction in a final and non-appealable decision). Each Assignor agrees that
upon written notice by any Indemnitee of the assertion of such a liability,
obligation, damage, injury, penalty, claim, demand, action, suit or judgment,
the relevant Assignor shall assume full responsibility for the defense thereof.
Each Indemnitee agrees to use its best efforts to promptly notify the relevant
Assignor of any such assertion of which such Indemnitee has knowledge.
(b) Without limiting the application of Section 8.1(a) hereof,
each Assignor agrees, jointly and severally, to pay, or reimburse the Collateral
Agent for any and all reasonable fees, costs and expenses of whatever kind or
nature incurred in connection with the creation, preservation or protection of
the Collateral Agent's Liens on, and security interest in, the Collateral,
including, without limitation, all fees and taxes in connection with the
recording or filing of instruments and documents in public offices, payment or
discharge of any taxes or Liens upon or in respect of the Collateral, premiums
for insurance with respect to the Collateral and all other fees, costs and
expenses in connection with protecting, maintaining or preserving the Collateral
and the Collateral Agent's interest therein, whether through judicial
proceedings or otherwise, or in defending or prosecuting any actions, suits or
proceedings arising out of or relating to the Collateral.
<PAGE>
(c) Without limiting the application of Section 8.1(a) or (b)
hereof, each Assignor agrees, jointly and severally, to pay, indemnify and hold
each Indemnitee harmless from and against any loss, costs, damages and expenses
which such Indemnitee may suffer, expend or incur in consequence of or growing
out of any misrepresentation by any Assignor in this Agreement, any other
Secured Debt Agreement or in any writing contemplated by or made or delivered
pursuant to or in connection with this Agreement or any other Secured Debt
Agreement.
(d) If and to the extent that the obligations of any Assignor
under this Section 8.1 are unenforceable for any reason, such Assignor hereby
agrees to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
8.2. Indemnity Obligations Secured by Collateral; Survival.
Any amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement shall constitute Obligations secured by the Collateral. The
indemnity obligations of each Assignor contained in this Article VIII shall
continue in full force and effect notwithstanding the full payment of all of the
other Obligations and notwithstanding the full payment of all the Notes issued,
and Loans made under the Credit Agreement, the termination of all Interest Rate
Protection Agreements, Other Hedging Agreements and Letters of Credit and the
payment of all other Obligations and notwithstanding the discharge thereof.
ARTICLE IX
DEFINITIONS
The following terms shall have the meanings herein specified.
Such definitions shall be equally applicable to the singular and plural forms of
the terms defined.
"Administrative Agent" shall have the meaning provided in the
recitals of this Agreement.
"Agreement" shall mean this Security Agreement as the same may
be modified, supplemented or amended from time to time in accordance with its
terms.
"Assignor" shall have the meaning provided in the first
paragraph of this Agreement.
<PAGE>
"Borrowers" shall have the meaning provided in the recitals of
this Agreement.
"Cash Collateral Account" shall mean a cash collateral account
maintained with, and in the sole dominion and control of, the Collateral Agent
for the benefit of the Secured Creditors.
"Chattel Paper" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Class" shall have the meaning provided in Section 10.2 of
this Agreement.
"Collateral" shall have the meaning provided in Section 1.1(a)
of this Agreement.
"Collateral Agent" shall have the meaning provided in the
first paragraph of this Agreement.
"Contract Rights" shall mean all rights of any Assignor under
each Contract, including, without limitation, (i) any and all rights to receive
and demand payments under any or all Contracts, (ii) any and all rights to
receive and compel performance under any or all Contracts and (iii) any and all
other rights, interests and claims now existing or in the future arising in
connection with any or all Contracts.
"Contracts" shall mean all contracts between any Assignor and
one or more additional parties (including, without limitation, any Interest Rate
Protection Agreements, Other Hedging Agreements and any partnership agreements,
joint venture agreements and limited liability company agreements), but
excluding any contract to the extent that (but only as long as) the terms
thereof prohibit the assignment of, or granting a security interest in, such
contract (it being understood and agreed, however, (i) that notwithstanding the
foregoing, all rights to payment for money due or to become due pursuant to any
such excluded contract shall be subject to the security interests created by
this Agreement and (ii) such excluded contract shall otherwise be subject to the
security interests created by this Agreement upon receiving any necessary
approvals or waivers permitting the assignment thereof).
"Copyrights" shall mean any United States or foreign copyright
now or hereafter owned by any Assignor, including any registrations of any
Copyrights, in the United States Copyright Office or any foreign equivalent
office, as well as any application for a copyright registration now or hereafter
made with the United States Copyright Office or any foreign equivalent office by
any Assignor.
"Credit Agreement" shall have the meaning provided in the
recitals of this Agreement.
"Credit Document Obligations" shall have the meaning provided
in the definition of "Obligations" in this Article IX.
<PAGE>
"Default" shall mean any event which, with notice or lapse of
time, or both, would constitute an Event of Default.
"Documents" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"English Borrower" shall have the meaning provided in the
recitals of this Agreement.
"Equipment" shall mean any "equipment," as such term is
defined in the Uniform Commercial Code as in effect on the date hereof in the
State of New York, now or hereafter owned by any Assignor and, in any event,
shall include, but shall not be limited to, all machinery, equipment,
furnishings, fixtures and vehicles now or hereafter owned by any Assignor and
any and all additions, substitutions and replacements of any of the foregoing,
wherever located, together with all attachments, components, parts, equipment
and accessories installed thereon or affixed thereto.
"Event of Default" shall mean any Event of Default under, and
as defined in, the Credit Agreement and shall in any event include, without
limitation, any payment default on any of the Other Obligations after the
expiration of any applicable grace period.
"General Intangibles" shall have the meaning provided in the
Uniform Commercial Code as in effect on the date hereof in the State of New York
(and shall include all partnership interests and all limited liability company
and membership interests).
"Goods" shall have the meaning provided in the Uniform Commercial Code as
in effect on the date hereof in the State of New York.
"Indemnitee" shall have the meaning provided in Section 8.1 of
this Agreement.
"Instrument" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Inventory" shall mean merchandise, inventory and goods, and
all additions, substitutions and replacements thereof, wherever located,
together with all goods, supplies, incidentals, packaging materials, labels,
materials and any other items used or usable in manufacturing, processing,
packaging or shipping same, in all stages of production -- from raw materials
through work-in-process to finished goods -- and all products and proceeds of
whatever sort and wherever located and any portion thereof which may be
returned, rejected, reclaimed or repossessed by the Collateral Agent from any
Assignor's customers, and shall specifically include all "inventory" as such
term is defined in the Uniform Commercial Code as in effect on the date hereof
in the State of New York, now or hereafter owned by any Assignor.
"Investment Property" shall have the meaning provided in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York.
<PAGE>
"Irish Borrower" shall have the meaning provided in the
recitals of this Agreement.
"Lender Creditors" shall have the meaning provided in the
recitals of this Agreement.
"Lenders" shall have the meaning provided in the recitals of
this Agreement.
"Liens" shall mean any security interest, mortgage, pledge,
lien, claim, charge, encumbrance, title retention agreement, lessor's interest
in a financing lease or analogous instrument, in, of, or on any Assignor's
property.
"Marks" shall mean all right, title and interest in and to any
trademarks, service marks and trade names now held or hereafter acquired by any
Assignor, including any registration or application for registration of any
trademarks and service marks now held or hereafter acquired by an Assignor,
which are registered in the United States Patent and Trademark Office or the
equivalent thereof in any state of the United States or any foreign equivalent
office; as well as any unregistered marks used by any Assignor and any trade
dress including logos, designs, company names, business names, fictitious
business names and other business identifiers used by any Assignor.
"Obligations" shall mean (i) the full and prompt payment when
due (whether at the stated maturity, by acceleration or otherwise) of all
obligations and indebtedness (including, without limitation, indemnities, Fees
and interest thereon) of each Assignor to the Lender Creditors, whether now
existing or hereafter incurred under, arising out of, or in connection with the
Credit Agreement and the other Credit Documents to which such Assignor is a
party (including all such obligations and indebtedness of such Assignor under
each Guaranty to which it is a party) and the due performance and compliance by
such Assignor with all of the terms, conditions and agreements contained in the
Credit Agreement and in such other Credit Documents (all such obligations and
liabilities under this clause (i), except to the extent consisting of
obligations or indebtedness with respect to Interest Rate Protection Agreements
or Other Hedging Agreements, being herein collectively called the "Credit
Document Obligations"); (ii) the full and prompt payment when due (whether at
the stated maturity, by acceleration or otherwise) of all obligations and
liabilities owing by such Assignor to the Other Creditors under, or with respect
to (including by reason of any Guaranty to which such Assignor is a party), any
Interest Rate Protection Agreement or Other Hedging Agreement, whether such
Interest Rate Protection Agreement or Other Hedging Agreement is now in
existence or hereafter arising, and the due performance and compliance by such
Assignor with all of the terms, conditions and agreements contained therein (all
such obligations and liabilities described in this clause (ii) being herein
collectively called the "Other Obligations"); (iii) any and all sums advanced by
the Assignee in order to preserve the Collateral or preserve its security
interest in the Collateral; (iv) in the event of any proceeding for the
collection or enforcement of any indebtedness, obligations, or liabilities of
such Assignor referred to in clauses (i) and (ii) above, after an Event of
Default shall have occurred and be continuing, the reasonable expenses of
retaking, holding, preparing for sale or lease, selling or otherwise disposing
of or realizing on the Collateral, or of any exercise by the Assignee of its
rights hereunder, together with reasonable attorneys' fees and court costs; and
(v) all amounts paid by any Indemnitee as to which such Indemnitee has the right
to reimbursement under Section 8.1 of this Agreement; it being acknowledged and
agreed that the "Obligations" shall include extensions of credit of the types
described above, whether outstanding on the date of this Agreement or extended
from time to time after the date of this Agreement.
<PAGE>
"Other Creditors" shall have the meaning provided in the recitals of this
Agreement.
"Other Obligations" shall have the meaning provided in the definition of
"Obligations" in this Article IX. "Patents" shall mean any patent to which any
Assignor now or hereafter has title and any divisions or continuations thereof,
as well as any application for a patent now or hereafter made by any Assignor.
"Permits" shall mean, to the extent permitted to be assigned
by the terms thereof or by applicable law, all licenses, permits, rights,
orders, variances, franchises or authorizations of or from any governmental
authority or agency.
"Primary Obligations" shall have the meaning provided in
Section 7.4(b) of this Agreement.
"Pro Rata Share" shall have the meaning provided in Section
7.4(b) of this Agreement.
"Proceeds" shall have the meaning provided in the Uniform
Commercial Code as in effect in the State of New York on the date hereof or
under other relevant law and, in any event, shall include, but not be limited
to, (i) any and all proceeds of any insurance, indemnity, warranty or guaranty
payable to the Collateral Agent or any Assignor from time to time with respect
to any of the Collateral, (ii) any and all payments (in any form whatsoever)
made or due and payable to any Assignor from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any governmental authority (or any person acting under
color of governmental authority) and (iii) any and all other amounts from time
to time paid or payable under or in connection with any of the Collateral.
"Proprietary Information" shall mean all information and
know-how worldwide, including, without limitation, data collections; technical
data; manufacturing data; research and development data; data relating to
compositions, processes and formulations, manufacturing and production know-how
and experience; management know-how; training programs; manufacturing,
engineering and other drawings; specifications; performance criteria; operating
instructions; maintenance manuals; technology; technical information; software;
engineering and computer data and databases; design and engineering
specifications; catalogs; financial, business and marketing plans; inventions
and invention disclosures.
<PAGE>
"Receivables" shall mean any "account" as such term is defined
in the Uniform Commercial Code as in effect on the date hereof in the State of
New York, now or hereafter owned by any Assignor and, in any event, shall
include, but shall not be limited to, all of such Assignor's rights to payment
for goods sold or leased or services performed by such Assignor, whether now in
existence or arising from time to time hereafter, including, without limitation,
rights evidenced by an account, note, contract, security agreement, chattel
paper, or other evidence of indebtedness or security, together with (a) all
security pledged, assigned, hypothecated or granted to or held by such Assignor
to secure the foregoing, (b) all of any Assignor's right, title and interest in
and to any goods, the sale of which gave rise thereto, (c) all guarantees,
endorsements and indemnifications on, or of, any of the foregoing, (d) all
powers of attorney for the execution of any evidence of indebtedness or security
or other writing in connection therewith, (e) all books, records, ledger cards,
and invoices relating thereto, (f) all evidences of the filing of financing
statements and other statements and the registration of other instruments in
connection therewith and amendments thereto, notices to other creditors or
secured parties, and certificates from filing or other registration officers,
(g) all credit information, reports and memoranda relating thereto and (h) all
other writings related in any way to the foregoing.
"Representative" shall have the meaning provided in Section
7.4(e) of this Agreement.
"Required Secured Creditors" shall mean (i) the Required
Lenders (or, to the extent required by Section 13.12 of the Credit Agreement,
each of the Lenders) under the Credit Agreement so long as any Credit Document
Obligations remain outstanding and (ii) in any situation not covered by the
preceding clause (i), the holders of a majority of the outstanding principal
amount of the Other Obligations.
"Requisite Creditors" shall have the meaning provided in
Section 10.2 of this Agreement.
"Secondary Obligations" shall have the meaning provided in
Section 7.4(b) of this Agreement.
"Secured Creditors" shall have the meaning provided in the
recitals of this Agreement.
"Secured Debt Agreements" shall mean and include this
Agreement, the other Credit Documents and the Interest Rate Protection
Agreements and Other Hedging Agreements.
"Termination Date" shall have the meaning provided in Section
10.8 of this Agreement.
"Trade Secrets" means any secretly held existing engineering
and other data, information, production procedures and other know-how relating
to the design, manufacture, assembly, installation, use, operation, marketing,
sale and servicing of any products or business of an Assignor worldwide whether
written or not written.
<PAGE>
"Trade Secret Rights" shall mean the rights of an Assignor in
any Trade Secret it holds.
"UCC" shall mean the Uniform Commercial Code as in effect from
time to time in the relevant jurisdiction.
"US Borrower" shall have the meaning provided in the recitals
of this Agreement.
ARTICLE X
MISCELLANEOUS
10.1. Notices. Except as otherwise specified herein, all
notices, requests, demands or other communications to or upon the respective
parties hereto shall be sent or delivered by mail, telegraph, telex, telecopy,
cable or overnight courier service and all such notices and communications
shall, when mailed, telegraphed, telexed, telecopied, or cabled or sent by
overnight courier, be effective when deposited in the mails, delivered to the
telegraph company, cable company or overnight courier, as the case may be, or
sent by telex or telecopier and when mailed shall be effective three Business
Days following deposit in the mail with proper postage, except that notices and
communications to the Collateral Agent or any Assignor shall not be effective
until received by the Collateral Agent or such Assignor, as the case may be. All
notices and other communications shall be in writing and addressed as follows:
(a) if to any Assignor, at:
c/o SITEL Corporation
111 South Calvert Street
Suite 1900
Baltimore, Maryland 21202
Attention: President
Telephone No.: (410) 246-1505
Telecopier No.: (410) 246-0200
(b) if to the Collateral Agent, at:
Bankers Trust Company
One Bankers Trust Plaza
New York, New York 10006
Attention: David Bell
Tel. No.: (212) 250-9048
Fax. No.: (212) 250-7218;
(c) if to any Lender Creditor, at such address as such Lender
Creditor shall have specified in the Credit Agreement;
<PAGE>
(d) if to any Other Creditor, at such address as such Other
Creditor shall have specified in writing to each Assignor and the
Collateral Agent;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
10.2. Waiver; Amendment. None of the terms and conditions of
this Agreement may be changed, waived, modified or varied in any manner
whatsoever unless in writing duly signed by each Assignor directly affected
thereby and the Collateral Agent (with the written consent of the Required
Secured Creditors); provided, however, that any change, waiver, modification or
variance affecting the rights and benefits of a single Class of Secured
Creditors (and not all Secured Creditors in a like or similar manner) shall
require the written consent of the Requisite Creditors of such affected Class.
For the purpose of this Agreement, the term "Class" shall mean each class of
Secured Creditors, i.e., whether (x) the Lender Creditors as holders of the
Credit Document Obligations or (y) the Other Creditors as the holders of the
Other Obligations. For the purpose of this Agreement, the term "Requisite
Creditors" of any Class shall mean each of (x) with respect to the Credit
Document Obligations, the Required Lenders and (y) with respect to the Other
Obligations, the holders of at least a majority of all obligations outstanding
from time to time under the respective Interest Rate Protection Agreements or
Other Hedging Agreements.
10.3. Obligations Absolute. The obligations of each Assignor
hereunder shall remain in full force and effect without regard to, and shall not
be impaired by, (a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of such Assignor; (b) any
exercise or non-exercise, or any waiver of, any right, remedy, power or
privilege under or in respect of this Agreement or any other Secured Debt
Agreement; or (c) any amendment to or modification of any Secured Debt Agreement
or any security for any of the Obligations; whether or not such Assignor shall
have notice or knowledge of any of the foregoing.
10.4. Successors and Assigns. This Agreement shall be binding
upon each Assignor and its successors and assigns (although no Assignor may
assign its rights and obligations hereunder) and shall inure to the benefit of
the Collateral Agent and the Secured Creditors and their respective successors
and assigns. All agreements, statements, representations and warranties made by
each Assignor herein or in any certificate or other instrument delivered by such
Assignor or on its behalf under this Agreement shall be considered to have been
relied upon by the Secured Creditors and shall survive the execution and
delivery of this Agreement and the other Secured Debt Agreements regardless of
any investigation made by the Secured Creditors or on their behalf.
10.5. Headings Descriptive. The headings of the several
sections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
10.6. Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
<PAGE>
10.7. Assignor's Duties. It is expressly agreed, anything
herein contained to the contrary notwithstanding, that each Assignor shall
remain liable to perform all of the obligations, if any, assumed by it with
respect to the Collateral and the Collateral Agent shall not have any
obligations or liabilities with respect to any Collateral by reason of or
arising out of this Agreement, nor shall the Collateral Agent be required or
obligated in any manner to perform or fulfill any of the obligations of any
Assignor under or with respect to any Collateral.
10.8. Termination; Release. (a) After the Termination Date,
this Agreement and the security interest created hereby shall terminate
(provided that all indemnities set forth herein including, without limitation,
in Section 8.1 hereof shall survive such termination) and the Collateral Agent,
at the request and expense of the respective Assignor, will promptly execute and
deliver to such Assignor a proper instrument or instruments (including Uniform
Commercial Code termination statements on form UCC-3) acknowledging the
satisfaction and termination of this Agreement, and will duly assign, transfer
and deliver to such Assignor (without recourse and without any representation or
warranty) such of the Collateral as may be in the possession of the Collateral
Agent and as has not theretofore been sold or otherwise applied or released
pursuant to this Agreement. As used in this Agreement, "Termination Date" shall
mean the date upon which the Total Revolving Loan Commitment and all Interest
Rate Protection Agreements and Other Hedging Agreements have been terminated, no
Note is outstanding (and all Loans have been repaid in full), all Letters of
Credit have been terminated and all Obligations then due and payable have been
paid in full.
(b) In the event that any part of the Collateral is sold in
connection with a sale permitted by Section 9.02 of the Credit Agreement (other
than a sale to any Assignor or a Subsidiary thereof) or otherwise released at
the direction of the Required Secured Creditors and the proceeds of such sale or
sales or from such release are applied in accordance with the provisions of the
Credit Agreement, to the extent required to be so applied, such Collateral will
be sold free and clear of the Liens created by this Agreement and the Collateral
Agent, at the request and expense of the relevant Assignor, will duly and
promptly assign, transfer and deliver to such Assignor (without recourse and
without any representation or warranty) such of the Collateral as is then being
(or has been) so sold or released and as may be in the possession of the
Collateral Agent and has not theretofore been released pursuant to this
Agreement.
(c) At any time that an Assignor desires that the Collateral
Agent take any action to acknowledge or give effect to any release of Collateral
pursuant to the foregoing Section 10.8(a) or (b), such Assignor shall deliver to
the Collateral Agent a certificate signed by a senior officer of such Assignor
stating that the release of the respective Collateral is permitted pursuant to
Section 10.8(a) or (b) hereof.
10.9. Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with each
Assignor and the Collateral Agent.
<PAGE>
10.10. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.11. The Collateral Agent. The Collateral Agent will hold in
accordance with this Agreement all items of the Collateral at any time received
under this Agreement. It is expressly understood and agreed that the obligations
of the Collateral Agent as holder of the Collateral and interests therein and
with respect to the disposition thereof, and otherwise under this Agreement, are
only those expressly set forth in this Agreement and in Section 12 of the Credit
Agreement. The Collateral Agent shall act hereunder and thereunder on the terms
and conditions set forth herein and in Section 12 of the Credit Agreement.
10.12. Benefit of Agreement. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of and be enforceable by each of the parties hereto and its
successors and assigns.
10.13. Additional Assignors. It is understood and agreed that
any Subsidiary of the US Borrower that is required to execute a counterpart of
this Agreement after the date hereof pursuant to the Credit Agreement shall
become an Assignor hereunder by executing a counterpart hereof and delivering
the same to the Collateral Agent.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their duly authorized officers as of
the date first above written.
SITEL CORPORATION,
as an Assignor
By: /s/ Nan A. Kreamer
Title: Vice President
NATIONAL ACTION FINANCIAL SERVICES, INC.,
as an Assignor
By: /s/ Nan A. Kreamer
Title: Assistant Secretary
FINANCIAL INSURANCE SERVICES, INC.,
as an Assignor
By: /s/ Nan A. Kreamer
Title: Vice President
SEEK THE GEEK, INC.,
as an Assignor
By: /s/ Nan A. Kreamer
Title: Vice President
SITEL INSURANCE MARKETING SERVICES, INC.,
as an Assignor
By: /s/ Nan A. Kreamer
Title: Vice President
SITEL INSURANCE SERVICES, INC.,
as an Assignor
By: /s/ Nan A. Kreamer
Title: Vice President
<PAGE>
SITEL INTERNATIONAL, INC., as an Assignor
By: /s/ Nan A. Kreamer
Title: Vice President
SITEL MEXICO HOLDINGS LLC,
as an Assignor
By: SITEL (BVI) International, Inc.,
the sole member of SITEL Mexico Holdings LLC
By: SITEL International, Inc.,
the sole director of SITEL (BVI) International, Inc.
By: /s/ Nan A. Kreamer
Title: Vice President
Accepted and Agreed to:
BANKERS TRUST COMPANY,
as Assignee and Collateral Agent
By: /s/ Pam Divino
Title: Vice President
<PAGE>
ANNEX A
to
SECURITY AGREEMENT
SCHEDULE OF CHIEF EXECUTIVE OFFICES
AND OTHER RECORD LOCATIONS
<PAGE>
ANNEX B
to
SECURITY AGREEMENT
SCHEDULE OF INVENTORY AND EQUIPMENT LOCATIONS
<PAGE>
ANNEX C
to
SECURITY AGREEMENT
SCHEDULE OF TRADE AND FICTITIOUS NAMES
TRADE NAMES
FICTITIOUS NAMES
<PAGE>
ANNEX D
to
SECURITY AGREEMENT
SCHEDULE OF MARKS
I.
Marks Country Registration No.
----- ------- ----------------
II.
Marks Country Registration No.
----- ------- ----------------
III.
<PAGE>
ANNEX E
to
SECURITY AGREEMENT
SCHEDULE OF PATENTS
None.
<PAGE>
ANNEX F
to
SECURITY AGREEMENT
SCHEDULE OF COPYRIGHTS
None.
<PAGE>
ANNEX G
to
SECURITY AGREEMENT
GRANT OF SECURITY INTEREST
IN UNITED STATES TRADEMARKS AND PATENTS
FOR GOOD AND VALUABLE CONSIDERATION, receipt and sufficiency
of which are hereby acknowledged, [Name of Grantor], a __________ _________ (the
"Grantor") with principal offices at ____________________________, hereby grants
to Bankers Trust Company, as Collateral Agent, with principal offices at One
Bankers Trust Plaza, 130 Liberty Street, New York, New York 10006 (the
"Grantee"), a security interest in (i) all of the Grantor's right, title and
interest in and to the United States trademarks, trademark registrations and
trademark applications (the "Marks") set forth on Schedule A attached hereto,
(ii) all of the Grantor's rights, title and interest in and to the United States
patents (the "Patents") set forth on Schedule B attached hereto, in each case
together with (iii) all Proceeds (as such term is defined in the Security
Agreement referred to below) and products of the Marks and Patents, (iv) the
goodwill of the businesses with which the Marks are associated and (v) all
causes of action arising prior to or after the date hereof for infringement of
any of the Marks and Patents or unfair competition regarding the same.
THIS GRANT is made to secure the satisfactory performance and
payment of all the Obligations of the Grantor, as such term is defined in the
Security Agreement among the Grantor, the other assignors from time to time
party thereto and the Grantee, dated as of April 11, 2000 (as amended from time
to time, the "Security Agreement"). Upon the occurrence of the Termination Date
(as defined in the Security Agreement), the Grantee shall, upon such
satisfaction, execute, acknowledge, and deliver to the Grantor an instrument in
writing releasing the security interest in the Marks and Patents acquired under
this Grant.
This Grant has been granted in conjunction with the security
interest granted to the Grantee under the Security Agreement. The rights and
remedies of the Grantee with respect to the security interest granted herein are
as set forth in the Security Agreement, all terms and provisions of which are
incorporated herein by reference. In the event that any provisions of this Grant
are deemed to conflict with the Security Agreement, the provisions of the
Security Agreement shall govern.
* * *
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Grant as of the ____
day of _________, ____. [NAME OF GRANTOR], Grantor
By___________________________
Name:
Title:
BANKERS TRUST COMPANY,
as Collateral Agent and Grantee
By___________________________
Name:
Title:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of _________, ____, before me personally came
________ ________________ who, being by me duly sworn, did state as follows:
that [s]he is ______________ of [Name of Grantor], that [s]he is authorized to
execute the foregoing Grant on behalf of said ____________ and that [s]he did so
by authority of the Board of Directors of said ____________.
-------------------------
Notary Public
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of _________, ____, before me personally came
________ _____________________ who, being by me duly sworn, did state as
follows: that [s]he is __________________ of Bankers Trust Company that [s]he is
authorized to execute the foregoing Grant on behalf of said corporation and that
[s]he did so by authority of the Board of Directors of said corporation.
----------------------------
Notary Public
<PAGE>
SCHEDULE A
MARK REG. NO. REG. DATE
---- -------- ---------
SITEL 1,448,816 July 21, 1987
We Speak Your Language 75/320,679 July 7, 1997
<PAGE>
SCHEDULE B
PATENT PATENT NO. ISSUE DATE
------ ---------- ----------
None
<PAGE>
ANNEX H
to
SECURITY AGREEMENT
GRANT OF SECURITY INTEREST
IN UNITED STATES COPYRIGHTS
WHEREAS, [Name of Grantor], a _______________ _____________
(the "Grantor"), having its chief executive office at , , is the owner of all
right, title and interest in and to the United States copyrights and associated
United States copyright registrations and applications for registration set
forth in Schedule A attached hereto;
WHEREAS, BANKERS TRUST COMPANY, as Collateral Agent, having
its principal offices at One Bankers Trust Plaza, 130 Liberty Street, New York,
New York 10006 (the "Grantee"), desires to acquire a security interest in said
copyrights and copyright registrations and applications therefor; and
WHEREAS, the Grantor is willing to grant to the Grantee a
security interest in and lien upon the copyrights and copyright registrations
and applications therefor described above.
NOW, THEREFORE, for good and valuable consideration, the
receipt of which is hereby acknowledged, and subject to the terms and conditions
of the Security Agreement, dated as of April 11, 2000, made by the Grantor, the
other assignors from time to time party thereto and the Grantee (as amended from
time to time, the "Security Agreement"), the Grantor hereby grants to the
Grantee as collateral security, and grants to the Assignee a security interest
in, the copyrights and copyright registrations and applications therefor set
forth in Schedule A attached hereto.
This Grant has been granted in conjunction with the security
interest granted to the Grantee under the Security Agreement. The rights and
remedies of the Grantee with respect to the security interest granted herein are
as set forth in the Security Agreement, all terms and provisions of which are
incorporated herein by reference. In the event that any provisions of this Grant
are deemed to conflict with the Security Agreement, the provisions of the
Security Agreement shall govern.
<PAGE>
Executed at New York, New York, the __ day of _________, ____.
[NAME OF GRANTOR], as Grantor
By__________________________
Name:
Title:
BANKERS TRUST COMPANY, as
Collateral Agent and Grantee
By__________________________
Name:
Title:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this __ day of _________, ____, before me personally came
___________ _______________, who being duly sworn, did depose and say that [s]he
is ___________________ of [Name of Grantor], that [s]he is authorized to execute
the foregoing Grant on behalf of said corporation and that [s]he did so by
authority of the Board of Directors of said corporation.
-------------------------
Notary Public
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of _________, ____, before me personally came
________ _____________________ who, being by me duly sworn, did state as
follows: that [s]he is __________________ of Bankers Trust Company that [s]he is
authorized to execute the foregoing Grant on behalf of said __________ and that
[s]he did so by authority of the Board of Directors of said _____________.
----------------------------
Notary Public
<PAGE>
SCHEDULE A
U.S. COPYRIGHTS
REGISTRATION PUBLICATION
NUMBERS DATE COPYRIGHT TITLE
--------- -------------- ---------------
None
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I SECURITY INTERESTS..................................................2
1.1. Grant of Security Interests.....................................2
1.2. Power of Attorney...............................................2
ARTICLE II GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS..................3
2.1. Necessary Filings...............................................3
2.2. No Liens........................................................3
2.3. Other Financing Statements......................................3
2.4. Chief Executive Office, Record Locations........................3
2.5. Location of Inventory and Equipment.............................4
2.6. Recourse........................................................4
2.7. Trade Names; Change of Name.....................................4
ARTICLE III SPECIAL PROVISIONS CONCERNING RECEIVABLES;
CONTRACT RIGHTS; INSTRUMENTS; CHATTEL PAPER..................5
3.1. Additional Representations and Warranties.......................5
3.2. Maintenance of Records..........................................5
3.3. Direction to Account Debtors; Contracting Parties; etc..........5
3.4. Modification of Terms; etc......................................6
3.5. Collection......................................................6
3.6. Instruments.....................................................6
3.7. Assignors Remain Liable Under Receivables.......................6
3.8. Assignors Remain Liable Under Contracts.........................7
3.9. Protection of the Collateral Agent's Security...................7
3.10. Further Actions................................................7
ARTICLE IV SPECIAL PROVISIONS CONCERNING TRADEMARKS...........................7
4.1. Additional Representations and Warranties.......................7
4.2. Licenses and Assignments........................................8
4.3. Infringements...................................................8
4.4. Preservation of Marks...........................................8
4.5. Maintenance of Registration.....................................8
4.6. Future Registered Marks.........................................8
4.7. Remedies........................................................9
<PAGE>
ARTICLE V SPECIAL PROVISIONS CONCERNING
PATENTS, COPYRIGHTS AND TRADE SECRETS........................9
5.1. Additional Representations and Warranties.......................9
5.2. Licenses and Assignments.......................................10
5.3. Infringements..................................................10
5.4. Maintenance of Patents or Copyrights...........................10
5.5. Prosecution of Patent Applications.............................10
5.6. Other Patents and Copyrights...................................10
5.7. Remedies.......................................................10
ARTICLE VI PROVISIONS CONCERNING ALL COLLATERAL..............................11
6.1. Protection of Collateral Agent's Security......................11
6.2. Warehouse Receipts Non-negotiable..............................11
6.3. Further Actions................................................11
6.4. Financing Statements...........................................11
ARTICLE VII REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT.....................12
7.1. Remedies; Obtaining the Collateral Upon Default................12
7.2. Remedies; Disposition of the Collateral........................13
7.3. Waiver of Claims...............................................14
7.4. Application of Proceeds........................................15
7.5. Remedies Cumulative............................................17
7.6. Discontinuance of Proceedings..................................17
ARTICLE VIII INDEMNITY.......................................................17
8.1. Indemnity......................................................17
8.2. Indemnity Obligations Secured by Collateral; Survival..........18
ARTICLE IX DEFINITIONS.......................................................19
ARTICLE X MISCELLANEOUS......................................................24
10.1. Notices.......................................................24
10.2. Waiver; Amendment.............................................25
10.3. Obligations Absolute..........................................25
10.4. Successors and Assigns........................................26
10.5. Headings Descriptive..........................................26
10.6. Governing Law.................................................26
10.7. Assignor's Duties.............................................26
10.8. Termination; Release..........................................26
10.9. Counterparts..................................................27
10.10. Severability.................................................27
10.11. The Collateral Agent.........................................27
10.12. Benefit of Agreement.........................................27
10.13. Additional Assignors.........................................27
<PAGE>
ANNEX A Schedule of Chief Executive Offices/Record Locations
ANNEX B Schedule of Inventory and Equipment Location
ANNEX C Schedule of Trade and Fictitious Names
ANNEX D Schedule of Marks
ANNEX E Schedule of Patent
ANNEX F Schedule of Copyrights
ANNEX G Form of Grant of Security Interest in United States Trademarks and
Patents
ANNEX H Form of Grant of Security Interest in United States
Copyrights
<PAGE>
US SUBSIDIARIES GUARANTY EXHIBIT I-1
US SUBSIDIARIES GUARANTY, dated as of April 11, 2000 (as
amended, modified or supplemented from time to time, this "Guaranty"), made by
each of the undersigned guarantors (each a "Guarantor," and together with any
other entity that becomes a guarantor hereunder pursuant to Section 26 hereof,
the "Guarantors"). Except as otherwise defined herein, capitalized terms used
herein and defined in the Credit Agreement (as defined below) shall be used
herein as therein defined.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, SITEL Corporation (the "US Borrower"), SITEL Europe
plc (the "English Borrower"), SITEL TMS Limited (the "Irish Borrower" and,
together with the US Borrower and the English Borrower, the "Borrowers"), the
lenders from time to time party thereto (the "Lenders"), and Bankers Trust
Company, as Administrative Agent (together with any successor administrative
agent, the "Administrative Agent"), have entered into a Credit Agreement, dated
as of April 11, 2000 (as amended, modified, or supplemented from time to time,
the "Credit Agreement"), providing for the making of Loans to the Borrowers, and
the issuance of Letters of Credit for the account of the US Borrower, in each
case as contemplated therein (the Lenders, the Collateral Agent, the Issuing
Lenders and the Administrative Agent are herein called the "Lender Creditors");
WHEREAS, the US Borrower or any Domestic Subsidiary thereof
may at any time and from time to time enter into one or more Interest Rate
Protection Agreements or Other Hedging Agreements with one or more Lenders or
any affiliate thereof (each such Lender or affiliate, even if the respective
Lender subsequently ceases to be a Lender under the Credit Agreement for any
reason, together with such Lender's or affiliate's successors and assigns, if
any, collectively, the "Other Creditors," and together with the Lender
Creditors, the "Secured Creditors");
WHEREAS, each Guarantor is a direct or indirect Domestic Subsidiary of the
US Borrower;
WHEREAS, it is a condition to the making of Loans and the
issuance of Letters of Credit under the Credit Agreement that each Guarantor
shall have executed and delivered this Guaranty; and
WHEREAS, each Guarantor will obtain benefits from the
incurrence of Loans by, and the issuance of Letters of Credit for the account
of, the US Borrower under the Credit Agreement and the entering into by the US
Borrower and/or its Domestic Subsidiaries of Interest Rate Protection Agreements
and Other Hedging Agreements and, accordingly, desires to execute this Guaranty
in order to satisfy the conditions described in the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to each Guarantor, the receipt and sufficiency of which are
hereby acknowledged, each Guarantor hereby makes the following representations
and warranties to the Secured Creditors and hereby covenants and agrees with
each Secured Creditor as follows:
<PAGE>
1. Each Guarantor, jointly and severally, irrevocably,
absolutely and unconditionally guarantees: (i) to the Lender Creditors the full
and prompt payment when due (whether at the stated maturity, by acceleration or
otherwise) of (x) the principal of, premium, if any, and interest on the Notes
issued by, and the Loans made to, the US Borrower under the Credit Agreement,
and all reimbursement obligations and Unpaid Drawings with respect to Letters of
Credit issued under the Credit Agreement and (y) all other obligations
(including obligations which, but for the automatic stay under Section 362(a) of
the Bankruptcy Code, would become due), liabilities and indebtedness owing by
the US Borrower to the Lender Creditors under the Credit Agreement and any other
Credit Document to which the US Borrower is a party (including, without
limitation, indemnities, Fees and interest thereon), whether now existing or
hereafter incurred under, arising out of or in connection with the Credit
Agreement and any such other Credit Document and the due performance and
compliance by the US Borrower with all of the terms, conditions and agreements
contained in all such Credit Documents (all such principal, premium, interest,
liabilities, indebtedness and obligations being herein collectively called the
"Credit Document Obligations"); and (ii) to each Other Creditor the full and
prompt payment when due (whether at the stated maturity, by acceleration or
otherwise) of all obligations (including obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would become due),
liabilities and indebtedness owing by the US Borrower or any Domestic Subsidiary
thereof under any Interest Rate Protection Agreement and Other Hedging
Agreement, whether now in existence or hereafter arising, and the due
performance and compliance by the US Borrower and each such Domestic Subsidiary
with all of the terms, conditions and agreements contained in the Interest Rate
Protection Agreements and Other Hedging Agreements (all such obligations,
liabilities and indebtedness being herein collectively called the "Other
Obligations," and together with the Credit Document Obligations, the "Guaranteed
Obligations"). Each Guarantor understands, agrees and confirms that the Secured
Creditors may enforce this Guaranty up to the full amount of the Guaranteed
Obligations against such Guarantor without proceeding against any other
Guarantor, the US Borrower or any Domestic Subsidiary thereof, against any
security for the Guaranteed Obligations, or under any other guaranty covering
all or a portion of the Guaranteed Obligations.
2. Additionally, each Guarantor, jointly and severally,
unconditionally, absolutely and irrevocably, guarantees the payment of any and
all Guaranteed Obligations whether or not due or payable by the US Borrower or
any Domestic Subsidiary thereof upon the occurrence in respect of the US
Borrower or any such Domestic Subsidiary of any of the events specified in
Section 10.05 of the Credit Agreement, and unconditionally and irrevocably,
jointly and severally, promises to pay such Guaranteed Obligations to the
Secured Creditors, or order, on demand. This Guaranty shall constitute a
guaranty of payment, and not of collection.
3. The liability of each Guarantor hereunder is primary,
absolute and unconditional and is exclusive and independent of any security for
or other guaranty of the indebtedness of the US Borrower or any Domestic
Subsidiary thereof whether executed by such Guarantor, any other Guarantor, any
other guarantor or by any other party, and the liability of each Guarantor
hereunder shall not be affected or impaired by any circumstance or occurrence
whatsoever, including, without limitation: (a) any direction as to application
of payment by the US Borrower, by any Domestic Subsidiary thereof or by any
other party, (b) any other continuing or other guaranty, undertaking or maximum
liability of a guarantor or of any other party as to the Guaranteed Obligations,
(c) any payment on or in reduction of any such other guaranty or undertaking,
(d) any dissolution, termination or increase, decrease or change in personnel by
the US Borrower or any Domestic Subsidiary thereof, (e) any payment made to any
Secured Creditor on the indebtedness which any Secured Creditor repays the US
Borrower or any Domestic Subsidiary thereof pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and each Guarantor waives any right to the deferral or modification
of its obligations hereunder by reason of any such proceeding, (f) any action or
inaction by the Secured Creditors as contemplated in Section 6 hereof or (g) any
invalidity, irregularity or unenforceability of all or any part of the
Guaranteed Obligations or of any security therefor.
<PAGE>
4. The obligations of each Guarantor hereunder are
independent of the obligations of any other Guarantor, any other guarantor, the
US Borrower or any Domestic Subsidiary thereof, and a separate action or actions
may be brought and prosecuted against each Guarantor whether or not action is
brought against any other Guarantor, any other guarantor, the US Borrower or any
Domestic Subsidiary thereof and whether or not any other Guarantor, any other
guarantor, the US Borrower or any Domestic Subsidiary thereof be joined in any
such action or actions. Each Guarantor waives, to the fullest extent permitted
by applicable law, the benefits of any statute of limitations affecting its
liability hereunder or the enforcement thereof. Any payment by the US Borrower
or any Domestic Subsidiary thereof or other circumstance which operates to toll
any statute of limitations as to the US Borrower or such Domestic Subsidiary
shall operate to toll the statute of limitations as to each Guarantor.
5. Each Guarantor hereby waives notice of acceptance of this
Guaranty and notice of any liability to which it may apply, and waives
promptness, diligence, presentment, demand of payment, protest, notice of
dishonor or nonpayment of any such liabilities, suit or taking of other action
by the Administrative Agent or any other Secured Creditor against, and any other
notice to, any party liable thereon (including such Guarantor, any other
Guarantor, any other guarantor, the US Borrower or any Domestic Subsidiary
thereof).
6. Any Secured Creditor may at any time and from time to time
without the consent of, or notice to, any Guarantor, without incurring
responsibility to such Guarantor, without impairing or releasing the obligations
of such Guarantor hereunder, upon or without any terms or conditions and in
whole or in part:
(a) change the manner, place or terms of payment of, and/or
change, increase or extend the time of payment of, renew or alter, any of the
Guaranteed Obligations (including any increase or decrease in the rate of
interest thereon), any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the guaranty herein made shall apply to the
Guaranteed Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, impair, realize upon or
otherwise deal with in any manner and in any order any property by whomsoever at
any time pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or any offset
thereagainst;
(c) exercise or refrain from exercising any rights against the
US Borrower, any other Credit Party, any Subsidiary thereof or otherwise act or
refrain from acting;
(d) release or substitute any one or more endorsers,
Guarantors, other guarantors, the US Borrower, any Domestic Subsidiary thereof
or other obligors;
(e) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of the US Borrower or any Domestic Subsidiary
thereof to creditors of the US Borrower or such Domestic Subsidiary other than
the Secured Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to
any liability or liabilities of the US Borrower or any Domestic Subsidiary
thereof to the Secured Creditors regardless of what liabilities of the US
Borrower or such Domestic Subsidiary remain unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, any of the Interest Rate Protection Agreements or Other Hedging
Agreements, the Credit Documents or any of the instruments or agreements
referred to therein, or otherwise amend, modify or supplement any of the
Interest Rate Protection Agreements or Other Hedging Agreements, the Credit
Documents or any of such other instruments or agreements;
<PAGE>
(h) act or fail to act in any manner referred to in this
Guaranty which may deprive such Guarantor of its right to subrogation against
the US Borrower or any Domestic Subsidiary thereof to recover full indemnity for
any payments made pursuant to this Guaranty; and/or
(i) take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or equitable discharge
of such Guarantor from its liabilities under this Guaranty.
7. This Guaranty is a continuing one and all liabilities to
which it applies or may apply under the terms hereof shall be conclusively
presumed to have been created in reliance hereon. No failure or delay on the
part of any Secured Creditor in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein expressly specified are cumulative and not
exclusive of any rights or remedies which any Secured Creditor would otherwise
have. No notice to or demand on any Guarantor in any case shall entitle such
Guarantor to any other further notice or demand in similar or other
circumstances or constitute a waiver of the rights of any Secured Creditor to
any other or further action in any circumstances without notice or demand. It is
not necessary for any Secured Creditor to inquire into the capacity or powers of
the US Borrower or any Domestic Subsidiary thereof or the officers, directors,
partners or agents acting or purporting to act on its or their behalf, and any
indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
8. Any indebtedness of the US Borrower or any Domestic
Subsidiary thereof now or hereafter held by any Guarantor is hereby subordinated
to the indebtedness of the US Borrower or such Domestic Subsidiary to the
Secured Creditors, and such indebtedness of the US Borrower or any Domestic
Subsidiary thereof to any Guarantor, if the Administrative Agent or the
Collateral Agent, after the occurrence and during the continuance of an Event of
Default, so requests, shall be collected, enforced and received by such
Guarantor as trustee for the Secured Creditors and be paid over to the Secured
Creditors on account of the indebtedness of the US Borrower or such Domestic
Subsidiary to the Secured Creditors, but without affecting or impairing in any
manner the liability of such Guarantor under the other provisions of this
Guaranty. Without limiting the generality of the foregoing, each Guarantor
hereby agrees with the Secured Creditors that it will not exercise any right of
subrogation which it may at any time otherwise have as a result of this Guaranty
(whether contractual, under Section 509 of the Bankruptcy Code or otherwise)
until all Guaranteed Obligations have been irrevocably paid in full in cash.
9. (a) Each Guarantor waives any right (except as shall be
required by applicable law and cannot be waived) to require the Secured
Creditors to: (i) proceed against the US Borrower, any Domestic Subsidiary
thereof, any other Guarantor, any other guarantor of the Guaranteed Obligations
or any other party; (ii) proceed against or exhaust any security held from the
US Borrower, any Domestic Subsidiary thereof, any other Guarantor, any other
guarantor of the Guaranteed Obligations or any other party; or (iii) pursue any
other remedy in the Secured Creditors' power whatsoever. Each Guarantor waives
any defense based on or arising out of any defense of the US Borrower, any
Domestic Subsidiary thereof any other Guarantor, any other guarantor of the
Guaranteed Obligations or any other party other than payment in full of the
Guaranteed Obligations, including, without limitation, any defense based on or
arising out of the disability of the US Borrower, any Domestic Subsidiary
thereof, any other Guarantor, any other guarantor of the Guaranteed Obligations
or any other party, or the unenforceability of the Guaranteed Obligations or any
part thereof from any cause, or the cessation from any cause of the liability of
the US Borrower or any Domestic Subsidiary thereof other than payment in full of
the Guaranteed Obligations. The Secured Creditors may, at their election,
foreclose on any security held by the Administrative Agent, the Collateral Agent
or the other Secured Creditors by one or more judicial or nonjudicial sales,
whether or not every aspect of any such sale is commercially reasonable, or
exercise any other right or remedy the Secured Creditors may have against the US
Borrower or any Domestic Subsidiary thereof or any other party, or any security,
without affecting or impairing in any way the liability of any Guarantor
hereunder except to the extent the Guaranteed Obligations have been paid in full
in cash. Each Guarantor waives any defense arising out of any such election by
the Secured Creditors, even though such election operates to impair or
extinguish any right of reimbursement or subrogation or other right or remedy of
such Guarantor against the US Borrower, any Domestic Subsidiary thereof or any
other party or any security.
<PAGE>
(b) Each Guarantor waives all presentments, demands for
performance, protests and notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Guaranty, and notices of the existence, creation or incurring of new or
additional indebtedness. Each Guarantor assumes all responsibility for being and
keeping itself informed of the US Borrower's and each Domestic Subsidiary's
financial condition and assets, and of all other circumstances bearing upon the
risk of nonpayment of the Guaranteed Obligations and the nature, scope and
extent of the risks which such Guarantor assumes and incurs hereunder, and
agrees that the Secured Creditors shall have no duty to advise any Guarantor of
information known to them regarding such circumstances or risks.
10. The Secured Creditors agree that this Guaranty may be
enforced only by the action of the Administrative Agent or the Collateral Agent,
in each case acting upon the instructions of the Required Lenders (or, after the
date on which all Credit Document Obligations have been paid in full, the
holders of at least the majority of the outstanding Other Obligations) and that
no other Secured Creditors shall have any right individually to seek to enforce
or to enforce this Guaranty or to realize upon the security to be granted by the
Security Documents, it being understood and agreed that such rights and remedies
may be exercised by the Administrative Agent or the Collateral Agent or, after
all the Credit Document Obligations have been paid in full, by the holders of at
least a majority of the outstanding Other Obligations, as the case may be, for
the benefit of the Secured Creditors upon the terms of this Guaranty and the
Security Documents. The Secured Creditors further agree that this Guaranty may
not be enforced against any director, officer, employee, partner, member or
stockholder of any Guarantor (except to the extent such partner, member or
stockholder is also a Guarantor hereunder).
11. In order to induce the Lenders to make Loans to, and issue
Letters of Credit for the account of, the US Borrower pursuant to the Credit
Agreement, and in order to induce the Other Creditors to execute, deliver and
perform the Interest Rate Protection Agreements and Other Hedging Agreements,
each Guarantor represents, warrants and covenants that:
(a) Such Guarantor (i) is a duly organized and validly
existing corporation, partnership or limited liability company, as the case may
be, in good standing under the laws of the jurisdiction of its organization,
(ii) has the corporate, partnership or limited liability company, power and
authority, as the case may be, to own its property and assets and to transact
the business in which it is engaged and presently proposes to engage and (iii)
is duly qualified and is authorized to do business and is in good standing in
each jurisdiction where the conduct of its business requires such qualification,
except for failures to be so qualified which, either individually or in the
aggregate, could not reasonably be expected to have a material adverse effect on
the business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the US Borrower and its Subsidiaries taken as a
whole.
<PAGE>
(b) Such Guarantor has the corporate, partnership or limited
liability company, power and authority, as the case may be, to execute, deliver
and perform the terms and provisions of this Guaranty and each other Credit
Document to which it is a party and has taken all necessary corporate,
partnership or limited liability company, action, as the case may be, to
authorize the execution, delivery and performance by it of this Guaranty and
each such other Credit Document. Such Guarantor has duly executed and delivered
this Guaranty and each other Credit Document to which it is a party, and this
Guaranty and each such other Credit Document constitutes the legal, valid and
binding obligation of such Guarantor enforceable in accordance with its terms,
except to the extent that the enforceability hereof or thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
(c) Neither the execution, delivery or performance by such
Guarantor of this Guaranty or any other Credit Document to which it is a party,
nor compliance by it with the terms and provisions hereof and thereof, will (i)
contravene any provision of any applicable law, statute, rule or regulation or
any applicable order, writ, injunction or decree of any court or governmental
instrumentality, (ii) conflict with or result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under, or result
in the creation or imposition of (or the obligation to create or impose) any
Lien (except pursuant to the Security Documents) upon any of the property or
assets of such Guarantor or any of its Subsidiaries pursuant to the terms of any
indenture, mortgage, deed of trust, loan agreement, credit agreement, or any
other material agreement, contract or instrument to which such Guarantor or any
of its Subsidiaries is a party or by which it or any of its property or assets
is bound or to which it may be subject or (iii) violate any provision of the
certificate of incorporation or by-laws (or equivalent organizational documents)
of such Guarantor or any of its Subsidiaries.
(d) No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except as have been
obtained or made) or exemption by, any governmental or public body or authority,
or any subdivision thereof, is required to authorize, or is required for, (i)
the execution, delivery and performance of this Guaranty by such Guarantor or
any other Credit Document to which such Guarantor is a party or (ii) the
legality, validity, binding effect or enforceability of this Guaranty or any
other Credit Document to which such Guarantor is a party.
(e) There are no actions, suits or proceedings pending or, to
such Guarantor's knowledge, threatened (i) with respect to this Guaranty or any
other Credit Document to which such Guarantor is a party or (ii) with respect to
such Guarantor or any of its Subsidiaries which, either individually or in the
aggregate could reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the US Borrower and its Subsidiaries taken as a
whole.
12. Each Guarantor covenants and agrees that on and after the
Effective Date and until the termination of the Total Revolving Loan Commitment
and all Interest Rate Protection Agreements and Other Hedging Agreements and
until such time as no Note or Letter of Credit remains outstanding and all
Guaranteed Obligations have been paid in full, such Guarantor will comply, and
will cause each of its Subsidiaries to comply, with all of the applicable
provisions, covenants and agreements contained in Sections 8 and 9 of the Credit
Agreement, and will take, or will refrain from taking, as the case may be, all
actions that are necessary to be taken or not taken so that it is not in
violation of any provision, covenant or agreement contained in Section 8 or 9 of
the Credit Agreement, and so that no Default or Event of Default, is caused by
the actions of such Guarantor or any of its Subsidiaries.
<PAGE>
13. The Guarantors hereby jointly and severally agree to pay
all reasonable out-of-pocket costs and expenses of each Secured Creditor in
connection with the enforcement of this Guaranty and of the Administrative Agent
in connection with any amendment, waiver or consent relating hereto (including
in each case, without limitation, the reasonable fees and disbursements of
counsel employed by each Secured Creditor).
14. This Guaranty shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the Secured Creditors
and their successors and assigns.
15. Neither this Guaranty nor any provision hereof may be
changed, waived, discharged or terminated except with the written consent of
each Guarantor directly affected thereby and with the written consent of either
(x) the Required Lenders (or to the extent required by Section 13.12 of the
Credit Agreement, with the written consent of each Lender) at all times prior to
the time on which all Credit Document Obligations have been paid in full or (y)
the holders of at least a majority of the outstanding Other Obligations at all
times after the time on which all Credit Document Obligations have been paid in
full; provided, that any change, waiver, modification or variance affecting the
rights and benefits of a single Class (as defined below) of Secured Creditors
(and not all Secured Creditors in a like or similar manner) shall also require
the written consent of the Requisite Creditors (as defined below) of such Class
of Secured Creditors (it being understood that the addition or release of any
Guarantor hereunder shall not constitute a change, waiver, discharge or
termination affecting any Guarantor other than the Guarantor so added or
released). For the purpose of this Guaranty, the term "Class" shall mean each
class of Secured Creditors, i.e., whether (x) the Lender Creditors as holders of
the Credit Document Obligations or (y) the Other Creditors as the holders of the
Other Obligations. For the purpose of this Guaranty, the term "Requisite
Creditors" of any Class shall mean (x) with respect to the Credit Document
Obligations, the Required Lenders (or to the extent required by Section 13.12 of
the Credit Agreement, each Lender) and (y) with respect to the Other
Obligations, the holders of at least a majority of all obligations outstanding
from time to time under the Interest Rate Protection or Other Hedging
Agreements.
16. Each Guarantor acknowledges that an executed (or
conformed) copy of each of the Credit Documents and Interest Rate Protection
Agreements or Other Hedging Agreements has been made available to a senior
officer of such Guarantor and such officer is familiar with the contents
thereof.
17. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New York
Debtor and Secured Creditor Law) and not by way of limitation of any such
rights, upon the occurrence and during the continuance of an Event of Default
(such term to mean and include any "Event of Default" as defined in the Credit
Agreement or any payment default under any Interest Rate Protection Agreement or
Other Hedging Agreement continuing after any applicable grace period), each
Secured Creditor is hereby authorized, at any time or from time to time, without
notice to any Guarantor or to any other Person, any such notice being expressly
waived, to set off and to appropriate and apply any and all deposits (general or
special) and any other indebtedness at any time held or owing by such Secured
Creditor to or for the credit or the account of such Guarantor, against and on
account of the obligations and liabilities of such Guarantor to such Secured
Creditor under this Guaranty, irrespective of whether or not such Secured
Creditor shall have made any demand hereunder and although said obligations,
liabilities, deposits or claims, or any of them, shall be contingent or
unmatured.
18. All notices, requests, demands or other communications
pursuant hereto shall be sent or delivered by mail, telegraph, telex, telecopy,
cable or overnight courier service and all such notices and communications
shall, when mailed, telegraphed, telexed, telecopied, or cabled or sent by
overnight courier, be effective when deposited in the mails, delivered to the
telegraph company, cable company or overnight courier, as the case may be, or
sent by telex or telecopier, except that notices and communications to the
Administrative Agent or any Guarantor shall not be effective until received by
the Administrative Agent or such Guarantor, as the case may be. All notices and
other communications shall be in writing and addressed to such party at (i) in
the case of any Lender Creditor, as provided in the Credit Agreement, (ii) in
the case of any Guarantor, as provided in the Security Agreement and (iii) in
the case of any Other Creditor, at such address as such Other Creditor shall
have specified in writing to the Guarantors; or in any case at such other
address as any of the Persons listed above may hereafter notify the others in
writing.
<PAGE>
19. If claim is ever made upon any Secured Creditor for
repayment or recovery of any amount or amounts received in payment or on account
of any of the Guaranteed Obligations and any of the aforesaid payees repays all
or part of said amount by reason of (i) any judgment, decree or order of any
court or administrative body having jurisdiction over such payee or any of its
property or (ii) any settlement or compromise of any such claim effected by such
payee with any such claimant (including the US Borrower or any Domestic
Subsidiary thereof) then and in such event each Guarantor agrees that any such
judgment, decree, order, settlement or compromise shall be binding upon such
Guarantor, notwithstanding any revocation hereof or other instrument evidencing
any liability of the US Borrower or any Domestic Subsidiary thereof, and such
Guarantor shall be and remain liable to the aforesaid payees hereunder for the
amount so repaid or recovered to the same extent as if such amount had never
originally been received by any such payee.
20. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAW OF
THE STATE OF NEW YORK. Any legal action or proceeding with respect to this
Guaranty or any other Credit Document to which any Guarantor is a party may be
brought in the courts of the State of New York or of the United States of
America for the Southern District of New York in each case which are located in
the City of New York, and, by execution and delivery of this Guaranty, each
Guarantor hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts. Each
Guarantor hereby further irrevocably waives any claim that any such court lacks
personal jurisdiction over such Guarantor, and agrees not to plead or claim in
any legal action or proceeding with respect to this Guaranty or any other Credit
Document to which such Guarantor is a party brought in any of the aforesaid
courts that any such court lacks personal jurisdiction over such Guarantor. Each
Guarantor further irrevocably consents to the service of process out of any of
the aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to such
Guarantor at its address set forth opposite its signature below, such service to
become effective 30 days after such mailing. Each Guarantor hereby irrevocably
waives any objection to such service of process and further irrevocably waives
and agrees not to plead or claim in any action or proceeding commenced hereunder
or under any other Credit Document to which such Guarantor is a party that such
service of process was in any way invalid or ineffective. Nothing herein shall
affect the right of any of the Secured Creditors to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against each Guarantor in any other jurisdiction.
(b) Each Guarantor hereby irrevocably waives (to the fullest
extent permitted by applicable law) any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Guaranty or any other Credit Document
to which such Guarantor is a party brought in the courts referred to in clause
(a) above and hereby further irrevocably waives and agrees not to plead or claim
in any such court that such action or proceeding brought in any such court has
been brought in an inconvenient forum.
(c) EACH GUARANTOR AND EACH SECURED CREDITOR (BY ITS
ACCEPTANCE OF THE BENEFITS OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES ALL
RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS GUARANTY, THE OTHER CREDIT DOCUMENTS TO WHICH SUCH
GUARANTOR IS A PARTY OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
21. In the event that all of the capital stock of one or more
Guarantors is sold or otherwise disposed of or liquidated in compliance with the
requirements of Section 9.02 of the Credit Agreement (or such sale or other
disposition has been approved in writing by the Required Lenders (or all Lenders
if required by Section 13.12 of the Credit Agreement)) and the proceeds of such
sale, disposition or liquidation are applied in accordance with the provisions
of the Credit Agreement, to the extent applicable, such Guarantor shall upon
consummation of such sale or other disposition (except to the extent that such
sale or disposition is to the US Borrower or another Subsidiary thereof) be
released from this Guaranty automatically and without further action and this
Guaranty shall, as to each such Guarantor or Guarantors, terminate, and have no
further force or effect (it being understood and agreed that the sale of one or
more Persons that own, directly or indirectly, all of the capital stock of any
Guarantor shall be deemed to be a sale of such Guarantor for the purposes of
this Section 21).
<PAGE>
22. At any time a payment in respect of the Guaranteed
Obligations is made under this Guaranty, the right of contribution of each
Guarantor against each other Guarantor shall be determined as provided in the
immediately following sentence, with the right of contribution of each Guarantor
to be revised and restated as of each date on which a payment (a "Relevant
Payment") is made on the Guaranteed Obligations under this Guaranty. At any time
that a Relevant Payment is made by a Guarantor that results in the aggregate
payments made by such Guarantor in respect of the Guaranteed Obligations to and
including the date of the Relevant Payment exceeding such Guarantor's
Contribution Percentage (as defined below) of the aggregate payments made by all
Guarantors in respect of the Guaranteed Obligations to and including the date of
the Relevant Payment (such excess, the "Aggregate Excess Amount"), each such
Guarantor shall have a right of contribution against each other Guarantor who
has made payments in respect of the Guaranteed Obligations to and including the
date of the Relevant Payment in an aggregate amount less than such other
Guarantor's Contribution Percentage of the aggregate payments made to and
including the date of the Relevant Payment by all Guarantors in respect of the
Guaranteed Obligations (the aggregate amount of such deficit, the "Aggregate
Deficit Amount") in an amount equal to (x) a fraction the numerator of which is
the Aggregate Excess Amount of such Guarantor and the denominator of which is
the Aggregate Excess Amount of all Guarantors multiplied by (y) the Aggregate
Deficit Amount of such other Guarantor. A Guarantor's right of contribution
pursuant to the preceding sentences shall arise at the time of each computation,
subject to adjustment to the time of each computation; provided, that no
Guarantor may take any action to enforce such right until the Guaranteed
Obligations have been irrevocably paid in full in cash, it being expressly
recognized and agreed by all parties hereto that any Guarantor's right of
contribution arising pursuant to this Section 22 against any other Guarantor
shall be expressly junior and subordinate to such other Guarantor's obligations
and liabilities in respect of the Guaranteed Obligations and any other
obligations owing under this Guaranty. As used in this Section 22: (i) each
Guarantor's "Contribution Percentage" shall mean the percentage obtained by
dividing (x) the Adjusted Net Worth (as defined below) of such Guarantor by (y)
the aggregate Adjusted Net Worth of all Guarantors; (ii) the "Adjusted Net
Worth" of each Guarantor shall mean the greater of (x) the Net Worth (as defined
below) of such Guarantor and (y) zero; and (iii) the "Net Worth" of each
Guarantor shall mean the amount by which the fair salable value of such
Guarantor's assets on the date of any Relevant Payment exceeds its existing
debts and other liabilities (including contingent liabilities, but without
giving effect to any Guaranteed Obligations arising under this Guaranty, any
guaranteed obligations arising under the Foreign Subsidiaries Guaranty or any
guaranty of the Senior Subordinated Notes) on such date. All parties hereto
recognize and agree that, except for any right of contribution arising pursuant
to this Section 22, each Guarantor who makes any payment in respect of the
Guaranteed Obligations shall have no right of contribution or subrogation
against any other Guarantor in respect of such payment until all of the
Guaranteed Obligations have been irrevocably paid in full in cash. Each of the
Guarantors recognizes and acknowledges that the rights to contribution arising
hereunder shall constitute an asset in favor of the party entitled to such
contribution. In this connection, each Guarantor has the right to waive its
contribution right against any Guarantor to the extent that after giving effect
to such waiver such Guarantor would remain solvent, in the determination of the
Required Lenders.
<PAGE>
23. Each Guarantor and each Secured Creditor (by its
acceptance of the benefits of this Guaranty) hereby confirms that it is its
intention that this Guaranty not constitute a fraudulent transfer or conveyance
for purposes of any bankruptcy, insolvency or similar law. To effectuate the
foregoing intention, each Guarantor and each Secured Creditor (by its acceptance
of the benefits of this Guaranty) hereby irrevocably agrees that the Guaranteed
Obligations guaranteed by such Guarantor shall be limited to such amount as
will, after giving effect to such maximum amount and all other (contingent or
otherwise) liabilities of such Guarantor that are relevant under such laws (it
being understood that, to the maximum extent permitted under applicable laws and
to take into account the subordination provisions of the Senior Subordinated
Notes, the liabilities in respect of the guarantees of the Senior Subordinated
Notes shall not be included for the foregoing purposes and that, if any
reduction is required to the amount guaranteed by any Guarantor hereunder and
with respect to the Senior Subordinated Notes that its guarantee of amounts
owing in respect of the Senior Subordinated Notes shall first be reduced), and
after giving effect to any rights to contribution pursuant to any agreement
providing for an equitable contribution among such Guarantor and other
Guarantors, result in the Guaranteed Obligations of such Guarantor in respect of
such maximum amount not constituting a fraudulent transfer or conveyance.
<PAGE>
24. This Guaranty may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Guarantors and the
Administrative Agent.
25. All payments made by any Guarantor hereunder will be made
without setoff, counterclaim or other defense, in Dollars (or in the case of
Guaranteed Obligations required to be paid in another currency, in such
currency) and on the same basis as payments are made by the US Borrower under
Sections 4.03 and 4.04 of the Credit Agreement.
26. It is understood and agreed that any Subsidiary of the US
Borrower that is required to execute a counterpart of this Guaranty after the
date hereof pursuant to the Credit Agreement shall become a Guarantor hereunder
by executing a counterpart hereof and delivering the same to the Administrative
Agent.
27. Each Guarantor has independently, and without reliance on
any information supplied by any Secured Creditor, taken, and will continue to
take, whatever steps it deems necessary to evaluate the financial condition and
affairs of the US Borrower, any Domestic Subsidiary thereof or any Collateral,
and the Secured Creditors shall have no duty to advise any Guarantor of
information at any time known to them regarding such financial condition or
affairs or any Collateral.
28. (a) The Guarantors' obligations hereunder to make payments
in Dollars (or in the case of Guaranteed Obligations required to be paid in
another currency, the respective currency) (with respect to any Guaranteed
Obligations, the currency in which same are owing being herein called the
"Obligation Currency") shall not be discharged or satisfied by any tender or
recovery pursuant to any judgment expressed in or converted into any currency
other than the Obligation Currency, except to the extent that such tender or
recovery results in the effective receipt by the Administrative Agent, the
Collateral Agent or the respective Secured Creditor of the full amount of the
Obligation Currency expressed to be payable to the Administrative Agent, the
Collateral Agent or such Lender under this Guaranty or the other Credit
Documents or other Interest Rate Protection or Hedging Agreements, as
applicable. If for the purpose of obtaining or enforcing judgment against any
Guarantor in any court or in any jurisdiction, it becomes necessary to convert
into or from any currency other than the Obligation Currency (such other
currency being hereinafter referred to as the "Judgment Currency") an amount due
in the Obligation Currency, the conversion shall be made, at the Sterling
Equivalent, Euro Equivalent or the Dollar Equivalent thereof, as the case may
be, and, in the case of other currencies, the rate of exchange (as quoted by the
Administrative Agent or if the Administrative Agent does not quote a rate of
exchange on such currency, by a known dealer in such currency designated by the
Administrative Agent) determined, in each case, as of the day on which the
judgment is given (such Business Day being hereinafter referred to as the
"Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing
between the Judgment Currency Conversion Date and the date of actual payment of
the amount due, the Guarantors jointly and severally covenant and agree to pay,
or cause to be paid, such additional amounts, if any (but in any event not a
lesser amount), as may be necessary to ensure that the amount paid in the
Judgment Currency, when converted at the rate of exchange prevailing on the date
of payment, will produce the amount of the Obligation Currency which could have
been purchased with the amount of Judgment Currency stipulated in the judgment
or judicial award at the rate or exchange prevailing on the Judgment Currency
Conversion Date.
(c) For purposes of determining the Sterling Equivalent, the
Dollar Equivalent or the Euro Equivalent or any other rate of exchange for this
Section, such amounts shall include any premium and costs payable in connection
with the purchase of the Obligation Currency.
* *........*
<PAGE>
Exhibit I-1
[CONFORMED AS EXECUTED]
Exhibit I-1
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed
and delivered as of the date first above written.
NATIONAL ACTION FINANCIAL SERVICES, INC., as a Guarantor
By: /s/ Nan A. Kreamer
Title: Assistant Secretary
FINANCIAL INSURANCE SERVICES, INC., as a Guarantor
By: /s/ Nan A. Kreamer
Title: Vice President
SEEK THE GEEK, INC., as a Guarantor
By: /s/ Nan A. Kreamer
Title: Vice President
SITEL INSURANCE MARKETING SERVICES, INC., as a Guarantor
By: /s/ Nan A. Kreamer
Title: Vice President
SITEL INSURANCE SERVICES, INC., as a Guarantor
By: /s/ Nan A. Kreamer
Title: Vice President
SITEL INTERNATIONAL, INC., as a Guarantor
By: /s/ Nan A. Kreamer
Title: Vice President
<PAGE>
SITEL MEXICO HOLDINGS LLC,
as a Guarantor
By: SITEL (BVI) International, Inc.,
the sole member of SITEL Mexico Holdings LLC
By: SITEL International, Inc.,
the sole director of SITEL (BVI) International, Inc.
By: /s/ Nan A. Kreamer
Title: Vice President
Accepted and Agreed to:
BANKERS TRUST COMPANY,
as Collateral Agent
By: /s/ Pam Divino
Title: Vice President
<PAGE>
[CONFORMED AS EXECUTED]
Exhibit I-2
FOREIGN SUBSIDIARIES GUARANTY
FOREIGN SUBSIDIARIES GUARANTY, dated as of April 11, 2000 (as
amended, modified or supplemented from time to time, this "Guaranty"), made by
each of the undersigned guarantors (each a "Guarantor," and together with any
other entity that becomes a guarantor hereunder pursuant to Section 26 hereof,
the "Guarantors"). Except as otherwise defined herein, capitalized terms used
herein and defined in the Credit Agreement (as defined below) shall be used
herein as therein defined.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, SITEL Corporation (the "US Borrower"), SITEL Europe
plc (the "English Borrower"), SITEL TMS Limited (the "Irish Borrower" and,
together with the English Borrower, the "Foreign Borrowers"; and the Foreign
Borrowers and the US Borrower are collectively the "Borrowers"), the lenders
from time to time party thereto (the "Lenders"), and Bankers Trust Company, as
Administrative Agent (together with any successor administrative agent, the
"Administrative Agent"), have entered into a Credit Agreement, dated as of April
11, 2000 (as amended, modified, or supplemented from time to time, the "Credit
Agreement"), providing for the making of Loans to the Borrowers, and the
issuance of Letters of Credit for the account of the US Borrower, in each case
as contemplated therein (the Lenders, the Collateral Agent, the Issuing Lenders
and the Administrative Agent are herein called the "Lender Creditors");
WHEREAS, the Foreign Borrowers or any other Foreign Subsidiary
of the US Borrower may at any time and from time to time enter into one or more
Interest Rate Protection Agreements or Other Hedging Agreements with one or more
Lenders or any affiliate thereof (each such Lender or affiliate, even if the
respective Lender subsequently ceases to be a Lender under the Credit Agreement
for any reason, together with such Lender's or affiliate's successors and
assigns, if any, collectively, the "Other Creditors," and together with the
Lender Creditors, the "Secured Creditors");
WHEREAS, each Foreign Borrower is a direct or indirect Foreign Subsidiary
of the US Borrower;
WHEREAS, each Guarantor is also a direct or indirect Subsidiary of the US
Borrower;
WHEREAS, it is a condition to the making of Loans and the
issuance of Letters of Credit under the Credit Agreement that each Guarantor
shall have executed and delivered this Guaranty; and
WHEREAS, each Guarantor will obtain benefits from the incurrence of Loans
by the Foreign Borrowers under the Credit Agreement and the entering into by the
Foreign Borrowers and/or any other Foreign Subsidiary of the US Borrower of
Interest Rate Protection Agreements and Other Hedging Agreements and,
accordingly, desires to execute this Guaranty in order to satisfy the conditions
described in the preceding paragraph;
<PAGE>
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to each Guarantor, the receipt and sufficiency of which are
hereby acknowledged, each Guarantor hereby makes the following representations
and warranties to the Secured Creditors and hereby covenants and agrees with
each Secured Creditor as follows:
1. Each Guarantor, jointly and severally, irrevocably,
absolutely and unconditionally guarantees: (i) to the Lender Creditors the full
and prompt payment when due (whether at the stated maturity, by acceleration or
otherwise) of (x) the principal of, premium, if any, and interest on the Notes
issued by, and the Loans made to, the Foreign Borrowers under the Credit
Agreement, and (y) all other obligations (including obligations which, but for
the automatic stay under Section 362(a) of the Bankruptcy Code, would become
due), liabilities and indebtedness owing by the Foreign Borrowers to the Lender
Creditors under the Credit Agreement and any other Credit Document to which the
Foreign Borrowers are a party (including, without limitation, indemnities, Fees
and interest thereon), whether now existing or hereafter incurred under, arising
out of or in connection with the Credit Agreement and any such other Credit
Document and the due performance and compliance by the Foreign Borrowers with
all of the terms, conditions and agreements contained in all such Credit
Documents (all such principal, premium, interest, liabilities, indebtedness and
obligations being herein collectively called the "Credit Document Obligations");
and (ii) to each Other Creditor the full and prompt payment when due (whether at
the stated maturity, by acceleration or otherwise) of all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due), liabilities and indebtedness owing by any
Foreign Borrower or any other Foreign Subsidiary of the US Borrower under any
Interest Rate Protection Agreement and Other Hedging Agreement, whether now in
existence or hereafter arising, and the due performance and compliance by any
such Foreign Borrower or other Foreign Subsidiary with all of the terms,
conditions and agreements contained in the Interest Rate Protection Agreements
and Other Hedging Agreements (all such obligations, liabilities and indebtedness
being herein collectively called the "Other Obligations," and together with the
Credit Document Obligations, the "Guaranteed Obligations"). Each Guarantor
understands, agrees and confirms that the Secured Creditors may enforce this
Guaranty up to the full amount of the Guaranteed Obligations against such
Guarantor without proceeding against any other Guarantor, any Foreign Borrower,
any other Foreign Subsidiary of the US Borrower against any security for the
Guaranteed Obligations, or under any other guaranty covering all or a portion of
the Guaranteed Obligations. For purposes of this Guaranty, the term "Guarantor"
as applied to any Foreign Borrower shall refer to such Foreign Borrower as a
guarantor of indebtedness incurred by the other Foreign Borrower, as opposed to
indebtedness directly incurred by it.
2. Additionally, each Guarantor, jointly and severally,
unconditionally, absolutely and irrevocably, guarantees the payment of any and
all Guaranteed Obligations whether or not due or payable by any Foreign Borrower
or any other Foreign Subsidiary of the US Borrower upon the occurrence in
respect of any such Foreign Borrower or other Foreign Subsidiary of any of the
events specified in Section 10.05 of the Credit Agreement, and unconditionally
and irrevocably, jointly and severally, promises to pay such Guaranteed
Obligations to the Secured Creditors, or order, on demand. This Guaranty shall
constitute a guaranty of payment, and not of collection.
<PAGE>
3. The liability of each Guarantor hereunder is primary,
absolute and unconditional and is exclusive and independent of any security for
or other guaranty of the indebtedness of any Foreign Borrower or any other
Foreign Subsidiary of the US Borrower whether executed by such Guarantor, any
other Guarantor, any other guarantor or by any other party, and the liability of
each Guarantor hereunder shall not be affected or impaired by any circumstance
or occurrence whatsoever, including, without limitation: (a) any direction as to
application of payment by any Foreign Borrower, any other Foreign Subsidiary of
the US Borrower or by any other party, (b) any other continuing or other
guaranty, undertaking or maximum liability of a guarantor or of any other party
as to the Guaranteed Obligations, (c) any payment on or in reduction of any such
other guaranty or undertaking, (d) any dissolution, termination or increase,
decrease or change in personnel by any Foreign Borrower or any other Foreign
Subsidiary of the US Borrower, (e) any payment made to any Secured Creditor on
the indebtedness which any Secured Creditor repays any Foreign Borrower or any
other Foreign Subsidiary of the US Borrower pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and each Guarantor waives any right to the deferral or modification
of its obligations hereunder by reason of any such proceeding, (f) any action or
inaction by the Secured Creditors as contemplated in Section 6 hereof or (g) any
invalidity, irregularity or unenforceability of all or any part of the
Guaranteed Obligations or of any security therefor.
4. The obligations of each Guarantor hereunder are
independent of the obligations of any other Guarantor, any other guarantor, any
Foreign Borrower or any other Foreign Subsidiary of the US Borrower, and a
separate action or actions may be brought and prosecuted against each Guarantor
whether or not action is brought against any other Guarantor, any other
guarantor, such Foreign Borrower or such other Foreign Subsidiary and whether or
not any other Guarantor, any other guarantor, any Foreign Borrower or any other
Foreign Subsidiary of the US Borrower be joined in any such action or actions.
Each Guarantor waives, to the fullest extent permitted by applicable law, the
benefits of any statute of limitations affecting its liability hereunder or the
enforcement thereof. Any payment by any Foreign Borrower or any other Foreign
Subsidiary of the US Borrower or other circumstance which operates to toll any
statute of limitations as to such Foreign Borrower or such other Foreign
Subsidiary shall operate to toll the statute of limitations as to each
Guarantor.
5. Each Guarantor hereby waives notice of acceptance of this
Guaranty and notice of any liability to which it may apply, and waives
promptness, diligence, presentment, demand of payment, protest, notice of
dishonor or nonpayment of any such liabilities, suit or taking of other action
by the Administrative Agent or any other Secured Creditor against, and any other
notice to, any party liable thereon (including such Guarantor, any other
Guarantor, any other guarantor, any Foreign Borrower or any other Foreign
Subsidiary of the US Borrower).
6. Any Secured Creditor may at any time and from time to time
without the consent of, or notice to, any Guarantor, without incurring
responsibility to such Guarantor, without impairing or releasing the obligations
of such Guarantor hereunder, upon or without any terms or conditions and in
whole or in part:
<PAGE>
(a) change the manner, place or terms of payment of, and/or
change, increase or extend the time of payment of, renew or alter, any of the
Guaranteed Obligations (including any increase or decrease in the rate of
interest thereon), any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the guaranty herein made shall apply to the
Guaranteed Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, impair, realize upon or
otherwise deal with in any manner and in any order any property by whomsoever at
any time pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or any offset
thereagainst;
(c) exercise or refrain from exercising any rights against any
Foreign Borrower, any other Credit Party, any other Subsidiary of the US
Borrower or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, Guarantors, other
guarantors, Foreign Borrowers or other obligors;
(e) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of any Foreign Borrower or any other Foreign
Subsidiary of the US Borrower to creditors of such Foreign Borrower or such
other Foreign Subsidiary other than the Secured Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to
any liability or liabilities of any Foreign Borrowers or any other Foreign
Subsidiary of the US Borrower to the Secured Creditors regardless of what
liabilities of such Foreign Borrower or such other Foreign Subsidiary remain
unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, any of the Interest Rate Protection Agreements or Other Hedging
Agreements, the Credit Documents or any of the instruments or agreements
referred to therein, or otherwise amend, modify or supplement any of the
Interest Rate Protection Agreements or Other Hedging Agreements, the Credit
Documents or any of such other instruments or agreements;
(h) act or fail to act in any manner referred to in this
Guaranty which may deprive such Guarantor of its right to subrogation against
any Foreign Borrower or any other Foreign Subsidiary of the US Borrower to
recover full indemnity for any payments made pursuant to this Guaranty; and/or
(i) take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or equitable discharge
of such Guarantor from its liabilities under this Guaranty.
<PAGE>
7. This Guaranty is a continuing one and all liabilities to
which it applies or may apply under the terms hereof shall be conclusively
presumed to have been created in reliance hereon. No failure or delay on the
part of any Secured Creditor in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein expressly specified are cumulative and not
exclusive of any rights or remedies which any Secured Creditor would otherwise
have. No notice to or demand on any Guarantor in any case shall entitle such
Guarantor to any other further notice or demand in similar or other
circumstances or constitute a waiver of the rights of any Secured Creditor to
any other or further action in any circumstances without notice or demand. It is
not necessary for any Secured Creditor to inquire into the capacity or powers of
any Foreign Borrowers or the officers, directors, partners or agents acting or
purporting to act on its or their behalf, and any indebtedness made or created
in reliance upon the professed exercise of such powers shall be guaranteed
hereunder.
8. Any indebtedness of any Foreign Borrower or any other
Foreign Subsidiary of the US Borrower now or hereafter held by any Guarantor is
hereby subordinated to the indebtedness of such Foreign Borrower or such other
Foreign Subsidiary to the Secured Creditors, and such indebtedness of such
Foreign Borrower or such other Foreign Subsidiary to any Guarantor, if the
Administrative Agent or the Collateral Agent, after the occurrence and during
the continuance of an Event of Default, so requests, shall be collected,
enforced and received by such Guarantor as trustee for the Secured Creditors and
be paid over to the Secured Creditors on account of the indebtedness of such
Foreign Borrower or such other Foreign Subsidiary to the Secured Creditors, but
without affecting or impairing in any manner the liability of such Guarantor
under the other provisions of this Guaranty. Without limiting the generality of
the foregoing, each Guarantor hereby agrees with the Secured Creditors that it
will not exercise any right of subrogation which it may at any time otherwise
have as a result of this Guaranty (whether contractual, under Section 509 of the
Bankruptcy Code or otherwise) until all Guaranteed Obligations have been
irrevocably paid in full in cash.
9. (a) Each Guarantor waives any right (except as shall be
required by applicable law and cannot be waived) to require the Secured
Creditors to: (i) proceed against any Foreign Borrower, any other Foreign
Subsidiary of the US Borrower, any other Guarantor, any other guarantor of the
Guaranteed Obligations or any other party; (ii) proceed against or exhaust any
security held from any Foreign Borrower, any other Foreign Subsidiary of the US
Borrower, any other Guarantor, any other guarantor of the Guaranteed Obligations
or any other party; or (iii) pursue any other remedy in the Secured Creditors'
power whatsoever. Each Guarantor waives any defense based on or arising out of
any defense of any Foreign Borrower, any other Foreign Subsidiary of the US
Borrower, any other Guarantor, any other guarantor of the Guaranteed Obligations
or any other party other than payment in full of the Guaranteed Obligations,
including, without limitation, any defense based on or arising out of the
disability of any Foreign Borrower, any other Foreign Subsidiary of the US
Borrower, any other Guarantor, any other guarantor of the Guaranteed Obligations
or any other party, or the unenforceability of the Guaranteed Obligations or any
part thereof from any cause, or the cessation from any cause of the liability of
any Foreign Borrower or any other Foreign Subsidiary of the US Borrower, other
than payment in full of the Guaranteed Obligations. The Secured Creditors may,
at their election, foreclose on any security held by the Administrative Agent,
the Collateral Agent or the other Secured Creditors by one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is commercially
reasonable, or exercise any other right or remedy the Secured Creditors may have
against any Foreign Borrower, any other Foreign Subsidiary of the US Borrower or
any other party, or any security, without affecting or impairing in any way the
liability of any Guarantor hereunder except to the extent the Guaranteed
Obligations have been paid in full in cash. Each Guarantor waives any defense
arising out of any such election by the Secured Creditors, even though such
election operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of such Guarantor against any Foreign
Borrower, any other Foreign Subsidiary of the US Borrower or any other party or
any security.
<PAGE>
(b) Each Guarantor waives all presentments, demands for
performance, protests and notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Guaranty, and notices of the existence, creation or incurring of new or
additional indebtedness. Each Guarantor assumes all responsibility for being and
keeping itself informed of each Foreign Borrower's and each other Foreign
Subsidiary's financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations and the
nature, scope and extent of the risks which such Guarantor assumes and incurs
hereunder, and agrees that the Secured Creditors shall have no duty to advise
any Guarantor of information known to them regarding such circumstances or
risks.
10. The Secured Creditors agree that this Guaranty may be
enforced only by the action of the Administrative Agent or the Collateral Agent,
in each case acting upon the instructions of the Required Lenders (or, after the
date on which all Credit Document Obligations have been paid in full, the
holders of at least the majority of the outstanding Other Obligations) and that
no other Secured Creditors shall have any right individually to seek to enforce
or to enforce this Guaranty or to realize upon the security to be granted by the
Security Documents, it being understood and agreed that such rights and remedies
may be exercised by the Administrative Agent or the Collateral Agent or, after
all the Credit Document Obligations have been paid in full, by the holders of at
least a majority of the outstanding Other Obligations, as the case may be, for
the benefit of the Secured Creditors upon the terms of this Guaranty and the
Security Documents. The Secured Creditors further agree that this Guaranty may
not be enforced against any director, officer, employee, partner, member or
stockholder of any Guarantor (except to the extent such partner, member or
stockholder is also a Guarantor hereunder).
11. In order to induce the Lenders to make Loans to the
Foreign Borrowers pursuant to the Credit Agreement, and in order to induce the
Other Creditors to execute, deliver and perform the Interest Rate Protection
Agreements and Other Hedging Agreements, each Guarantor represents, warrants and
covenants that:
(a) Such Guarantor (i) is a duly organized and validly
existing corporation, partnership or limited liability company, as the case may
be, in good standing under the laws of the jurisdiction of its organization,
(ii) has the corporate, partnership or limited liability company, power and
authority, as the case may be, to own its property and assets and to transact
the business in which it is engaged and presently proposes to engage and (iii)
is duly qualified and is authorized to do business and is in good standing in
each jurisdiction where the conduct of its business requires such qualification,
except for failures to be so qualified which, either individually or in the
aggregate, could not reasonably be expected to have a material adverse effect on
the business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the US Borrower and its Subsidiaries taken as a
whole.
<PAGE>
(b) Such Guarantor has the corporate, partnership or limited
liability company, power and authority, as the case may be, to execute, deliver
and perform the terms and provisions of this Guaranty and each other Credit
Document to which it is a party and has taken all necessary corporate,
partnership or limited liability company, action, as the case may be, to
authorize the execution, delivery and performance by it of this Guaranty and
each such other Credit Document. Such Guarantor has duly executed and delivered
this Guaranty and each other Credit Document to which it is a party, and this
Guaranty and each such other Credit Document constitutes the legal, valid and
binding obligation of such Guarantor enforceable in accordance with its terms,
except to the extent that the enforceability hereof or thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
(c) Neither the execution, delivery or performance by such
Guarantor of this Guaranty or any other Credit Document to which it is a party,
nor compliance by it with the terms and provisions hereof and thereof, will (i)
contravene any provision of any applicable law, statute, rule or regulation or
any applicable order, writ, injunction or decree of any court or governmental
instrumentality, (ii) conflict with or result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under, or result
in the creation or imposition of (or the obligation to create or impose) any
Lien (except pursuant to the Security Documents) upon any of the property or
assets of such Guarantor or any of its Subsidiaries pursuant to the terms of any
indenture, mortgage, deed of trust, loan agreement, credit agreement, or any
other material agreement, contract or instrument to which such Guarantor or any
of its Subsidiaries is a party or by which it or any of its property or assets
is bound or to which it may be subject or (iii) violate any provision of the
certificate of incorporation or by-laws (or equivalent organizational documents)
of such Guarantor or any of its Subsidiaries.
(d) No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except as have been
obtained or made) or exemption by, any governmental or public body or authority,
or any subdivision thereof, is required to authorize, or is required for, (i)
the execution, delivery and performance of this Guaranty by such Guarantor or
any other Credit Document to which such Guarantor is a party or (ii) the
legality, validity, binding effect or enforceability of this Guaranty or any
other Credit Document to which such Guarantor is a party.
(e) There are no actions, suits or proceedings pending or, to
such Guarantor's knowledge, threatened (i) with respect to this Guaranty or any
other Credit Document to which such Guarantor is a party or (ii) with respect to
such Guarantor or any of its Subsidiaries which, either individually or in the
aggregate, could reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the US Borrower and its Subsidiaries taken as a
whole.
12. Each Guarantor covenants and agrees that on and after the
Effective Date and until the termination of the Total Revolving Loan Commitment
and all Interest Rate Protection Agreements and Other Hedging Agreements and
until such time as no Note or Letter of Credit remains outstanding and all
Guaranteed Obligations have been paid in full, such Guarantor will comply, and
will cause each of its Subsidiaries to comply, with all of the applicable
provisions, covenants and agreements contained in Sections 8 and 9 of the Credit
Agreement, and will take, or will refrain from taking, as the case may be, all
actions that are necessary to be taken or not taken so that it is not in
violation of any provision, covenant or agreement contained in Section 8 or 9 of
the Credit Agreement, and so that no Default or Event of Default, is caused by
the actions of such Guarantor or any of its Subsidiaries.
<PAGE>
13. The Guarantors hereby jointly and severally agree to pay
all reasonable out-of-pocket costs and expenses of each Secured Creditor in
connection with the enforcement of this Guaranty and of the Administrative Agent
in connection with any amendment, waiver or consent relating hereto (including
in each case, without limitation, the reasonable fees and disbursements of
counsel employed by each Secured Creditor).
14. This Guaranty shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the Secured Creditors
and their successors and assigns.
15. Neither this Guaranty nor any provision hereof may be
changed, waived, discharged or terminated except with the written consent of
each Guarantor directly affected thereby and with the written consent of either
(x) the Required Lenders (or to the extent required by Section 13.12 of the
Credit Agreement, with the written consent of each Lender) at all times prior to
the time on which all Credit Document Obligations have been paid in full or (y)
the holders of at least a majority of the outstanding Other Obligations at all
times after the time on which all Credit Document Obligations have been paid in
full; provided, that any change, waiver, modification or variance affecting the
rights and benefits of a single Class (as defined below) of Secured Creditors
(and not all Secured Creditors in a like or similar manner) shall also require
the written consent of the Requisite Creditors (as defined below) of such Class
of Secured Creditors (it being understood that the addition or release of any
Guarantor hereunder shall not constitute a change, waiver, discharge or
termination affecting any Guarantor other than the Guarantor so added or
released). For the purpose of this Guaranty, the term "Class" shall mean each
class of Secured Creditors, i.e., whether (x) the Lender Creditors as holders of
the Credit Document Obligations or (y) the Other Creditors as the holders of the
Other Obligations. For the purpose of this Guaranty, the term "Requisite
Creditors" of any Class shall mean (x) with respect to the Credit Document
Obligations, the Required Lenders (or to the extent required by Section 13.12 of
the Credit Agreement, each Lender) and (y) with respect to the Other
Obligations, the holders of at least a majority of all obligations outstanding
from time to time under the Interest Rate Protection or Other Hedging
Agreements.
16. Each Guarantor acknowledges that an executed (or
conformed) copy of each of the Credit Documents and Interest Rate Protection
Agreements or Other Hedging Agreements has been made available to a senior
officer of such Guarantor and such officer is familiar with the contents
thereof.
<PAGE>
17. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New York
Debtor and Secured Creditor Law) and not by way of limitation of any such
rights, upon the occurrence and during the continuance of an Event of Default
(such term to mean and include any "Event of Default" as defined in the Credit
Agreement or any payment default under any Interest Rate Protection Agreement or
Other Hedging Agreement continuing after any applicable grace period), each
Secured Creditor is hereby authorized, at any time or from time to time, without
notice to any Guarantor or to any other Person, any such notice being expressly
waived, to set off and to appropriate and apply any and all deposits (general or
special) and any other indebtedness at any time held or owing by such Secured
Creditor to or for the credit or the account of such Guarantor, against and on
account of the obligations and liabilities of such Guarantor to such Secured
Creditor under this Guaranty, irrespective of whether or not such Secured
Creditor shall have made any demand hereunder and although said obligations,
liabilities, deposits or claims, or any of them, shall be contingent or
unmatured.
18. All notices, requests, demands or other communications
pursuant hereto shall be sent or delivered by mail, telegraph, telex, telecopy,
cable or overnight courier service and all such notices and communications
shall, when mailed, telegraphed, telexed, telecopied, or cabled or sent by
overnight courier, be effective when deposited in the mails, delivered to the
telegraph company, cable company or overnight courier, as the case may be, or
sent by telex or telecopier, except that notices and communications to the
Administrative Agent or any Guarantor shall not be effective until received by
the Administrative Agent or such Guarantor, as the case may be. All notices and
other communications shall be in writing and addressed to such party at (i) in
the case of any Lender Creditor, as provided in the Credit Agreement, (ii) in
the case of any Guarantor, as provided in the Security Agreement and (iii) in
the case of any Other Creditor, at such address as such Other Creditor shall
have specified in writing to the Guarantors; or in any case at such other
address as any of the Persons listed above may hereafter notify the others in
writing.
19. If claim is ever made upon any Secured Creditor for
repayment or recovery of any amount or amounts received in payment or on account
of any of the Guaranteed Obligations and any of the aforesaid payees repays all
or part of said amount by reason of (i) any judgment, decree or order of any
court or administrative body having jurisdiction over such payee or any of its
property or (ii) any settlement or compromise of any such claim effected by such
payee with any such claimant (including any Foreign Borrower or any other
Foreign Subsidiary of the US Borrower) then and in such event each Guarantor
agrees that any such judgment, decree, order, settlement or compromise shall be
binding upon such Guarantor, notwithstanding any revocation hereof or other
instrument evidencing any liability of any Foreign Borrower or any other Foreign
Subsidiary of the US Borrower, and such Guarantor shall be and remain liable to
the aforesaid payees hereunder for the amount so repaid or recovered to the same
extent as if such amount had never originally been received by any such payee.
<PAGE>
20. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAW OF
THE STATE OF NEW YORK. Any legal action or proceeding with respect to this
Guaranty or any other Credit Document to which any Guarantor is a party may be
brought in the courts of the State of New York or of the United States of
America for the Southern District of New York in each case which are located in
the City of New York, and, by execution and delivery of this Guaranty, each
Guarantor hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts. Each
Guarantor hereby further irrevocably waives any claim that any such court lacks
personal jurisdiction over such Guarantor, and agrees not to plead or claim in
any legal action or proceeding with respect to this Guaranty or any other Credit
Document to which such Guarantor is a party brought in any of the aforesaid
courts that any such court lacks personal jurisdiction over such Guarantor. Each
Guarantor further irrevocably consents to the service of process out of any of
the aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to such
Guarantor at its address set forth opposite its signature below, such service to
become effective 30 days after such mailing. In addition, each Guarantor which
is a Foreign Credit Party hereby irrevocably designates appoints and empowers CT
Corporation System, with offices on the date hereof located at 111 Eighth
Avenue, New York, New York 10011, as its agent for service of process in respect
of any such action or proceeding. Each Guarantor hereby irrevocably waives any
objection to such service of process and further irrevocably waives and agrees
not to plead or claim in any action or proceeding commenced hereunder or under
any other Credit Document to which such Guarantor is a party that such service
of process was in any way invalid or ineffective. Nothing herein shall affect
the right of any of the Secured Creditors to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
each Guarantor in any other jurisdiction.
(b) Each Guarantor hereby irrevocably waives (to the fullest
extent permitted by applicable law) any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Guaranty or any other Credit Document
to which such Guarantor is a party brought in the courts referred to in clause
(a) above and hereby further irrevocably waives and agrees not to plead or claim
in any such court that such action or proceeding brought in any such court has
been brought in an inconvenient forum.
(c) EACH GUARANTOR AND EACH SECURED CREDITOR (BY ITS
ACCEPTANCE OF THE BENEFITS OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES ALL
RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS GUARANTY, THE OTHER CREDIT DOCUMENTS TO WHICH SUCH
GUARANTOR IS A PARTY OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
21. In the event that all of the capital stock of one or more
Guarantors is sold or otherwise disposed of or liquidated in compliance with the
requirements of Section 9.02 of the Credit Agreement (or such sale or other
disposition has been approved in writing by the Required Lenders (or all Lenders
if required by Section 13.12 of the Credit Agreement)) and the proceeds of such
sale, disposition or liquidation are applied in accordance with the provisions
of the Credit Agreement, to the extent applicable, such Guarantor shall upon
consummation of such sale or other disposition (except to the extent that such
sale or disposition is to the US Borrower or any Subsidiary thereof) be released
from this Guaranty automatically and without further action and this Guaranty
shall, as to each such Guarantor or Guarantors, terminate, and have no further
force or effect (it being understood and agreed that the sale of one or more
Persons that own, directly or indirectly, all of the capital stock of any
Guarantor shall be deemed to be a sale of such Guarantor for the purposes of
this Section 21).
<PAGE>
22. At any time a payment in respect of the Guaranteed
Obligations is made under this Guaranty, the right of contribution of each
Guarantor against each other Guarantor shall be determined as provided in the
immediately following sentence, with the right of contribution of each Guarantor
to be revised and restated as of each date on which a payment (a "Relevant
Payment") is made on the Guaranteed Obligations under this Guaranty. At any time
that a Relevant Payment is made by a Guarantor that results in the aggregate
payments made by such Guarantor in respect of the Guaranteed Obligations to and
including the date of the Relevant Payment exceeding such Guarantor's
Contribution Percentage (as defined below) of the aggregate payments made by all
Guarantors in respect of the Guaranteed Obligations to and including the date of
the Relevant Payment (such excess, the "Aggregate Excess Amount"), each such
Guarantor shall have a right of contribution against each other Guarantor who
has made payments in respect of the Guaranteed Obligations to and including the
date of the Relevant Payment in an aggregate amount less than such other
Guarantor's Contribution Percentage of the aggregate payments made to and
including the date of the Relevant Payment by all Guarantors in respect of the
Guaranteed Obligations (the aggregate amount of such deficit, the "Aggregate
Deficit Amount") in an amount equal to (x) a fraction the numerator of which is
the Aggregate Excess Amount of such Guarantor and the denominator of which is
the Aggregate Excess Amount of all Guarantors multiplied by (y) the Aggregate
Deficit Amount of such other Guarantor. A Guarantor's right of contribution
pursuant to the preceding sentences shall arise at the time of each computation,
subject to adjustment to the time of each computation; provided, that no
Guarantor may take any action to enforce such right until the Guaranteed
Obligations have been irrevocably paid in full in cash, it being expressly
recognized and agreed by all parties hereto that any Guarantor's right of
contribution arising pursuant to this Section 22 against any other Guarantor
shall be expressly junior and subordinate to such other Guarantor's obligations
and liabilities in respect of the Guaranteed Obligations and any other
obligations owing under this Guaranty. As used in this Section 22: (i) each
Guarantor's "Contribution Percentage" shall mean the percentage obtained by
dividing (x) the Adjusted Net Worth (as defined below) of such Guarantor by (y)
the aggregate Adjusted Net Worth of all Guarantors; (ii) the "Adjusted Net
Worth" of each Guarantor shall mean the greater of (x) the Net Worth (as defined
below) of such Guarantor and (y) zero; and (iii) the "Net Worth" of each
Guarantor shall mean the amount by which the fair salable value of such
Guarantor's assets on the date of any Relevant Payment exceeds its existing
debts and other liabilities (including contingent liabilities, but without
giving effect to any Guaranteed Obligations arising under this Guaranty, any
guaranteed obligations arising under the US Subsidiaries Guaranty or under any
guaranty of the Senior Subordinated Notes) on such date. All parties hereto
recognize and agree that, except for any right of contribution arising pursuant
to this Section 22, each Guarantor who makes any payment in respect of the
Guaranteed Obligations shall have no right of contribution or subrogation
against any other Guarantor in respect of such payment until all of the
Guaranteed Obligations have been irrevocably paid in full in cash. Each of the
Guarantors recognizes and acknowledges that the rights to contribution arising
hereunder shall constitute an asset in favor of the party entitled to such
contribution. In this connection, each Guarantor has the right to waive its
contribution right against any Guarantor to the extent that after giving effect
to such waiver such Guarantor would remain solvent, in the determination of the
Required Lenders.
<PAGE>
23. Each Guarantor and each Secured Creditor (by its
acceptance of the benefits of this Guaranty) hereby confirms that it is its
intention that this Guaranty not constitute a fraudulent transfer or conveyance
for purposes of any bankruptcy, insolvency or similar law. To effectuate the
foregoing intention, each Guarantor and each Secured Creditor (by its acceptance
of the benefits of this Guaranty) hereby irrevocably agrees that the Guaranteed
Obligations guaranteed by such Guarantor shall be limited to such amount as
will, after giving effect to such maximum amount and all other (contingent or
otherwise) liabilities of such Guarantor that are relevant under such laws (it
being understood that, to the maximum extent permitted under applicable laws and
to take into account the subordination provisions of the Senior Subordinated
Notes, the liabilities in respect of the guarantees of the Senior Subordinated
Notes shall not be included for the foregoing purposes and that, if any
reduction is required to the amount guaranteed by any Guarantor hereunder and
with respect to the Senior Subordinated Notes that its guarantee of amounts
owing in respect of the Senior Subordinated Notes shall first be reduced), and
after giving effect to any rights to contribution pursuant to any agreement
providing for an equitable contribution among such Guarantor and other
Guarantors, result in the Guaranteed Obligations of such Guarantor in respect of
such maximum amount not constituting a fraudulent transfer or conveyance.
24. This Guaranty may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Guarantors and the
Administrative Agent.
25. All payments made by any Guarantor hereunder will be made
without setoff, counterclaim or other defense, in the currency or currencies in
which the respective Guaranteed Obligations are required to be paid and on the
same basis as payments are made by the Foreign Borrowers under Sections 4.03 and
4.04 of the Credit Agreement.
<PAGE>
26. It is understood and agreed that any Subsidiary of the US
Borrower that is required to execute a counterpart of this Guaranty after the
date hereof pursuant to the Credit Agreement shall become a Guarantor hereunder
by executing a counterpart hereof and delivering the same to the Administrative
Agent.
27. Each Guarantor has independently, and without reliance on
any information supplied by any Secured Creditor, taken, and will continue to
take, whatever steps it deems necessary to evaluate the financial condition and
affairs of the Foreign Borrowers, any other Foreign Subsidiary of the US
Borrower or any Collateral, and the Secured Creditors shall have no duty to
advise any Guarantor of information at any time known to them regarding such
financial condition or affairs or any Collateral.
28. To the extent that any Guarantor has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to judgment, attachment in
aid of execution, or otherwise) with respect to itself or its property, such
Guarantor hereby irrevocably waives such immunity in respect of its obligations
hereunder to the extent permitted by applicable law and, without limiting the
generality of the foregoing, agrees that the waivers set forth in this Section
28 shall be to the fullest extent permitted under the Foreign Sovereign
Immunities Act of 1976 of the United States and are intended to be irrevocable
for purposes of such Act.
29. (a) The Guarantors' obligations hereunder to make payments
in the respective currency or currencies in which the respective Guaranteed
Obligations are required to be paid (such currency being herein called the
"Obligation Currency") shall not be discharged or satisfied by any tender or
recovery pursuant to any judgment expressed in or converted into any currency
other than the Obligation Currency, except to the extent that such tender or
recovery results in the effective receipt by the Administrative Agent, the
Collateral Agent or the respective Secured Creditor of the full amount of the
Obligation Currency expressed to be payable to the Administrative Agent, the
Collateral Agent or such Lender under this Guaranty or the other Credit
Documents or other Interest Rate Protection or Hedging Agreements, as
applicable. If for the purpose of obtaining or enforcing judgment against any
Guarantor in any court or in any jurisdiction, it becomes necessary to convert
into or from any currency other than the Obligation Currency (such other
currency being hereinafter referred to as the "Judgment Currency") an amount due
in the Obligation Currency, the conversion shall be made, at the Sterling
Equivalent, Euro Equivalent or the Dollar Equivalent thereof, as the case may
be, and, in the case of other currencies, the rate of exchange (as quoted by the
Administrative Agent or if the Administrative Agent does not quote a rate of
exchange on such currency, by a known dealer in such currency designated by the
Administrative Agent) determined, in each case, as of the day on which the
judgment is given (such Business Day being hereinafter referred to as the
"Judgment Currency Conversion Date").
<PAGE>
(b) If there is a change in the rate of exchange prevailing
between the Judgment Currency Conversion Date and the date of actual payment of
the amount due, the Guarantors jointly and severally covenant and agree to pay,
or cause to be paid, such additional amounts, if any (but in any event not a
lesser amount), as may be necessary to ensure that the amount paid in the
Judgment Currency, when converted at the rate of exchange prevailing on the date
of payment, will produce the amount of the Obligation Currency which could have
been purchased with the amount of Judgment Currency stipulated in the judgment
or judicial award at the rate or exchange prevailing on the Judgment Currency
Conversion Date.
(c) For purposes of determining the Sterling Equivalent, the
Dollar Equivalent or the Euro Equivalent or any other rate of exchange for this
Section, such amounts shall include any premium and costs payable in connection
with the purchase of the Obligation Currency.
* * *
<PAGE>
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed
and delivered as of the date first above written.
SITEL EUROPE PLC, as a Guarantor
SIGNED by SITEL EUROPE PLC
acting by its Attorney
By: /s/ Nan A. Kreamer
Title: Attorney
SITEL TMS LIMITED, as a Guarantor
By: /s/ Nan A. Kreamer
--------------------
SIGNED AND SEALED by Nan Kreamer
as duly authorised attorney for SITEL TMS LIMITED
in the presence of:
/s/ Teresa Beaufait
SITEL CONSULTING LIMITED, as a Guarantor
SIGNED by SITEL CONSULTING LIMITED
acting by its Attorney
By: /s/ Nan A. Kreamer
Title: Attorney
LEIDERMAN AND RONCORONI LIMITED, as a Guarantor
SIGNED by LEIDERMAN AND RONCORONI LIMITED acting by its Attorney
By: /s/ Nan A. Kreamer
Title: Attorney
THE TRAINING WORKS LIMITED, as a Guarantor
SIGNED by THE TRAINING WORKS LIMITED
acting by its Attorney
By: /s/ Nan A. Kreamer
Title: Attorney
SITEL KINGSTON LIMITED, as a Guarantor
SIGNED by SITEL KINGSTON LIMITED
acting by its Attorney
By: /s/ Nan A. Kreamer
Title: Attorney
SITEL MOOR PARK LIMITED, as a Guarantor
SIGNED by SITEL MOOR PARK LIMITED
acting by its Attorney
By: /s/ Nan A. Kreamer
Title: Attorney
SITEL STRATFORD LIMITED, as a Guarantor
SIGNED by SITEL STRATFORD LIMITED
acting by its Attorney
By: /s/ Nan A. Kreamer
Title: Attorney
SITEL UK LIMITED, as a Guarantor
SIGNED by SITEL UK LIMITED
acting by its Attorney
By: /s/ Nan A. Kreamer
Title: Attorney
B'S TELEMARKETING LIMITED, as a Guarantor
SIGNED by B'S TELEMARKETING LIMITED
acting by its Attorney
By: /s/ Nan A. Kreamer
Title: Attorney
SITEL KINGSTON (SERVICES) LIMITED, as a Guarantor
SIGNED by SITEL KINGSTON (SERVICES) LIMITED acting by its Attorney
By: /s/ Nan A. Kreamer
Title: Attorney
SITEL MOOR PARK (SERVICES) LIMITED, as a Guarantor
SIGNED by SITEL MOOR PARK (SERVICES) LIMITED acting by its Attorney
By: /s/ Nan A. Kreamer
Title: Attorney
SITEL STRATFORD (SERVICES) LIMITED, as a Guarantor
SIGNED by SITEL STRATFORD (SERVICES) LIMITED acting by its Attorney
By: /s/ Nan A. Kreamer
Title: Attorney
SITEL IBERICA TELESERVICES, S.A., as a Guarantor
SIGNED by SITEL IBERICA TELESERVICES, S.A. acting by its attorney-in-fact
By: /s/ Nan A. Kreamer
Title: Attorney
TELEACTION HISPANICA, S.A., as a Guarantor
SIGNED by TELEACTION HISPANICA, S.A. acting by its attorney-in-fact
By: /s/ Nan A. Kreamer
Title: Attorney
TELEPROMOTION S.A., as a Guarantor
SIGNED by TELEPROMOTION S.A. acting by its attorney-in-fact
By: /s/ Nan A. Kreamer
Title: Attorney
NATIONAL ACTION FINANCIAL SERVICES, INC., as a Guarantor
By: /s/ Nan A. Kreamer
Title: Assistant Secretary
FINANCIAL INSURANCE SERVICES, INC., as a Guarantor
By: /s/ Nan A. Kreamer
Title: Vice President
SEEK THE GEEK, INC., as a Guarantor
By: /s/ Nan A. Kreamer
Title: Vice President
SITEL INSURANCE MARKETING SERVICES, INC., as a Guarantor
By: /s/ Nan A. Kreamer
Title: Vice President
SITEL INSURANCE SERVICES, INC., as a Guarantor
By: /s/ Nan A. Kreamer
Title: Vice President
SITEL INTERNATIONAL, INC., as a Guarantor
By: /s/ Nan A. Kreamer
Title: Vice President
SITEL MEXICO HOLDINGS LLC,
as a Guarantor
By: SITEL (BVI) International, Inc.,
the sole member of SITEL Mexico Holdings LLC
By: SITEL International, Inc.,
the sole director of SITEL (BVI) International, Inc.
By: /s/ Nan A. Kreamer
Title: Vice President
Accepted and Agreed to:
BANKERS TRUST COMPANY,
as Collateral Agent
By: /s/ Pam Divino
Title: Vice President
<PAGE>
EXHIBIT J
FORM OF SOLVENCY CERTIFICATE
I, the undersigned, the Chief Financial Officer of SITEL
Corporation (the "US Borrower"), do hereby certify in such capacity and on
behalf of the US Borrower that:
1. This Certificate is furnished to the Administrative Agent
and each of the Lenders pursuant to Section 5.12 of the Credit Agreement, dated
as of April 11, 2000, among the US Borrower, SITEL Europe plc (the "English
Borrower"), SITEL TMS Limited (the "Irish Borrower" and, together with the
English Borrower and the US Borrower, the "Borrowers" and each individually, a
"Borrower"), the lenders party thereto from time to time (the "Lenders"), and
Bankers Trust Company, as Administrative Agent (such Credit Agreement, as in
effect on the date of this Certificate, being herein called the "Credit
Agreement"). Unless otherwise defined herein, capitalized terms used in this
Certificate shall have the meanings set forth in the Credit Agreement.
2. For purposes of this Certificate, the terms below shall have the
following definitions:
(a) "Fair Value"
The amount at which the assets, in their entirety, of each of
the Borrowers on a stand-alone basis and each Borrower and its
Subsidiaries taken as a whole would change hands between a
willing buyer and a willing seller, within a commercially
reasonable period of time, each having reasonable knowledge of
the relevant facts, with neither being under any compulsion to
act.
(b) "Present Fair Salable Value"
The amount that could be obtained by an independent willing
seller from an independent willing buyer if the assets of each
of the Borrowers on a stand-alone basis and each Borrower and
its Subsidiaries taken as a whole are sold with reasonable
promptness under normal selling conditions in a current
market.
(c) "New Financing"
The Indebtedness incurred or to be incurred by each Borrower
and its Subsidiaries under the Credit Documents.
<PAGE>
(d) "Stated Liabilities"
The recorded liabilities (including contingent liabilities)
that would be recorded in accordance with generally accepted
accounting principles ("GAAP") of each of the Borrowers on a
stand-alone basis and each Borrower and its Subsidiaries taken
as a whole at December 31, 1999 after giving effect to the
Effective Date, determined in accordance with GAAP
consistently applied, together with (i) the net change in
long-term debt (including current maturities) between December
31, 1999 and the date hereof and (ii) without duplication, the
amount of all New Financing.
(e) "Identified Contingent Liabilities"
The maximum estimated amount of liabilities reasonably likely
to result from pending litigation, asserted claims and
assessments, guaranties, uninsured risks and other contingent
liabilities of each of the Borrowers on a stand-alone basis
and each Borrower and its Subsidiaries taken as a whole after
giving effect to the Effective Date (exclusive of such
contingent liabilities to the extent reflected in Stated
Liabilities), as identified and explained in terms of their
nature and estimated magnitude by responsible officers of the
Borrowers or any of their Subsidiaries or that have been
identified as such by an officer of the Borrowers or any of
their Subsidiaries.
(f) "Will be able to pay its Stated Liabilities and Identified Contingent
Liabilities, as they mature"
For the period from the date hereof through the stated
maturity of all the New Financing, each of the Borrowers on a
stand-alone basis and each Borrower and its Subsidiaries taken
as a whole will have sufficient assets and cash flow to pay
their respective Stated Liabilities and Identified Contingent
Liabilities as those liabilities mature or otherwise become
payable.
(g) "Does not have Unreasonably Small Capital"
For the period from the date hereof through the stated
maturity of all the New Financing, each of the Borrowers on a
stand-alone basis and each Borrower and its Subsidiaries taken
as a whole, after consummation of the Transaction and all
Indebtedness being incurred or assumed and Liens created by
the Borrowers and their Subsidiaries in connection therewith,
is a going concern and has sufficient capital to ensure that
it will continue to be a going concern for such period and to
remain a going concern.
3. For purposes of this Certificate, I, or other officers of
the Borrowers and their Subsidiaries under my direction and supervision, have
performed the following procedures as of and for the periods set forth below.
(a) I have reviewed the financial statements referred to in Section 7.05 of
the Credit Agreement.
(b) I have made inquiries of certain officials of the Borrowers and their
Subsidiaries, who have responsibility for financial and accounting matters
regarding the existence and amount of Identified Contingent Liabilities
associated with the businesses of the Borrowers and their Subsidiaries.
(c) I have knowledge of and have reviewed to my satisfaction the Credit
Documents, and the respective Schedules and Exhibits thereto.
(d) With respect to Identified Contingent Liabilities, I:
1. inquired of certain officials of the Borrowers and their Subsidiaries
who have responsibility for legal, financial and accounting matters as to the
existence and estimated liability with respect to all contingent liabilities
known to them; and
2. confirmed with officers of the Borrowers and their Subsidiaries, that,
to the best of such officers' knowledge, (i) all appropriate items were included
in Stated Liabilities or the listing of Identified Contingent Liabilities and
that (ii) the amounts relating thereto were the maximum estimated amount of
liabilities reasonably likely to result therefrom as of the date hereof.
(e) I have examined the Projections which have been delivered to
the Lenders and considered the effect thereon of any changes
since the date of the preparation thereof on the results
projected therein. After such review, I hereby certify that in
my opinion the Projections are reasonable and the Projections
support the conclusions contained in paragraph 4 below.
(f) I have made inquiries of certain officers of the Borrowers and
their Subsidiaries who have responsibility for financial
reporting and accounting matters regarding whether they were
aware of any events or conditions that, as of the date hereof,
would cause the Borrowers on a stand-alone basis and each
Borrower and its Subsidiaries taken as a whole after giving
effect to the Effective Date and the related financing
transactions (including the incurrence of the New Financing),
to (i) have assets with a Fair Value or Present Fair Salable
Value that are less than the sum of Stated Liabilities and
Identified Contingent Liabilities; (ii) have Unreasonably
Small Capital; or (iii) not be able to pay its Stated
Liabilities and Identified Contingent Liabilities as they
mature or otherwise become payable.
4. Based on and subject to the foregoing, I, in my capacity as
the chief financial officer of the US Borrower, hereby certify on behalf of the
US Borrower that, after giving effect to the Effective Date (including the
incurrence of the New Financing) it is my informed opinion that (i) the Fair
Value and Present Fair Salable Value of the assets of each of the Borrowers on a
stand-alone basis and each Borrower and its Subsidiaries taken as a whole exceed
its Stated Liabilities and Identified Contingent Liabilities; (ii) each of the
Borrowers on a stand-alone basis and each Borrower and its Subsidiaries taken as
a whole does not have Unreasonably Small Capital; and (iii) each of the
Borrowers on a stand-alone basis and each Borrower and its Subsidiaries taken as
a whole will be able to pay its Stated Liabilities and Identified Contingent
Liabilities, as they mature or otherwise become payable.
<PAGE>
IN WITNESS WHEREOF, I have hereto set my hand this ____ day of
April, 2000.
SITEL CORPORATION
By_____________________________
Title:
<PAGE>
Exhibit K
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
DATE: ________ __, 19__
Reference is made to the Credit Agreement described in Item 2
of Annex I hereto (as such Credit Agreement may hereafter be amended, modified
or supplemented from time to time, the "Credit Agreement"). Unless defined in
Annex I hereto, terms defined in the Credit Agreement are used herein as therein
defined. _____________ (the "Assignor") and ______________ (the "Assignee")
hereby agree as follows:
1. The Assignor hereby sells and assigns to the Assignee
without recourse and without representation or warranty (other than as expressly
provided herein), and the Assignee hereby purchases and assumes from the
Assignor, that interest in and to all of the Assignor's rights and obligations
under the Credit Agreement as of the date hereof which represents the percentage
interest specified in Item 4 of Annex I hereto (the "Assigned Share") of all of
the outstanding rights and obligations with respect to the Assigned Share of the
Total Revolving Loan Commitment and all outstanding Revolving Loans, Swingline
Loans and Letters of Credit.
2. The Assignor (i) 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 claims; (ii) 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 the other Credit Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or the other Credit Documents or any other instrument or document
furnished pursuant thereto; and (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the US
Borrower or any of its Subsidiaries or the performance or observance by the US
Borrower or any of its Subsidiaries of any of their respective obligations under
the Credit Agreement or the other Credit Documents or any other instrument or
document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement and the other Credit Documents, together with copies of the
financial statements referred to therein and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption Agreement; (ii) agrees
that it will, independently and without reliance upon the Administrative Agent,
the Assignor 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 the Credit Agreement; (iii) appoints and
authorizes the Administrative Agent and the Collateral Agent to take such action
as agent on its behalf and to exercise such powers under the Credit Agreement
and the other Credit Documents as are delegated to the Administrative Agent and
the Collateral Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (iv) confirms that it is an Eligible Transferee
under the Credit Agreement; [and] (v) 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 Lender[; and (vi) attaches the
Forms and/or Certificate set forth in the second, third and/or fourth to last
sentences of Section 13.04(b) of the Credit Agreement.]1
4. Following the execution of this Assignment and Assumption
Agreement by the Assignor and the Assignee, an executed original hereof
(together with all attachments) will be delivered to the Administrative Agent.
The effective date of this Assignment and Assumption Agreement shall be the date
of execution hereof by the Assignor and the Assignee, to the extent required by
the Credit Agreement, the receipt of the consent of the Administrative Agent,
receipt by the Administrative Agent of the assignment fee referred to in Section
13.04(b) of the Credit Agreement, and the recordation by the Administrative
Agent of the assignment effected hereby in the Register, unless otherwise
specified in Item 5 of Annex I (the "Settlement Date").
5. Upon the delivery of a fully executed original hereof to
the Administrative Agent, as of the Settlement Date, (i) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Assumption Agreement, have the rights and obligations of a Lender thereunder and
under the other Credit Documents and (ii) the Assignor shall, to the extent
provided in this Assignment and Assumption Agreement, relinquish its rights and
be released from its obligations under the Credit Agreement and the other Credit
Documents.
6. It is agreed that upon the effectiveness hereof, the
Assignee shall be entitled to (x) all interest on the Assigned Share of the
Revolving Loans at the rates specified in Item 6 of Annex I hereto, (y) all
Commitment Commission on the Assigned Share of the Total Revolving Loan
Commitment at the rate specified in Item 7 of Annex I hereto, and (z) all Letter
of Credit Fees on the Assignee's participation in all Letters of Credit at the
rate specified in Item 8 of Annex I hereto, which, in each case, accrue on and
after the Settlement Date, such interest, Commitment Commission and Letter of
Credit Fees to be paid by the Administrative Agent directly to the Assignee. It
is further agreed that all payments of principal made on the Assigned Share of
the Revolving Loans which occur on and after the Settlement Date will be paid
directly by the Administrative Agent to the Assignee. Upon the Settlement Date,
the Assignee shall pay to the Assignor an amount specified by the Assignor in
writing which represents the Assigned Share of the principal amount of the
respective Revolving Loans made by the Assignor pursuant to the Credit Agreement
which are outstanding on the Settlement Date, net of any closing costs, and
which are being assigned hereunder. The Assignor and the Assignee shall make all
appropriate adjustments in payments under the Credit Agreement for periods prior
to the Settlement Date directly between themselves.
-----------
1 If the Assignee is organized under the laws of a jurisdiction outside the
United States, the United Kingdom or Ireland.
<PAGE>
7. THIS ASSIGNMENT AND ASSUMPTION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Assumption Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above written, such execution
also being made on Annex I hereto.
[NAME OF ASSIGNOR],
as Assignor
By:___________________________
Title:__________________________
[NAME OF ASSIGNEE],
as Assignee
By:___________________________
Title:__________________________
Acknowledged and Agreed:
BANKERS TRUST COMPANY, as
Administrative Agent
By____________________________
Name:
Title:
<PAGE>
ANNEX FOR ASSIGNMENT AND ASSUMPTION AGREEMENT
ANNEX I
1. The Borrowers:SITEL Corporation, SITEL Europe plc and SITEL TMS Limited
2. Name and Date of Credit Agreement:
Credit Agreement, dated as of April 11, 2000 among the Borrowers, the
lenders from time to time party thereto, and Bankers Trust Company, as
Administrative Agent.
3. Date of Assignment Agreement:
4. Amounts (as of date of item #3 above):
Revolving
Loan
Commitment
----------------------------------------------------------------------
a. Aggregate
Amount for all Lenders $_________
b. Assigned Share ________%
c. Amount of
Assigned Share $_________
5. Settlement Date:
6. Rate of Interest to the Assignee: As set forth in Section
1.08 of the Credit Agreement.
7. Commitment
Commission to
the Assignee: As set forth in Section
3.01(a) of the Credit
Agreement.
8. Letter of Credit
Fee to the Assignee: As set forth in Section
3.01(b) of the Credit
Agreement.
9. Notice: ASSIGNEE:
-------------------
===================
-------------------
Attention:
Telephone:
Telecopier:
Reference:
Payment Instructions: ASSIGNEE:
-------------------
===================
-------------------
Attention:
Reference:
Accepted and Agreed:
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By_______________________ By_______________________
Name: Name:
Title: Title:
<PAGE>
ANNEX I
ANNEX FOR ASSIGNMENT AND ASSUMPTION AGREEMENT
ANNEX I
1. The Borrowers:SITEL Corporation, SITEL Europe plc and SITEL TMS Limited
2. Name and Date of Credit Agreement:
Credit Agreement, dated as of April 11, 2000 among the Borrowers, the
lenders from time to time party thereto, and Bankers Trust Company, as
Administrative Agent.
3. Date of Assignment Agreement:
4. Amounts (as of date of item #3 above):
Revolving
Loan
Commitment
------------------------------------------------------
a. Aggregate
Amount for all Lenders $_________
b. Assigned Share ________%
c. Amount of
Assigned Share $_________
5. Settlement Date:
6. Rate of Interest to the Assignee: As set forth in Section 1.08 of
the Credit Agreement.
7. Commitment
Commission to
the Assignee: As set forth in Section 3.01(a)
of the Credit
Agreement.
8. Letter of Credit
Fee to the Assignee: As set forth in Section 3.01(b)
of the Credit
Agreement.
9. Notice: ASSIGNEE:
-------------------
===================
-------------------
Attention:
Telephone:
Telecopier:
Reference:
Payment Instructions: ASSIGNEE:
-------------------
===================
-------------------
Attention:
Reference:
Accepted and Agreed:
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By_______________________ By_______________________
Name: Name:
Title: Title:
<PAGE>
EXHIBIT L
FORM OF INTERCOMPANY NOTE
[Date]
FOR VALUE RECEIVED, [NAME OF PAYOR] (the "Payor"), hereby
promises to pay on demand to the order of _____________ or its assigns (the
"Payee"), in immediately available funds, in such currency or currencies in
which the loans and advances made hereunder are evidenced and at such location
as the Payee shall from time to time designate, the unpaid principal amount of
all loans and advances made by the Payee to the Payor.
The Payor promises also to pay interest on the unpaid
principal amount hereof in like currency or currencies at said office from the
date hereof until paid at such rate per annum as shall be agreed upon from time
to time by the Payor and Payee.
Upon the commencement of any bankruptcy, reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar proceeding of any jurisdiction relating to the Payor, the
unpaid principal amount hereof shall become immediately due and payable without
presentment, demand, protest or notice of any kind in connection with this Note.
This Note evidences certain permitted intercompany
Indebtedness referred to in the Credit Agreement, dated as of April 11, 2000 (as
amended, modified or supplemented from time to time, the "Credit Agreement"),
among SITEL Corporation, SITEL Europe plc, SITEL TMS Limited, the lenders from
time to time party thereto, and Bankers Trust Company, as Administrative Agent,
and is subject to the terms thereof, and shall be pledged by the Payee pursuant
to the applicable Pledge Agreement (as defined in the Credit Agreement). The
Payor hereby acknowledges and agrees that the Collateral Agent pursuant to and
as defined in such Pledge Agreement, as in effect from time to time, may
exercise all rights provided therein with respect to this Note.
The Payee is hereby authorized to record all loans and
advances made by it to the Payor (all of which shall be evidenced by this Note),
and all repayments or prepayments thereof, in its books and records, such books
and records constituting prima facie evidence of the accuracy of the information
contained therein.
All payments under this Note shall be made without offset,
counterclaim or deduction of any kind.
<PAGE>
[This Note, and the rights and obligations hereunder, are
subject to the terms and conditions of the subordination provisions attached
hereto, which subordination provisions are incorporated herein in their entirety
as if fully set forth herein.)1
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF
THE STATE OF NEW YORK.
[name of payor]
By_______________________
Name:
Title:
Pay to the order of
------------------------------
[NAME OF PAYEE]
By: ____________________________
Name:
Title:
1 Bracketed text is to be inserted as provided in Section 9.05(ix) of the Credit
Agreement.
<PAGE>
EXHIBIT M
FORM OF SUBORDINATION PROVISIONS
Section 1.01. Subordination of Liabilities. [Name of Payor]
(the "Payor"), for itself, its successors and assigns, covenants and agrees, and
each holder of the Note to which this Annex A is attached (the "Note") by its
acceptance thereof likewise covenants and agrees, that the payment of the
principal of, interest on, and all other amounts owing in respect of, the Note
(the "Subordinated Indebtedness") is hereby expressly subordinated, to the
extent and in the manner set forth below, to the prior payment in full in cash
of all Senior Indebtedness (as defined in Section 1.07 of this Annex A). The
provisions of this Annex A shall constitute a continuing offer to all persons or
other entities who, in reliance upon such provisions, become holders of, or
continue to hold, Senior Indebtedness, and such holders are made obligees
hereunder the same as if their names were written herein as such, and they
and/or each of them may proceed to enforce such provisions.
Section 1.02. Payor Not to Make Payments with Respect to
Subordinated Indebtedness in Certain Circumstances. (a) Upon the maturity of any
Senior Indebtedness (including interest thereon or fees or any other amounts
owing in respect thereof), whether at stated maturity, by acceleration or
otherwise, all Obligations (as defined in Section 1.07 of this Annex A) owing in
respect of the Senior Indebtedness shall first be paid in full in cash, before
any payment, whether in cash, property, securities or otherwise, is made on
account of the Subordinated Indebtedness.
(b) The Payor may not, directly or indirectly, make any
payment of any Subordinated Indebtedness and may not acquire any Subordinated
Indebtedness for cash or property until all Senior Indebtedness has been paid in
full in cash if any default or event of default under the Credit Agreement (as
defined in Section 1.07 of this Annex A) or any other issue of Senior
Indebtedness is then in existence or would result therefrom. Each holder of the
Note hereby agrees that, so long as any such default or event of default in
respect of any issue of Senior Indebtedness exists, it will not sue for, or
otherwise take any action to enforce the Payor's obligations to pay, amounts
owing in respect of the Note. Each holder of the Note understands and agrees
that to the extent that clause (a) of this Section 1.02 or this clause (b)
prohibits the payment of any Subordinated Indebtedness, such unpaid amount shall
not constitute a payment default under the Note and the holder of the Note may
not sue for, or otherwise take action to enforce the Payor's obligation to pay
such amount, provided that such unpaid amount shall remain an obligation of the
Payor to the holder of the Note pursuant to the terms of the Note.
<PAGE>
(c) In the event that notwithstanding the provisions of the
preceding subsections (a) and (b) of this Section 1.02, the Payor (or any Person
on behalf of the Payor) shall make any payment on account of the Subordinated
Indebtedness at a time when payment is not permitted by said subsection (a) or
(b), such payment shall be held by the holder of the Note, in trust for the
benefit of, and shall be paid forthwith over and delivered to, the holders of
Senior Indebtedness or their representative or the trustee under the indenture
or other agreement pursuant to which any instruments evidencing any Senior
Indebtedness may have been issued, as their respective interests may appear
(including by giving effect to any intercreditor or subordination arrangements
among such holders), for application pro rata to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full in accordance with the terms of such Senior Indebtedness,
after giving effect to any concurrent payment or distribution to or for the
holders of Senior Indebtedness.
Section 1.03. Subordination to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization of Payor. Upon any
distribution of assets of the Payor upon dissolution, winding up, liquidation or
reorganization of the Payor (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors or otherwise):
(a) the holders of all Senior Indebtedness shall first be
entitled to receive payment in full in cash of all Senior Indebtedness
(including, without limitation, post-petition interest at the rate
provided in the documentation with respect to the Senior Indebtedness,
whether or not such post-petition interest is an allowed claim against
the debtor in any bankruptcy or similar proceeding) before the holder
of the Note is entitled to receive any payment of any kind or character
on account of the Subordinated Indebtedness;
(b) any payment or distributions of assets of the Payor of any
kind or character, whether in cash, property or securities to which the
holder of the Note would be entitled except for the provisions of this
Annex A, shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or other trustee or
agent, directly to the holders of Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under
any indenture under which any instruments evidencing any such Senior
Indebtedness may have been issued as their respective interests may
appear (including by giving effect to any intercreditor or
subordination arrangements among such holders), to the extent necessary
to make payment in full in cash of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution
to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing
provisions of this Section 1.03, any payment or distribution of assets
of the Payor of any kind or character, whether in cash, property or
securities, shall be received by the holder of the Note on account of
Subordinated Indebtedness before all Senior Indebtedness is paid in
full in cash, such payment or distribution shall be received and held
in trust for and shall be paid over to the holders of the Senior
Indebtedness remaining unpaid or unprovided for or their representative
or representatives, or to the trustee or trustees under any indenture
under which any instruments evidencing any of such Senior Indebtedness
may have been issued, as their respective interests may appear
(including by giving effect to any intercreditor or subordination
arrangements among such holders) for application to the payment of such
Senior Indebtedness until all such Senior Indebtedness shall have been
paid in full in cash, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
<PAGE>
Section 1.04. Subrogation. Subject to the prior payment in
full in cash of all Senior Indebtedness, the holder of the Note shall be
subrogated to the rights of the holders of Senior Indebtedness to receive
payments or distributions of assets of the Payor applicable to the Senior
Indebtedness until all amounts owing on the Note shall be paid in full, and for
the purpose of such subrogation no payments or distributions to the holders of
the Senior Indebtedness by or on behalf of the Payor or by or on behalf of the
holder of the Note by virtue of this Annex A which otherwise would have been
made to the holder of the Note shall, as between the Payor, its creditors other
than the holders of Senior Indebtedness, and the holder of the Note, be deemed
to be payment by the Payor to or on account of the Senior Indebtedness, it being
understood that the provisions of this Annex A are and are intended solely for
the purpose of defining the relative rights of the holder of the Note, on the
one hand, and the holders of the Senior Indebtedness, on the other hand.
Section 1.05. Obligation of the Payor Unconditional. Nothing
contained in this Annex A or in the Note is intended to or shall impair, as
between the Payor and the holder of the Note, the obligation of the Payor, which
is absolute and unconditional, to pay to the holder of the Note the principal of
and interest on the Note as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the holder of the Note and creditors of the Payor other than the
holders of the Senior Indebtedness, nor shall anything herein or therein prevent
the holder of the Note from exercising all remedies otherwise permitted by
applicable law upon an event of default under the Note, subject to the
provisions of this Annex A and the rights, if any, under this Annex A of the
holders of Senior Indebtedness in respect of cash, property, or securities of
the Payor received upon the exercise of any such remedy. Upon any distribution
of assets of the Payor referred to in this Annex A, the holder of the Note shall
be entitled to rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
trustee or agent or other person making any distribution to the holder of the
Note, for the purpose of ascertaining the persons entitled to participate in
such distribution, the holders of the Senior Indebtedness and other indebtedness
of the Payor, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Annex A.
Section 1.06. Subordination Rights Not Impaired by Acts or
Omissions of Payor or Holders of Senior Indebtedness. No right of any present or
future holders of any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Payor or by any act or failure to act in good
faith by any such holder, or by any noncompliance by the Payor with the terms
and provisions of the Note, regardless of any knowledge thereof which any such
holder may have or be otherwise charged with. The holders of the Senior
Indebtedness may, without in any way affecting the obligations of the holder of
the Note with respect hereto, at any time or from time to time and in their
absolute discretion, change the manner, place or terms of payment of, change or
extend the time of payment of, or renew, increase or otherwise alter, any Senior
Indebtedness or amend, modify or supplement any agreement or instrument
governing or evidencing such Senior Indebtedness or any other document referred
to therein, or exercise or refrain from exercising any other of their rights
under the Senior Indebtedness including, without limitation, the waiver of
default thereunder and the release of any collateral securing such Senior
Indebtedness, all without notice to or assent from the holder of the Note.
<PAGE>
Section 1.07. Senior Indebtedness. The term "Senior
Indebtedness" shall mean all Obligations (as defined below) (i) of the Payor
under, or in respect of, (x) the Credit Agreement (as amended, modified,
supplemented, extended, restated, refinanced, replaced or refunded from time to
time, the "Credit Agreement"), dated as of April 11, 2000, by and among SITEL
Corporation, SITEL Europe plc, SITEL TMS Limited, the lenders from time to time
party thereto, and Bankers Trust Company, as Administrative Agent, and any
renewal, extension, restatement, refinancing or refunding thereof, and (y) each
other Credit Document (as defined in the Credit Agreement) to which the Payor is
a party, (ii) of the Payor under, or in respect of (including by reason of any
Guaranty (as defined in the Credit Agreement) to which the Payor is a party),
any Interest Rate Protection Agreements or Other Hedging Agreements (each as
defined in the Credit Agreement), and (iii) of the Payor under, or in respect of
(including by reason of any guaranty of) the Senior Subordinated Notes and the
other Senior Subordinated Note Documents (each as defined in the Credit
Agreement). As used herein, the term "Obligation" shall mean any principal,
interest, premium, penalties, fees, expenses, indemnities and other liabilities
and obligations (including guaranties of the foregoing liabilities and
obligations) payable under the documentation governing any Senior Indebtedness
(including post-petition interest at the rate provided in the documentation with
respect to such Senior Indebtedness, whether or not such interest is an allowed
claim against the debtor in any bankruptcy or similar proceeding).
<PAGE>
EXHIBIT N LETTERHEAD OF CT CORPORATION SYSTEM
[Date]
To the Administrative Agent and the Lenders party to the Credit Agreement
referred to below:
Ladies and Gentlemen:
Reference is made to (i) the Credit Agreement, dated as of
April 11, 2000, among SITEL Corporation, SITEL Europe plc, SITEL TMS Limited
(each individually, a "Borrower", and collectively, the "Borrowers"), the
lenders from time to time party thereto (the "Lenders") and Bankers Trust
Company, as Administrative Agent (as amended, restated, modified and/or
supplemented from time to time, the "Credit Agreement"). Unless otherwise
defined herein, capitalized terms used in this letter shall have the meanings
set forth in the Credit Agreement.
Pursuant to Section 13.08 of the Credit Agreement and Section
20 of the Foreign Subsidiaries Guaranty, each Borrower and each Foreign Credit
Party has respectively irrevocably designated, appointed and empowered the
undersigned, CT Corporation System, with offices currently located at 111 Eighth
Avenue, New York, New York 10011, as its authorized designee, appointee and
agent to receive, accept and acknowledge for and on its behalf, and in respect
of its property, service of any and all legal process, summons, notices and
documents which may be served in any such action or proceeding brought in the
courts of the State of New York or of the United States of America for the
Southern District of New York with respect to the Credit Agreement and each
other Credit Document to which it is a party.
The undersigned hereby informs you that it irrevocably accepts
such appointment as agent as set forth in Section 13.08 of the Credit Agreement
and Section 20 of the Foreign Subsidiaries Guaranty and agrees with you that the
undersigned (i) shall inform the Administrative Agent promptly in writing of any
change of its address in New York City, (ii) shall perform its obligations as
such process agent in accordance with the provisions of Section 13.08 of the
Credit Agreement and Section 20 of the Foreign Subsidiaries Guaranty and (iii)
shall forward promptly to each Borrower and each Foreign Credit Party any legal
process, summons, notices and documents received by the undersigned in its
capacity as process agent.
<PAGE>
As process agent, the undersigned, and its successor or
successors, agree to discharge the above-mentioned obligations and will not
refuse fulfillment of such obligations under Section 13.08 of the Credit
Agreement and Section 20 of the Foreign Subsidiaries Guaranty.
Very truly yours,
CT CORPORATION SYSTEM
By_______________________________
Title:
