EXHIBIT 10.1
CREDIT AGREEMENT,
dated as of September 29, 1999
among
WEIGHT WATCHERS INTERNATIONAL, INC.,
as a Borrower
WW FUNDING CORP.,
as the SP1 Borrower
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders
CREDIT SUISSE FIRST BOSTON,
as the Syndication Agent,
a Lead Arranger and a Book Manager
BHF (USA) CAPITAL CORPORATION,
as the Documentation Agent
and
Table of Contents
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms............................................................3
1.2. Use of Defined Terms....................................................39
1.3. Cross-References........................................................39
1.4. Accounting and Financial Determinations.................................39
1.5. Currency Conversions....................................................39
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,
NOTES, LETTERS OF CREDIT AND TLC PROVISIONS
2.1. Loan Commitments........................................................39
2.1.1. Term Loans............................................................40
2.1.2. Revolving Loan Commitment and Swing Line Loan Commitment..............40
2.1.3. Letter of Credit Commitment...........................................41
2.1.4. Lenders Not Permitted or Required To Make the Loans...................41
2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit...........42
2.2. Reduction of the Commitment Amounts.....................................42
2.2.1. Optional..............................................................42
2.2.2. Mandatory.............................................................43
2.3. Borrowing Procedures and Funding Maintenance............................43
2.3.1. Term Loans and Revolving Loans........................................43
2.3.2. Swing Line Loans......................................................44
2.4. Continuation and Conversion Elections...................................45
2.5. Funding.................................................................46
2.6. Issuance Procedures.....................................................46
2.6.1. Other Lenders' Participation..........................................47
2.6.2. Disbursements; Conversion to Revolving Loans..........................47
2.6.3. Reimbursement.........................................................48
2.6.4. Deemed Disbursements..................................................48
2.6.5. Nature of Reimbursement Obligations...................................49
2.7. Notes...................................................................49
2.8. Registered Notes........................................................50
2.9. TLC Facility............................................................50
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ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments; Application.................................50
3.1.1. Repayments and Prepayments............................................50
3.1.2. Application...........................................................55
3.2. Interest Provisions.....................................................55
3.2.1. Rates.................................................................55
3.2.2. Post-Maturity Rates...................................................56
3.2.3. Payment Dates.........................................................56
3.3. Fees....................................................................57
3.3.1. Commitment Fee........................................................57
3.3.2. Administrative Agent's Fee............................................58
3.3.3. Letter of Credit Fee..................................................58
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful..............................................58
4.2. Deposits Unavailable....................................................58
4.3. Increased LIBO Rate Loan Costs, etc.....................................59
4.4. Funding Losses..........................................................59
4.5. Increased Capital Costs.................................................60
4.6. Taxes...................................................................60
4.7. Payments, Computations, etc.............................................62
4.8. Sharing of Payments.....................................................63
4.9. Setoff..................................................................63
4.10. Mitigation.............................................................64
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
5.1. Initial Credit Extension................................................64
5.1.1. Resolutions, etc......................................................64
5.1.2. Recapitalization Documents............................................65
5.1.3. Recapitalization Certificate..........................................65
5.1.4. Closing Date Certificate..............................................65
5.1.5. Delivery of Notes and TLCs............................................65
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5.1.6. Payment of Outstanding Indebtedness, etc............................65
5.1.7. Guaranties..........................................................66
5.1.8. Pledge Agreements...................................................66
5.1.9. Security Agreements.................................................67
5.1.10. Patent Security Agreement, Copyright Security Agreement and
Trademark Security Agreement................................................68
5.1.11. Financial Information, etc.........................................68
5.1.12. Closing Fees, Expenses, etc........................................69
5.1.13. Insurance..........................................................69
5.1.14. Litigation.........................................................69
5.1.15. Material Adverse Change............................................69
5.1.16. Opinions of Counsel................................................69
5.1.17. Preferred Stock....................................................70
5.1.18. Recapitalization...................................................70
5.1.19. Acquisitions.......................................................70
5.1.20. Australian Stamp Duty..............................................70
5.1.21. Foreign Acquisitions and Takeovers Act Approval....................70
5.1.22. Intercompany Subordination Agreement................................70
5.2. All Credit Extensions.................................................70
5.2.1. Compliance with Warranties, No Default, etc.........................71
5.2.2. Credit Extension Request............................................71
5.2.3. Satisfactory Legal Form.............................................71
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc.....................................................72
6.2. Due Authorization, Non-Contravention, etc.............................72
6.3. Government Approval, Regulation, etc..................................72
6.4. Validity, etc.........................................................73
6.5. Financial Information.................................................73
6.6. No Material Adverse Change............................................73
6.7. Litigation, Labor Controversies, etc..................................73
6.8. Subsidiaries..........................................................73
6.9. Ownership of Properties...............................................74
6.10. Taxes................................................................74
6.11. Pension and Welfare Plans............................................74
6.12. Environmental Warranties.............................................74
6.13. Regulations U and X..................................................75
6.14. Accuracy of Information..............................................76
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6.15. Seniority of Obligations, etc........................................76
6.16. Solvency.............................................................77
6.17. Contracts............................................................77
6.18. Year 2000............................................................77
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants..................................................77
7.1.1. Financial Information, Reports, Notices, etc.........................77
7.1.2. Compliance with Laws, etc............................................79
7.1.3. Maintenance of Properties............................................80
7.1.4. Insurance............................................................80
7.1.5. Books and Records....................................................80
7.1.6. Environmental Covenant...............................................80
7.1.7. Future Subsidiaries..................................................81
7.1.8. Future Leased Property and Future Acquisitions of Real Property......82
7.1.9. Use of Proceeds, etc.................................................83
7.1.10. Hedging Obligations.................................................83
7.1.11. U.S. Borrower as Pledged Interest Issuer............................83
7.1.12. Section 260B Compliance.............................................83
7.1.13. FNZ Security Documents...............................................84
7.1.14. U.K. Security.......................................................84
7.1.15. U.K. Procedural Requirements........................................85
7.2. Negative Covenants.....................................................86
7.2.1. Business Activities..................................................86
7.2.2. Indebtedness.........................................................86
7.2.3. Liens................................................................88
7.2.4. Financial Condition..................................................89
7.2.5. Investments..........................................................92
7.2.6. Restricted Payments, etc.............................................94
7.2.7. Capital Expenditures, etc............................................95
7.2.8. Consolidation, Merger, etc...........................................95
7.2.9. Asset Dispositions, etc..............................................96
7.2.10. Modification of Certain Agreements..................................97
7.2.11. Transactions with Affiliates........................................97
7.2.12. Negative Pledges, Restrictive Agreements, etc.......................98
7.2.13. Stock of Subsidiaries...............................................99
7.2.14. Sale and Leaseback..................................................99
7.2.15. Fiscal Year.........................................................99
7.2.16. Designation of Senior Indebtedness..................................99
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7.3. Maintenance of Separate Existence.......................................99
ARTICLE VIII
GUARANTY
8.1. The Guaranty...........................................................102
8.2. Guaranty Unconditional.................................................102
8.3. Reinstatement in Certain Circumstances.................................103
8.4. Waiver.................................................................104
8.5. Postponement of Subrogation, etc.......................................104
8.6. Stay of Acceleration...................................................104
ARTICLE IX
EVENTS OF DEFAULT
9.1. Listing of Events of Default...........................................104
9.1.1. Non-Payment of Obligations...........................................105
9.1.2. Breach of Warranty...................................................105
9.1.3. Non-Performance of Certain Covenants and Obligations.................105
9.1.4. Non-Performance of Other Covenants and Obligations...................105
9.1.5. Default on Other Indebtedness........................................105
9.1.6. Judgments............................................................105
9.1.7. Pension Plans........................................................106
9.1.8. Change in Control....................................................106
9.1.9. Bankruptcy, Insolvency, etc..........................................106
9.1.10. Impairment of Security, etc.........................................107
9.1.11. Senior Subordinated Notes...........................................107
9.1.12. Redemption..........................................................107
9.2. Action if Bankruptcy, etc..............................................107
9.3. Action if Other Event of Default.......................................108
ARTICLE X
THE AGENTS
10.1. Actions...............................................................108
10.2. Funding Reliance, etc.................................................109
10.3. Exculpation...........................................................109
10.4. Successor.............................................................109
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Table of Contents
continued
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10.5. Credit Extensions by each Agent.......................................110
10.6. Credit Decisions......................................................110
10.7. Copies, etc...........................................................111
10.8. Reliance by the Administrative Agent..................................111
10.9. Defaults..............................................................111
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1. Waivers, Amendments, etc..............................................112
11.2. Notices...............................................................113
11.3. Payment of Costs and Expenses.........................................113
11.4. Indemnification.......................................................114
11.5. Survival..............................................................115
11.6. Severability..........................................................115
11.7. Headings..............................................................116
11.8. Execution in Counterparts, Effectiveness, etc.........................116
11.9. Governing Law; Entire Agreement.......................................116
11.10. Successors and Assigns...............................................116
11.11. Sale and Transfer of Loans and Notes; Participations in Loans,
Notes and TLCs...............................................................117
11.11.1. Assignments........................................................117
11.11.2. Participations.....................................................119
11.11.3. Register...........................................................121
11.12. Other Transactions...................................................121
11.13. Forum Selection and Consent to Jurisdiction..........................121
11.14. Waiver of Jury Trial.................................................122
11.15. Confidentiality......................................................123
11.16. Judgment Currency....................................................123
11.17. Release of Security Interests........................................123
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Commitments and Percentages
SCHEDULE III - Notice Information; Domestic Offices and LIBOR Offices
EXHIBIT A-1 - Form of Revolving Note
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EXHIBIT A-2 - Form of Swing Line Note
EXHIBIT A-3 - Form of Term-A Note
EXHIBIT A-4 - Form of Term-B-1 Note
EXHIBIT A-5 - Form of Term-B-2 Note
EXHIBIT A-6 - Form of Registered Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT B-3 - Form of TLC Purchase Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Closing Date Certificate
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F-1 - Form of WWI Security Agreement
EXHIBIT F-2 - Form of Australian Security Agreement
EXHIBIT F-3 - INTENTIONALLY OMITTED
EXHIBIT G-1 - Form of WWI Pledge Agreement
EXHIBIT G-2 - Form of ARTAL Pledge Agreement
EXHIBIT G-3 - Form of HJH Pledge Agreement
EXHIBIT G-4 - Form of Australian Pledge Agreement
EXHIBIT G-5 - INTENTIONALLY OMITTED
EXHIBIT H - Form of Subsidiary Guaranty
EXHIBIT H-1 - Form of Australian Guaranty
EXHIBIT I - Form of Intercompany Subordination Agreement
EXHIBIT J - Form of Lender Assignment Agreement
EXHIBIT K-1 - Form of Opinion of New York counsel to the Obligors
EXHIBIT K-2 - INTENTIONALLY OMITTED
EXHIBIT K-3 - Form of Opinion of Australian counsel to the FPL
EXHIBIT K-4 - Form of Opinion of Luxembourg counsel to ARTAL
EXHIBIT K-5 - Form of Opinion of Virginia counsel to WWI
EXHIBIT L - Form of Registration Certificate
EXHIBIT M - INTENTIONALLY OMITTED
EXHIBIT N - Form of TLC Deed Poll
EXHIBIT O - INTENTIONALLY OMITTED
EXHIBIT P - Form of Financial Assistance Certificate
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THE BANK OF NOVA SCOTIA
as the Administrative Agent,
a Lead Arranger and a Book Manager
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of September 29, 1999, is among WEIGHT
WATCHERS INTERNATIONAL, INC., a Virginia corporation ("WWI"), WW FUNDING CORP.,
a Delaware corporation (the "SP1 Borrower", and together with WWI, the
"Borrowers"), the various financial institutions as are or may become parties
hereto (collectively, the "Lenders"), CREDIT SUISSE FIRST BOSTON ("CSFB"), as
the syndication agent and as a lead arranger (in such capacities, the
"Syndication Agent" and a "Lead Arranger", respectively), BHF (USA) CAPITAL
CORPORATION ("BHF"), as the documentation agent (the "documentation agent") and
THE BANK OF NOVA SCOTIA ("Scotiabank"), as (x) the administrative agent, paying
agent and registration agent for the TLCs (as defined below) and (y) a lead
arranger (in such capacities, the "Administrative Agent" and a "Lead Arranger",
respectively) and as Issuer (as defined below) for the Lenders.
W I T N E S S E T H:
WHEREAS, ARTAL (as defined below) and/or certain of its Affiliates
(collectively, the "Investors") intend to consummate a recapitalization
transaction (such transactions as contemplated by the Recapitalization Agreement
(as defined below), together with the transactions under and as contemplated by
this Agreement and each other Loan Document, the "Transaction") of WWI;
WHEREAS, X.X. Xxxxx Company, a Pennsylvania corporation ("HJH"), WWI and
ARTAL have entered into that certain Recapitalization and Stock Purchase
Agreement, dated as of July 22, 1999 among WWI and HJH (the "Recapitalization
Agreement");
WHEREAS, pursuant to the Recapitalization Agreement, (i) WWI will use
$497,000,000 of the proceeds under this Agreement, the Senior Subordinated Note
Indenture (as defined below) and the WWI Preferred Shares (as defined below), to
redeem shares of common stock of WWI, par value $1.00 per share ("WWI Common
Shares"), held by HJH (the "Redemption"), (ii) immediately after the Redemption,
HJH shall sell and transfer to ARTAL, and ARTAL shall purchase (the "Stock
Purchase" and, together with the Redemption, the "Recapitalization") from HJH,
WWI Common Shares representing 94% of the then outstanding WWI Common Shares
(after giving effect to the Redemption) and (iii) HJH, upon the consummation of
the Stock Purchase, will continue to own WWI Common Shares representing 6% of
the then outstanding WWI Common Shares (the "Equity Rollover");
WHEREAS, in connection with the Recapitalization, WWI will issue to HJH,
no par value preferred shares of WWI with an aggregate amount liquidation
preference equal to $25,000,000 (the "WWI Preferred Shares");
WHEREAS, in connection with (and contemporaneously with the consummation
of) the Recapitalization, WWI will issue its 13% Senior Subordinated Notes,
comprised of U.S. $150,000,000 and Euro $100,000,000, pursuant to the Senior
Subordinated Note Indenture under a Rule 144A private placement (the "Senior
Subordinated Debt Issuance");
WHEREAS, after giving effect to the Recapitalization and the Equity
Rollover, ARTAL and HJH will own all of the issued and outstanding Capital
Securities of WWI;
WHEREAS, in connection with the Transaction and for the ongoing working
capital and general corporate needs of WWI and its Subsidiaries, WWI desires to
obtain from the Lenders (and the Issuer, as the case may be),
(a) a Term-A Loan Commitment and a Term-B Loan Commitment pursuant
to which Borrowings of Term Loans will be made in a maximum, original
principal amount of the Term-A Loan Commitment Amount (in the case of
Term-A Loans) and the Term-B Loan Commitment Amount (in the case of Term-B
Loans), in each case in a single Borrowing to occur on the Closing Date;
(b) a Revolving Loan Commitment (to include availability for
Revolving Loans, Swing Line Loans and Letters of Credit) pursuant to which
Borrowings of Revolving Loans, in a maximum aggregate principal amount
(together with all Swing Line Loans and Letter of Credit Outstandings) not
to exceed the Revolving Loan Commitment Amount will be made from time to
time on and subsequent to the Effective Date but prior to the Revolving
Loan Commitment Termination Date;
(c) a Letter of Credit Commitment pursuant to which the Issuer will
issue Letters of Credit for the account of WWI from time to time on and
subsequent to the Effective Date but prior to the Revolving Loan
Commitment Termination Date in a maximum aggregate Stated Amount at any
one time outstanding not to exceed the Letter of Credit Commitment Amount
(provided that the aggregate outstanding principal amount of Revolving
Loans, Swing Line Loans and Letter of Credit Outstandings at any time
shall not exceed the then existing Revolving Loan Commitment Amount); and
(d) a Swing Line Loan Commitment pursuant to which Borrowings of
Swing Line Loans in an aggregate outstanding principal amount not to
exceed the Swing Line Loan Commitment Amount will be made on and
subsequent to the Effective Date but prior to the Revolving Loan
Commitment Termination Date (provided, that the aggregate outstanding
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principal amount of Swing Line Loans, Revolving Loans and Letter of Credit
Outstandings at any time shall not exceed the then existing Revolving Loan
Commitment Amount);
with all the proceeds of the Credit Extensions to be used for the purposes set
forth in Section 7.1.9;
WHEREAS, in connection with the Transaction, the SP1 Borrower desires to
obtain from the TLC Lenders TLC Commitments to purchase TLCs in an aggregate
principal amount of the TLC Commitment Amount, such purchase to occur on the
Closing Date with all the proceeds of such purchase to be used for the purposes
set forth in Section 7.1.9; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including Article V), to extend such
Commitments and make such Loans to WWI and issue (or participate in) Letters of
Credit for the account of WWI and to purchase TLCs issued by the XX0 Xxxxxxxx;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Acquired Businesses" means the weight control classroom meeting business
being conducted as of the date of the Recapitalization by WWI, its Subsidiaries,
FPL and, prior to the completion of the Reorganization (as defined in the
Recapitalization Agreement), FNZ (collectively referred to as the "Companies")
and HJH and its affiliates throughout the world and all other weight control
services and activities and related businesses (including, without limitation,
all licensing rights with respect to the Weight Watchers trademark other than as
specified in clause (y) below) being conducted as of the date of the
Recapitalization by the Companies throughout the world, together with the 35%
equity interest held by WWI in Weight Watchers do Brasil Programas Alimentares
Ltda. and the 35% equity interest held by WWI in Vigilantes do Peso Marketing
Ltda., but excluding (x) the business being conducted as of the date of the
Recapitalization by Cardio-Fitness Corp. and The Fitness Institute Limited,
which are subsidiaries of HJH but are not Subsidiaries of WWI, and (y) the food
business described on Schedule 1.1 to the Recapitalization Agreement.
Notwithstanding the foregoing, Netco and its business shall not constitute an
Acquired Business.
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"Administrative Agent" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor Administrative
Agent pursuant to Section 10.4.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
(a) to vote 15% or more of the securities (on a fully diluted basis)
having ordinary voting power for the election of directors or managing
general partners; or
(b) to direct or cause the direction of the management and policies
of such Person whether by contract or otherwise.
"Agents" means collectively, the Administrative Agent, the Syndication
Agent and the Documentation Agent.
"Agreement" means this Credit Agreement, as amended, amended and restated,
supplemented or otherwise modified from time to time in accordance with the
terms hereof.
"Alternate Base Rate" means, on any date and with respect to all Base Rate
Loans, a fluctuating rate of interest per annum equal to the higher of
(a) the rate of interest most recently established by the
Administrative Agent at its Domestic Office as its base rate for U.S.
Dollar loans in the United States; and
(b) the Federal Funds Rate most recently determined by the
Administrative Agent plus 1/2 of 1%.
The Alternate Base Rate is not necessarily intended to be the lowest rate of
interest determined by the Administrative Agent in connection with extensions of
credit. Changes in the rate of interest on that portion of any Loans maintained
as Base Rate Loans will take effect simultaneously with each change in the
Alternate Base Rate. The Administrative Agent will give notice promptly to the
Borrowers and the Lenders of changes in the Alternate Base Rate.
"Applicable Margin" means at all times,
(a) with respect to the unpaid principal amount of Term-B Loans
maintained as a
(i) Base Rate Loan, 3.00% per annum; and
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(ii) LIBO Rate Loan, 4.00% per annum;
(b) with respect to the unpaid principal amount of each Revolving
Loan, Swing Line Loans and each Term-A Loan maintained as a Base Rate
Loan, (i) from the Effective Date through (and including) the six-month
anniversary of the Effective Date, 2.250% per annum, and (ii) thereafter,
at the applicable percentage per annum set forth below under the column
entitled "Applicable Margin for Base Rate Loans"; and
(c) with respect to the unpaid principal amount of each Revolving
Loan and each Term-A Loan maintained as a LIBO Rate Loan, (i) from the
Effective Date through (and including) the sixth-month anniversary of the
Effective Date, 3.250% per annum, and (ii) thereafter, at the applicable
percentage per annum set forth below under the column entitled "Applicable
Margin for LIBO Rate Loans":
Applicable Margin for Revolving Loans, Swing Line Loans and Term-A Loans:
Applicable Margin Applicable Margin
Debt to EBITDA Ratio for Base Rate Loans for LIBO Rate Loans
-------------------- ------------------- -------------------
Greater than or equal to 4.75 to 1.00 2.250% 3.250%
Less than 4.75 to 1.00 and greater
than or equal to 4.25 to 1.00 1.875% 2.875%
Less than 4.25 to 1.00 and greater
than or equal to 3.75 to 1.00 1.500% 2.500%
Less than 3.75 to 1.00 and greater
than or equal to 3.25 to 1.00 1.125% 2.125%
Less than 3.25 to 1.00 0.750% 1.750%
The Debt to EBITDA Ratio used to compute the Applicable Margin for
Revolving Loans and Term-A Loans shall be the Debt to EBITDA Ratio set forth in
the Compliance Certificate most recently delivered by WWI to the Administrative
Agent pursuant to clause (c) of Section 7.1.1; changes in the Applicable Margin
for Revolving Loans and Term-A Loans resulting from a change in the Debt to
EBITDA Ratio shall become effective upon delivery by WWI to the Administrative
Agent of a new Compliance Certificate pursuant to clause (c) of Section 7.1.1
(it being understood that any such change effective on the six-month anniversary
of the Effective Date shall be based on the most recent Compliance Certificate
delivered prior to such six-month anniversary). If WWI shall fail to deliver a
Compliance Certificate within the number of days after the end of any Fiscal
Quarter as required pursuant to clause (c) of Section 7.1.1 (without giving
effect to any grace period), the Applicable Margin for Revolving Loans and
Term-A Loans from and including the first day after the date on which
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such Compliance Certificate was required to be delivered to but not including
the date WWI delivers to the Administrative Agent a Compliance Certificate shall
conclusively equal the highest Applicable Margin for Revolving Loans and Term-A
Loans set forth above.
"ARTAL" means ARTAL Luxembourg S.A., a corporation organized under the
laws of Luxembourg.
"ARTAL Pledge Agreement" means the Pledge Agreement executed and delivered
by ARTAL pursuant to clause (b) of Section 5.1.8, substantially in the form of
Exhibit G-2 hereto, as amended, amended and restated, supplemented or otherwise
modified from time to time pursuant to the terms thereof.
"ASIC" means the Australian Securities and Investments Commission.
"Assignee Lender" is defined in Section 11.11.1.
"Australian Corporations Law" means the Corporations Law within the
meaning of the Corporations Xxx 0000 of Australia.
"Australian Dollar" or "A$" means the lawful money of Australia.
"Australian Guaranty" means the Guaranty made by WW Australia, FPL and GB
executed and delivered pursuant to clause (b) of Section 5.1.7 and substantially
in the form of Exhibit H-1 hereto, as amended, amended and restated,
supplemented or otherwise modified from time to time in accordance with its
terms.
"Australian Pledge Agreement" means the Pledge Agreement executed and
delivered by UKHC2, WW Australia, FPL and GB pursuant to clause (d) of Section
5.1.8, substantially in the form of Exhibit G-4 hereto, together with each
Supplement thereto delivered pursuant to clause (b) of Section 7.1.7, as
amended, amended and restated, supplemented or otherwise modified from time to
time pursuant to the terms thereof.
"Australian Security Agreement" means the Security Agreement executed and
delivered by WW Australia, FPL and GB pursuant to clause (b) of Section 5.1.9,
substantially in the form of Exhibit F-2 hereto, together with each Supplement
thereto delivered pursuant to clause (a) of Section 7.1.7, as amended, amended
and restated, supplemented or otherwise modified from time to time pursuant to
the terms thereof.
"Australian Subsidiary" means any Subsidiary that is organized under the
laws of Australia or any territory thereof.
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"Authorized Officer" means, relative to any Obligor, those of its officers
whose signatures and incumbency shall have been certified to the Administrative
Agent and the Lenders pursuant to Section 5.1.1.
"Average Life" means, as of the date of determination, with respect to any
Indebtedness, the quotient obtained by dividing:
(x) the sum of the products of numbers of years from the date of
determination to the dates of each successive scheduled principal
payment of or redemption or similar payment with respect to such
Indebtedness multiplied by the amount of such payment
by
(y) the sum of all such payments.
"Base Amount" is defined in Section 7.2.7.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"Borrowers" is defined in the preamble.
"Borrowing" means the Loans of the same type and, in the case of LIBO Rate
Loans, having the same Interest Period made by the relevant Lenders on the same
Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.1.
"Borrowing Request" means a loan request and certificate duly executed by
an Authorized Officer of the applicable Borrower, substantially in the form of
Exhibit B-1 hereto.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New York
City; and
(b) relative to the making, continuing, prepaying or repaying of any
LIBO Rate Loans, any day on which dealings in U.S. Dollars are carried on
in the London interbank market.
"Capital Expenditures" means for any period, the sum, without duplication,
of
(a) the aggregate amount of all expenditures of WWI and its
Subsidiaries for fixed or capital assets made during such period which, in
accordance with GAAP, would be classified as capital expenditures; and
-7-
(b) the aggregate amount of all Capitalized Lease Liabilities
incurred during such period.
"Capital Securities" means, (i) any and all shares, interests,
participations or other equivalents of or interests in (however designated)
corporate stock, including, without limitation, shares of preferred or
preference stock, (ii) all partnership interests (whether general or limited) in
any Person which is a partnership, (iii) all membership interests or limited
liability company interests in any limited liability company, and (iv) all
equity or ownership interests in any Person of any other type.
"Capitalized Lease Liabilities" means, without duplication, all monetary
obligations of WWI or any of its Subsidiaries under any leasing or similar
arrangement which, in accordance with GAAP, would be classified as capitalized
leases, and, for purposes of this Agreement and each other Loan Document, the
amount of such obligations shall be the capitalized amount thereof, determined
in accordance with GAAP, and the stated maturity thereof shall be the date of
the last payment of rent or any other amount due under such lease prior to the
first date upon which such lease may be terminated by the lessee without payment
of a penalty.
"Cash Equivalent Investment" means, at any time:
(a) any evidence of Indebtedness, maturing not more than one year
after such time, issued or guaranteed by the United States Government;
(b) commercial paper, maturing not more than nine months from the
date of issue, which is issued by
(i) a corporation (other than an Affiliate of any Obligor)
organized under the laws of any state of the United States or of the
District of Columbia and rated at least A-1 by S&P or P-1 by
Xxxxx'x, or
(ii) any Lender which is an Eligible Institution (or its
holding company);
(c) any certificate of deposit or bankers acceptance, maturing not
more than one year after such time, which is issued by either
(i) a commercial banking institution that is a member of the
Federal Reserve System and has a combined capital and surplus and
undivided profits of not less than $500,000,000, or
(ii) any Lender;
-8-
(d) short-term tax-exempt securities rated not lower than MIG-1/1+
by either Xxxxx'x or S&P with provisions for liquidity or maturity
accommodations of 183 days or less;
(e) any money market or similar fund the assets of which are
comprised exclusively of any of the items specified in clauses (a) through
(d) above and as to which withdrawals are permitted at least every 90
days; or
(f) in the case of any Subsidiary of WWI organized in a jurisdiction
outside the United States: (i) direct obligations of the sovereign nation
(or any agency thereof) in which such Subsidiary is organized and is
conducting business or in obligations fully and unconditionally guaranteed
by such sovereign nation (or any agency thereof), (ii) investments of the
type and maturity described in clauses (a) through (e) above foreign
obligors, which investments or obligors (or the parents of such obligors)
have ratings described in such clauses or equivalent ratings from
comparable foreign ratings agencies or (iii) investments of the type and
maturity described in clauses (a) through (e) above of foreign obligors
(or the parents of such obligors), which investments or obligors (or the
parents of such obligors are not rated as provided above but which are, in
the reasonable judgment of WWI, comparable in investment quality to such
investments and obligors (or the parents of such obligors); provided that
the aggregate face amount outstanding at any time of such investments of
all foreign Subsidiaries of WWI made pursuant to this clause (iii) does
not exceed $25,000,000.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change in Control" means
(a) at any time prior to an Initial Public Offering, the failure of the
Permitted ARTAL Investor Group, to directly own, free and clear of all Liens
(other than in favor of the Administrative Agent pursuant to a Loan Document),
75% of the outstanding voting shares of Capital Securities of WWI on a fully
diluted basis; provided, that, all owners of such Capital Securities of WWI
(whether a member of the Permitted ARTAL Investor Group, HJH or any transferee,
successor or assign thereof) shall have executed a pledge agreement in favor of
the Administrative Agent, substantially in the form of Exhibit G-3 hereof;
(b) at any time after an Initial Public Offering, the failure of the
Permitted ARTAL Investor Group to own, directly or indirectly through any
Wholly-owned Subsidiaries, free and clear of all Liens, at least 51% of the
outstanding voting shares of Capital Securities of WWI on a fully diluted basis;
-9-
(c) at any time after an Initial Public Offering, any "person" or "group"
(as such terms are used in Rule 13d-5 under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and Sections 13(d) and 14(d) of the Exchange
Act) of persons (other than the Permitted ARTAL Investor Group) becomes,
directly or indirectly, in a single transaction or in a related series of
transactions by way of merger, consolidation, or other business combination or
otherwise, the "beneficial owner" (as such term is used in Rule 13d-3 of the
Exchange Act) of more than 20% of the total voting power in the aggregate of all
classes of Capital Securities of WWI then outstanding entitled to vote generally
in elections of directors of WWI;
(d) at all times, as applicable, individuals who at the Closing Date
constituted the Board of Directors of WWI (together with any new directors whose
election to such Board or whose nomination for election by the stockholders of
WWI was approved by a member of the Permitted ARTAL Investor Group or a vote of
662/3% of the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors of WWI then in office;
(e) at all times, as applicable, the failure of WWI to own, free and clear
of all Liens (other than in favor of the Administrative Agent pursuant to a Loan
Document), all of the outstanding shares of Capital Securities of each of (x)
XXXX0, XXXX0 and WW Australia (other than shares of Capital Securities issued
pursuant to a Local Management Plan), and (y) the SP1 Borrower, in each case on
a fully diluted basis; or
(f) any other event constituting a Change of Control (as defined in the
Senior Subordinated Note Indenture).
"Closing Date" means the date on which the initial Credit Extension is
made hereunder.
"Closing Date Certificate" means a certificate of an Authorized Officer of
each Borrower substantially in the form of Exhibit D hereto, delivered pursuant
to Section 5.1.5.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, as the context may require, a Lender's Letter of
Credit Commitment, Revolving Loan Commitment, Swing Line Loan Commitment, Term-A
Loan Commitment or Term-B Loan Commitment.
"Commitment Amount" means, as the context may require, the Letter of
Credit Commitment Amount, the Revolving Loan Commitment Amount, the Swing Line
Loan Commitment Amount, the Term-A Loan Commitment Amount or the Term-B Loan
Commitment Amount.
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"Commitment Termination Date" means, as the context may require, the
Revolving Loan Commitment Termination Date, the Term-A Loan Commitment
Termination Date or the Term-B Loan Commitment Termination Date.
"Commitment Termination Event" means
(a) the occurrence of any Event of Default described in clauses (a)
through (d) of Section 9.1.9; or
(b) the occurrence and continuance of any other Event of Default and
either
(i) the declaration of the Loans and the TLCs to be due and
payable pursuant to Section 9.3, or
(ii) in the absence of such declaration, the giving of notice
by the Administrative Agent, acting at the direction of the Required
Lenders, to WWI that the Commitments have been terminated.
"Companies Act 1985" means the English Companies Act of 1985.
"Compliance Certificate" means a certificate duly completed and executed
by the chief financial Authorized Officer of WWI, substantially in the form of
Exhibit E hereto.
"Contingent Liability" means any agreement, undertaking or arrangement by
which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other Person.
The amount of any Person's obligation under any Contingent Liability shall
(subject to any limitation set forth therein) be deemed to be the outstanding
principal amount (or maximum principal amount, if larger) of the debt,
obligation or other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
applicable Borrower, substantially in the form of Exhibit C hereto.
"Controlled Group" means all members of a controlled group of corporations
and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with WWI, are treated as a
single employer under Section 414(b) or 414(c) of the Code or Section 4001 of
ERISA.
-11-
"Copyright Security Agreement" means a Copyright Security Agreement
executed and delivered by any Obligor in substantially the form of Exhibit C to
the WWI Security Agreement, as amended, supplemented, amended and restated or
otherwise modified.
"Credit Extension" means, as the context may require,
(a) the making of a Loan by a Lender;
(b) the issuance of any Letter of Credit, or the extension of any
Stated Expiry Date of any previously issued Letter of Credit, by the
Issuer; or
(c) the purchase of a TLC by a TLC Lender
"Credit Extension Request" means, as the context may require, any
Borrowing Request or Issuance Request.
"Current Assets" means, on any date, without duplication, all assets
(other than cash) which, in accordance with GAAP, would be included as current
assets on a consolidated balance sheet of WWI and its Subsidiaries at such date
as current assets (excluding, however, amounts due and to become due from
Affiliates of WWI which have arisen from transactions which are other than
arm's-length and in the ordinary course of its business).
"Current Liabilities" means, on any date, without duplication, all amounts
which, in accordance with GAAP, would be included as current liabilities on a
consolidated balance sheet of WWI and its Subsidiaries at such date, excluding
current maturities of Indebtedness.
"Debt" means the outstanding principal amount of all Indebtedness of WWI
and its Subsidiaries of the type referred to in clauses (a), (b), (c) and (e) of
the definition of "Indebtedness" or any Contingent Liability in respect thereof.
"Debt to EBITDA Ratio" means, as of the last day of any Fiscal Quarter,
the ratio of
(a) Debt outstanding on the last day of such Fiscal Quarter
to
(b) EBITDA computed for the period consisting of such Fiscal Quarter
and each of the three immediately preceding Fiscal Quarters;
-12-
"Default" means any Event of Default or any condition, occurrence or event
which, after notice or lapse of time or both, would constitute an Event of
Default.
"Designated Subsidiary" means The Weight Watchers Foundation, Inc., a New
York not-for-profit corporation.
"Disbursement" is defined in Section 2.6.2.
"Disbursement Date" is defined in Section 2.6.2.
"Disbursement Due Date" is defined in Section 2.6.2.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it may be amended, supplemented or otherwise modified from time
to time by the Borrowers with the written consent of the Required Lenders.
"Disposition" (or correlative words such as "Dispose") means any sale,
transfer, lease contribution or other conveyance (including by way of merger)
of, or the granting of options, warrants or other rights to, any of WWI's or its
Subsidiaries, assets (including accounts receivable and Capital Securities of
Subsidiaries) to any other Person (other than to another Obligor) in a single
transaction or series of transactions.
"Domestic Office" means, relative to any Lender, the office of such Lender
designated as such on Schedule III hereto or designated in the Lender Assignment
Agreement or such other office of a Lender (or any successor or assign of such
Lender) within the United States as may be designated from time to time by
notice from such Lender, as the case may be, to each other Person party hereto.
"EBITDA" means, for any applicable period, the sum (without duplication)
of
(a) Net Income,
plus
(b) the amount deducted, in determining Net Income, representing
amortization of assets (including amortization with respect to goodwill,
deferred financing costs, other non-cash interest and all other intangible
assets),
-13-
plus
(c) the amount deducted, in determining Net Income, of all income
taxes (whether paid or deferred) of WWI and its Subsidiaries,
plus
(d) Interest Expense,
plus
(e) the amount deducted, in determining Net Income, representing
depreciation of assets,
plus
(f) an amount equal to all non-cash charges deducted in arriving at
Net Income,
plus
(g) an amount equal to all minority interest charges deducted in
determining Net Income (net of Restricted Payments made in respect of such
minority interest)
plus
(h) an amount equal to the cash royalty payment received pursuant to
the Warnaco Agreement, to the extent not included in the calculation of
Net Income,
plus
(i) the amount deducted, in determining Net Income, due to foreign
currency translation required by FASB 52 arising after June 30, 1997,
plus
(j) the amount deducted, in determining Net Income, of all Specified
Adjustments,
minus
(k) an amount equal to the amount of all non-cash credits included
in arriving at Net Income.
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"Effective Date" means the date this Agreement becomes effective pursuant
to Section 11.8.
"Eligible Institution" means a financial institution that either (a) has
combined capital and surplus of not less than $500,000,000 or its equivalent in
foreign currency, whose long-term certificate of deposit rating or long-term
senior unsecured debt rating is rated "BBB" or higher by S&P and "Baa2" or
higher by Xxxxx'x or an equivalent or higher rating by a nationally recognized
rating agency if both of the two named rating agencies cease publishing ratings
of investments or (b) is reasonably acceptable to the Administrative Agent and
the Issuer.
"Environmental Laws" means all applicable federal, state, local or foreign
statutes, laws, ordinances, codes, rules and regulations (including consent
decrees and administrative orders) relating to public health and safety and
protection of the environment.
"Equity Rollover" is defined in the third recital.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Euro $" means the single currency of participating member States of the
European Union.
"Event of Default" is defined in Section 9.1.
"Excess Cash Flow" means, for any Fiscal Year, the excess (if any), of
(a) EBITDA for such Fiscal Year
over
(b) the sum, without duplication (for such Fiscal Year) of
(i) Interest Expense;
plus
(ii) scheduled payments and optional and mandatory prepayments
(other than such prepayments made under clause (c) of Section
3.1.1), to the extent actually made, of the principal amount of the
Term Loans and TLCs or any other term Debt (including Capitalized
Lease Liabilities) and mandatory prepayments of the principal amount
of the Revolving Loans pursuant to clause (e) of Section 3.1.1 in
connection with a reduction of the Revolving Loan Commitment Amount;
plus
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(iii) all federal, state and foreign income taxes actually
paid in cash by WWI and its Subsidiaries;
plus
(iv) Capital Expenditures actually made in such Fiscal Year
pursuant to Section 7.2.7 (other than clause (z) therein) (excluding
Capital Expenditures constituting Capitalized Leases and by way of
the incurrence of Indebtedness to a vendor of any assets permitted
to be acquired pursuant to Section 7.2.8 to finance the acquisition
of such assets);
plus
(v) the amount of the net increase (or minus a net decrease),
of Current Assets over Current Liabilities of WWI and its
Subsidiaries from the last day of the immediately preceding Fiscal
Year;
plus
(vi) Investments permitted and actually made pursuant to
clauses (d), (g), (h), (i) and (j) of Section 7.2.5;
plus
(vii) Restricted Payments permitted and actually made pursuant
to Section 7.2.6;
plus
(viii) nonrecurring restructuring costs and costs and expenses
incurred in connection with the Transaction, in an aggregate amount
not to exceed $5,000,000.
"Excluded Equity Proceeds" means any proceeds received by WWI or any of
its Subsidiaries from the sale or issuance by such Person of its Capital Stock
or any warrants or options in respect of any such Capital Stock or the exercise
of any such warrants or options, in each case pursuant to any such sale,
issuance or exercise constituting or resulting from (i) capital contributions
to, or permitted Capital Stock issuances by, WWI (exclusive of any such
contribution or issuance resulting from an Initial Public Offering or a widely
distributed private offering exempted from the registration requirements of
Section 5 of the Securities Act of 1933, as amended), (ii) any subscription
agreement, incentive plan or similar arrangement with any officer, employee or
director of WWI or any of its
-16-
Subsidiaries pursuant to a Local Management Plan or (iii) the exercise of any
options or warrants issued to any officer, employee or director described in
clause (ii) above.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York; or
(b) if such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it.
"Fee Letters" means, collectively, (a) the confidential fee letter, dated
as of July 20, 1999, between Artal International S.A., a Luxembourg corporation
("AI"), and the Administrative Agent, as assumed by ARTAL, and (b) the
confidential fee letter, dated as of July 20, 1999, among AI, the Administrative
Agent and the Syndication Agent, as assumed by ARTAL.
"Final Termination Date" means the later of:
(x) the Stated Maturity Date with respect to Term-B-Loans and the
TLCs, and
(y) the date on which all Obligations are satisfied and paid in
full.
"Fiscal Quarter" means any three-month period ending on or about July 31,
October 31, January 31 or April 30 of any Fiscal Year (as determined in
accordance with WWI's historical practices); provided, that if WWI changes its
Fiscal Year pursuant to Section 7.2.15, then the references in this definition
to such existing Fiscal Quarter end dates shall be changed to the appropriate
new Fiscal Quarter end dates.
"Fiscal Year" means any calendar year ending on or about April 30 (as
determined in accordance with WWI's historical practices); references to a
Fiscal Year with a number corresponding to any calendar year (e.g., the "2000
Fiscal Year") refer to the Fiscal Year ending on or about April 30 of that
calendar year; provided that if WWI changes its Fiscal Year pursuant to Section
7.2.15, then the references in this definition to such existing Fiscal Year end
date shall be changed to the new Fiscal Year end date.
-17-
"Fixed Charge Coverage Ratio" means, as of the last day of any Fiscal
Quarter, the ratio of, for the period consisting of such Fiscal Quarter and each
of the three immediately preceding Fiscal Quarters,
(a) EBITDA minus Capital Expenditures made during such period
to
(b) (i) Interest Expense for such period plus (ii) scheduled
repayments of Debt in respect of such period, whether or not paid plus
(iii) dividends paid in cash on the WWI Preferred Shares in respect of
such period.
For purposes of calculating the cash Interest Expense component of the ratio as
of the last day of the first, second, third and fourth Fiscal Quarters ending
after the Closing Date, the amounts of cash Interest Expense included in the
ratio shall be determined by multiplying cash Interest Expense for the period
commencing on the Closing Date and ending as of the last day of such Fiscal
Quarter by a fraction, the numerator of which is 365 and the denominator of
which is the number of calendar days from the Closing Date through the last day
of such Fiscal Quarter.
"FNZ" means Fortuity New Zealand Limited, a New Zealand corporation which
owns and operates the Weight Watchers classroom franchise and business in New
Zealand.
"FNZ Guaranty" means the Guaranty to be made by FNZ executed and delivered
pursuant to this Agreement, in form and substance satisfactory to the
Administrative Agent, as amended, supplemented, restated or otherwise modified
from time to time in accordance with its terms.
"FNZ Pledge Agreement" means the Pledge Agreement to be executed and
delivered by FNZ pursuant to this Agreement, in form and substance satisfactory
to the Administrative Agent, together with each Supplement thereto delivered
pursuant to clause (b) of Section 7.1.13, as amended, amended and restated,
supplemented or otherwise modified from time to time pursuant to the terms
thereto.
"FNZ Security Agreement" means the Security Agreement to be executed and
delivered by FNZ pursuant to this Agreement, in form and substance satisfactory
to the Administrative Agent, together with each Supplement thereto delivered
pursuant to clause (c) of Section 7.1.13, as amended, amended and restated,
supplemented or otherwise modified from time to time pursuant to the terms
thereof.
"Foreign Currency" means any currency other than U.S. Dollars.
-18-
"FPL" means Fortuity Pty. Ltd. (ACN 007 148 683), an Australian company
incorporated in the State of Victoria which operates the Weight Watchers
classroom franchise and business in Victoria.
"F.R.S. Board" means the Board of Governors of the Federal Reserve System
or any successor thereto.
"GAAP" is defined in Section 1.4.
"GB" means Gutbusters Pty. Ltd. (ACN 059 073 157), an Australian company
incorporated in the State of New South Wales.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local (or the equivalent thereof), and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
"Guaranteed Obligations" is defined in Section 8.1.
"Guaranties" means, collectively, (a) the WWI Guaranty, (b) the Australian
Guaranty, (c) the Subsidiary Guaranty, (d) the FNZ Guaranty and (e) each other
guaranty delivered from time to time pursuant to the terms of this Agreement.
"Guarantor" means any Person which has or may issue a Guaranty hereunder.
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA or equivalent
applicable foreign law;
(b) any "hazardous waste", as defined by the Resource Conservation
and Recovery Act, as amended or equivalent applicable foreign law;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance within the meaning of any other applicable
federal, state or local law, regulation, ordinance or requirement
(including consent decrees and administrative orders) relating to or
imposing liability or standards of conduct concerning any hazardous, toxic
or dangerous waste, substance or material, all as amended or hereafter
amended.
-19-
"Hedging Obligations" means, with respect to any Person, all liabilities
of such Person under interest rate swap agreements, interest rate cap agreements
and interest rate collar agreements, and all other agreements or arrangements
designed to protect such Person against fluctuations in interest rates or
currency exchange rates, including but not limited to Rate Protection
Agreements.
"herein", "hereof", "hereto", "hereunder" and similar terms contained in
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan Document.
"HJH" is defined in the second recital.
"HJH Pledge Agreement" means the Pledge Agreement executed and delivered
by HJH pursuant to clause (c) of Section 5.1.8, substantially in the form of
Exhibit G-3 hereto, as amended, amended and restated, supplemented or otherwise
modified from time to time pursuant to the terms thereof.
"Immaterial Subsidiary" means, at any date of determination, any
Subsidiary or group of Subsidiaries of WWI having assets as at the end of or
EBITDA for the immediately preceding four Fiscal Quarter period for which the
relevant financial information has been delivered pursuant to clause (a) or
clause (b) of Section 7.1.1 of less than 5% of total assets of WWI and its
Subsidiaries or $2,000,000, respectively, individually or in the aggregate.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of any Obligor, any qualification or exception to such opinion or certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of matters
relevant to such financial statement; or
(c) which relates to the treatment or classification of any item in
such financial statement and which, as a condition to its removal, would
require an adjustment to such item the effect of which would be to cause
such Obligor to be in default of any of its obligations under Section
7.2.4.
"including" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of ejusdem generis
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
-20-
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments for borrowed money in respect thereof;
(b) all obligations, contingent or otherwise, relative to the face
amount of all letters of credit, whether or not drawn, and banker's
acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases which have
been or should be, in accordance with GAAP, recorded as Capitalized Lease
Liabilities;
(d) net liabilities of such Person under all Hedging Obligations;
(e) whether or not so included as liabilities in accordance with
GAAP, all obligations of such Person to pay the deferred purchase price of
property or services, other than the WWI Preferred Shares, and
indebtedness (excluding prepaid interest thereon and interest not yet due)
secured by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse; provided, however, that,
for purposes of determining the amount of any Indebtedness of the type
described in this clause, if recourse with respect to such Indebtedness is
limited to specific property financed with such Indebtedness, the amount
of such Indebtedness shall be limited to the fair market value (determined
on a basis reasonably acceptable to the Administrative Agent) of such
property or the principal amount of such Indebtedness, whichever is less;
and
(f) all Contingent Liabilities of such Person in respect of any of
the foregoing;
provided, that, Indebtedness shall not include unsecured Indebtedness incurred
in the ordinary course of business in the nature of accrued liabilities and open
accounts extended by suppliers on normal trade terms in connection with
purchases of goods and services, but excluding the Indebtedness incurred through
the borrowing of money or Contingent Liabilities in connection therewith. For
all purposes of this Agreement, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer (to the extent such Person is liable for
such Indebtedness).
"Indemnified Liabilities" is defined in Section 11.4.
"Indemnified Parties" is defined in Section 11.4.
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"Initial Public Offering" means any sale of the Capital Securities of WWI
to the public pursuant to an initial, primary offering registered under the
Securities Act of 1933 and, for purposes of the Change in Control definition
only, pursuant to which no less than 10% of the Capital Securities of WWI
outstanding after giving effect to such offering was sold pursuant to such
offering.
"Intercompany Subordination Agreement" means the Intercompany
Subordination Agreement, executed and delivered by WWI, the SPI Borrower and
each of the Guarantors, pursuant to Section 5.1.22, substantially in the form of
Exhibit I hereto.
"Interest Coverage Ratio" means, at the close of any Fiscal Quarter, the
ratio computed (except as set forth in the proviso set forth below) for the
period consisting of such Fiscal Quarter and each of the three immediately prior
Fiscal Quarters of:
(a) EBITDA (for such period)
to
(b) Interest Expense (for such period);
For purposes of calculating the cash Interest Expense component of the ratio as
of the last day of the first, second, third and fourth Fiscal Quarters ending
after the Closing Date, the amounts of cash Interest Expense included in the
ratio shall be determined by multiplying cash Interest Expense for the period
commencing on the Closing Date and ending as of the last day of such Fiscal
Quarter by a fraction, the numerator of which is 365 and the denominator of
which is the number of calendar days from the Closing Date through the last day
of such Fiscal Quarter.
"Interest Expense" means, for any Fiscal Quarter, the aggregate
consolidated cash interest expense (net of interest income) of WWI and its
Subsidiaries for such Fiscal Quarter, as determined in accordance with GAAP,
including the portion of any payments made in respect of Capitalized Lease
Liabilities allocable to interest expense.
"Interest Period" means, relative to any LIBO Rate Loans, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to Section 2.3.1 or
2.4 and shall end on (but exclude) the day which numerically corresponds to such
date one, two, three or six or, with the consent of each applicable Lender, nine
or twelve months thereafter (or, if such month has no numerically corresponding
day, on the last Business Day of such month), in either case as WWI may select
in its relevant notice pursuant to Section 2.3 or 2.4; provided, however, that
(a) WWI shall not be permitted to select Interest Periods to be in
effect at any one time which have expiration dates occurring on more than
ten different dates;
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(b) Interest Periods commencing on the same date for Loans
comprising part of the same Borrowing shall be of the same duration;
(c) if such Interest Period would otherwise end on a day which is
not a Business Day, such Interest Period shall end on the next following
Business Day (unless such next following Business Day is the first
Business Day of a calendar month, in which case such Interest Period shall
end on the Business Day next preceding such numerically corresponding
day); and
(d) no Interest Period for any Loan may end later than the Stated
Maturity Date for such Loan.
"Investment" means, relative to any Person,
(a) any loan or advance made by such Person to any other Person
(excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business); and
(b) any ownership or similar interest held by such Person in any
other Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and without adjustment
by reason of the financial condition of such other Person) and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property at the time of such transfer or exchange.
"Investors" is defined in the first recital.
"Issuance Request" means a Letter of Credit request and certificate duly
executed by an Authorized Officer of WWI, substantially in the form of Exhibit
B-2 hereto.
"Issuer" means, collectively, Scotiabank in its individual capacity
hereunder as issuer of the Letters of Credit and such other Lender as may be
designated by Scotiabank (and agreed to by WWI and such Lender) in its
individual capacity as the issuer of Letters of Credit.
"Lead Arrangers" means Scotiabank and CSFB.
"Lender Assignment Agreement" means a Lender Assignment Agreement
substantially in the form of Exhibit J hereto.
"Lenders" is defined in the preamble.
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"Lender's Environmental Liability" means any and all losses, liabilities,
obligations, penalties, claims, litigation, demands, defenses, costs, judgments,
suits, proceedings, damages (including consequential damages), disbursements or
expenses of any kind or nature whatsoever (including reasonable attorneys' fees
at trial and appellate levels and experts' fees and disbursements and expenses
incurred in investigating, defending against or prosecuting any litigation,
claim or proceeding) which may at any time be imposed upon, incurred by or
asserted or awarded against the Administrative Agent, the Syndication Agent, any
Lead Arranger, any Lender or any Issuer or any of such Person's Affiliates,
shareholders, directors, officers, employees, and agents in connection with or
arising from:
(a) any Hazardous Material on, in, under or affecting all or any
portion of any property of WWI or any of its Subsidiaries, the groundwater
thereunder, or any surrounding areas thereof to the extent caused by
Releases from WWI or any of its Subsidiaries' or any of their respective
predecessors' properties;
(b) any misrepresentation, inaccuracy or breach of any warranty,
contained or referred to in Section 6.12;
(c) any violation or claim of violation by WWI or any of its
Subsidiaries of any Environmental Laws; or
(d) the imposition of any lien for damages caused by or the recovery
of any costs for the cleanup, release or threatened release of Hazardous
Material by WWI or any of its Subsidiaries, or in connection with any
property owned or formerly owned by WWI or any of its Subsidiaries.
"Letter of Credit" is defined in Section 2.1.3.
"Letter of Credit Commitment" means, with respect to the Issuer, the
Issuer's obligation to issue Letters of Credit pursuant to Section 2.1.3 and,
with respect to each of the other Lenders that has a Revolving Loan Commitment,
the obligations of each such Lender to participate in such Letters of Credit
pursuant to Section 2.6.1.
"Letter of Credit Commitment Amount" means, on any date, a maximum amount
of $10,000,000, as such amount may be reduced from time to time pursuant to
Section 2.2.
"Letter of Credit Outstandings" means, on any date, an amount equal to the
sum of
(a) the then aggregate amount which is undrawn and available under
all issued and outstanding Letters of Credit,
plus
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(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations in respect of such Letters of Credit.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate Loans,
the rate of interest equal to the average (rounded upwards, if necessary, to the
nearest 1/16 of 1%) of the rates per annum at which U.S. Dollar deposits in
immediately available funds are offered to the Administrative Agent's LIBOR
Office in the London interbank market as at or about 11:00 a.m. London time two
Business Days prior to the beginning of such Interest Period for delivery on the
first day of such Interest Period, and in an amount approximately equal to the
amount of the Administrative Agent's LIBO Rate Loan and for a period
approximately equal to such Interest Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest
Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) determined pursuant to the following formula:
LIBO Rate = LIBO Rate
-------------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be determined by the Administrative Agent on the basis of the LIBOR
Reserve Percentage in effect on, and the applicable rates furnished to and
received by the Administrative Agent from Scotiabank, two Business Days before
the first day of such Interest Period.
"LIBOR Office" means, relative to any Lender, the office of such Lender
designated as such on Schedule III hereto or designated in the Lender Assignment
Agreement or such other office of a Lender as designated from time to time by
notice from such Lender to WWI and the Administrative Agent, whether or not
outside the United States, which shall be making or maintaining LIBO Rate Loans
of such Lender hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period for LIBO
Rate Loans, the reserve percentage (expressed as a decimal) equal to the maximum
aggregate reserve requirements (including all basic, emergency, supplemental,
marginal and other reserves and taking into account any transitional adjustments
or other scheduled changes in reserve requirements) specified under regulations
issued from time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of and including "Eurocurrency Liabilities", as currently
defined in Regulation D of the F.R.S. Board, having a term approximately equal
or comparable to such Interest Period.
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"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or any filing or recording of any
instrument or document in respect of the foregoing, to secure payment of a debt
or performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
"Loan" means, as the context may require, a Revolving Loan, a Swing Line
Loan, a Term-A Loan, or a Term-B Loan of any type.
"Loan Document" means this Agreement, the Notes, the TLCs, the Letters of
Credit, each Rate Protection Agreement under which that counterpart to such
agreement is (or at the time such Rate Protection Agreement was entered into,
was) a Lender or an Affiliate of a Lender relating to Hedging Obligations of WWI
or any of its Subsidiaries, the Fee Letter, each Pledge Agreement, each
Guaranty, each Security Agreement, the TLC Deed Poll, the Intercompany
Subordination Agreement and each other agreement, document or instrument
delivered in connection with this Agreement or any other Loan Document, whether
or not specifically mentioned herein or therein.
"Local Management Plan" means an equity plan or program for the sale or
issuance of Capital Securities of a Subsidiary in an amount not to exceed 5% of
the outstanding common equity of such Subsidiary to local management or a plan
or program in respect of Subsidiaries of WWI whose principal business is
conducted outside of the United States.
"Material Adverse Effect" means (a) a material adverse effect on the
financial condition, operations, assets, business or properties of WWI and its
Subsidiaries, taken as a whole, (b) a material impairment other than an event or
set of circumstances described in clause (a) of the ability of any Obligor
(other than any Immaterial Subsidiary) to perform its respective material
obligations under the Loan Documents to which it is or will be a party, or (c)
an impairment of the validity or enforceability of, or a material impairment of
the rights, remedies or benefits available to the Administrative Agent, the
Issuer or the Lenders under, this Agreement or any other Loan Document.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means, collectively, each Mortgage or Deed of Trust executed
and delivered pursuant to the terms of this Agreement, including clause (b) of
Section 7.1.8.
"Net Disposition Proceeds" means, with respect to a Permitted Disposition
of the assets of WWI or any of its Subsidiaries, the excess of
(a) the gross cash proceeds received by WWI or any of its
Subsidiaries from any Permitted Disposition and any cash payments received
in respect of promissory notes or other
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non-cash consideration delivered to WWI or such Subsidiary in respect of
any Permitted Disposition,
less
(b) the sum of
(i) all reasonable and customary fees and expenses with
respect to legal, investment banking, brokerage and accounting and
other professional fees, sales commissions and disbursements and all
other reasonable fees, expenses and charges, in each case actually
incurred in connection with such Permitted Disposition which have
not been paid to Affiliates of WWI,
(ii) all taxes and other governmental costs and expenses
actually paid or estimated by WWI (in good faith) to be payable in
cash in connection with such Permitted Disposition, and
(iii) payments made by WWI or any of its Subsidiaries to
retire Indebtedness (other than the Loans) of WWI or any of its
Subsidiaries where payment of such Indebtedness is required in
connection with such Permitted Disposition;
provided, however, that if, after the payment of all taxes with respect to such
Permitted Disposition, the amount of estimated taxes, if any, pursuant to clause
(b)(ii) above exceeded the tax amount actually paid in cash in respect of such
Permitted Disposition, the aggregate amount of such excess shall be immediately
payable, pursuant to clause (b) of Section 3.1.1, as Net Disposition Proceeds.
Notwithstanding the foregoing, Net Disposition Proceeds shall not include fees
or other amounts paid to WWI or its Subsidiaries in respect of a license of
intellectual property (not related to the classroom business of WWI or its
Subsidiaries) having customary terms and conditions for similar licenses.
"Net Equity Proceeds" means with respect to the sale or issuance by WWI to
any Person of any stock, warrants or options or the exercise of any such
warrants or options after the Effective Date, the excess of:
(a) the gross cash proceeds received by WWI from such sale, exercise
or issuance (other than Excluded Equity Proceeds),
over
(b) all reasonable and customary underwriting commissions and legal,
investment banking, brokerage and accounting and other professional fees,
sales commissions and
-27-
disbursements and all other reasonable fees, expenses and charges, in each
case actually incurred in connection with such sale or issuance which have
not been paid to Affiliates of WWI in connection therewith.
"Net Income" means, for any period, the net income of WWI and its
Subsidiaries for such period on a consolidated basis, excluding extraordinary
gains.
"Netco" means Weight Xxxxxxxx.xxx Inc., a [Delaware] corporation.
"Non-Excluded Taxes" means any Taxes other than (i) net income and
franchise taxes imposed with respect to any Secured Party by a Governmental
Authority under the laws of which such Secured Party is organized or in which it
maintains its applicable lending office and (ii) any Taxes imposed on a Secured
Party by any jurisdiction as a result of any former or present connection
between such Secured Party and such jurisdiction other than a connection arising
from a Secured Party entering into this Agreement or making any loan hereunder.
"Non-Guarantor Subsidiary" means the Designated Subsidiary and any other
Subsidiary of WWI other than any Person which has or may issue a Guaranty
hereunder.
"Non-U.S. Lender" means any Lender (including each Assignee Lender) that
is not (i) a citizen or resident of the United States, (ii) a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any state thereof, or (iii) any estate or trust that is subject
to U.S. Federal income taxation regardless of the source of its income.
"Note" means, as the context may require, a Revolving Note, a Swing Line
Note, a Registered Note, a Term-A Note, or a Term-B Note.
"Obligations" means all obligations (monetary or otherwise) of the
Borrowers and each other Obligor arising under or in connection with this
Agreement, the Notes, each Letter of Credit and each other Loan Document, and
Hedging Obligations owed to a Lender or an Affiliate thereof (unless the Lender
or such Affiliate otherwise agrees).
"Obligor" means any Borrower or any other Person (other than any Agent,
any Lender or the Issuer) obligated under any Loan Document.
"Organic Document" means, relative to any Obligor, its certificate of
incorporation, its by-laws and all shareholder agreements, voting trusts and
similar arrangements (or the foreign equivalent thereof) applicable to any of
its authorized shares of Capital Securities.
"Other Taxes" means any and all stamp, documentary or similar taxes, or
any other excise or property taxes or similar levies that arise on account of
any payment made or required to be made
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under any Loan Document or from the execution, delivery, registration, recording
or enforcement of any Loan Document.
"Participant" is defined in Section 11.11.2.
"Patent Security Agreement" means a Patent Security Agreement executed and
delivered by any Obligor in substantially the form of Exhibit A to the WWI
Security Agreement, as amended, supplemented, amended and restated or otherwise
modified.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
entity.
"Pension Plan" means a "pension plan", as such term is defined in section
3(2) of ERISA, which is subject to Title IV of ERISA (other than a multiemployer
plan as defined in section 4001(a)(3) of ERISA), and to which WWI or any
corporation, trade or business that is, along with WWI, a member of a Controlled
Group, has or within the prior six years has had any liability, including any
liability by reason of having been a substantial employer within the meaning of
section 4063 of ERISA at any time during the preceding five years, or by reason
of being deemed to be a contributing sponsor under section 4069 of ERISA.
"Percentage" means, relative to any Lender, the applicable percentage
relating to Term-A Loans, Term-B Loans, Revolving Loans or TLCs, as the case may
be, as set forth opposite its name on Schedule II hereto under the applicable
column heading or set forth in Lender Assignment Agreement(s) under the
applicable column heading, as such percentage may be adjusted from time to time
pursuant to Lender Assignment Agreement(s) executed by such Lender and its
Assignee Lender(s) and delivered pursuant to Section 11.11. A Lender shall not
have any Commitment to make a particular Tranche of Loans or purchase TLCs (as
the case may be) if its percentage under the respective column heading is zero.
"Permitted ARTAL Investor Group" means ARTAL or any of its direct or
indirect Wholly-owned Subsidiaries and ARTAL Group S.A., a Luxembourg
corporation or any of its direct or indirect Wholly-owned Subsidiaries.
"Permitted Disposition" means a Disposition in accordance with the terms
of clause (b) (other than as permitted by clause (a)) of Section 7.2.9.
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency, limited liability company
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Plan" means any Pension Plan or Welfare Plan.
-29-
"Pledge Agreements" means, collectively, (a) the WWI Pledge Agreement, (b)
the ARTAL Pledge Agreement, (c) the HJH Pledge Agreement, (d) the Australian
Pledge Agreement, (e) the U.K. Pledge Agreement, (f) the FNZ Pledge Agreement
and (g) each other pledge agreement delivered from time to time pursuant to
clause (b) of Section 7.1.7.
"Pro Forma Balance Sheet" is defined in clause (b) of Section 5.1.11.
"Qualified Assets" is defined in clause (b) of Section 3.1.1.
"Quarterly Payment Date" means the last day of each March, June, September
and December, or, if any such day is not a Business Day, the next succeeding
Business Day.
"Rate Protection Agreements" means, collectively, arrangements entered
into by any Person designed to protect such Person against fluctuations in
interest rates or currency exchange rates, pursuant to the terms of this
Agreement.
"Recapitalization" is defined in the third recital.
"Recapitalization Agreement" is defined in the second recital.
"Redemption" is defined in the third recital.
"Refinance" means, in respect of any Indebtedness, to refinance, extend,
renew, refund, repay, prepay, redeem, defease or retire, or to issue other
Indebtedness in exchange or replacement for such Indebtedness. "Refinanced" and
"Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances any
Indebtedness of WWI or any of its Subsidiaries existing on the Closing Date or
otherwise permitted hereunder, including Indebtedness that Refinances
Refinancing Indebtedness; provided, however, that:
(i) such Refinancing Indebtedness has a Stated Maturity no earlier
than the Stated Maturity of the Indebtedness being Refinanced;
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(ii) such Refinancing Indebtedness has an Average Life at the time
such Refinancing Indebtedness is incurred that is equal to or greater than
the Average Life of the Indebtedness being Refinanced; and
(iii) such Refinancing Indebtedness has an aggregate principal
amount (or if incurred with original issue discount, an aggregate issue
price) that is equal to or less than the aggregate principal amount (or if
incurred with original issue discount, the aggregate accreted value) then
outstanding or committed (plus fees and expenses, including any premium
and defeasance costs) under the Indebtedness being Refinanced;
provided, further, however, that Refinancing Indebtedness shall not include (A)
Indebtedness of a Subsidiary that Refinances Indebtedness of WWI or (B)
Indebtedness of WWI or a Subsidiary that Refinances Indebtedness of another
Subsidiary.
"Refunded Swing Line Loans" is defined in clause (b) of Section 2.3.2.
"Register" is defined in Section 11.11.3.
"Registered Note" means a promissory note of WWI payable to any Registered
Noteholder, in the form of Exhibit A-6 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of WWI to such Lender resulting from outstanding Term
Loans, and also means all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"Registered Noteholder" means any Lender that has been issued a Registered
Note.
"Reimbursement Obligation" is defined in Section 2.6.3.
"Release" means a "release", as such term is defined in CERCLA.
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"Required Lenders" means, at any time,
(a) prior to the date of the making of the initial Credit Extension
hereunder, Lenders having at least 66 2/3% of the sum of the Revolving
Loan Commitments, Term-A Loan Commitments and Term-B Loan Commitments and
the TLC Commitment; and
(b) on and after the date of the initial Credit Extension, (i) until
such time as the Administrative Agent and the Syndication Agent have a
combined Total Exposure Amount of less than 40%, Lenders having 66 2/3% of
the Total Exposure Amount and (ii) thereafter Lenders holding at least 51%
of the Total Exposure Amount.
"Resource Conservation and Recovery Act" means the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect from time to
time.
"Restricted Payments" is defined in Section 7.2.6.
"Revolving Loan" is defined in clause (a) of Section 2.1.2.
"Revolving Loan Commitment" is defined in clause (a) of Section 2.1.2.
"Revolving Loan Commitment Amount" means, on any date, $30,000,000, as
such amount may be (i) reduced from time to time pursuant to Section 2.2 or (ii)
increased pursuant to clause (c) of Section 2.1.2.
"Revolving Loan Commitment Termination Date" means the earliest of
(a) October 15, 1999 if the Term Loans have not been made on or
prior to such date;
(b) September 30, 2005;
(c) the date on which the Revolving Loan Commitment Amount is
terminated in full or reduced to zero pursuant to Section 2.2; and
(d) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clauses (c) or (d), the Revolving
Loan Commitments shall terminate automatically and without any further action.
"Revolving Note" means a promissory note of WWI payable to a Lender,
substantially in the form of Exhibit A-1 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of WWI to such Lender resulting from
-32-
outstanding Revolving Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"S&P" means Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx,
Inc.
"Scotiabank" is defined in the preamble.
"Secured Parties" means, collectively, the Lenders, the Issuers, the
Administrative Agent, the Syndication Agent, the Lead Arrangers, each
counterparty to a Rate Protection Agreement that is (or at the time such Rate
Protection Agreement was entered into, was) a Lender or an Affiliate thereof and
(in each case) and each of their respective successors, transferees and assigns.
"Security Agreements" means, collectively, (a) the WWI Security Agreement,
(b) the Australian Security Agreement, (c) the U.K. Security Agreement, (d) the
Patent Security Agreements, the Trademark Security Agreements and the Copyright
Security Agreements, (e) the FNZ Security Agreement and (f) each other security
agreement executed and delivered from time to time pursuant to clause (a) of
Section 7.1.7, in each case, as amended, amended and restated, supplemented or
otherwise modified from time to time pursuant to the terms thereof.
"Senior Debt" means all Debt other than Subordinated Debt.
"Senior Debt to EBITDA Ratio" means, as of the last day of any Fiscal
Quarter, the ratio of
(a) Senior Debt outstanding on the last day of such Fiscal Quarter
to
(b) EBITDA computed for the period consisting of such Fiscal Quarter
and each of the three immediately preceding Fiscal Quarters;
"Senior Subordinated Debt" means debt of WWI under its 13% Senior
Subordinated Notes in an aggregate principal amount of $255,000,000, issued
under the Senior Subordinated Note Indenture pursuant to a Rule 144A private
placement.
"Senior Subordinated Debt Issuance" is defined in the fifth recital.
"Senior Subordinated Noteholder" means, at any time, any holder of a
Senior Subordinated Note.
"Senior Subordinated Notes" means those certain 13% Senior Subordinated
Notes due 2009, issued pursuant to the Senior Subordinated Note Indenture.
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"Senior Subordinated Note Indenture" means collectively that certain
Senior Subordinated Note Indenture, dated as of September 29, 1999 between WWI
and Norwest Bank Minnesota, National Association, as trustee, related to the
issuance of $150,000,000 Senior Subordinated Notes and that certain Senior
Subordinated Note Indenture, dated as of September 29, 1999, between WWI and
Norwest Bank Minnesota, National Association, as trustee, related to the
issuance of Euro$100,000,000 Senior Subordinated Notes .
"Solvent" means, with respect to any Person on a particular date, that on
such date (a) the fair value of the property of such Person is greater than the
total amount of liabilities, including contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not less than
the amount that will be required to pay the probable liability of such Person on
its debts as they become absolute and matured, (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature, and (d) such
Person is not engaged in business or a transaction, and such person is not about
to engage in business or a transaction, for which such Person's property would
constitute an unreasonably small capital. 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.
"Specified Adjustments" means an amount equal to the sum of:
(a) the amount deducted in determining Net Income, representing
transaction expenses (including one time charges and transaction related
management bonuses) related to the separation from HJH,
plus
(b) an amount deducted in arriving at Net Income, equal to
restructuring charges in connection with the Transaction, not to exceed
$3,000,000,
plus
(c) the amount deducted in determining Net Income for periods ending
prior to the Closing Date representing management incentive bonuses;
plus
(d) for each period ending after the Closing Date, pro forma
adjustments in connection with the separation from HJH in an amount not to
exceed $2,500,000 for each of the Fiscal Quarters ended or ending April 24,
1999, July 24, 1999 and October 23, 1999.
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"Stated Amount" of each Letter of Credit means the total amount available
to be drawn under such Letter of Credit upon the issuance thereof.
"Stated Expiry Date" is defined in Section 2.6.
"Stated Maturity" means, with respect to any security, the date specified
in such security as the fixed date on which the final payment of principal of
such security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency unless such contingency has occurred).
"Stated Maturity Date" means
(a) in the case of any Revolving Loan, September 30, 2005;
(b) in the case of any Term-A Loan, September 30, 2005;
(c) in the case of any Term-B Loan, September 30, 2006; and
(d) in the case of any TLC, September 30, 2006.
"Stock Purchase" is defined in the third recital.
"Subordinated Debt" means, as the context may require, (i) the unsecured
Debt of WWI evidenced by the Senior Subordinated Notes and (ii) to the extent
permitted by the Required Lenders, any other unsecured Debt of WWI subordinated
in right of payment to the Obligations pursuant to documentation containing
maturities, amortization schedules, covenants, defaults, remedies, subordination
provisions and other material terms in form and substance satisfactory to the
Administrative Agent and Required Lenders.
"Subordinated Guaranty" means collectively, (i) the Guaranty executed and
delivered by certain Subsidiaries of WWI pursuant to Section 4.13 of the Senior
Subordinated Note Indenture and (ii) each other guaranty, if any, executed from
time to time by any Subsidiary of WWI pursuant to which the guarantor thereunder
has any Contingent Liability with respect to any Subordinated Debt.
"Subordination Provisions" is defined in Section 9.1.11.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other business entity of which more than 50% of the outstanding
Capital Securities (or other ownership interest) having ordinary voting power to
elect a majority of the board of directors, managers or other voting members of
the governing body of such entity (irrespective of whether at the time Capital
Securities (or other
-35-
ownership interest) of any other class or classes of such entity shall or might
have voting power upon the occurrence of any contingency) is at the time
directly or indirectly owned by such Person, by such Person and one or more
other Subsidiaries of such Person, or by one or more other Subsidiaries of such
Person. Unless the context otherwise specifically requires, the term
"Subsidiary" shall be a reference to a Subsidiary of WWI.
"Subsidiary Guaranty" means the Guaranty made or to be made, as the case
may be, by the U.S. Subsidiaries (other than the SP1 Borrower and the Designated
Subsidiary), XXXX0, XXXX0 and WWUK and its Subsidiaries, executed and delivered
pursuant to the terms of this Agreement, and substantially in the form of
Exhibit H hereto, as amended, supplemented, restated or otherwise modified from
time to time in accordance with its terms.
"Swing Line Lender" means Scotiabank (or another Lender designated by
Scotiabank with the consent of WWI, if such Lender agrees to be the Swing Line
Lender hereunder), in such Person's capacity as the maker of Swing Line Loans.
"Swing Line Loan" is defined in clause (b) of Section 2.1.2.
"Swing Line Loan Commitment" means, with respect to the Swing Line Lender,
the Swing Line Lender's obligation pursuant to clause (b) of Section 2.1.2 to
make Swing Line Loans and, with respect to each Lender with a Commitment to make
Revolving Loans (other than the Swing Line Lender), such Lender's obligation to
participate in Swing Line Loans pursuant to Section 2.3.2.
"Swing Line Loan Commitment Amount" means, on any date, $5,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
"Swing Line Note" means a promissory note of WWI payable to the Swing Line
Lender, in substantially the form of Exhibit A-2 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of WWI to the Swing Line Lender resulting from
outstanding Swing Line Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"Syndication Agent" is defined in the preamble.
"Taxes" is defined in Section 4.6.
"Term Loans" means collectively, the Term-A Loans and the Term-B Loans.
"Term-A Loan Commitment Amount" means $75,000,000.
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"Term-A Loan Lender" means any Lender which, on the Effective Date, has a
Percentage of the Term-A Loan Commitment Amount.
"Term-A Loans" is defined in clause (a) of Section 2.1.1.
"Term-A Loan Commitment Termination Date" means the earliest of :
(a) October 15, 1999, if the Term-A Loans have not been made on or
prior to such date;
(b) the Effective Date (immediately after the making of the Term-A
Loans on such date); and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clauses (b) or (c), the Term-A
Loan Commitments shall terminate automatically and without any further action.
"Term-A Note" means a promissory note of WWI, payable to the order of any
Lender, in the form of Exhibit A-3 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of WWI to such Lender resulting from outstanding Term-A
Loans, and also means all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"Term-B Loan Commitment Amount" means $75,000,000.
"Term-B Loan Lender" means any Lender which on the Effective Date has a
Percentage of the Term-B Loan Commitment Amount.
"Term-B Loans" is defined in clause (b) of Section 2.1.1.
"Term-B Note" means a promissory note of WWI, payable to the order of any
Lender, in the form of Exhibit A-4 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of WWI to such Lender resulting from outstanding Term-B
Loans, and also means all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"Term-B Loan Commitment Termination Date" means the earliest of
(a) October 15, 1999, if the Term-B Loans have not been made on or
prior to such date;
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(b) the Effective Date (immediately after the making of the Term-B
Loans on such date); and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clauses (b) or (c), the Term-B
Loan Commitments shall terminate automatically and without any further action.
"TLC" means an instrument executed by the SP1 Borrower, which acknowledges
the Indebtedness of the SP1 Borrower with respect to any Lender, in the form of
Exhibit A-6 hereto (as such instrument may be amended, endorsed or otherwise
modified from time to time), and also means all other instruments accepted from
time to time in substitution therefor or renewal thereof.
"TLC Commitment" is defined in Section 2.9
"TLC Commitment Amount" means $87,000,000.
"TLC Commitment Termination Date" means
(a) October 15, 1999, if the TLCs have not been made on or prior to
such date;
(b) the Effective Date (immediately after the making of the TLCs on
such date); and
(c) the date on which any Commitment Termination Event occurs.
"TLC Deed Poll" means the Deed Poll, dated as of September 29, 1999, among
the SP1 Borrower and each TLC Holder (as defined therein), as amended, amended
and restated, supplemented or otherwise modified from time to time.
"TLC Lender" means any Lender which on the Effective Date has TLC
Commitments.
"Total Exposure Amount" means, on any date of determination, the then
outstanding principal amount of all Term Loans and the TLCs and the then
effective Revolving Loan Commitment Amount.
"Trademark Security Agreement" means a Trademark Security Agreement
executed and delivered by any Obligor substantially in the form of Exhibit B to
the WWI Security Agreement, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Tranche" means, as the context may require, the (a) Loans constituting
Term-A Loans, Term-B Loans, Swing Line Loans or Revolving Loans or (b) TLCs.
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"Transaction" is defined in the first recital.
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"UCC" means the Uniform Commercial Code as in effect from time to time in
the State of New York.
"UKHC1" means Weight Watchers UK Holding Ltd, a company incorporated under
the laws of England.
"UKHC2" means Weight Watchers International Ltd, a company incorporated
under the laws of England.
"U.K. Pledge Agreement" means the Deed of Charge to be executed and
delivered by WWI on or prior to the third Business Day after the Closing Date,
in form and substance acceptable to the Administrative Agent pursuant to Section
7.1.16 (and with respect to XXXX0, XXXX0 and WWUK and its Subsidiaries, the Deed
of Charge to be executed and delivered pursuant to clause (c) of Section 7.1.14
by such Subsidiaries), together with each other pledge agreement delivered
pursuant to clause (b) of Section 7.1.7, as amended, amended and restated,
supplemented or otherwise modified from time to time pursuant to the terms
thereof.
"U.K. Security Agreement" means the Debenture to be executed and delivered
by XXXX0, XXXX0 and WWUK and each of its Subsidiaries pursuant to clause (c) of
Section 7.1.14, in form and substance acceptable to the Administrative Agent,
together with each other security agreement delivered pursuant to clause (a) of
Section 7.1.7, as amended, amended and restated, supplemented or otherwise
modified from time to time pursuant to the terms thereof.
"U.K. Subsidiary" means any Subsidiary that is incorporated under the laws
of England.
"United States" or "U.S." means the United States of America, its fifty
States and the District of Columbia.
"U.S. Dollar" and the sign "$" mean lawful money of the United States.
"U.S. Subsidiary" means any Subsidiary that is incorporated or organized
under the laws of the United States or a state thereof or the District of
Columbia.
"Voting Stock" means, with respect to any Person, Capital Securities of
any class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
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"Waiver" means an agreement in favor of the Administrative Agent for the
benefit of the Lenders and the Issuer in form and substance reasonably
satisfactory to the Administrative Agent.
"Warnaco Agreement" means that certain License Agreement, dated as of
January 8, 1999, between Warnaco Inc., a Delaware corporation, and WWI.
"Welfare Plan" means a "welfare plan", as such term is defined in section
3(1) of ERISA, and to which WWI or any of its Subsidiaries has any liability.
"Wholly-owned Subsidiary" shall mean, with respect to any Person, any
Subsidiary of such Person all of the Capital Securities (and all rights and
options to purchase such Capital Securities) of which, other than directors'
qualifying shares or shares sold pursuant to Local Management Plans, are owned,
beneficially and of record, by such Person and/or one or more Wholly-owned
Subsidiaries of such Person.
"WW Australia" means Weight Watchers International Pty. Ltd. (ACN 070 836
449), an Australian company incorporated in the State of New South Wales and
resident in Australia and the direct corporate parent of FPL and the SP1
Borrower.
"WWI Pledge Agreement" means the Pledge Agreement executed and delivered
by WWI and its U.S. Subsidiaries (other than the Designated Subsidiary) pursuant
to clause (a) of Section 5.1.8, substantially in the form of Exhibit G-1 hereto,
together with each Supplement thereto delivered pursuant to clause (b) of
Section 7.1.7, as amended, amended and restated, supplemented or otherwise
modified from time to time pursuant to the terms thereof.
"WWI Security Agreement" means the Security Agreement executed and
delivered by WWI and all U.S. Subsidiaries of WWI (other than the Designated
Subsidiary) pursuant to clause (a) of Section 5.1.9, substantially in the form
of Exhibit F-1 hereto, together with each Supplement thereto delivered pursuant
to clause (a) of Section 7.1.7, as amended, amended and restated, supplemented
or otherwise modified from time to time pursuant to the terms thereof.
"WWI Common Shares" is defined in the third recital.
"WWI Guaranty" means the Guaranty made by WWI contained in Article VIII.
"WWI Preferred Shares" is defined in the fourth recital.
"WWUK" means Weight Watchers UK Limited and its Subsidiaries.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Agreement
shall have such meanings when used
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in the Disclosure Schedule and in each other Loan Document, notice and other
communication delivered from time to time in connection with this Agreement or
any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references in
this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder (including under Section 7.2.4) shall be made, and all financial
statements required to be delivered hereunder or thereunder shall be prepared in
accordance with, those generally accepted accounting principles ("GAAP") as in
effect as of April 24, 1999.
SECTION 1.5. Currency Conversions. If it shall be necessary for purposes
of this Agreement to convert an amount in one currency into another currency,
unless otherwise provided herein, the exchange rate shall be determined by
reference to the New York foreign exchange selling rates (such determination to
be made as at the date of the relevant transaction), as determined by the
Administrative Agent (in accordance with its standard practices).
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,
NOTES, LETTERS OF CREDIT AND TLC PROVISIONS
SECTION 2.1. Loan Commitments. On the terms and subject to the conditions
of this Agreement (including Article V),
(a) each Lender severally agrees to make Loans (other than Swing
Line Loans) pursuant to the Commitments and the Swing Line Lender agrees
to make Swing Line Loans pursuant to the Swing Line Loan Commitment in
each case as described in this Section 2.1; and
(b) each Issuer severally agrees that it will issue Letters of
Credit pursuant to Section 2.1.3, and each other Lender that has a
Revolving Loan Commitment severally agrees that it will purchase
participation interests in such Letters of Credit pursuant to Section
2.6.1.
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SECTION 2.1.1. Term Loans. Subject to compliance by the Obligors with the
terms of Sections 2.1.4, 5.1 and 5.2, in a single Borrowing on the Closing Date
(which shall be a Business Day) occurring on or prior to the applicable
Commitment Termination Date, each Lender (a) having a Percentage of the Term-A
Loan Commitment Amount will make loans denominated in U.S. Dollars (relative to
such Lender, its "Term-A Loans") to WWI equal to such Lender's Percentage, if
any, of the aggregate amount of the Borrowings of Term-A Loans requested by WWI
to be made on the Closing Date (with the commitment of each such Lender
described in this clause (a) being herein referred to as its "Term-A Loan
Commitment") and (b) having a Percentage of the Term-B Loan Commitment Amount
will make loans denominated in U.S. Dollars (relative to such Lender, its
"Term-B Loans") to WWI equal to such Lender's Percentage, if any, of the
aggregate amount of the Borrowings of Term-B Loans requested by WWI to be made
on the Closing Date (with the commitment of each such Lender described in this
clause (b) herein referred to as its "Term-B Loan Commitment"). No amounts paid
or prepaid with respect to Term-A Loans or Term-B Loans may be reborrowed.
SECTION 2.1.2. Revolving Loan Commitment and Swing Line Loan Commitment.
Subject to compliance by the Obligors with the terms of Section 2.1.4, Section
5.1, Section 5.2 and Section 5.3 the Revolving Loans and Swing Line Loans will
be made as set forth below.
(a) From time to time on any Business Day occurring concurrently
with (or after) the making of the Term Loans but prior to the Revolving
Loan Commitment Termination Date, each Lender that has a Revolving Loan
Commitment will make loans (relative to such Lender, its "Revolving
Loans") to WWI in U.S. Dollars, equal to such Lender's Percentage of the
aggregate amount of the Borrowing of the Revolving Loans requested by such
Borrower to be made on such day. The Commitment of each Lender described
in this clause (a) is herein referred to as its "Revolving Loan
Commitment". On the terms and subject to the conditions hereof, any
Borrower may from time to time borrow, prepay and reborrow the Revolving
Loans.
(b) From time to time on any Business Day occurring concurrently
with (or after) the making of the Term Loans, but prior to the Revolving
Loan Commitment Termination Date, the Swing Line Lender will make loans
(relative to the Swing Line Lender, its "Swing Line Loans") to WWI equal
to the principal amount of the Swing Line Loans requested by WWI. On the
terms and subject to the conditions hereof, WWI may from time to time
borrow, prepay and reborrow such Swing Line Loans.
(c) At any time that no Default has occurred and is continuing, and
on or before September 30, 2004, WWI may notify the Administrative Agent
that WWI is requesting that, on the terms and subject to the conditions
contained in this Agreement, the Lenders and/or other lenders not then a
party to this Agreement provide up to an aggregate amount of $20,000,000
in additional Revolving Loan Commitments. Upon receipt of such notice, the
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Administrative Agent shall use commercially reasonable efforts to arrange
for the Lenders or other Eligible Institutions to provide such additional
Revolving Loan Commitments; provided that the Administrative Agent will
first offer each of the Lenders that then has a Percentage of the
Revolving Loan Commitment a pro rata portion of any such additional
Revolving Loan Commitment. Nothing contained in this clause (c) or
otherwise in this Agreement is intended to commit any Lender or any Agent
to provide any portion of any such additional Revolving Loan Commitments.
If and to the extent that any Lenders and/or other lenders agree, in their
sole discretion, to provide any such additional Revolving Loan
Commitments, (i) the Revolving Loan Commitment Amount shall be increased
by the amount of the additional Revolving Loan Commitments agreed to be so
provided, (ii) the Percentages of the respective Lenders in respect of the
Revolving Loan Commitment shall be proportionally adjusted (provided that
the Percentage of each Lender shall not be increased without the consent
of such Lender), (iii) at such time and in such manner as WWI and the
Administrative Agent shall agree (it being understood that WWI and the
Agents will use commercially reasonable efforts to avoid the prepayment or
assignment of any LIBO Rate Loan on a day other than the last day of the
Interest Period applicable thereto), the Lenders shall assign and assume
outstanding Revolving Loans and participations in outstanding Letters of
Credit so as to cause the amounts of such Revolving Loans and
participations in Letters of Credit held by each Lender to conform to the
respective Percentages of the Revolving Loan Commitment of the Lenders and
(iv) WWI shall execute and deliver any additional Notes or other
amendments or modifications to this Agreement or any other Loan Document
as the Administrative Agent may reasonably request.
SECTION 2.1.3. Letter of Credit Commitment. Subject to compliance by the
Obligors with the terms of Section 2.1.5, Section 5.1, Section 5.2 and Section
5.3, from time to time on any Business Day occurring from and after the
Effective Date but prior to the Revolving Loan Commitment Termination Date, the
Issuer will
(a) issue one or more standby or documentary letters of credit (each
referred to as a "Letter of Credit") for the account of WWI in the Stated
Amount requested by WWI on such day; or
(b) extend the Stated Expiry Date of an existing standby Letter of
Credit previously issued hereunder to a date not later than the earlier of
(x) the Revolving Loan Commitment Termination Date and (y) one year from
the date of such extension.
SECTION 2.1.4. Lenders Not Permitted or Required To Make the Loans. No
Lender shall be permitted or required to, and WWI shall not request that any
Lender, make
(a) any Term-A Loan or Term-B Loan (as the case may be) if, after
giving effect thereto, the aggregate original principal amount of all the
Term-A Loans or Term-B Loans (as the case may be):
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(i) of all Lenders would exceed the Term-A Loan Commitment
Amount (in the case of Term-A Loans), or Term-B Loan Commitment
Amount (in the case of Term-B Loans); or
(ii) of such Lender would exceed such Lender's Percentage of
the Term-A Loan Amount (in the case of Term-A Loans) or the Term-B
Loan Amount (in the case of Term-B Loans);
(b) any Revolving Loan or Swing Line Loan if, after giving effect
thereto, the aggregate outstanding principal amount of all the Revolving
Loans and Swing Line Loans
(i) of all the Lenders with Revolving Loan Commitments,
together with the aggregate amount of all Letter of Credit
Outstandings, would exceed the Revolving Loan Commitment Amount; or
(ii) of such Lender with a Revolving Loan Commitment (other
than the Swing Line Lender), together with such Lender's Percentage
of the aggregate amount of all Letter of Credit Outstandings, would
exceed such Lender's Percentage of the Revolving Loan Commitment
Amount; or
(c) any Swing Line Loan if after giving effect to the making of such
Swing Line Loan, the outstanding principal amount of all Swing Line Loans
would exceed the then existing Swing Line Loan Commitment Amount.
SECTION 2.1.5. Issuer Not Permitted or Required to Issue Letters of
Credit. No Issuer shall be permitted or required to issue any Letter of Credit
if, after giving effect thereto, (a) the aggregate amount of all Letter of
Credit Outstandings would exceed the Letter of Credit Commitment Amount or (b)
the sum of the aggregate amount of all Letter of Credit Outstandings plus the
aggregate principal amount of all Revolving Loans and Swing Line Loans then
outstanding would exceed the Revolving Loan Commitment Amount.
SECTION 2.2. Reduction of the Commitment Amounts. The Commitment Amounts
are subject to reductions from time to time pursuant to this Section 2.2.
SECTION 2.2.1. Optional. WWI may, from time to time on any Business Day
occurring after the time of the initial Credit Extension hereunder, voluntarily
reduce the Swing Line Loan Commitment Amount, the Letter of Credit Commitment
Amount or the Revolving Loan Commitment Amount; provided, however, that all such
reductions shall require at least three Business Days' prior notice to the
Administrative Agent and be permanent, and any partial reduction of any
Commitment Amount shall be in a minimum amount of $1,000,000 and in an integral
multiple of $100,000. Any reduction of the Revolving Loan Commitment Amount
which reduces the Revolving Loan Commitment Amount below
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the sum of (i) the Swing Line Loan Commitment Amount and (ii) the Letter of
Credit Commitment Amount shall result in an automatic and corresponding
reduction of the Swing Line Loan Commitment Amount and/or Letter of Credit
Commitment Amount (as directed by WWI in a notice to the Administrative Agent
delivered together with the notice of such voluntary reduction in the Revolving
Loan Commitment Amount) to an aggregate amount not in excess of the Revolving
Loan Commitment Amount, as so reduced, without any further action on the part of
the Swing Line Lender or the Issuer.
SECTION 2.2.2. Mandatory. Following the prepayment in full of the Term
Loans and the TLCs, the Revolving Loan Commitment Amount shall, without any
further action, automatically and permanently be reduced on the date the Term
Loans and the TLCs would otherwise have been required to be prepaid with any Net
Disposition Proceeds, Net Equity Proceeds, or Excess Cash Flow, in an amount
equal to the amount by which the Term Loans and the TLCs would otherwise be
required to be prepaid if Term Loans and the TLCs had been outstanding. Any
reduction of the Revolving Loan Commitment Amount which reduces the Revolving
Loan Commitment Amount below the sum of (i) the Swing Line Loan Commitment
Amount and (ii) the Letter of Credit Commitment Amount shall result in an
automatic and corresponding reduction of the Swing Line Loan Commitment Amount
and/or Letter of Credit Commitment Amount (as directed by WWI in a notice to the
Administrative Agent) to an aggregate amount not in excess of the Revolving Loan
Commitment Amount, as so reduced, without any further action on the part of the
Swing Line Lender or the Issuer.
SECTION 2.3. Borrowing Procedures and Funding Maintenance. Loans shall be
made by the Lenders in accordance with this Section.
SECTION 2.3.1. Term Loans and Revolving Loans. By delivering a Borrowing
Request to the Administrative Agent on or before 12:00 noon, New York time, on a
Business Day, WWI may from time to time irrevocably request, on not less than
one (in the case of Base Rate Loans) and three (in the case of LIBO Rate Loans)
nor more than (in each case) five Business Days' notice, that a Borrowing be
made, in the case of LIBO Rate Loans, in a minimum amount of $2,000,000, and an
integral multiple of $500,000, and in the case of Base Rate Loans, in a minimum
amount of $500,000 and an integral multiple thereof or, in either case, in the
unused amount of the applicable Commitment. On the terms and subject to the
conditions of this Agreement, each Borrowing shall be comprised of the type of
Loans, and shall be made on the Business Day, specified in such Borrowing
Request. On or before 11:00 a.m., New York time, on such Business Day each
Lender shall deposit with the Administrative Agent same day funds in an amount
equal to such Lender's Percentage of the requested Borrowing. Such deposit will
be made to an account which the Administrative Agent shall specify from time to
time by notice to the Lenders. To the extent funds are received from the
Lenders, the Administrative Agent shall make such funds available to the
applicable Borrower by wire transfer to the accounts such Borrower shall have
specified in its Borrowing Request. No Lender's obligation to make any Loan
shall be affected by any other Lender's failure to make any Loan.
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SECTION 2.3.2. Swing Line Loans.
(a) By telephonic notice, promptly followed (within three Business
Days) by the delivery of a confirming Borrowing Request, to the Swing Line
Lender on or before 11:00 a.m., New York time, on a Business Day, WWI may
from time to time irrevocably request that Swing Line Loans be made by the
Swing Line Lender in an aggregate minimum principal amount of $200,000 and
an integral multiple of $100,000. Each request by WWI for a Swing Line
Loan shall constitute a representation and warranty by WWI that on the
date of such request and (if different) the date of the making of the
Swing Line Loan, both immediately before and after giving effect to such
Swing Line Loan and the application of the proceeds thereof, the
statements made in Section 5.2.1 are true and correct. All Swing Line
Loans shall be made as Base Rate Loans and shall not be entitled to be
converted into LIBO Rate Loans. The proceeds of each Swing Line Loan shall
be made available by the Swing Line Lender, by its close of business on
the Business Day telephonic notice is received by it as provided in the
preceding sentences, to WWI by wire transfer to the accounts WWI shall
have specified in its notice therefor.
(b) If (i) any Swing Line Loan shall be outstanding for more than
four full Business Days or (ii) after giving effect to any request for a
Swing Line Loan or a Revolving Loan the aggregate principal amount of
Revolving Loans and Swing Line Loans outstanding to the Swing Line Lender,
together with the Swing Line Lender's Percentage of all Letter of Credit
Outstandings, would exceed the Swing Line Lender's Percentage of the
Revolving Loan Commitment Amount, the Swing Line Lender, at any time in
its sole and absolute discretion may request each Lender that has a
Revolving Loan Commitment, and each such Lender, including the Swing Line
Lender hereby agrees, to make a Revolving Loan (which shall always be
initially funded as a Base Rate Loan) in an amount equal to such Lender's
Percentage of the amount of the Swing Line Loans ("Refunded Swing Line
Loans") outstanding on the date such notice is given. On or before 11:00
a.m. (New York time) on the first Business Day following receipt by each
Lender of a request to make Revolving Loans as provided in the preceding
sentence, each such Lender (other than the Swing Line Lender) shall
deposit in an account specified by the Administrative Agent to the Lenders
from time to time the amount so requested in same day funds, whereupon
such funds shall be immediately delivered to the Swing Line Lender (and
not WWI) and applied to repay the Refunded Swing Line Loans. On the day
such Revolving Loans are made, the Swing Line Lender's Percentage of the
Refunded Swing Line Loans shall be deemed to be paid. Upon the making of
any Revolving Loan pursuant to this clause, the amount so funded shall
become due under such Lender's Revolving Note and shall no longer be owed
under the Swing Line Note. Each Lender's obligation to make the Revolving
Loans referred to in this clause shall be absolute and unconditional and
shall not be affected by any circumstance, including, without limitation,
(i) any setoff, counterclaim, recoupment, defense or other right which
such Lender may have against the Swing Line Lender, WWI or any other
Person for any reason whatsoever; (ii) the occurrence or
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continuance of any Default; (iii) any adverse change in the condition
(financial or otherwise) of WWI or any other Obligor, subsequent to the
date of the making of a Swing Line Loan; (iv) the acceleration or maturity
of any Loans or the termination of the Revolving Loan Commitment after the
making of any Swing Line Loan; (v) any breach of this Agreement by WWI,
any other Obligor or any other Lender; or (vi) any other circumstance,
happening or event whatsoever, whether or not similar to any of the
foregoing.
(c) In the event that (i) WWI or any Subsidiary is subject to any
bankruptcy or insolvency proceedings as provided in Section 9.1.9 or (ii)
the Swing Line Lender otherwise requests, each Lender with a Revolving
Loan Commitment shall acquire without recourse or warranty an undivided
participation interest equal to such Lender's Percentage of any Swing Line
Loan otherwise required to be repaid by such Lender pursuant to the
preceding clause by paying to the Swing Line Lender on the date on which
such Lender would otherwise have been required to make a Revolving Loan in
respect of such Swing Line Loan pursuant to the preceding clause, in same
day funds, an amount equal to such Lender's Percentage of such Swing Line
Loan, and no Revolving Loans shall be made by such Lender pursuant to the
preceding clause. From and after the date on which any Lender purchases an
undivided participation interest in a Swing Line Loan pursuant to this
clause, the Swing Line Lender shall distribute to such Lender
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's participation interest is
outstanding and funded) its ratable amount of all payments of principal
and interest in respect of such Swing Line Loan in like funds as received;
provided, however, that in the event such payment received by the Swing
Line Lender is required to be returned to WWI, such Lender shall return to
the Swing Line Lender the portion of any amounts which such Lender had
received from the Swing Line Lender in like funds.
(d) Notwithstanding anything herein to the contrary, the Swing Line
Lender shall not be obligated to make any Swing Line Loans if it has
elected after the occurrence of a Default not to make Swing Line Loans and
has notified WWI in writing or by telephone of such election. The Swing
Line Lender shall promptly give notice to the Lenders of such election not
to make Swing Line Loans.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/ Conversion Notice to the Administrative Agent on or before 12:00
noon, New York time, on a Business Day, WWI may from time to time irrevocably
elect, on not less than one (in the case of a conversion of LIBO Rate Loans to
Base Rate Loans) and three (in the case of a continuation of LIBO Rate Loans or
a conversion of Base Rate Loans into LIBO Rate Loans) nor more than (in each
case) five Business Days' notice that all, or any portion in an aggregate
minimum amount of $2,000,000 and an integral multiple of $500,000, in the case
of the continuation of, or conversion into, LIBO Rate Loans, or an aggregate
minimum amount of $500,000 and an integral multiple thereof, in the case of the
conversion into Base Rate Loans, (other than Swing Line Loans as provided in
clause (a) of Section
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2.3.2) be, in the case of Base Rate Loans, converted into LIBO Rate Loans or, in
the case of LIBO Rate Loans, be converted into a Base Rate Loan or continued as
a LIBO Rate Loan (in the absence of delivery of a Continuation/Conversion Notice
with respect to any LIBO Rate Loan at least three Business Days before the last
day of the then current Interest Period with respect thereto, such LIBO Rate
Loan shall, on such last day, automatically convert to a Base Rate Loan);
provided, however, that (x) each such conversion or continuation shall be pro
rated among the applicable outstanding Loans of the relevant Lenders, and (y) no
portion of the outstanding principal amount of any Loans may be continued as, or
be converted into, LIBO Rate Loans when any Default has occurred and is
continuing.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan, so long as such
action does not result in increased costs to WWI; provided, however, that such
LIBO Rate Loan shall nonetheless be deemed to have been made and to be held by
such Lender, and the obligation of WWI to repay such LIBO Rate Loan shall
nevertheless be to such Lender for the account of such foreign branch, Affiliate
or international banking facility; and provided, further, however, that such
Lender shall cause such foreign branch, Affiliate or international banking
facility to comply with the applicable provisions of clause (b) of Section 4.6
with respect to such LIBO Rate Loan. In addition, WWI hereby consents and agrees
that, for purposes of any determination to be made for purposes of Section 4.1,
4.2, 4.3 or 4.4, it shall be conclusively assumed that each Lender elected to
fund all LIBO Rate Loans by purchasing U.S. Dollar deposits in its LIBOR
Office's interbank eurodollar market.
SECTION 2.6. Issuance Procedures. By delivering to the Administrative
Agent an Issuance Request on or before 12:00 noon, New York time, on a Business
Day, WWI may, from time to time irrevocably request, on not less than three nor
more than ten Business Days' notice (or such shorter notice as may be acceptable
to the Issuer), in the case of an initial issuance of a Letter of Credit, and
not less than three nor more than ten Business Days' notice (unless a shorter
notice period is acceptable to the Issuer) prior to the then existing Stated
Expiry Date of a Letter of Credit, in the case of a request for the extension of
the Stated Expiry Date of a Letter of Credit, that the Issuer issue, or extend
the Stated Expiry Date of, as the case may be, an irrevocable Letter of Credit
for WWI's account or for the account of any wholly-owned U.S. Subsidiary of WWI
that is a party to the Subsidiary Guaranty and the WWI Security Agreement and
whose outstanding Capital Securities is pledged to the Administrative Agent for
the benefit of the Lenders pursuant to the WWI Pledge Agreement, in such form as
may be requested by WWI and approved by the Issuer, solely for the purposes
described in Section 7.1.9. Notwithstanding anything to the contrary contained
herein or in any separate application for any Letter of Credit, WWI hereby
acknowledges and agrees that it shall be obligated to reimburse the Issuer upon
each Disbursement of a Letter of Credit, and it shall be deemed to be the
obligor for purposes of each such Letter of Credit issued hereunder (whether the
account party on such Letter of Credit is WWI or a Subsidiary of WWI). Upon
receipt of an Issuance Request, the Administrative Agent shall promptly notify
the Issuer and each Lender thereof. Each Letter of Credit shall by its terms be
stated to expire on a date (its "Stated Expiry Date") no later than the earlier
to occur of (i) the
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Revolving Loan Commitment Termination Date or (ii) one year from the date of its
issuance. The Issuer will make available to the beneficiary thereof the original
of each Letter of Credit which it issues hereunder.
SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of each
Letter of Credit issued by the Issuer pursuant hereto, and without further
action, each Lender (other than the Issuer) that has a Revolving Loan Commitment
shall be deemed to have irrevocably purchased from the Issuer, to the extent of
its Percentage to make Revolving Loans, and the Issuer shall be deemed to have
irrevocably granted and sold to such Lender a participation interest in such
Letter of Credit (including the Contingent Liability and any Reimbursement
Obligation and all rights with respect thereto), and such Lender shall, to the
extent of its Revolving Loan Commitment Percentage, be responsible for
reimbursing promptly (and in any event within one Business Day) the Issuer for
Reimbursement Obligations which have not been reimbursed by WWI in accordance
with Section 2.6.3. In addition, such Lender shall, to the extent of its
Percentage to make Revolving Loans, be entitled to receive a ratable portion of
the Letter of Credit fees payable pursuant to Section 3.3.3 with respect to each
Letter of Credit and of interest payable pursuant to Section 3.2 with respect to
any Reimbursement Obligation. To the extent that any Lender has reimbursed the
Issuer for a Disbursement as required by this Section, such Lender shall be
entitled to receive its ratable portion of any amounts subsequently received
(from WWI or otherwise) in respect of such Disbursement.
SECTION 2.6.2. Disbursements; Conversion to Revolving Loans. The Issuer
will notify WWI and the Administrative Agent promptly of the presentment for
payment of any Letter of Credit issued by the Issuer, together with notice of
the date (the "Disbursement Date") such payment shall be made (each such
payment, a "Disbursement"). Subject to the terms and provisions of such Letter
of Credit and this Agreement, the Issuer shall make such payment to the
beneficiary (or its designee) of such Letter of Credit. Prior to 12:00 noon, New
York time, on the first Business Day following the Disbursement Date (the
"Disbursement Due Date"), WWI will reimburse the Administrative Agent, for the
account of the Issuer, for all amounts which the Issuer has disbursed under such
Letter of Credit, together with interest thereon at the rate per annum otherwise
applicable to Revolving Loans (made as Base Rate Loans) from and including the
Disbursement Date to but excluding the Disbursement Due Date and, thereafter
(unless such Disbursement is converted into a Base Rate Loan on the Disbursement
Due Date), at a rate per annum equal to the rate per annum then in effect with
respect to overdue Revolving Loans (made as Base Rate Loans) pursuant to Section
3.2.2 for the period from the Disbursement Due Date through the date of such
reimbursement; provided, however, that, if no Default shall have then occurred
and be continuing, unless WWI has notified the Administrative Agent no later
than one Business Day prior to the Disbursement Due Date that it will reimburse
the Issuer for the applicable Disbursement, then the amount of the Disbursement
shall be deemed to be a Revolving Loan constituting a Base Rate Loan and
following the giving of notice thereof by the Administrative Agent to the
Lenders, each Lender with a commitment to make Revolving Loans (other than the
Issuer) will deliver to the Issuer on the Disbursement Due Date immediately
available funds in an amount equal to such Lender's Percentage of such Revolving
Loan. Each conversion of Disbursement amounts into
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Revolving Loans shall constitute a representation and warranty by WWI that on
the date of the making of such Revolving Loan all of the statements set forth in
Section 5.2.1 are true and correct.
SECTION 2.6.3. Reimbursement. The obligation (a "Reimbursement
Obligation") of WWI under Section 2.6.2 to reimburse the Issuer with respect to
each Disbursement (including interest thereon) not converted into a Base Rate
Loan pursuant to Section 2.6.2, and, upon the failure of WWI to reimburse the
Issuer and the giving of notice thereof by the Administrative Agent to the
Lenders, each Lender's (to the extent it has a Revolving Loan Commitment)
obligation under Section 2.6.1 to reimburse the Issuer or fund its Percentage of
any Disbursement converted into a Base Rate Loan, shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which WWI or such Lender, as the case may be,
may have or have had against the Issuer or any such Lender, including any
defense based upon the failure of any Disbursement to conform to the terms of
the applicable Letter of Credit (if, in the Issuer's good faith opinion, such
Disbursement is determined to be appropriate) or any non-application or
misapplication by the beneficiary of the proceeds of such Letter of Credit;
provided, however, that after paying in full its Reimbursement Obligation
hereunder, nothing herein shall adversely affect the right of WWI or such
Lender, as the case may be, to commence any proceeding against the Issuer for
any wrongful Disbursement made by the Issuer under a Letter of Credit as a
result of acts or omissions constituting gross negligence or willful misconduct
on the part of the Issuer.
SECTION 2.6.4. Deemed Disbursements. Upon the occurrence and during the
continuation of any Event of Default of the type described in Section 9.1.9 or,
with notice from the Administrative Agent acting at the direction of the
Required Lenders, upon the occurrence and during the continuation of any other
Event of Default,
(a) an amount equal to that portion of all Letter of Credit
Outstandings attributable to the then aggregate amount which is undrawn
and available under all Letters of Credit issued and outstanding shall,
without demand upon or notice to WWI or any other Person, be deemed to
have been paid or disbursed by the Issuer under such Letters of Credit
(notwithstanding that such amount may not in fact have been so paid or
disbursed); and
(b) upon notification by the Administrative Agent to WWI of its
obligations under this Section, WWI shall be immediately obligated to
reimburse the Issuer for the amount deemed to have been so paid or
disbursed by the Issuer.
Any amounts so payable by WWI pursuant to this Section shall be deposited in
cash with the Administrative Agent and held as collateral security for the
Obligations in connection with the Letters of Credit issued by the Issuer. At
such time when the Events of Default giving rise to the deemed disbursements
hereunder shall have been cured or waived, the Administrative Agent shall return
to WWI all amounts then on deposit with the Administrative Agent pursuant to
this Section, together with
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accrued interest at the Federal Funds Rate, which have not been applied to the
satisfaction of such Obligations.
SECTION 2.6.5. Nature of Reimbursement Obligations. WWI and, to the extent
set forth in Section 2.6.1, each Lender with a Revolving Loan Commitment, shall
assume all risks of the acts, omissions or misuse of any Letter of Credit by the
beneficiary thereof. The Issuer (except to the extent of its own gross
negligence or willful misconduct) shall not be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any Letter of Credit or any document submitted by any party in
connection with the application for and issuance of a Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder
or the proceeds thereof in whole or in part, which may prove to be invalid
or ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise;
or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement under a Letter
of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to the Issuer or any Lender with a Revolving Loan
Commitment hereunder. In furtherance and extension and not in limitation or
derogation of any of the foregoing, any action taken or omitted to be taken by
the Issuer in good faith (and not constituting gross negligence or willful
misconduct) shall be binding upon WWI, each Obligor and each such Lender, and
shall not put the Issuer under any resulting liability to WWI, any Obligor or
any such Lender, as the case may be.
SECTION 2.7. Notes. Each Lender's Loans under a Commitment for a Loan
shall be evidenced, if such Lender shall request, by a Note payable to the order
of such Lender in a maximum principal amount equal to such Lender's Percentage
of the original applicable Commitment Amount. All Swing Line Loans made by the
Swing Line Lender shall be evidenced by a Swing Line Note payable to the order
of the Swing Line Lender in a maximum principal amount equal to the Swing Line
Loan Commitment Amount. WWI hereby irrevocably authorizes each Lender to make
(or cause to be made) appropriate notations on the grid attached to such
Lender's Notes (or on any continuation of
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such grid), which notations, if made, shall evidence, inter alia, the date of,
the outstanding principal of, and the interest rate and Interest Period
applicable to the Loans evidenced thereby. Such notations shall be conclusive
and binding on WWI absent manifest error; provided, however, that the failure of
any Lender to make any such notations shall not limit or otherwise affect any
Obligations of WWI or any other Obligor.
SECTION 2.8. Registered Notes. (a) Any Non-U.S. Lender that could become
completely exempt from withholding of any Taxes in respect of payment of any
interest due to such Non-U.S. Lender under this Agreement if the Notes held by
such Lender were in registered form for U.S. Federal income tax purposes may
request WWI (through the Administrative Agent), and WWI agrees (i) to exchange
for any Notes held by such Lender, or (ii) to issue to such Lender on the date
it becomes a Lender, promissory notes(s) registered as provided in clause (b) of
this Section 2.8 (each a Registered Note). Registered Notes may not be exchanged
for Notes that are not Registered Notes.
(b) The Administrative Agent shall enter, in the Register, the name of the
registered owner of the Non-U.S. Lender Obligation(s) evidenced by a Registered
Note.
(c) The Register shall be available for inspection by WWI and any Lender
at any reasonable time upon reasonable prior notice.
SECTION 2.9. TLC Facility. Each TLC Lender shall purchase, on the Closing
Date, TLCs from the SP1 Borrower (with the commitment of each such TLC Lender to
purchase TLCs being, its "TLC Commitment") equal to such TLC Lender's Percentage
of the TLC Commitment Amount. No amounts paid or prepaid with respect to TLCs
may be reborrowed.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application.
SECTION 3.1.1. Repayments and Prepayments. The SP1 Borrower and WWI shall
repay in full the unpaid principal amount of each Loan and TLC, as applicable,
upon the Stated Maturity Date therefor. Prior thereto,
(a) any Borrower may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding principal
amount of any
(i) Loan (other than Swing Line Loans) or TLC, provided,
however, that
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(A) any such prepayment of the Term-A Loans or Term-B
Loans or TLCs shall be made pro rata among such Term-A Loans
or Term-B Loans or TLCs of the same type and if applicable,
having the same Interest Period as all Lenders that have made
such Term-A Loans or Term-B Loans or TLCs, and any such
prepayment of Revolving Loans shall be made pro rata among the
Revolving Loans of the same type and, if applicable, having
the same Interest Period as all Lenders that have made such
Revolving Loans;
(B) the Borrowers shall comply with Section 4.4 in the
event that any LIBO Rate Loan is prepaid on any day other than
the last day of the Interest Period for such Loan;
(C) all such voluntary prepayments shall require at
least three but no more than five Business Days' prior written
notice to the Administrative Agent; and
(D) all such voluntary partial prepayments shall be, in
the case of LIBO Rate Loans or TLCs bearing interest with
reference to the LIBO Rate, in an aggregate minimum amount of
$2,000,000 and an integral multiple of $500,000 and, in the
case of Base Rate Loans or TLCs bearing interest with
reference to the Base Rate, in an aggregate minimum amount of
$500,000 and an integral multiple thereof; or
(ii) Swing Line Loans, provided that all such voluntary
prepayments shall require prior telephonic notice to the Swing Line
Lender on or before 1:00 p.m., New York time, on the day of such
prepayment (such notice to be confirmed in writing within 24 hours
thereafter);
provided, that in the event such prepayment of Term-B Loans or TLCs occurs (x)
after the Closing Date and on any day prior to the first anniversary thereof,
WWI shall pay to the Administrative Agent for the account of all Term-B Lenders
or TLC Lenders, as the case may be, a fee in the amount of 2% of such prepayment
and (y) on and after the date which is the first anniversary of the Closing Date
and on or prior to the second anniversary of the Closing Date, WWI shall pay the
Administrative Agent for the account of all Term-B Lenders or TLC Lenders, as
the case may be, a fee in the amount of 1% of such prepayment;
(b) the SP1 Borrower and WWI, as the case may be, shall no later
than one Business Day following the receipt by WWI or any of its
Subsidiaries of any Net Disposition Proceeds, deliver to the
Administrative Agent a calculation of the amount of such Net Disposition
Proceeds and, subject to the following proviso, make a mandatory
prepayment of the Term Loans and TLCs in an amount equal to 100% of such
Net Disposition Proceeds, to be applied
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as set forth in Section 3.1.2; provided, however, that, at the option of
WWI and so long as no Default shall have occurred and be continuing, WWI
may use or cause the appropriate Subsidiary to use the Net Disposition
Proceeds to purchase assets useful in the business of WWI and its
Subsidiaries or to purchase a majority controlling interest in a Person
owning such assets or to increase any such controlling interest already
maintained by it; provided, that if such Net Disposition Proceeds arise
from or are related to a Disposition of assets of a Guarantor then any
such reinvestment must either be made by or in a Guarantor or a Person
which upon the making of such reinvestment becomes a Guarantor (with such
assets or interests collectively referred to as "Qualified Assets") within
365 days after the consummation (and with the Net Disposition Proceeds) of
such sale, conveyance or disposition, and in the event WWI elects to
exercise its right to purchase Qualified Assets with the Net Disposition
Proceeds pursuant to this clause, WWI shall deliver a certificate of an
Authorized Officer of WWI to the Administrative Agent within 30 days
following the receipt of Net Disposition Proceeds setting forth the amount
of the Net Disposition Proceeds which WWI expects to use to purchase
Qualified Assets during such 365 day period; provided, further, that WWI
and its Subsidiaries shall only be permitted to reinvest Net Disposition
Proceeds in Qualified Assets to the extent permitted by Section 7.2.5 over
the term of this Agreement. If and to the extent that WWI has elected to
reinvest Net Disposition Proceeds as permitted above, then on the date
which is 365 days (in the case of clause (b)(i) below) and 370 days (in
the case of clause (b)(ii) below) after the relevant sale, conveyance or
disposition, WWI shall (i) deliver a certificate of an Authorized Officer
of WWI to the Administrative Agent certifying as to the amount and use of
such Net Disposition Proceeds actually used to purchase Qualified Assets
and (ii) deliver to the Administrative Agent, for application in
accordance with this clause and Section 3.1.2, an amount equal to the
remaining unused Net Disposition Proceeds;
(c) the SP1 Borrower and WWI, as applicable, shall, no later than 5
Business Days following the delivery of WWI's annual audited financial
reports required pursuant to clause (b) of Section 7.1.1 (beginning with
the financial reports delivered in respect of the 2001 Fiscal Year),
deliver to the Administrative Agent a calculation of the Excess Cash Flow
for the prior Fiscal Year and no later than 5 Business Days following the
delivery of such calculation, make a mandatory prepayment of the Term
Loans and TLCs in an aggregate amount equal to 75% of the Excess Cash Flow
(if any) for such Fiscal Year, to be applied as set forth in Section
3.1.2;
(d) the SP1 Borrower and WWI, as applicable, concurrently with WWI's
receipt of any Net Equity Proceeds, deliver to the Administrative Agent a
calculation of the amount of such Net Equity Proceeds, and no later than 5
Business Days following the delivery of such calculation, make a mandatory
prepayment of the Term Loans and TLCs in an aggregate amount equal to 50%
of such Net Equity Proceeds, to be applied as set forth in Section 3.1.2;
provided, that all such Net Equity Proceeds shall be deposited in a cash
collateral account with the Administrative Agent upon receipt pending
application to the Loans pursuant to this clause;
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(e) WWI shall, on each date when any reduction in the Revolving Loan
Commitment Amount shall become effective, including pursuant to Section
2.2 or Section 3.1.2, make a mandatory prepayment of Revolving Loans and
(if necessary) Swing Line Loans, and (if necessary) deposit with the
Administrative Agent cash collateral for Letter of Credit Outstandings) in
an aggregate amount equal to the excess, if any, of the aggregate
outstanding principal amount of all Revolving Loans, Swing Line Loans and
Letters of Credit Outstanding over the Revolving Loan Commitment Amount as
so reduced;
(f) WWI shall, on the Stated Maturity Date and on each Quarterly
Payment Date occurring on or during any period set forth below, make a
scheduled repayment of the aggregate outstanding principal amount, if any,
of all Term-A Loans in an amount equal to the amount set forth below
opposite the Stated Maturity Date or such Quarterly Payment Date (as such
amounts may have otherwise been reduced pursuant to this Agreement), as
applicable:
03/31/00 through (and including)
09/30/04 $3,125,000
10/01/04 through (and including)
06/30/05 $3,906,250
07/01/05 through (and including)
Stated Maturity Date $3,906,250, or the
then outstanding
principal amount of
all Term-A Loans, if
different;
(g) WWI shall, on the Stated Maturity Date and on each Quarterly
Payment Date occurring on or during any period set forth below, make a
scheduled repayment of the aggregate outstanding principal amount, if any,
of all Term-B Loans in an amount equal to the amount set forth below
opposite the Stated Maturity Date or such Quarterly Payment Date (as such
amounts may have otherwise been reduced pursuant to this Agreement), as
applicable:
03/31/00 through (and including) $187,500
09/30/05
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10/01/05 through (and including) $17,671,875
06/30/06
07/01/06 through (and including)
Stated Maturity Date $17,671,875, or the
then outstanding
principal amount of all
Term-B Loans, if
different.
(h) the SP1 Borrower shall, on the Stated Maturity Date and on each
Quarterly Payment Date occurring on or during any period set forth below,
make a scheduled repayment of the aggregate outstanding principal amount,
if any, of all TLCs in an amount equal to the amount set forth below
opposite the Stated Maturity Date or such Quarterly Payment Date, as
applicable (as such amounts may have otherwise been reduced pursuant to
this Agreement):
03/31/00 through (and including)
09/30/05 $217,500
10/01/05 through (and including)
06/30/06 $20,499,375
07/01/06 through (and including)
Stated Maturity Date $20,499,375, or the
then outstanding
principal amount of
all TLCs, if different;
(i) the SP1 Borrower and WWI, as the case may be, shall, immediately
upon any acceleration of the Stated Maturity Date of any Loans or
Obligations pursuant to Section 9.2 or Section 9.3, repay all Loans and
TLCs and provide the Administrative Agent with cash collateral in an
amount equal to the Letter of Credit Outstandings, unless, pursuant to
Section 9.3, only a portion of all Loans and TLCs and Obligations are so
accelerated (in which case the portion so accelerated shall be so prepaid
or cash collateralized with the Administrative Agent); and
(j) the SP1 Borrower shall, immediately upon receipt of proceeds in
connection with the repayment of any intercompany loan payable to the SP1
Borrower, make a mandatory prepayment of the TLCs, to be applied as set
forth in Section 3.1.2, in an amount equal to the sum of such proceeds,
other than (x) scheduled amortization payments thereof and (y) any
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other payment to the SP1 Borrower which would otherwise result in a
mandatory prepayment under this Section 3.1.1;
provided that in the event such prepayment under clause (b) or (d) of this
Section occurs (x) after the Closing Date and on any day prior to the first
anniversary thereof, WWI shall pay to the Administrative Agent for the account
of all Term-B Lenders or TLC Lenders, as the case may be, a fee in the amount of
2% of such prepayment and (y) on and after the date which is the first
anniversary of the Closing Date and on or prior to the second anniversary of the
Closing Date, WWI shall pay the Administrative Agent for the account of all
Term-B Lenders or TLC Lenders, as the case may be, a fee in the amount of 1% of
such prepayment.
Each prepayment of any Loans or TLCs made pursuant to this Section shall
be without premium or penalty, except as may be required by Section 4.4. No
prepayment of principal of any Revolving Loans or Swing Line Loans pursuant to
clauses (a) of Section 3.1.1 shall cause a reduction in the Revolving Loan
Commitment Amount or the Swing Line Loan Commitment Amount, as the case may be.
SECTION 3.1.2. Application. (a) Subject to clause (b), each prepayment or
repayment of the principal of the Loans or TLCs shall be applied, to the extent
of such prepayment or repayment, first, to the principal amount thereof being
maintained as Base Rate Loans or bearing interest with reference to the Base
Rate, as the case may be, and second, to the principal amount thereof being
maintained as LIBO Rate Loans or bearing interest with reference to the LIBO
Rate, as the case may be.
(b) Each voluntary prepayment of Term Loans or TLCs and each prepayment of
Term Loans and TLCs made pursuant to clauses (b), (c) and (d) of Section 3.1.1
shall be applied pro rata to a mandatory prepayment of the outstanding principal
amount of all Term Loans and TLCs (with the amount of such prepayment of the
Term Loans or TLCs being applied to the remaining Term Loan and TLC amortization
payments, as the case may be, required pursuant to clauses (f), (g) and (h) of
Section 3.1.1, in each case pro rata in accordance with the amount of each such
remaining amortization payment), until all such Term Loans and TLCs have been
paid in full; provided, however, that in the case of each prepayment of Term
Loans and TLCs required pursuant to clauses (b), (c), and (d) of Section 3.1.1,
any Lender that has Term-B Loans and TLCs outstanding (at a time when any Term-A
Loans remain outstanding) may, by delivering a notice to the Administrative
Agent at least one Business Day prior to the date that such prepayment is to be
made, elect not to have its pro rata share of Term-B Loans or TLCs, as the case
may be, prepaid, and upon any such election the Administrative Agent shall (x)
apply 50% of the amount that otherwise would have prepaid such Lender's Term-B
Loans or TLCs, as the case may be, to a mandatory prepayment of the Term-A Loans
(until repaid in full), and then to a reduction in the Revolving Loan Commitment
Amount and (y) permit the remaining 50% of such amount to be retained by the
applicable Borrower.
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SECTION 3.2. Interest Provisions. Interest on the outstanding principal
amount of Loans shall accrue and be payable in accordance with this Section 3.2.
SECTION 3.2.1. Rates.
(a) Pursuant to an appropriately delivered Borrowing Request or
Continuation/Conversion Notice, WWI may elect that Loans comprising a Borrowing
accrue interest at a rate per annum:
(i) with respect to Revolving Loans and Term-A Loans,
(A) on that portion maintained from time to time as a Base
Rate Loan, equal to the sum of the Alternate Base Rate from time to
time in effect plus the Applicable Margin; and
(B) on that portion maintained as a LIBO Rate Loan, during
each Interest Period applicable thereto, equal to the sum of the
LIBO Rate (Reserve Adjusted) for such Interest Period plus the
Applicable Margin; and
(ii) with respect to Term-B Loans,
(A) on that portion maintained from time to time as a Base
Rate Loan, equal to the sum of the Alternate Base Rate from time to
time in effect plus the Applicable Margin for such Loans; and
(B) on that portion maintained as a LIBO Rate Loan, during
each Interest Period applicable thereto, equal to the sum of the
LIBO Rate (Reserve Adjusted) for such Interest Period plus the
Applicable Margin for such Loans; and
(iii) with respect to Swing Line Loans, equal to the sum of the
Alternate Base Rate from time to time in effect plus the Applicable
Margin.
All LIBO Rate Loans shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such LIBO Rate Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount of
any Loan shall have become due and payable (whether on the Stated Maturity Date,
upon acceleration or otherwise), or any other monetary Obligation (other than
overdue Reimbursement Obligations which shall bear interest as provided in
Section 2.6.2) of WWI shall have become due and payable, WWI shall pay, but only
to the extent permitted by law, interest (after as well as before judgment) on
such amounts at a rate per annum equal to
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(a) in the case of any overdue principal amount of Loans, overdue
interest thereon, overdue commitment fees or other overdue amounts owing
in respect of Loans or other obligations (or the related Commitments)
under a particular Tranche, the rate that would otherwise be applicable to
Base Rate Loans under such Tranche pursuant to Section 3.2.1 plus 2%; and
(b) in the case of overdue monetary Obligations (other than as
described in clause (a)), the Alternate Base Rate plus 4%.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or in part,
of principal outstanding on such Loan;
(c) with respect to Base Rate Loans, in arrears on each Quarterly
Payment Date occurring after the date of the initial Borrowing hereunder;
(d) with respect to LIBO Rate Loans, the last day of each applicable
Interest Period (and, if such Interest Period shall exceed three months,
on the third month anniversary of such Interest Period);
(e) with respect to any Base Rate Loans converted into LIBO Rate
Loans on a day when interest would not otherwise have been payable
pursuant to clause (c), on the date of such conversion; and
(f) on that portion of any Loans the Stated Maturity Date of which
is accelerated pursuant to Section 9.2 or Section 9.3, immediately upon
such acceleration.
Interest accrued on Loans, Reimbursement Obligations or other monetary
Obligations (other than TLCs) arising under this Agreement or any other Loan
Document after the date such amount is due and payable (whether on the Stated
Maturity Date, upon acceleration or otherwise) shall be payable upon demand.
SECTION 3.3. Fees. The Borrowers agree to pay the fees set forth in this
Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Commitment Fee. WWI agrees to pay to the Administrative
Agent for the account of each Lender that has a Revolving Loan Commitment, for
the period (including any portion
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thereof when any of the Lender's Commitments are suspended by reason of any
Borrower's inability to satisfy any condition of Article V) commencing on the
Effective Date and continuing through the Revolving Loan Commitment Termination
Date, a commitment fee at the rate of .50% per annum of the average daily unused
portion of the Revolving Loan Commitment Amount. Such commitment fees shall be
payable by WWI in arrears on each Quarterly Payment Date, commencing with the
first such day following the Effective Date, and on the Revolving Loan
Commitment Termination Date. The making of Swing Line Loans by the Swing Line
Lender shall constitute the usage of the Revolving Loan Commitment with respect
to the Swing Line Lender only and the commitment fees to be paid by WWI to the
Lenders (other than the Swing Line Lender) shall be calculated and paid
accordingly. Any term or provision hereof to the contrary notwithstanding,
commitment fees payable for any period prior to the Effective Date shall be
payable in accordance with the Fee Letter.
SECTION 3.3.2. Administrative Agent's Fee. Each of the Borrowers agrees to
pay to the Administrative Agent, for its own account, the non-refundable fees in
the amounts and on the dates set forth in the Fee Letter.
SECTION 3.3.3. Letter of Credit Fee. WWI agrees to pay to the
Administrative Agent, for the pro rata account of the Issuer and each other
Lender that has a Revolving Loan Commitment, a Letter of Credit fee in an amount
equal to the Applicable Margin per annum for Revolving Loans that are maintained
as LIBO Rate Loans, multiplied by the aggregate Stated Amount of all outstanding
Letters of Credit, such fees being payable quarterly in arrears on each
Quarterly Payment Date. WWI further agrees to pay to the Issuer for its own
account an issuance fee in an amount as agreed to by WWI and the Issuer.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to WWI and the Lenders, be
conclusive and binding on WWI) that the introduction of or any change in or in
the interpretation of any law makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for such Lender to make,
continue or maintain any Loan as, or to convert any Loan into, a LIBO Rate Loan,
the obligations of such Lender to make, continue, maintain or convert any Loans
as LIBO Rate Loans shall, upon such determination, forthwith be suspended until
such Lender shall notify the Administrative Agent that the circumstances causing
such suspension no longer exist (with the date of such notice being the
"Reinstatement Date"), and (i) all LIBO Rate Loans previously made by such
Lender shall automatically convert into Base Rate Loans at the end of the then
current Interest Periods with respect thereto or sooner, if required by such law
or assertion and (ii) all Loans thereafter made by such Lender and outstanding
prior to the Reinstatement Date shall be made as Base Rate Loans, with interest
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thereon being payable on the same date that interest is payable with respect to
corresponding Borrowing of LIBO Rate Loans made by Lenders not so affected.
SECTION 4.2. Deposits Unavailable. If the Administrative Agent shall have
determined that
(a) U.S. Dollar deposits in the relevant amount and for the relevant
Interest Period are not available to the Administrative Agent in its
relevant market; or
(b) by reason of circumstances affecting the Administrative Agent's
relevant market, adequate means do not exist for ascertaining the interest
rate applicable hereunder to LIBO Rate Loans,
then, upon notice from the Administrative Agent to WWI and the Lenders, the
obligations of all Lenders under Section 2.3 and Section 2.4 to make or continue
any Loans as, or to convert any Loans into, LIBO Rate Loans shall forthwith be
suspended until the Administrative Agent shall notify WWI and the Lenders that
the circumstances causing such suspension no longer exist.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. WWI agrees to reimburse
each Lender for any increase in the cost to such Lender of, or any reduction in
the amount of any sum receivable by such Lender in respect of, making,
continuing or maintaining (or of its obligation to make, continue or maintain)
any Loans as, or of converting (or of its obligation to convert) any Loans into,
LIBO Rate Loans (excluding any amounts, whether or not constituting Taxes,
referred to in Section 4.6) arising after the date of any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other Governmental Authority that results in such increase in cost or
reduction in amounts receivable, except for such changes with respect to
increased capital costs and Taxes which are governed by Sections 4.5 and 4.6,
respectively. Such Lender shall promptly notify the Administrative Agent and WWI
in writing of the occurrence of any such event, such notice to state, in
reasonable detail, the reasons therefor and the additional amount required fully
to compensate such Lender for such increased cost or reduced amount. Such
additional amounts shall be payable by WWI directly to such Lender within five
days of its receipt of such notice, and such notice shall, in the absence of
manifest error, be conclusive and binding on WWI.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any loss
or expense (including any loss or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to make,
continue or maintain any portion of the principal amount of any Loan as, or to
convert any portion of the principal amount of any Loan into, a LIBO Rate Loan)
as a result of
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(a) any conversion or repayment or prepayment of the principal
amount of any LIBO Rate Loans on a date other than the scheduled last day
of the Interest Period applicable thereto, whether pursuant to Section 3.1
or otherwise;
(b) any Loans not being made as LIBO Rate Loans in accordance with
the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into, LIBO Rate
Loans in accordance with the Continuation/Conversion Notice therefor,
then, upon the written notice of such Lender to WWI (with a copy to the
Administrative Agent), WWI shall, within five days of its receipt thereof, pay
directly to such Lender such amount as will (in the reasonable determination of
such Lender) reimburse such Lender for such loss or expense. Such written notice
(which shall include calculations in reasonable detail) shall, in the absence of
manifest error, be conclusive and binding on WWI.
SECTION 4.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other Governmental Authority affects or would affect the amount of capital
required or expected to be maintained by any Lender or any Person controlling
such Lender, and such Lender determines (in its sole and absolute discretion)
that the rate of return on its or such controlling Person's capital as a
consequence of its Commitments, participation in Letters of Credit or the Loans
made by such Lender is reduced to a level below that which such Lender or such
controlling Person could have achieved but for the occurrence of any such
circumstance, then, in any such case upon notice from time to time by such
Lender to WWI shall immediately pay directly to such Lender additional amounts
sufficient to compensate such Lender or such controlling Person for such
reduction in rate of return. A statement of such Lender as to any such
additional amount or amounts (including calculations thereof in reasonable
detail) shall, in the absence of manifest error, be conclusive and binding on
WWI. In determining such amount, such Lender may use any method of averaging and
attribution that it (in its sole and absolute discretion) shall deem applicable.
SECTION 4.6. Taxes. The Borrowers covenant and agree as follows with
respect to Taxes.
(a) Unless required by law, any and all payments made by the Borrowers
under this Agreement and each other Loan Document shall be made without setoff,
counterclaim or other defense, and free and clear of, and without deduction or
withholding for or on account of, any Taxes. In the event that any Taxes are
required by law to be deducted or withheld from any payment required to be made
by any Borrower to or on behalf of any Secured Party under any Loan Document,
then:
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(i) subject to clause (f) below, if such Taxes are Non-Excluded
Taxes, the relevant Borrower shall together with such payment pay an
additional amount so that each Secured Party receives free and clear of
any Non-Excluded Taxes, the full amount which it would have received if no
such deduction or withholding of such Non-Excluded Taxes had been
required; and
(ii) the relevant Borrower shall pay to the relevant Governmental
Authority imposing such Taxes the full amount of the deduction or
withholding made by it.
(b) In addition, the Borrowers shall pay any and all Other Taxes imposed
to the relevant Governmental Authority imposing such Other Taxes in accordance
with applicable law.
(c) As promptly as practicable after the payment of any Taxes or Other
Taxes, and in any event within 45 days of any such payment being due, the
applicable Borrower shall furnish to the Administrative Agent a copy of an
official receipt (or a certified copy thereof) evidencing the payment of such
Taxes or Other Taxes. The Administrative Agent shall make copies thereof
available to any Lender upon request therefor.
(d) Subject to clause (f) below, the Borrowers shall indemnify each
Secured Party for any Non-Excluded Taxes and Other Taxes levied, imposed or
assessed on (and whether or not paid directly by) such Secured Party that have
not been paid previously by the Borrowers (whether or not such Non-Excluded
Taxes or Other Taxes are correctly or legally asserted by the relevant
Governmental Authority). Promptly upon having knowledge that any such
Non-Excluded Taxes or Other Taxes have been levied, imposed or assessed, and
promptly upon notice thereof by any Secured Party, the applicable Borrower shall
pay such Non-Excluded Taxes or Other Taxes directly to the relevant Governmental
Authority (provided, however, that no Secured Party shall be under any
obligation to provide any such notice to any Borrower). In addition, provided
that the Borrowers have been notified promptly by a relevant Secured Party which
has determined in its sole discretion that a Non-Excluded Tax or Other Tax has
been levied, imposed or assessed against such Secured Party, each Borrower shall
indemnify each Secured Party for any incremental Taxes that may become payable
by such Secured Party as a result of any failure of any Borrower to pay any
Taxes when due to the appropriate Governmental Authority or to deliver to the
Administrative Agent, pursuant to clause (c) above, documentation evidencing the
payment of Taxes or Other Taxes. With respect to indemnification for
Non-Excluded Taxes and Other Taxes actually paid by any Secured Party or the
indemnification provided in the immediately preceding sentence, such
indemnification shall be made within 30 days after the date such Secured Party
makes written demand therefor. Each Borrower acknowledges that any payment made
to any Secured Party or to any Governmental Authority in respect of the
indemnification obligations of the Borrowers provided in this clause shall
constitute a payment in respect of which the provisions of clause (a) above and
this clause shall apply.
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(e) Each Non-U.S. Lender, on or prior to the date on which such Non-U.S.
Lender becomes a Lender hereunder (and from time to time thereafter upon the
request of any Borrower or the Administrative Agent, but only for so long as
such Non-U.S. Lender is legally entitled to do so), shall deliver to such
Borrower and the Administrative Agent either
(i) (x) two duly completed copies of either (A) Internal Revenue
Service Form W-8BEN or (B) Internal Revenue Service Form W-8EC1, or in
either case an applicable successor form, establishing, in either case, a
complete exemption from United States federal withholding taxes, and (y)
for periods prior to January 1, 2001, a duly completed copy of Internal
Revenue Service Form W-8 or W-9 or applicable successor form; or
(ii) in the case of a Non-U.S. Lender that is not legally entitled
to deliver either form listed in clause (e)(i)(x) above, (x) a certificate
of a duly authorized officer of such Non-U.S. Lender to the effect that
such Non-U.S. Lender is not (A) a "bank" within the meaning of Section
881(c)(3)(A) of the Code, (B) a "10 percent shareholder" of WWI within the
meaning of Section 881(c)(3)(B) of the Code, or (C) a controlled foreign
corporation receiving interest from a related person within the meaning of
Section 881(c)(3)(C) of the Code (such certificate, an "Exemption
Certificate") and (y) two duly completed copies of Internal Revenue
Service Form W-8 or applicable successor form.
(f) None of the Borrowers shall be obligated to gross up any payments to
any Lender pursuant to clause (a) above, or to indemnify any Lender pursuant to
clause (d) above, in respect of United States federal withholding taxes to the
extent imposed as a result of (i) the failure of such Lender to deliver to the
applicable Borrower the form or forms and/or an Exemption Certificate, as
applicable to such Lender, pursuant to clause (e), (ii) such form or forms
and/or Exemption Certificate not establishing a complete exemption from U.S.
federal withholding tax or the information or certifications made therein by the
Lender being untrue or inaccurate on the date delivered in any material respect,
or (iii) the Lender designating a successor lending office at which it maintains
its Loans which has the effect of causing such Lender to become obligated for
tax payments in excess of those in effect immediately prior to such designation;
provided, however, that a Borrower shall be obligated to gross up any payments
to any such Lender pursuant to clause (a) above, and to indemnify any such
Lender pursuant to clause (d) above, in respect of United States federal
withholding taxes if (i) any such failure to deliver a form or forms or an
Exemption Certificate or the failure of such form or forms or Exemption
Certificate to establish a complete exemption from U.S. federal withholding tax
or inaccuracy or untruth contained therein resulted from a change in any
applicable statute, treaty, regulation or other applicable law or any
interpretation of any of the foregoing occurring after the date hereof, which
change rendered such Lender no longer legally entitled to deliver such form or
forms or Exemption Certificate or otherwise ineligible for a complete exemption
from U.S. federal withholding tax, or rendered the information or certifications
made in such form or forms or Exemption Certificate untrue or inaccurate in a
material respect, (ii) the redesignation of the Lender's lending office was made
at the request of any of the Borrowers or (iii) the obligation to gross up
payments to any such Lender pursuant to clause (a)
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above or to indemnify any such Lender pursuant to clause (d) is with respect to
an Assignee Lender that becomes an Assignee Lender as a result of an assignment
made at the request of any Borrower.
(g) If a Secured Party determines in its sole discretion that it has
received a refund in respect of Non-Excluded Taxes that were paid by the
Borrowers, it shall pay the amount of such refund, together with any other
amounts paid by the Borrowers in connection with such refunded Non-Excluded
Taxes, to the Borrowers, net of any out-of-pocket expenses incurred by such
Secured Party in obtaining such refund, provided, however, that the Borrowers
agree to promptly return the amount of such refund to such Secured Party to the
extent that such Secured Party is required to repay such refund to the IRS or
any other tax authority.
SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
provided, all payments by or on behalf of any Borrower pursuant to this
Agreement, the Notes, each Letter of Credit, the TLCs or any other Loan Document
shall be made by such Borrower to the Administrative Agent for the pro rata
account of the Lenders entitled to receive such payment. All such payments
required to be made to the Administrative Agent shall be made, without setoff,
deduction or counterclaim, not later than 12:00 noon, New York time, on the date
due, in same day or immediately available funds, to such account as the
Administrative Agent shall specify from time to time by notice to the applicable
Borrower. Funds received after that time shall be deemed to have been received
by the Administrative Agent on the next succeeding Business Day. The
Administrative Agent shall promptly remit in same day funds to each Lender its
share, if any, of such payments received by the Administrative Agent for the
account of such Lender. All interest and fees shall be computed on the basis of
the actual number of days (including the first day but excluding the last day)
occurring during the period for which such interest or fee is payable over a
year comprised of 360 days (or, in the case of interest on a Base Rate Loan, 365
days or, if appropriate, 366 days). Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by clause (c) of the definition of the term
"Interest Period") be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees, if any, in
connection with such payment.
SECTION 4.8. Sharing of Payments. If any Lender shall obtain any payment
or other recovery (whether voluntary, involuntary, by application of setoff or
otherwise) on account of any Loan, TLC or Reimbursement Obligation (other than
pursuant to the terms of Sections 4.3, 4.4 and 4.5) in excess of its pro rata
share of payments then or therewith obtained by all Lenders entitled thereto,
such Lender shall purchase from the other Lenders such participation in Credit
Extensions made by them as shall be necessary to cause such purchasing Lender to
share the excess payment or other recovery ratably with each of them; provided,
however, that if all or any portion of the excess payment or other recovery is
thereafter recovered from such purchasing Lender, the purchase shall be
rescinded and each Lender which has sold a participation to the purchasing
Lender shall repay to the purchasing Lender the purchase price to the ratable
extent of such recovery together with an amount equal to such selling Lender's
ratable share (according to the proportion of
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(a) the amount of such selling Lender's required repayment to the
purchasing Lender
to
(b) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. Each Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section may,
to the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 4.9) with respect to such participation as fully
as if such Lender were the direct creditor of such Borrower in the amount of
such participation. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights
of the Lenders entitled under this Section to share in the benefits of any
recovery on such secured claim.
SECTION 4.9. Setoff. Each Lender shall, upon the occurrence of any Default
described in clauses (a) through (d) of Section 9.1.9 or, with the consent of
the Required Lenders, upon the occurrence of any other Event of Default, have
the right to appropriate and apply to the payment of the Obligations owing to it
(whether or not then due), and (as security for such Obligations) each Borrower
hereby grants to each Lender a continuing security interest in, any and all
balances, credits, deposits, accounts or moneys of such Borrower then or
thereafter maintained with or otherwise held by such Lender; provided, however,
that any such appropriation and application shall be subject to the provisions
of Section 4.8. Each Lender agrees promptly to notify the applicable Borrower
and the Administrative Agent after any such setoff and application made by such
Lender; provided, however, that the failure to give such notice shall not affect
the validity of such setoff and application. The rights of each Lender under
this Section are in addition to other rights and remedies (including other
rights of setoff under applicable law or otherwise) which such Lender may have.
SECTION 4.10. Mitigation. Each Lender agrees that if it makes any demand
for payment under Sections 4.3, 4.4, 4.5, or 4.6, or if any adoption or change
of the type described in Section 4.1 shall occur with respect to it, it will use
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions and so long as such efforts would not be disadvantageous to it, as
determined in its sole discretion) to designate a different lending office if
the making of such a designation would reduce or obviate the need for WWI to
make payments under Sections 4.3, 4.4, 4.5, or 4.6, or would eliminate or reduce
the effect of any adoption or change described in Section 4.1.
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ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. Initial Credit Extension. The obligations of the Lenders to
make the initial Credit Extensions shall be subject to the prior or concurrent
satisfaction of each of the conditions precedent set forth in this Section 5.1.
SECTION 5.1.1. Resolutions, etc. The Administrative Agent shall have
received from each Obligor other than a natural Person a certificate, dated the
date of the initial Credit Extension, of its Secretary or Assistant Secretary as
to:
(a) resolutions of its Board of Directors then in full force and
effect authorizing the execution, delivery and performance of this
Agreement, the Notes, the TLCs and each other Loan Document to be executed
by it;
(b) the incumbency and signatures of those of its officers
authorized to act with respect to this Agreement, the Notes the TLCs and
each other Loan Document executed by it; and
(c) in the case of WW Australia, FPL, and GB, certified copies of
constitutions of WW Australia, FPL, and GB, and if any Loan Document shall
be executed by WW Australia, FPL, and GB under power of attorney,
certified copies of the necessary powers of attorney,
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the Secretary of such Obligor canceling or
amending such prior certificate.
SECTION 5.1.2. Recapitalization Documents. The Administrative Agent shall
have received (with copies for each Lender), and each Agent shall be satisfied
with the terms and conditions contained in, a fully executed copy of the
Recapitalization Agreement, and, to the extent required by Section 5.1.3, all
other documents and instruments delivered in connection with the consummation of
the Recapitalization that are required to be delivered pursuant to the terms of
the Recapitalization Agreement and agreements related thereto. The
Recapitalization Agreement shall be in full force and effect and shall not have
been modified or waived in any material respect, nor shall there have been any
forbearance to exercise any material rights with respect to any of the terms or
provisions relating to the conditions to the consummation of the
Recapitalization unless otherwise agreed to by the Required Lenders.
SECTION 5.1.3. Recapitalization Certificate. The Administrative Agent
shall have received a certificate, dated the date of the initial Credit
Extension, of an Authorized Officer of WWI certifying as to a true and complete
copy of the Recapitalization Agreement and, to the extent requested by the
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Administrative Agent, all other certificates, filings, documents, consents,
approvals, board of directors resolutions and opinions furnished pursuant to or
in connection with the Recapitalization Agreement.
SECTION 5.1.4. Closing Date Certificate. The Administrative Agent shall
have received, with counterparts for each Lender, the Closing Date Certificate,
substantially in the form of Exhibit D hereto, dated the date of the initial
Credit Extension and duly executed and delivered by the chief executive,
financial or accounting (or equivalent) Authorized Officer of each Borrower, in
which certificate each Borrower shall agree and acknowledge that the statements
made therein shall be deemed to be true and correct representations and
warranties of the Borrowers made as of such date under this Agreement, and, at
the time such certificate is delivered, such statements shall in fact be true
and correct.
SECTION 5.1.5. Delivery of Notes and TLCs. The Administrative Agent shall
have received, for the account of each Lender that has requested a Note or a TLC
, such Lender's Notes or TLC, as the case may be, duly executed and delivered by
an Authorized Officer of the applicable Borrower.
SECTION 5.1.6. Payment of Outstanding Indebtedness, etc. All Indebtedness
identified in Item 7.2.2(b) ("Indebtedness to be Paid") of the Disclosure
Schedule, together with all interest, all prepayment premiums and other amounts
due and payable with respect thereto, shall have been paid in full (including,
to the extent necessary, from proceeds of the initial Borrowing or purchase of
TLCs), and all Liens securing payment of any such Indebtedness have been
released and the Administrative Agent shall have received all executed Uniform
Commercial Code Form UCC-3 termination statements or other instruments as may be
suitable or appropriate in connection therewith (or arrangements satisfactory to
the Administrative Agent shall have been entered into relating to such release
promptly following the initial Credit Extension).
SECTION 5.1.7. Guaranties. The Administrative Agent shall have received,
with counterparts for each Lender,
(a) the Subsidiary Guaranty, dated the date hereof, duly executed
and delivered by an Authorized Officer of each U.S. Subsidiary (other than
the SP1 Borrower and the Designated Subsidiary); and
(b) the Australian Guaranty, dated the date hereof, duly executed
and delivered by an Authorized Officer of each of WW Australia, FPL and
GB.
SECTION 5.1.8. Pledge Agreements. The Administrative Agent shall have
received, with counterparts for each Lender,
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(a) the WWI Pledge Agreement, dated as of the date hereof, duly
executed and delivered by Authorized Officers of WWI and each U.S.
Subsidiary of WWI (other than the Designated Subsidiary) together with:
(i) certificates evidencing (x) 100% of the issued and
outstanding shares of Capital Securities of WWI's U.S. Subsidiaries
(other than any inactive Subsidiary) (y) 100% of the issued and
outstanding shares of Capital Securities of UKHC1 and (z) 65% of
WWI's direct non-U.S. Subsidiaries (other than UKHC1 and any
inactive Subsidiary), which certificates shall in each case be
accompanied by undated stock powers duly executed in blank, or, if
any securities pledged pursuant to the WWI Pledge Agreement are
uncertificated securities, confirmation and evidence satisfactory to
the Administrative Agent that the security interest in such
uncertificated securities has been transferred to and perfected by
the Administrative Agent for the benefit of the Secured Parties in
accordance with Articles 8 and 9 of the U.C.C. and all laws
otherwise applicable to the perfection of the pledge of such shares;
and
(ii) all Pledged Notes (as defined in the WWI Pledge
Agreement), if any, evidencing Indebtedness payable to WWI, the SP1
Borrower or any of the other U.S. Subsidiaries of WWI (other than
the Designated Subsidiary), duly endorsed to the order of the
Administrative Agent, together with Uniform Commercial Code
Financing Statements (or similar instruments) in respect of such
Pledged Notes executed by the applicable Obligor to be filed in such
jurisdictions as the Administrative Agent may reasonably request;
(b) the ARTAL Pledge Agreement, dated the date hereof, duly executed
and delivered by an Authorized Officer of ARTAL, together with
certificates evidencing all of the issued and outstanding shares of
Capital Securities of WWI owned by ARTAL, which certificates shall be
accompanied by undated stock powers duly executed in blank;
(c) the HJH Pledge Agreement, dated the date hereof, duly executed
and delivered by an Authorized Officer of HJH, together with certificates
evidencing all of the issued and outstanding shares of Capital Securities
of WWI owned by HJH (other than the WWI Preferred Shares), which
certificates shall be accompanied by undated stock powers duly executed in
blank; and
(d) the Australian Pledge Agreement, dated as of the date hereof,
duly executed and delivered by Authorized Officers of WW Australia, FPL
and GB together with certificates (to the extent not delivered under the
U.K. Pledge Agreement) evidencing (x) 100% of the issued and outstanding
shares of Capital Securities of each of FPL and GB and (y) 100% of the
issued and outstanding shares of Capital Securities of the SP1 Borrower,
which certificates shall in each case be accompanied by undated stock
powers duly executed in blank, or, if any
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securities pledged pursuant to the Australian Pledge Agreement are
uncertificated securities, confirmation and evidence satisfactory to the
Administrative Agent that the security interest in such uncertificated
securities has been transferred to and perfected by the Administrative
Agent for the benefit of the Secured Parties in accordance with all laws
applicable to the perfection of the pledge of such shares.
In addition, the Administrative Agent and its counsel shall be satisfied
that (i) the Lien granted to the Administrative Agent, for the benefit of
the Secured Parties in the collateral described in this Section is a first
priority (or local equivalent thereof) security interest; and (ii) no Lien
exists on any of the collateral described above other than the Lien
created in favor of the Administrative Agent, for the benefit of the
Secured Parties, pursuant to a Loan Document.
SECTION 5.1.9. Security Agreements. The Administrative Agent shall have
received, with counterparts for each Lender, (a) the WWI Security Agreement,
dated as of the date hereof, duly executed and delivered by Authorized Officers
of WWI and each U.S. Subsidiary of WWI (other than the Designated Subsidiary)
together with:
(i) executed copies of Uniform Commercial Code financing statements
(Form UCC-1), naming WWI and each of its U.S. Subsidiaries (other than the
Designated Subsidiary) as a debtor and the Administrative Agent as the
secured party, or other similar instruments or documents, to be filed
under the Uniform Commercial Code of all jurisdictions as may be necessary
or, in the opinion of the Administrative Agent, desirable to perfect the
security interests of the Administrative Agent pursuant to the WWI
Security Agreement;
(ii) executed copies of proper Uniform Commercial Code Form UCC-3
termination statements, if any, necessary to release all Liens and other
rights of any Person (x) in any collateral described in any Security
Agreement previously granted by any Person, and (y) securing any of the
Indebtedness identified in Item 7.2.2(b) of the Disclosure Schedule,
together with such other Uniform Commercial Code Form UCC-3 termination
statements as the Administrative Agent may reasonably request from such
Obligors; and
(iii) certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-11), or a similar search report certified
by a party acceptable to the Administrative Agent, dated a date reasonably
near to the Closing Date, listing all effective financing statements which
name WWI or any U.S. Subsidiary of WWI (other than the Designated
Subsidiary) (under its present name and any previous names) as the debtor
and which are filed in the jurisdictions listed in Item 5.1.9(iii) of the
Disclosure Schedule, together with copies of such financing statements
(none of which shall cover any collateral described in any Security
Agreement); and
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(b) the Australian Security Agreement, dated as of the date hereof, duly
executed and delivered by Authorized Officers of each of WW Australia, FPL
and GB, together with:
(i) ASIC Form 309 and 350 in respect of the Australian
Security Agreement and the Australian Pledge Agreement
to be registered under the Australian Corporations Law
with the relevant agreement properly annexed to Form
309, together with the appropriate registration fee: and
(ii) Forms and any other documents required to effect the
registration of the Australian Security Agreement and
the Australian Pledge Agreement with any other relevant
Governmental Authority, together with the appropriate
registration fee;
in each case, free from all prior security interests and third party
rights and interests except as expressly permitted by any Loan Document.
SECTION 5.1.10. Patent Security Agreement, Copyright Security Agreement
and Trademark Security Agreement. The Administrative Agent shall have received
the Patent Security Agreement, the Copyright Security Agreement and the
Trademark Security Agreement, as applicable, each dated as of the Closing Date,
duly executed and delivered by each Obligor that has delivered the WWI Security
Agreement.
SECTION 5.1.11. Financial Information, etc. The Administrative Agent shall
have received, with counterparts for each Lender,
(a) the (i) unqualified audited combined balance sheets and the
related combined statements of income, comprehensive income and parent
company's investment and cash flows of the Acquired Businesses for the
fiscal years ended April 26, 1997, April 25, 1998 and April 24, 1999 and
(ii) the unaudited condensed combined financial information reviewed by
PricewaterhouseCoopers LLP for the period ended July 24, 1999 prepared on
a basis substantially comparable to the basis used to prepare the audited
financial statements of the Acquired Businesses referred to in clause
(a)(i); and
(b) a pro forma condensed consolidated balance sheet of WWI and its
Subsidiaries, as of July 24, 1999 (the "Pro Forma Balance Sheet"),
certified by the chief financial or accounting Authorized Officer of WWI,
giving effect to the consummation of the Transaction and all the
transactions contemplated by this Agreement and reflecting the proposed
capital structure of each Borrower, which shall be satisfactory in all
respects to the Administrative Agent.
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SECTION 5.1.12. Closing Fees, Expenses, etc. The Administrative Agent
shall have received for its own account, or for the account of each Lender, or
for the account of each fronting Lender, as the case may be, all fees, costs and
expenses due and payable pursuant to Sections 3.3 and 11.3, if then invoiced.
SECTION 5.1.13. Insurance. The Administrative Agent shall have received,
with copies for each Lender, binders of insurance, from one or more insurance
companies satisfactory to the Administrative Agent, evidencing coverage required
to be maintained pursuant hereto and each Loan Document.
SECTION 5.1.14. Litigation. The Administrative Agent shall be satisfied in
all respects that there exists no litigation, inquiry or investigation
contesting the Transaction, this Agreement or any other aspect of the
Transaction, or which would have a material adverse effect on the property,
assets, financial condition, operations, prospects or business of the Borrowers
and their Subsidiaries, taken as a whole.
SECTION 5.1.15. Material Adverse Change. The Lenders shall be satisfied
(as evidenced by the delivery of their respective executed signature page to
this Agreement) that there has been no material adverse change in the property,
assets, financial condition, operations, prospects or business of the Acquired
Businesses since April 24, 1999.
SECTION 5.1.16. Opinions of Counsel. The Administrative Agent shall have
received opinions, dated the date of the initial Credit Extension and addressed
to the Administrative Agent and all Lenders, from:
(a) Xxxxxxx Xxxxxxx & Xxxxxxxx, special New York counsel to the
Borrowers and each Obligor, in form and substance satisfactory to the
Administrative Agent;
(b) Hunton & Xxxxxxxx, special Virginia counsel to WWI, in form and
substance satisfactory to the Administrative Agent;
(c) Xxxxx, Xxxxx & Xxxxxxx, special Australian counsel to WW
Australia and the Borrowers, in form and substance satisfactory to the
Administrative Agent; and
(d) Xxxxxx & Xxxxxxxxx, special Luxembourg counsel to ARTAL, in form
and substance satisfactory to the Administrative Agent.
SECTION 5.1.17. Preferred Stock. The Administrative Agent shall be
satisfied with the terms and conditions of the WWI Preferred Shares.
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SECTION 5.1.18. Recapitalization. The Administrative Agent shall be
satisfied that (x) the aggregate cash amount contributed by the Investors
pursuant to the Recapitalization Agreement is not less than $223,700,000, and
(y) the sum of clause (x) plus the value of the Equity Rollover equals an amount
not less than $238,000,000.
SECTION 5.1.19. Acquisitions. The Administrative Agent shall have received
evidence, satisfactory to the Agents in their sole discretion, of the
acquisitions by (x) UKHC2 of WW Australia and FNZ and (y) WW Australia of FPL.
The terms and conditions of such acquisitions shall be (x) those set forth in
the Recapitalization Agreement or (y) other terms and conditions reasonably
satisfactory to the Agents.
SECTION 5.1.20. Australian Stamp Duty. If stamp duty is payable with
respect to the Australian Security Agreement or the Australian Pledge Agreement,
the Administrative Agent shall have received all forms and other documents
required to effect proper stamping, together with funds available for payment of
the stamp duty.
SECTION 5.1.21. Foreign Acquisitions and Takeovers Act Approval. If WWI is
required to obtain an approval or an indication of non-objection under the
Foreign Acquisitions and Takeovers Xxx 0000 of Australia or any real estate
policy guidelines of the Commonwealth Government of Australia and/or an approval
or certification of the Treasurer of Australia under the Foreign Acquisitions
and Takeovers Regulations of Australia to enter into the Recapitali zation
Agreement, or to give effect to the Transaction, WWI shall have provided to the
Administrative Agent, and the Administrative Agent shall have received, copies
of the application to obtain the approval or certification of the Treasurer of
Australia or the statement of non-objection and copies of the relevant approval,
certification or statement.
SECTION 5.1.22. Intercompany Subordination Agreement. The Administrative
Agent shall have received with counterparts for each Lender, the Intercompany
Subordination Agreement, dated as of the date hereof, duly executed and
delivered by Authorized Officers of WWI, the SP1 Borrower and each of the
Guarantors.
SECTION 5.2. All Credit Extensions. The obligation of each Lender and the
Issuer to make any Credit Extension (including the initial Credit Extension, but
subject to clauses (b) and (c) of Section 2.3.2) shall be subject to the
satisfaction of each of the conditions precedent set forth in this Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both before
and after giving effect to any Credit Extension the following statements shall
be true and correct:
(a) both before and after giving effect to the Transaction, the
representations and warranties set forth in Article VI and in each other
Loan Document shall, in each case, be true
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and correct in all material respects with the same effect as if then made
(unless stated to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date);
(b) no material adverse development shall have occurred in any
litigation, action, proceeding, labor controversy, arbitration or
governmental investigation disclosed pursuant to Section 6.7;
(c) the sum of (x) the aggregate outstanding principal amount of all
Revolving Loans and Swing Line Loans and (y) all Letter of Credit
Outstandings does not exceed the Revolving Loan Commitment Amount; and
(d) no Default shall have then occurred and be continuing.
SECTION 5.2.2. Credit Extension Request. The Administrative Agent shall
have received a Borrowing Request, if Loans (other than Swing Line Loans) are
being requested, or an Issuance Request, if a Letter of Credit is being issued
or extended or a TLC Purchase Request if TLCs are to be issued. Each of the
delivery of a Borrowing Request, Issuance Request or TLC Purchase Request and
the acceptance by any Borrower of the proceeds of such Credit Extension shall
constitute a representation and warranty by the applicable Borrower that on the
date of such Credit Extension (both immediately before and after giving effect
to such Credit Extension and the application of the proceeds thereof) the
statements made in Section 5.2.1 are true and correct.
SECTION 5.2.3. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of WWI or any of its Subsidiaries or
any other Obligors shall be reasonably satisfactory in form and substance to the
Administrative Agent and its counsel; the Administrative Agent and its counsel
shall have received all information, as the Administrative Agent or its counsel
may reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuer and the Administrative Agent to
enter into this Agreement and to make Credit Extensions hereunder, each of the
Borrowers, jointly and severally, represents and warrants unto the
Administrative Agent, the Issuer and each Lender as set forth in this Article
VI.
SECTION 6.1. Organization, etc. WWI and each of its Subsidiaries (a) is a
corporation validly organized and existing and in good standing under the laws
of the jurisdiction of its incorporation
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(other than as listed in Item 6.1 ("Good Standing") or Schedule I hereto), is
duly qualified to do business and is in good standing as a foreign corporation
in each jurisdiction where the nature of its business requires such
qualification, except to the extent that the failure to qualify would not
reasonably be expected to result in a Material Adverse Effect, and (b) has full
power and authority and holds all requisite governmental licenses, permits and
other approvals to (x) enter into and perform its Obligations in connection with
the Transaction and under this Agreement, the Notes and each other Loan Document
to which it is a party and (y) own and hold under lease its property and to
conduct its business substantially as currently conducted by it except, in the
case of this clause (b)(y), where the failure could not reasonably be expected
to result in a Material Adverse Effect.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by each Borrower of this Agreement, the Notes, the TLCs
and each other Loan Document executed or to be executed by it, and the
execution, delivery and performance by each other Obligor of each Loan Document
executed or to be executed by it and the Borrowers and, where applicable, each
such other Obligor's participation in the consummation of the Transaction are
within each such Obligor's corporate powers, have been duly authorized by all
necessary corporate action, and do not
(a) contravene any such Obligor's Organic Documents;
(b) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting any such
Obligor, where such contravention, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect; or
(c) result in, or require the creation or imposition of, any Lien on
any of the Obligor's properties, except pursuant to the terms of a Loan
Document.
SECTION 6.3. Government Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person, is required for the due execution,
delivery or performance by any Obligor of this Agreement, the Notes, the TLCs or
any other Loan Document to which it is a party, or for each Obligor's
participation in the consummation of the Transaction, except as have been duly
obtained or made and are in full force and effect or those which the failure to
obtain or make could not reasonably be expected to have a Material Adverse
Effect. Neither WWI nor any of its Subsidiaries is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, or a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
SECTION 6.4. Validity, etc. This Agreement constitutes, and the Notes and
TLCs and each other Loan Document executed by any Obligor will, on the due
execution and delivery thereof,
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constitute, the legal, valid and binding obligations of such Obligor enforceable
in accordance with their respective terms; in each case with respect to this
Section 6.4 subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
SECTION 6.5. Financial Information. The
(a) audited combined balance sheets and the related combined
statements of income, comprehensive income and parent company's investment
and cash flows of the Acquired Businesses as at April 24, 1999, April 25,
1998 and April 26, 1997 and the related consolidated statements of
earnings and cash flow of the Acquired Businesses; and
(b) unaudited interim condensed financial information of the
Acquired Businesses as of the periods ended July 24, 1999 and July 25,
1998;
copies of which have been furnished to the Administrative Agent and each Lender,
have, in each case, been prepared in accordance with GAAP consistently applied
(in the case of clause (a)) and, in the case of clause (b), on a basis
substantially comparable to the basis used to prepare the financial statements
referred to in clause (a), and present fairly the consolidated financial
condition of the corporations covered thereby as at the dates thereof and the
results of their operations for the periods then ended, subject, in the case of
clause (b), to normal year end audit adjustments.
SECTION 6.6. No Material Adverse Change. Since April 24, 1999, there has
been no material adverse change in the financial condition, operations, assets,
business or properties of WWI and its Subsidiaries, taken as a whole.
SECTION 6.7. Litigation, Labor Controversies, etc. There is no pending or,
to the knowledge of any Borrower, threatened litigation, action, proceeding,
labor controversy arbitration or governmental investigation affecting any
Obligor, or any of their respective properties, businesses, assets or revenues,
which (a) could reasonably be expected to result in a Material Adverse Effect,
or (b) purports to affect the legality, validity or enforceability of the
issuance of the Senior Subordinated Notes, this Agreement, the Notes or any
other Loan Document, except as disclosed in Item 6.7 ("Litigation") of the
Disclosure Schedule.
SECTION 6.8. Subsidiaries. WWI has no Subsidiaries, except (after giving
effect to the Transaction) those Subsidiaries
(a) which are identified in Item 6.8 ("Existing Subsidiaries") of
the Disclosure Schedule; or
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(b) which are permitted to have been acquired in accordance with
Section 7.2.5 or 7.2.8.
SECTION 6.9. Ownership of Properties. WWI and each of its Subsidiaries own
good title to all of their properties and assets (other than insignificant
properties and assets), real and personal, tangible and intangible, of any
nature whatsoever (including patents, trademarks, trade names, service marks and
copyrights), free and clear of all Liens or material claims (including material
infringement claims with respect to patents, trademarks, copyrights and the
like) except as permitted pursuant to Section 7.2.3.
SECTION 6.10. Taxes. WWI and each of its Subsidiaries has filed all
Federal, State, foreign and other material tax returns and reports required by
law to have been filed by it and has paid all taxes and governmental charges
thereby shown to be owing, except any such taxes or charges which are being
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books.
SECTION 6.11. Pension and Welfare Plans. During the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement and prior to the date of any Credit Extension hereunder, no
Pension Plan has been terminated that has resulted in a liability to any
Borrower of more than $5,000,000, and no contribution failure has occurred with
respect to any Pension Plan sufficient to give rise to a Lien under section
302(f) of ERISA in excess of $5,000,000. No condition exists or event or
transaction has occurred with respect to any Pension Plan which could reasonably
be expected to result in the incurrence by any Borrower of any material
liability, fine or penalty other than such condition, event or transaction which
would not reasonably be expected to have a Material Adverse Effect. Except as
disclosed in Item 6.11 ("Employee Benefit Plans") of the Disclosure Schedule,
since the date of the last financial statement of WWI, WWI has not materially
increased any contingent liability with respect to any post-retirement benefit
under a Welfare Plan, other than liability for continuation coverage described
in Part 6 of Subtitle B of Title I of ERISA.
SECTION 6.12. Environmental Warranties. Except as set forth in Item 6.12
("Environmental Matters") of the Disclosure Schedule or as, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect:
(a) all facilities and property (including underlying groundwater)
owned or leased by WWI or any of its Subsidiaries have been, and continue
to be, owned or leased by WWI and its Subsidiaries in compliance with all
Environmental Laws;
(b) there have been no past, and there are no pending or threatened
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(i) written claims, complaints, notices or requests for
information received by WWI or any of its Subsidiaries with respect
to any alleged violation of any Environmental Law, or
(ii) written complaints, notices or inquiries to WWI or any of
its Subsidiaries regarding potential liability under any
Environmental Law;
(c) to the best knowledge of WWI, there have been no Releases of
Hazardous Materials at, on or under any property now or previously owned
or leased by WWI or any of its Subsidiaries;
(d) WWI and its Subsidiaries have been issued and are in compliance
with all permits, certificates, approvals, licenses and other
authorizations relating to environmental matters and necessary or
desirable for their businesses;
(e) no property now or previously owned or leased by WWI or any of
its Subsidiaries is listed or, to the knowledge of WWI or any of its
Subsidiaries, proposed for listing (with respect to owned property only)
on the National Priorities List pursuant to CERCLA, on the CERCLIS or on
any similar state list of sites requiring investigation or clean-up;
(f) to the best knowledge of WWI, there are no underground storage
tanks, active or abandoned, including petroleum storage tanks, on or under
any property now or previously owned or leased by WWI or any of its
Subsidiaries;
(g) WWI and its Subsidiaries have not directly transported or
directly arranged for the transportation of any Hazardous Material to any
location (i) which is listed or to the knowledge of WWI or any of its
Subsidiaries, proposed for listing on the National Priorities List
pursuant to CERCLA, on the CERCLIS or on any similar state list, or (ii)
which is the subject of federal, state or local enforcement actions or
other investigations;
(h) to the best knowledge of WWI, there are no polychlorinated
biphenyls or friable asbestos present in a manner or condition at any
property now or previously owned or leased by WWI or any of its
Subsidiaries; and
(i) to the best knowledge of WWI, no conditions exist at, on or
under any property now or previously owned or leased by WWI or any of its
Subsidiaries which, with the passage of time, or the giving of notice or
both, would give rise to liability under any Environmental Law.
SECTION 6.13. Regulations U and X. No Obligor is engaged in the business
of extending credit for the purpose of purchasing or carrying margin stock, and
no proceeds of any Credit Extensions will be used to purchase or carry margin
stock or otherwise for a purpose which violates, or
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would be inconsistent with, F.R.S. Board Regulation U or Regulation X. Terms for
which meanings are provided in F.R.S. Board Regulation U or Regulation X or any
regulations substituted therefor, as from time to time in effect, are used in
this Section with such meanings.
SECTION 6.14. Accuracy of Information. All material factual information
concerning the financial condition, operations or prospects of WWI and its
Subsidiaries heretofore or contemporaneously furnished by or on behalf of the
Borrowers in writing to the Administrative Agent, the Issuer or any Lender for
purposes of or in connection with this Agreement or any transaction contemplated
hereby or with respect to the Transaction is, and all other such factual
information hereafter furnished by or on behalf of the Borrowers to the
Administrative Agent, the Issuer or any Lender will be, true and accurate in
every material respect on the date as of which such information is dated or
certified and such information is not, or shall not be, as the case may be,
incomplete by omitting to state any material fact necessary to make such
information not misleading.
Any term or provision of this section to the contrary notwithstanding,
insofar as any of the factual information described above includes assumptions,
estimates, projections or opinions, no representation or warranty is made herein
with respect thereto; provided, however, that to the extent any such
assumptions, estimates, projections or opinions are based on factual matters,
each of the Borrowers has reviewed such factual matters and nothing has come to
its attention in the context of such review which would lead it to believe that
such factual matters were not or are not true and correct in all material
respects or that such factual matters omit to state any material fact necessary
to make such assumptions, estimates, projections or opinions not misleading in
any material respect.
SECTION 6.15. Seniority of Obligations, etc. WWI has the power and
authority to incur the Indebtedness evidenced by the Senior Subordinated Notes
as provided for under the Senior Subordinated Note Indenture and has (or will
have) duly authorized, executed and delivered the Senior Subordinated Note
Indenture. WWI has (or will have) issued, pursuant to due authorization, the
Senior Subordinated Notes under the Senior Subordinated Note Indenture. Once
executed and delivered by WWI, the Senior Subordinated Note Indenture will
constitute the legal, valid and binding obligation of WWI enforceable against
WWI in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing. The subordination provisions of
the Senior Subordinated Notes and contained in the Senior Subordinated Note
Indenture will be enforceable against the holders of the Senior Subordinated
Notes by the holder of any Senior Debt (or similar term referring to the
Obligations, as applicable) in the Senior Subordinated Note Indenture, which has
not effectively waived the benefits thereof. All monetary Obligations, including
those to pay principal of and interest (including post-petition interest,
whether or not permitted as a claim) on the Loans and Reimbursement Obligations,
and fees and expenses in connection therewith, constitute Senior Debt (or
similar term referring to the Obligations, as applicable) in the Senior
Subordinated Note Indenture, and all such Obligations are entitled to the
benefits of the
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subordination created by the Senior Subordinated Note Indenture. WWI
acknowledges that the Administrative Agent and each Lender is entering into this
Agreement, and is extending its Commitments, in reliance upon the subordination
provisions of (or to be contained in) the Senior Subordinated Note Indenture,
the Senior Subordinated Notes and this Section.
SECTION 6.16. Solvency. The Transaction (including the incurrence of the
initial Credit Extension hereunder, the incurrence by the Borrowers of the
Indebtedness represented by the Notes and the execution and delivery by the
Guaranties by the Obligors parties thereto), will not involve or result in any
fraudulent transfer or fraudulent conveyance under the provisions of Section 548
of the Bankruptcy Code (11 U.S.C. ss.101 et seq., as from time to time hereafter
amended, and any successor or similar statute) or any applicable state law
respecting fraudulent transfers or fraudulent conveyances. After giving effect
to the Transaction, WWI and each of its Subsidiaries is Solvent.
SECTION 6.17. Contracts. No termination provision in any material contract
under which WWI or any of its Subsidiaries are obligated, shall be triggered by
the consummation of the Transaction.
SECTION 6.18. Year 2000. Any reprogramming required to permit the proper
functioning, in and following the year 2000, of (i) the Obligors' computer
systems and (ii) equipment containing embedded microchips (including systems and
equipment supplied by others or with which Obligors' systems interface) and the
testing of all such systems and equipment, as so reprogrammed, will be completed
in all material respects by September 30, 1999. The cost to the Obligors of such
reprogramming and testing and of the reasonably foreseeable consequences of year
2000 to the Obligors (including, without limitation, reprogramming errors and
the failure of other systems or equipment) will not result in any Default or
Event of Default or cause a Material Adverse Effect.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. Each of the Borrowers, jointly and
severally, agrees with the Administrative Agent, the Issuer and each Lender
that, until all Commitments have terminated, all Letters of Credit have
terminated or expired and all Obligations have been paid and performed in full,
each Borrower will perform its obligations set forth below.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. WWI will
furnish to each Lender, the Issuer and the Administrative Agent copies of the
following financial statements, reports, notices and information:
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(a) as soon as available and in any event within 60 days after the
end of each Fiscal Quarter of each Fiscal Year of WWI (or, if WWI is
required to file such information on a Form 10-Q with the Securities and
Exchange Commission, promptly following such filing), a consolidated
balance sheet of WWI and its Subsidiaries as of the end of such Fiscal
Quarter, together with the related consolidated statement of earnings and
cash flow for such Fiscal Quarter and for the period commencing at the end
of the previous Fiscal Year and ending with the end of such Fiscal Quarter
(it being understood that the foregoing requirement may be satisfied by
delivery of WWI's report to the Securities and Exchange Commission on Form
10-Q), certified by the chief financial Authorized Officer of WWI;
(b) as soon as available and in any event within 120 days after the
end of each Fiscal Year of WWI (or, if WWI is required to file such
information on a Form 10-K with the Securities and Exchange Commission,
promptly following such filing), a copy of the annual audit report for
such Fiscal Year for WWI and its Subsidiaries, including therein a
consolidated balance sheet for WWI and its Subsidiaries as of the end of
such Fiscal Year, together with the related consolidated statement of
earnings and cash flow of WWI and its Subsidiaries for such Fiscal Year
(it being understood that the foregoing requirement may be satisfied by
delivery of WWI's report to the Securities and Exchange Commission on Form
10-K), in each case certified (without any Impermissible Qualification) by
PricewaterhouseCoopers LLP or another "Big Five" firm, together with a
certificate from such accountants to the effect that, in making the
examination necessary for the signing of such annual report by such
accountants, they have not become aware of any Default that has occurred
and is continuing, or, if they have become aware of such Default,
describing such Default and the steps, if any, being taken to cure it;
(c) together with the delivery of the financial information required
pursuant to clauses (a) and (b), a Compliance Certificate, in
substantially the form of Exhibit E, executed by the chief financial
Authorized Officer of WWI, showing (in reasonable detail and with
appropriate calculations and computations in all respects satisfactory to
the Administrative Agent) compliance with the financial covenants set
forth in Section 7.2.4;
(d) as soon as possible and in any event within three Business Days
after obtaining knowledge of the occurrence of each Default, a statement
of the chief financial Authorized Officer of WWI setting forth details of
such Default and the action which WWI has taken and proposes to take with
respect thereto;
(e) as soon as possible and in any event within five Business Days
after (x) the occurrence of any material adverse development with respect
to any litigation, action, proceeding, or labor controversy described in
Section 6.7 and the action which WWI has taken and proposes to take with
respect thereto or (y) the commencement of any labor controversy,
litigation, action, proceeding of the type described in Section 6.7,
notice thereof and of the action which WWI has taken and proposes to take
with respect thereto;
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(f) promptly after the sending or filing thereof, copies of all
reports and registration statements which WWI or any of its Subsidiaries
files with the Securities and Exchange Commission or any national
securities exchange or any foreign equivalent;
(g) as soon as practicable after the chief financial officer or the
chief executive officer of WWI or a member of WWI's Controlled Group
becomes aware of (i) formal steps in writing to terminate any Pension Plan
or (ii) the occurrence of any event with respect to a Pension Plan which,
in the case of (i) or (ii), could reasonably be expected to result in a
contribution to such Pension Plan by (or a liability to) WWI or a member
of WWI's Controlled Group in excess of $5,000,000, (iii) the failure to
make a required contribution to any Pension Plan if such failure is
sufficient to give rise to a Lien under section 302(f) of ERISA, (iv) the
taking of any action with respect to a Pension Plan which could reasonably
be expected to result in the requirement that WWI furnish a bond to the
PBGC or such Pension Plan or (v) any material increase in the contingent
liability of WWI with respect to any post-retirement Welfare Plan benefit,
notice thereof and copies of all documentation relating thereto;
(h) promptly when available and in any event within 45 days
following the last day of each Fiscal Year of WWI, financial projections
for the current Fiscal Year, prepared in reasonable detail by the chief
accounting, financial or executive Authorized Officer of WWI;
(i) promptly following the delivery or receipt, as the case may be,
of any material written notice or communication pursuant to or in
connection with the Senior Subordinated Note Indenture or any of the
Senior Subordinated Notes, a copy of such notice or communication; and
(j) such other information respecting the condition or operations,
financial or otherwise, of WWI or any of its Subsidiaries as any Lender or
the Issuer through the Administrative Agent may from time to time
reasonably request.
SECTION 7.1.2. Compliance with Laws, etc. WWI will, and will cause each of
its Subsidiaries to, comply in all material respects with all applicable laws,
rules, regulations and orders, such compliance to include (without limitation):
(a) the maintenance and preservation of its corporate existence and
qualification as a foreign corporation, except where the failure to so
qualify could not reasonably be expected to have a Material Adverse
Effect; and
(b) the payment, before the same become delinquent, of all material
taxes, assessments and governmental charges imposed upon it or upon its
property except to the extent being contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall
have been set aside on its books.
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SECTION 7.1.3. Maintenance of Properties. WWI will, and will cause each of
its Subsidiaries to, maintain, preserve, protect and keep its properties (other
than insignificant properties) in good repair, working order and condition
(ordinary wear and tear excepted), and make necessary and proper repairs,
renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all times unless WWI determines in good
faith that the continued maintenance of any of its properties is no longer
economically desirable.
SECTION 7.1.4. Insurance. WWI will, and will cause each of its
Subsidiaries to,
(a) maintain insurance on its property with financially sound and
reputable insurance companies against loss and damage in at least the
amounts (and with only those deductibles) customarily maintained, and
against such risks as are typically insured against in the same general
area, by Persons of comparable size engaged in the same or similar
business as the Borrower and its Subsidiaries; and
(b) all worker's compensation, employer's liability insurance or
similar insurance as may be required under the laws of any state or
jurisdiction in which it may be engaged in business.
Without limiting the foregoing, all insurance policies required pursuant to this
Section shall (i) name the Administrative Agent on behalf of Secured Parties as
mortgagee (in the case of property insurance) or additional insured (in the case
of liability insurance), as applicable, and provide that no cancellation or
modification of the policies will be made without thirty days' prior written
notice to the Administrative Agent and (ii) be in addition to any requirements
to maintain specific types of insurance contained in the other Loan Documents.
SECTION 7.1.5. Books and Records. WWI will, and will cause each of its
Subsidiaries to, keep books and records which accurately reflect in all material
respects all of its business affairs and transactions and permit the
Administrative Agent, the Issuer and each Lender or any of their respective
representatives, at reasonable times and intervals, and upon reasonable notice,
to visit all of its offices, to discuss its financial matters with its officers
and independent public accountant (and WWI hereby authorizes such independent
public accountant to discuss the Borrowers' financial matters with the Issuer
and each Lender or its representatives whether or not any representative of WWI
is present) and to examine, and photocopy extracts from, any of its books or
other corporate records.
SECTION 7.1.6. Environmental Covenant. WWI will, and will cause each of
its Subsidiaries to,
(a) use and operate all of its facilities and properties in
compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in compliance therewith,
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and handle all Hazardous Materials in compliance with all applicable
Environmental Laws, in each case except where the failure to comply with
the terms of this clause could not reasonably be expected to have a
Material Adverse Effect;
(b) promptly notify the Administrative Agent and provide copies of
all written claims, complaints, notices or inquiries relating to the
condition of its facilities and properties or compliance with
Environmental Laws which relate to environmental matters which would have,
or would reasonably be expected to have, a Material Adverse Effect, and
promptly cure and have dismissed with prejudice any material actions and
proceedings relating to compliance with Environmental Laws, except to the
extent being diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with GAAP have been set
aside on their books; and
(c) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to evidence
compliance with this Section 7.1.6.
SECTION 7.1.7. Future Subsidiaries. Upon any Person becoming, after the
Effective Date, a Subsidiary of WWI, or upon WWI or any of its Subsidiaries
acquiring additional Capital Securities of any existing Subsidiary, WWI shall
notify the Administrative Agent of such acquisition, and
(a) WWI shall promptly cause such Subsidiary to execute and deliver
to the Administrative Agent, with counterparts for each Lender, (i) if
such Subsidiary is a U.S. Subsidiary or a U.K. Subsidiary, a supplement to
the Subsidiary Guaranty or, if such Subsidiary is an Australian
Subsidiary, a supplement to the Australian Guaranty, (ii) if such a
Subsidiary is a U.S. Subsidiary, a supplement to the WWI Security
Agreement or, if such Subsidiary is an Australian Subsidiary, a supplement
to the Australian Security Agreement or if such Subsidiary is a U.K.
Subsidiary, a security agreement substantially in the form of the U.K.
Security Agreement and (iii) if such Subsidiary is a U.S. Subsidiary, a
U.K. Subsidiary or an Australian Subsidiary and owns any real property
having a value as determined in good faith by the Administrative Agent in
excess of $2,000,000, a Mortgage, together with acknowledgment copies of
Uniform Commercial Code financing statements (form UCC-1) executed and
delivered by the Subsidiary naming the Subsidiary as the debtor and the
Administrative Agent as the secured party, or other similar instruments or
documents, filed under the Uniform Commercial Code and any other
applicable recording statutes, in the case of real property, of all
jurisdictions as may be necessary or, in the opinion of the Administrative
Agent, desirable to perfect the security interest of the Administrative
Agent pursuant to the applicable Security Agreement or a Mortgage, as the
case may be; and
(b) WWI shall promptly deliver, or cause to be delivered, to the
Administrative Agent under a supplement to the WWI Pledge Agreement (or,
if such Subsidiary is an Australian Subsidiary, a supplement to the
Australian Pledge Agreement or if such Subsidiary is a U.K.
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Subsidiary, a pledge agreement substantially in the form of the U.K.
Pledge Agreement), certificates (if any) representing all of the issued
and outstanding shares of Capital Securities of such Subsidiary (to the
extent required to be delivered pursuant to the applicable Pledge
Agreement) owned by WWI or any of its Subsidiaries, as the case may be,
along with undated stock powers for such certificates, executed in blank,
or, if any securities subject thereto are uncertificated securities,
confirmation and evidence satisfactory to the Administrative Agent that
appropriate book entries have been made in the relevant books or records
of a financial intermediary or the issuer of such securities, as the case
may be, under applicable law resulting in the perfection of the security
interest granted in favor of the Administrative Agent pursuant to the
terms of the applicable Pledge Agreement; provided, that notwithstanding
anything to the contrary herein or in any Loan Document, in no event shall
more than 65% of the Capital Securities of any non-Guarantor be required
to be pledged and in no event shall non-Guarantors (other than the XX0
Xxxxxxxx) be required to pledge Capital Securities of their Subsidiaries,
together, in each case, with such opinions, in form and substance and from
counsel satisfactory to the Administrative Agent, as the Administrative Agent
may reasonably require.
SECTION 7.1.8. Future Leased Property and Future Acquisitions of Real
Property. (a) Prior to entering into any new lease of real property or renewing
any existing lease of real property following the Effective Date, WWI shall, and
shall cause each of its U.S. Subsidiaries and each of the other Guarantor's to,
use its (and their) best efforts (which shall not require the expenditure of
cash or the making of any material concessions under the relevant lease) to
deliver to the Administrative Agent a Waiver executed by the lessor of any real
property that is to be leased by WWI or any of its U.S. Subsidiaries or any of
the other Guarantor's for a term in excess of one year in any state which by
statute grants such lessor a "landlord's" (or similar) Lien which is superior to
the Administrative Agent's, to the extent the value of any personal property of
WWI or its U.S. Subsidiaries or any of the other Guarantor's to be held at such
leased property exceeds (or it is anticipated that the value of such personal
property will, at any point in time during the term of such leasehold term,
exceed) $5,000,000.
(b) In the event that WWI or any of its U.S. Subsidiaries or any of the
other Guarantors shall acquire any real property having a value as determined in
good faith by the Administrative Agent in excess of $2,000,000, WWI or the
applicable Subsidiary shall, promptly after such acquisition, execute a Mortgage
and provide the Administrative Agent with
(i) evidence of the completion (or satisfactory arrangements for the
completion) of all recordings and filings of such Mortgage as may be
necessary or, in the reasonable opinion of the Administrative Agent,
desirable effectively to create a valid, perfected first priority Lien,
subject to Liens permitted by Section 7.2.3, against the properties
purported to be covered thereby;
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(ii) mortgagee's title insurance policies in favor of the
Administrative Agent and the Lenders in amounts and in form and substance
and issued by insurers, reasonably satisfactory to the Administrative
Agent, with respect to the property purported to be covered by such
Mortgage, insuring that title to such property is marketable and that the
interests created by the Mortgage constitute valid first Liens thereon
free and clear of all defects and encumbrances other than as approved by
the Administrative Agent, and such policies shall also include a revolving
credit endorsement and such other endorsements as the Administrative Agent
shall request and shall be accompanied by evidence of the payment in full
of all premiums thereon; and
(iii) such other approvals, opinions, or documents as the
Administrative Agent may reasonably request.
SECTION 7.1.9. Use of Proceeds, etc. The proceeds of the Credit Extensions
shall be applied by the Borrowers as follows:
(a) the proceeds of the Term-A Loans and Term-B Loans shall be
applied by WWI to fund the Transaction;
(b) the proceeds of the issuance of the TLCs shall be applied by the
SP1 Borrower to make an intercompany loan to WW Australia to refinance
Indebtedness of WW Australia; and
(c) the proceeds of all Revolving Loans and Swing Line Loans, and
the issuance of Letters of Credit from time to time, shall be used to fund
the Transaction and for working capital and general corporate purposes of
WWI and its U.S. Subsidiaries.
SECTION 7.1.10. Hedging Obligations. Within 180 days following the
Effective Date, the Administrative Agent shall have received evidence
satisfactory to it that each of the Borrowers, as applicable, has entered into
Rate Protection Agreements in such an amount and on such terms reasonably
satisfactory to the respective Borrower and the Administrative Agent.
SECTION 7.1.11. U.S. Borrower as Pledged Interest Issuer. WWI covenants
and agrees that, in its capacity as Pledged Interest Issuer under (and as
defined in) the ARTAL Pledge Agreement and the HJH Pledge Agreement, WWI agrees
that it will cooperate in all reasonable respects necessary to enable the
Administrative Agent to exercise its rights and remedies under the terms of the
ARTAL Pledge Agreement and HJH Pledge Agreement and agrees to comply with the
last sentence of Section 4.2 of the ARTAL Pledge Agreement and the last sentence
of Section 4.2 of the HJH Pledge Agreement.
SECTION 7.1.12. Section 260B Compliance. WWI shall cause WW Australia to
provide to the Administrative Agent, on or prior to the 25th day after the
Effective Date, a Financial Assistance
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Certificate, substantially in the form of Exhibit P hereto, signed by a director
or secretary of each of WW Australia and its Subsidiaries, together with all
attachments referred to therein.
SECTION 7.1.13. FNZ Security Documents. On or prior to the date which is
90 days after the Closing Date, WWI shall cause the Administrative Agent to
receive:
(a) the FNZ Guaranty, duly executed and delivered by Authorized
Officers of FNZ;
(b) the FNZ Pledge Agreement, duly executed and delivered by
Authorized Officers of FNZ (and UKHC2 pursuant to clause (c) of Section
7.1.14), together with
(i) certificates evidencing (x) 100% of the issued and
outstanding shares of Capital Securities of FNZ (provided, that in
no event shall such shares be required to be pledged prior to
completion of the procedures specified in Section 7.1.14) and (y)
65% of FNZ's direct Subsidiaries (other than inactive Subsidiaries),
which certificates shall in each case be accompanied by undated
stock powers duly executed in blank, or, if any securities pledged
pursuant to the FNZ Pledge Agreement are uncertificated securities,
confirmation and evidence satisfactory to the Administrative Agent
that the security interest in such uncertificated securities has
been transferred to and perfected by the Administrative Agent for
the benefit of the Secured Parties in accordance with all laws
applicable to the perfection of the pledge of such shares, and
(ii) all Pledged Notes (as defined in the FNZ Pledge
Agreement), if any, evidencing Indebtedness payable to FNZ, duly
endorsed to the order of the Administrative Agent, together with
Uniform Commercial Code Financing Statements (or similar
instruments) in respect of such Pledged Notes executed by the
applicable Obligor to be filed in such jurisdictions as the
Administrative Agent may reasonably request; and
(c) the FNZ Security Agreement, duly executed and delivered by
Authorized Officers of FNZ, together with all notices of assignment and
other notices required to perfect the Secured Parties' security interest
in the Collateral (as defined in the FNZ Security Agreement).
SECTION 7.1.14. U.K. Security. WWI shall:
(a) procure that, as soon as possible and in any event within 120
days of the Transaction being consummated, each U.K. Subsidiary, where
applicable, implement and consummate the provisions and procedures
contained in Sections 155-158 of the Companies Xxx 0000 for the purposes
of enabling such companies to grant the security interests and give the
guarantees contemplated hereby;
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(b) procure that each of the U.K. Subsidiaries, where applicable,
shall deliver to the Administrative Agent evidence satisfactory to the
Administrative Agent that each of such companies has complied with the
provisions and procedures required by Sections 155-158 of the Companies
Xxx 0000;
(c) on the date on which the provisions and procedures contained in
Sections 155-158 of the Companies Xxx 0000 have been consummated by each
of the applicable U.K. Subsidiaries (the "S.155 Date"), WWI shall (i)
cause each U.K. Subsidiary to execute and deliver the Subsidiary Guaranty
and a U.K. Security Agreement (which such U.K. Security Agreement shall,
among other things, grant, and govern the perfection of, a security
interest with respect to Indebtedness payable to any of the U.K.
Subsidiaries), effective, with respect to the U.K. Subsidiaries, as of the
S.155 Date, (ii) cause (A) each of such U.K. Subsidiaries that in turn has
any Subsidiaries organized under the laws of England and/or Wales to
execute and deliver a U.K. Pledge Agreement, (B) UKHC2 to execute the
Australian Pledge Agreement, and (C) UKHC2 to execute the FNZ Pledge
Agreement, in each case effective, with respect to such U.K. Subsidiaries,
as of the S.155 Date together with (x) certificates evidencing all of the
pledged shares of Capital Securities, which certificates shall in each
case be accompanied by undated stock powers or stock transfer forms duly
executed in blank, resulting in the creation of an enforceable equitable
security interest granted in favor of the Administrative Agent pursuant to
the terms of such Pledge Agreements, and (y) all Pledged Notes, if
applicable, duly endorsed to the order of the Administrative Agent,
together with such documents and instruments in respect of such Pledged
Notes executed by such Subsidiary, or other appropriate Person, to be
filed in such jurisdictions as the Administrative Agent shall reasonably
request, and (iii) deliver the items referred to in Sections 5.1.1 and
5.1.16 with respect to the Obligors executing the Loan Documents referred
to herein and opinions of counsel (including, an opinion of Xxxxxxxxx &
May, special United Kingdom counsel to UKHC1, UKHC and WWUK, in form and
substance satisfactory to the Administrative Agent).
SECTION 7.1.15. U.K. Procedural Requirements. WWI shall cause the
Administrative Agent to receive a certificate, dated as of the date on which the
provisions set forth in Section 7.1.14 are satisfied, from the secretary of each
of the applicable U.K. Subsidiaries certifying that, as of the date thereof,
such U.K. Subsidiaries has implemented and consummated the provisions and
procedures set out in Sections 155-158 of the Companies Xxx 0000 and certifying
that, save as disclosed, the granting of the security interests and the giving
of the guarantees contemplated by the Loan Documents does not, following
compliance with the provisions and procedures of Sections 155-158 of the
Companies Xxx 0000, constitute unlawful financial assistance within the meaning
of Section 151 of the Companies Xxx 0000, which certificate shall be reasonably
acceptable in form, scope and substance to the Administrative Agent and its
counsel.
SECTION 7.1.16. U.K. Pledge Agreement. The Administrative Agent shall have
received, on or prior to the third Business Day after the Closing Date, (x) a
U.K. Pledge Agreement, dated as of
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the date of delivery, duly executed and delivered by Authorized Officers of WWI,
together with (i) share certificates (to the extent not delivered under the WWI
Pledge Agreement) evidencing 100% of the issued and outstanding shares of
Capital Securities of UKHC1 which certificates shall in each case be accompanied
by undated stock transfer forms duly executed in blank; and (ii) a duly
completed Form 395 in respect of such U.K. Pledge Agreement and (y) an opinion
of Xxxxxxxxx & May, Special U.K. counsel to WWI, in form and substance
satisfactory to the Administrative Agent.
SECTION 7.2. Negative Covenants. Each of the Borrowers agrees with the
Administrative Agent, the Issuer and each Lender that, until all Commitments
have terminated, all Letters of Credit have terminated or expired and all
Obligations have been paid and performed in full, each of the Borrowers will
perform the obligations set forth in this Section 7.2.
SECTION 7.2.1. Business Activities. Each of the Borrowers will not, and
will not permit any of its respective Subsidiaries to, engage in any business
activity, except business activities of the type in which WWI and its
Subsidiaries are engaged on the date hereof (after giving effect to the
Transaction) and such activities as may be incidental, similar or related
thereto. The SP1 Borrower shall not engage in any business other than as
permitted under Section 7.3.
SECTION 7.2.2. Indebtedness. Each of the Borrowers will not, and will not
permit any of its respective Subsidiaries to, create, incur, assume or suffer to
exist or otherwise become or be liable in respect of any Indebtedness, other
than, without duplication, the following:
(a) Indebtedness in respect of the Credit Extensions and other
Obligations;
(b) until the date of the initial Credit Extension, Indebtedness
identified in Item 7.2.2(b) ("Indebtedness to be Paid") of the Disclosure
Schedule;
(c) Indebtedness existing as of the Effective Date which is
identified in Item 7.2.2(c) ("Ongoing Indebtedness") of the Disclosure
Schedule, and any Refinancing Indebtedness, but only in amounts not in
excess of the outstanding amounts on the date of such refinancing (which
shall not exceed the committed amount on the Effective Date);
(d) to the extent not prohibited in whole or in part by the terms of
the Senior Subordinated Note Indenture, Indebtedness incurred by WWI or
any of its Subsidiaries (other than the XX0 Xxxxxxxx) (i) (x) to any
Person providing financing for the acquisition of any assets permitted to
be acquired pursuant to Section 7.2.8 to finance its acquisition of such
assets and (y) in respect of Capitalized Lease Liabilities (but only to
the extent otherwise permitted by Section 7.2.7) in an aggregate amount
for clauses (x) and (y) not to exceed $5,000,000 at any time and (ii) from
time to time for general corporate purposes in a maximum aggregate amount
of all Indebtedness incurred pursuant to this clause (ii) not at any time
to
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exceed $15,000,000 less the then aggregate outstanding Indebtedness of
Subsidiaries which are not Guarantors permitted under clause (f)(iii)
below;
(e) Hedging Obligations of WWI or any of its Subsidiaries;
(f) intercompany Indebtedness of WWI owing to any of its
Subsidiaries or any Subsidiary of WWI (other than the SP1 Borrower or the
Designated Subsidiary) owing to WWI or any other Subsidiary of WWI or of
WWI to any Subsidiary of WWI, which Indebtedness
(i) if between Guarantors shall be evidenced by one or more
promissory notes in form and substance satisfactory to the
Administrative Agent which have been duly executed and delivered to
(and endorsed to the order of) the Administrative Agent in pledge
pursuant to a supplement to the applicable Pledge Agreement;
(ii) if between Guarantors (other than Indebtedness incurred
by WWI) shall, except in the case of Indebtedness of WWI owing to
any of its Subsidiaries, not be forgiven or otherwise discharged for
any consideration other than payment in cash in the currency in
which such Indebtedness was loaned or advanced unless the
Administrative Agent otherwise consents; and
(iii) owing by Subsidiaries which are not Guarantors to
Guarantors shall not exceed $15,000,000 in the aggregate at any time
outstanding;
(g) unsecured Subordinated Debt of WWI owing to the Senior
Subordinated Noteholders in an initial aggregate outstanding principal
amount not to exceed $255,000,000;
(h) Indebtedness of Non-Guarantor Subsidiaries to Guarantors to the
extent permitted as Investments under clause (h) of Section 7.2.5;
(i) the Subordinated Guaranty; and
(j) (i) guarantees by WWI or any Guarantor of any Indebtedness of
WWI or any Guarantor and (ii) guarantees by any Subsidiary that is not a
Guarantor of any Indebtedness of any other Subsidiary that is not a
Guarantor and (iii) guarantees by WWI or any Guarantor of any unsecured
Indebtedness of any Subsidiary that is not a Guarantor incurred pursuant
to clause (d) (ii) of this Section; provided, that in each case, the
Indebtedness being guaranteed is otherwise permitted by this Section.
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provided, however, that no Indebtedness otherwise permitted by clause (d) or (f)
(as such clause relates to Loans made by WWI to its Subsidiaries) may be
incurred if, after giving effect to the incurrence thereof, any Default shall
have occurred and be continuing.
SECTION 7.2.3. Liens. Each of the Borrowers will not, and will not permit
any of its respective Subsidiaries to, create, incur, assume or suffer to exist
any Lien upon any of its property, revenues or assets, whether now owned or
hereafter acquired, except:
(a) Liens securing payment of the Obligations, granted pursuant to
any Loan Document;
(b) until the date of the initial Credit Extension, Liens securing
payment of Indebtedness of the type permitted and described in clause (b)
of Section 7.2.2;
(c) Liens granted prior to the Effective Date to secure payment of
Indebtedness of the type permitted and described in clause (c) of Section
7.2.2;
(d) Liens granted by WWI or any of its Subsidiaries (other than the
XX0 Xxxxxxxx) to secure payment of Indebtedness of the type permitted and
described in (x) clause (d)(i) of Section 7.2.2; provided, that the
obligations secured thereby do not exceed in the aggregate $5,000,000 at
any time outstanding and (y) clause (d)(ii) of Section 7.2.2 owed by
Subsidiaries which are not Guarantors to non-Affiliates; provided that the
obligations secured thereby do not exceed $7,500,000 in the aggregate at
any time outstanding;
(e) Liens for taxes, assessments or other governmental charges or
levies, including Liens pursuant to Section 107(l) of CERCLA or other
similar law, not at the time delinquent or thereafter payable without
penalty or being contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set
aside on its books;
(f) Liens of carriers, warehousemen, mechanics, repairmen,
materialmen and landlords or other like liens incurred by WWI or any of
its Subsidiaries (other than the XX0 Xxxxxxxx) in the ordinary course of
business for sums not overdue for a period of more than 30 days or being
diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside
on its books;
(g) Liens incurred by WWI or any of its Subsidiaries (other than the
XX0 Xxxxxxxx) in the ordinary course of business in connection with
workmen's compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of tenders,
statutory obligations, insurance obligations, leases and contracts (other
than for
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borrowed money) entered into in the ordinary course of business or to
secure obligations on surety or appeal bonds;
(h) judgment Liens in existence less than 30 days after the entry
thereof or with respect to which execution has been stayed or the payment
of which is covered in full by a bond or (subject to a customary
deductible) by insurance maintained with responsible insurance companies;
(i) Liens with respect to recorded minor imperfections of title and
easements, rights-of-way, restrictions, reservations, permits, servitudes
and other similar encumbrances on real property and fixtures which do not
materially detract from the value or materially impair the use by WWI or
any such Subsidiary in the ordinary course of their business of the
property subject thereto;
(j) leases or subleases granted by WWI or any of its Subsidiaries
(other than the XX0 Xxxxxxxx) to any other Person in the ordinary course
of business; and
(k) Liens in the nature of trustees' Liens granted pursuant to any
indenture governing any Indebtedness permitted by Section 7.2.2, in each
case in favor of the trustee under such indenture and securing only
obligations to pay compensation to such trustee, to reimburse its expenses
and to indemnify it under the terms thereof.
SECTION 7.2.4. Financial Condition.
(a) Fixed Charge Coverage Ratio. WWI will not permit the Fixed
Charge Coverage Ratio, at any time during any period set forth below, to
be less than the amount set forth opposite such period:
Fixed Charge
Period Coverage Ratio
------ --------------
3rd Fiscal Quarter of Fiscal Year 2000 1.15 to 1.00
4th Fiscal Quarter of Fiscal Year 2000 1.15 to 1.00
1st Fiscal Quarter of Fiscal Year 2001 1.15 to 1.00
2nd Fiscal Quarter of Fiscal Year 2001 1.15 to 1.00
3rd Fiscal Quarter of Fiscal Year 2001 1.15 to 1.00
4th Fiscal Quarter of Fiscal Year 2001 1.20 to 1.00
1st Fiscal Quarter of Fiscal Year 2002 1.20 to 1.00
2nd Fiscal Quarter of Fiscal Year 2002 1.20 to 1.00
3rd Fiscal Quarter of Fiscal Year 2002 1.20 to 1.00
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0xx Xxxxxx Xxxxxxx of Fiscal Year 2002 1.30 to 1.00
1st Fiscal Quarter of Fiscal Year 2003 1.30 to 1.00
2nd Fiscal Quarter of Fiscal Year 2003 1.30 to 1.00
3rd Fiscal Quarter of Fiscal Year 2003 1.30 to 1.00
4th Fiscal Quarter of Fiscal Year 2003 1.40 to 1.00
1st Fiscal Quarter of Fiscal Year 2004 1.40 to 1.00
2nd Fiscal Quarter of Fiscal Year 2004 1.40 to 1.00
3rd Fiscal Quarter of Fiscal Year 2004 1.40 to 1.00
4th Fiscal Quarter of Fiscal Year 2004 1.50 to 1.00
1st Fiscal Quarter of Fiscal Year 2005 1.50 to 1.00
2nd Fiscal Quarter of Fiscal Year 2005 1.50 to 1.00
3rd Fiscal Quarter of Fiscal Year 2005 1.50 to 1.00
4th Fiscal Quarter of Fiscal Year 2005 1.60 to 1.00
1st Fiscal Quarter of Fiscal Year 2006 1.60 to 1.00
2nd Fiscal Quarter of Fiscal Year 2006 1.60 to 1.00
3rd Fiscal Quarter of Fiscal Year 2006 0.45 to 1.00
and each Fiscal Quarter thereafter
(b) Debt to EBITDA Ratio. WWI will not permit the Debt to EBITDA
Ratio as of the end of any Fiscal Quarter occurring during any period set
forth below to be greater than the ratio set forth opposite such period:
Debt to
Period EBITDA Ratio
------ ------------
3rd Fiscal Quarter of Fiscal Year 2000 5.75 to 1.00
4th Fiscal Quarter of Fiscal Year 2000 5.75 to 1.00
1st Fiscal Quarter of Fiscal Year 2001 5.75 to 1.00
2nd Fiscal Quarter of Fiscal Year 2001 5.75 to 1.00
3rd Fiscal Quarter of Fiscal Year 2001 5.75 to 1.00
4th Fiscal Quarter of Fiscal Year 2001 5.00 to 1.00
1st Fiscal Quarter of Fiscal Year 2002 5.00 to 1.00
2nd Fiscal Quarter of Fiscal Year 2002 5.00 to 1.00
3rd Fiscal Quarter of Fiscal Year 2002 5.00 to 1.00
4th Fiscal Quarter of Fiscal Year 2002 4.50 to 1.00
1st Fiscal Quarter of Fiscal Year 2003 4.50 to 1.00
2nd Fiscal Quarter of Fiscal Year 2003 4.50 to 1.00
3rd Fiscal Quarter of Fiscal Year 2003 4.50 to 1.00
4th Fiscal Quarter of Fiscal Year 2003 4.00 to 1.00
1st Fiscal Quarter of Fiscal Year 2004 4.00 to 1.00
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0xx Xxxxxx Xxxxxxx of Fiscal Year 2004 4.00 to 1.00
3rd Fiscal Quarter of Fiscal Year 2004 4.00 to 1.00
4th Fiscal Quarter of Fiscal Year 2004 3.50 to 1.00
1st Fiscal Quarter of Fiscal Year 2005 3.50 to 1.00
2nd Fiscal Quarter of Fiscal Year 2005 3.50 to 1.00
3rd Fiscal Quarter of Fiscal Year 2005 3.50 to 1.00
4th Fiscal Quarter of Fiscal Year 2005 3.00 to 1.00
1st Fiscal Quarter of Fiscal Year 2006 3.00 to 1.00
2nd Fiscal Quarter of Fiscal Year 2006 3.00 to 1.00
3rd Fiscal Quarter of Fiscal Year 2006 3.00 to 1.00
4th Fiscal Quarter of Fiscal Year 2006 2.50 to 1.00
and each Fiscal Quarter thereafter
(c) Interest Coverage Ratio. WWI will not permit the Interest
Coverage Ratio as of the end of any Fiscal Quarter occurring during any
period set forth below to be less than the ratio set forth opposite such
period:
Interest Coverage
Period Ratio
------ -----------
3rd Fiscal Quarter of Fiscal Year 2000 1.45 to 1.00
4th Fiscal Quarter of Fiscal Year 2000 1.45 to 1.00
1st Fiscal Quarter of Fiscal Year 2001 1.45 to 1.00
2nd Fiscal Quarter of Fiscal Year 2001 1.45 to 1.00
3rd Fiscal Quarter of Fiscal Year 2001 1.45 to 1.00
4th Fiscal Quarter of Fiscal Year 2001 1.60 to 1.00
1st Fiscal Quarter of Fiscal Year 2002 1.60 to 1.00
2nd Fiscal Quarter of Fiscal Year 2002 1.60 to 1.00
3rd Fiscal Quarter of Fiscal Year 2002 1.60 to 1.00
4th Fiscal Quarter of Fiscal Year 2002 1.75 to 1.00
1st Fiscal Quarter of Fiscal Year 2003 1.75 to 1.00
2nd Fiscal Quarter of Fiscal Year 2003 1.75 to 1.00
3rd Fiscal Quarter of Fiscal Year 2003 1.75 to 1.00
4th Fiscal Quarter of Fiscal Year 2003 1.90 to 1.00
1st Fiscal Quarter of Fiscal Year 2004 1.90 to 1.00
2nd Fiscal Quarter of Fiscal Year 2004 1.90 to 1.00
3rd Fiscal Quarter of Fiscal Year 2004 1.90 to 1.00
4th Fiscal Quarter of Fiscal Year 2004 2.10 to 1.00
1st Fiscal Quarter of Fiscal Year 2005 2.10 to 1.00
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0xx Xxxxxx Xxxxxxx of Fiscal Year 2005 2.10 to 1.00
3rd Fiscal Quarter of Fiscal Year 2005 2.10 to 1.00
4th Fiscal Quarter of Fiscal Year 2005 2.30 to 1.00
1st Fiscal Quarter of Fiscal Year 2006 2.30 to 1.00
2nd Fiscal Quarter of Fiscal Year 2006 2.30 to 1.00
3rd Fiscal Quarter of Fiscal Year 2006 2.30 to 1.00
4th Fiscal Quarter of Fiscal Year 2006 2.50 to 1.00
and each Fiscal Quarter thereafter
(d) Senior Debt to EBITDA Ratio. WWI will not permit the Senior Debt
to EBITDA Ratio, as of the end of any Fiscal Quarter occurring during any
period set forth below, to be greater than the ratio set forth opposite
such period:
Senior Debt to
Period EBITDA Ratio
------ ------------
3rd Fiscal Quarter of Fiscal Year 2000 3.50 to 1.00
4th Fiscal Quarter of Fiscal Year 2000 3.50 to 1.00
1st Fiscal Quarter of Fiscal Year 2001 3.50 to 1.00
2nd Fiscal Quarter of Fiscal Year 2001 3.50 to 1.00
3rd Fiscal Quarter of Fiscal Year 2001 3.50 to 1.00
4th Fiscal Quarter of Fiscal Year 2001 3.00 to 1.00
1st Fiscal Quarter of Fiscal Year 2002 3.00 to 1.00
2nd Fiscal Quarter of Fiscal Year 2002 3.00 to 1.00
3rd Fiscal Quarter of Fiscal Year 2002 3.00 to 1.00
4th Fiscal Quarter of Fiscal Year 2002 2.50 to 1.00
1st Fiscal Quarter of Fiscal Year 2003 2.50 to 1.00
2nd Fiscal Quarter of Fiscal Year 2003 2.50 to 1.00
3rd Fiscal Quarter of Fiscal Year 2003 2.50 to 1.00
4th Fiscal Quarter of Fiscal Year 2003 2.00 to 1.00
1st Fiscal Quarter of Fiscal Year 2004 2.00 to 1.00
2nd Fiscal Quarter of Fiscal Year 2004 2.00 to 1.00
3rd Fiscal Quarter of Fiscal Year 2004 2.00 to 1.00
4th Fiscal Quarter of Fiscal Year 2004 1.50 to 1.00
and each Fiscal Quarter thereafter
SECTION 7.2.5. Investments. Each of the Borrowers will not, and will not
permit any of its respective Subsidiaries to, make, incur, assume or suffer to
exist any Investment in any other Person, except:
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(a) Investments existing on the Effective Date and identified in
Item 7.2.5(a) ("Ongoing Investments") of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as Indebtedness
pursuant to Section 7.2.2;
(d) without duplication, Investments permitted as Capital
Expenditures pursuant to Section 7.2.7;
(e) Investments by WWI in any of its Subsidiaries which have
executed Guaranties, or by any such Subsidiary (other than the XX0
Xxxxxxxx) in any of its Subsidiaries, by way of contributions to capital;
(f) Investments made by WWI or any of its Subsidiaries (other than
the XX0 Xxxxxxxx), solely with proceeds which have been contributed,
directly or indirectly, to such Subsidiary as cash equity from holders of
WWI's common stock for the purpose of making an Investment identified in a
notice to the Administrative Agent on or prior to the date that such
capital contribution is made;
(g) Investments by WWI or any of its Subsidiaries (other than the
XX0 Xxxxxxxx) to the extent the consideration received pursuant to clause
(b)(i) of Section 7.2.9 is not all cash;
(h) Investments by WWI or any of its Subsidiaries in Weight Watchers
Sweden AB Vikt-Vaktarna and Weight Watchers Suomi Oy to the extent that
such Investments are for the purpose of acquiring any Capital Securities
of such Subsidiaries not owned by WWI and its Subsidiaries on the Closing
Date, in an aggregate amount not to exceed $10,000,000;
(i) other Investments (not constituting Capital Expenditures
attributable to the expenditure of Base Amounts) made by WWI or any of the
Guarantors (other than the XX0 Xxxxxxxx) in an aggregate amount, not to
exceed $30,000,000;
(j) other Investments made by any Non-Guarantor Subsidiary in
another Non-Guarantor Subsidiary;
(k) other Investments made by WWI or any Subsidiary in Qualified
Assets, to the extent permitted under clause (b) of Section 3.1.1; and
(l) Investments made by WWI in the Designated Subsidiary in the
aggregate amount not to exceed $1,500,000.
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provided, however, that
(i) any Investment which when made complies with the requirements of
the definition of the term "Cash Equivalent Investment" may continue to be
held notwithstanding that such Investment if made thereafter would not
comply with such requirements;
(ii) the Investments permitted above shall only be permitted to be
made to the extent not prohibited in whole or in part by the terms of the
Senior Subordinated Note Indenture;
(iii) no Investment otherwise permitted by clause (e), (f), (g) or
(i) shall be permitted to be made if, immediately before or after giving
effect thereto, any Default shall have occurred and be continuing ; and
(iv) except as permitted under clause (a) above, no more than
$2,000,000 of Investments may be made in the Designated Subsidiary unless
the Designated Subsidiary shall have taken the actions set forth in
Section 7.1.7.
SECTION 7.2.6. Restricted Payments, etc. On and at all times after the
Effective Date:
(a) WWI will not declare, pay or make any dividend or distribution
(in cash, property or obligations) on any shares of any class of Capital
Securities (now or hereafter outstanding) of WWI or on any warrants,
options or other rights with respect to any shares of any class of Capital
Securities (now or hereafter outstanding) of WWI (other than dividends or
distributions payable in its common stock or warrants to purchase its
common stock or splits or reclassifications of its stock into additional
or other shares of its common stock) or apply, or permit any of its
Subsidiaries to apply, any of its funds, property or assets to the
purchase, redemption, sinking fund or other retirement of, or agree or
permit any of its Subsidiaries to purchase or redeem, any shares of any
class of Capital Securities (now or hereafter outstanding) of WWI, or
warrants, options or other rights with respect to any shares of any class
of Capital Securities (now or hereafter outstanding, including but not
limited to the WWI Preferred Shares) of WWI (collectively, "Restricted
Payments"); provided, that (x) WWI may make dividend payments under the
WWI Preferred Shares so long as no Default has occurred under this
Agreement or the Senior Subordinated Note Indenture or would result
therefrom, (y) WWI may use 50% of Net Equity Proceeds retained by WWI or
its Subsidiaries under clause (d) of Section 3.1.1, solely for the
redemption, in whole or in part, of such WWI Preferred Shares and (z) WWI
may repurchase its stock held by employees constituting management, in an
amount not to exceed $1,000,000 in any Fiscal Year and an aggregate amount
of $4,000,000 (amounts unused in any Fiscal Year may be used in the
immediately succeeding Fiscal Year);
(b) WWI will not, and will not permit any of its Subsidiaries to
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(i) make any payment or prepayment of principal of, or
interest on, any Senior Subordinated Notes (A) on any day other
than, in the case of interest only, the stated, scheduled date for
such payment of interest set forth in the applicable Senior
Subordinated Notes or in the Senior Subordinated Note Indenture, or
(B) which would violate the terms of this Agreement or the
subordination provisions of the Senior Subordinated Note Indenture;
or
(ii) redeem, purchase or defease, any Senior Subordinated
Notes; and
(c) WWI will not, and will not permit any Subsidiary to, make any
deposit for any of the foregoing purposes.
SECTION 7.2.7. Capital Expenditures, etc. Each of the Borrowers will not,
and will not permit any of its respective Subsidiaries to, make or commit to
make Capital Expenditures (other than (x) investments under (1) clause (j) of
Section 7.2.5 and (2) clause (h) of Section 7.2.5 to the extent, in the case of
this clause (2), that the aggregate amount of such investments does not exceed
$30,000,000 (it being understood that Capital Expenditures may be made pursuant
to this clause (x) whether or not constituting "Investments", but shall be
treated as such for the purposes of said Sections), (y) nonrecurring
restructuring costs and Transaction and related expenses and (z) proceeds of
capital contributions used for Capital Expenditures in any Fiscal Year by WWI
and its Subsidiaries (other than the XX0 Xxxxxxxx), except, to the extent not
prohibited in whole or in part by the terms of the Senior Subordinated Note
Indenture, Capital Expenditures which do not aggregate in excess of the amount
set forth below opposite such Fiscal Year:
Maximum Capital
Fiscal Year Expenditures
----------- -------------
2000 $5,000,000
2001 $5,500,000
2002 $6,000,000
2003 $6,500,000
2004 $7,000,000
2005 and thereafter $7,500,000
provided, however, that (i) to the extent the amount of Capital Expenditures
permitted to be made in any Fiscal Year pursuant to the table set forth above
without giving effect to this clause (i) (the "Base Amount") exceeds the
aggregate amount of Capital Expenditures actually made during such Fiscal Year,
such excess amount may be carried forward to (but only to) the next succeeding
Fiscal Year (any
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such amount to be certified by WWI to the Administrative Agent in the Compliance
Certificate delivered for the last Fiscal Quarter of such Fiscal Year, and any
such amount carried forward to a succeeding Fiscal Year shall be deemed to be
used prior to WWI and its Subsidiaries using the Base Amount for such succeeding
Fiscal Year, without giving effect to such carry-forward).
SECTION 7.2.8. Consolidation, Merger, etc. Each of the Borrowers will not,
and will not permit any of its respective Subsidiaries to, liquidate or
dissolve, consolidate with, or merge into or with, any other corporation, or
purchase or otherwise acquire all or substantially all of the assets of any
Person (or of any division thereof) except
(a) any such Subsidiary (other than the XX0 Xxxxxxxx) may liquidate
or dissolve voluntarily into, and may merge with and into, WWI (so long as
WWI is the surviving corporation of such combination or merger) or any
other Subsidiary (other than the XX0 Xxxxxxxx), and the assets or stock of
any Subsidiary may be purchased or otherwise acquired by WWI or any other
Subsidiary (other than the XX0 Xxxxxxxx); provided, that notwithstanding
the above, (i) a Subsidiary may only liquidate or dissolve into, or merge
with and into, another Subsidiary of WWI (other than the XX0 Xxxxxxxx) if,
after giving effect to such combination or merger, WWI continues to own
(directly or indirectly), and the Administrative Agent continues to have
pledged to it pursuant to a supplement to the WWI Pledge Agreement, a
percentage of the issued and outstanding shares of Capital Securities (on
a fully diluted basis) of the Subsidiary surviving such combination or
merger that is equal to or in excess of the percentage of the issued and
outstanding shares of Capital Securities (on a fully diluted basis) of the
Subsidiary that does not survive such combination or merger that was
(immediately prior to the combination or merger) owned by WWI or pledged
to the Administrative Agent and (ii) if such Subsidiary is a Guarantor the
surviving corporation must be a Guarantor;
(b) so long as no Default has occurred and is continuing or would
occur after giving effect thereto, WWI or any of their Subsidiaries (other
than the XX0 Xxxxxxxx) may purchase all or substantially all of the assets
of any Person (or any division thereof) not then a Subsidiary, or acquire
such Person by merger, if permitted (without duplication) pursuant to the
proviso contained in clause (a) above; and
(c) a Subsidiary may merge with another Person in a transaction
permitted by clause (b) of Section 7.2.9.
SECTION 7.2.9. Asset Dispositions, etc. Subject to the definition of
Change of Control, each of the Borrowers will not, and will not permit any of
its respective Subsidiaries to, Dispose of all or any part of its assets,
whether now owned or hereafter acquired (including accounts receivable and
Capital Securities of Subsidiaries) to any Person, unless
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(a) such Disposition is made by WWI or any of its Subsidiaries
(other than the XX0 Xxxxxxxx) and is (i) in the ordinary course of its
business (and does not constitute a Disposition of all or a substantial
part of WWI or such Subsidiary's assets) or is of obsolete or worn out
property or (ii) permitted by clause (a) or (b) of Section 7.2.8;
(b) (i) such Disposition (other than of Capital Securities) is made
by WWI or any of its Subsidiaries (other than the XX0 Xxxxxxxx) and is for
fair market value and the consideration consists of no less than 75% in
cash, (ii) the Net Disposition Proceeds received from such Disposition,
together with the Net Disposition Proceeds of all other assets sold,
transferred, leased, contributed or conveyed pursuant to this clause (b)
since the Effective Date, does not exceed (individually or in the
aggregate) $20,000,000 over the term of this Agreement and (iii) the Net
Disposition Proceeds generated from such Disposition not theretofore
reinvested in Qualified Assets in accordance with clause (b) of Section
3.1.1 (with the amount permitted to be so reinvested in Qualified Assets
in any event not to exceed $7,500,000 over the term of this Agreement) is
applied as Net Disposition Proceeds to prepay the Loans pursuant to the
terms of clause (b) of Section 3.1.1 and Section 3.1.2; or
(c) such Disposition is made pursuant to a Local Management Plan.
SECTION 7.2.10. Modification of Certain Agreements.
(a) Each of the Borrowers will not, and will not permit any of its
respective Subsidiaries to, consent to any amendment, supplement, amendment and
restatement, waiver or other modification of any of the terms or provisions
contained in, or applicable to, the Recapitalization Agreement or any schedules,
exhibits or agreements related thereto, in each case which would adversely
affect the rights or remedies of the Lenders, or WWI's or any Subsidiary's
ability to perform hereunder or under any Loan Document or which would increase
the purchase price with respect to the Transaction.
(b) Except as otherwise permitted pursuant to the terms of this Agreement,
without the prior written consent of the Required Lenders, WWI will not consent
to any amendment, supplement or other modification of any of the terms or
provisions contained in, or applicable to, any Subordinated Debt (including the
Senior Subordinated Note Indenture or any of the Senior Subordinated Notes), or
any guarantees delivered in connection with any Subordinated Debt (including any
Subordinated Guaranty) (collectively, the "Restricted Agreements"), or make any
payment in order to obtain an amendment thereof or change thereto, if the effect
of such amendment, supplement, modification or change is to (i) increase the
principal amount of, or increase the interest rate on, or add or increase any
fee with respect to such Subordinated Debt or any such Restricted Agreement,
advance any dates upon which payments of principal or interest are due thereon
or change any of the covenants with respect thereto in a manner which is more
restrictive to WWI or any of its Subsidiaries or (ii) change any event of
default or condition to an event of default with respect thereto, change the
redemption, prepayment or defeasance provisions thereof, change the
subordination provisions thereof, or change
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any collateral therefor (other than to release such collateral), if (in the case
of this clause (b)(ii)), the effect of such amendment or change, individually or
together with all other amendments or changes made, is to increase the
obligations of the obligor thereunder or to confer any additional rights on the
holders of such Subordinated Debt, or any such Restricted Agreement (or a
trustee or other representative on their behalf).
SECTION 7.2.11. Transactions with Affiliates. Each of the Borrowers will
not, and will not permit any of its respective Subsidiaries to, enter into, or
cause, suffer or permit to exist any arrangement or contract with any of their
other Affiliates (other than any Obligor)
(a) unless (i) such arrangement or contract is fair and equitable to
WWI or such Subsidiary and is an arrangement or contract of the kind which
would be entered into by a prudent Person in the position of the Borrowers
or such Subsidiary with a Person which is not one of their Affiliates;
(ii) if such arrangement or contract involves an amount in excess of
$5,000,000, the terms of such arrangement or contract are set forth in
writing and a majority of directors of WWI have determined in good faith
that the criteria set forth in clause (i) are satisfied and have approved
such arrangement or contract as evidenced by appropriate resolutions of
the board of directors of WWI or the relevant Subsidiary; or (iii) if such
arrangement or contract involves an amount in excess of $25,000,000, the
board of directors shall also have received a written opinion from an
investment banking, accounting or appraisal firm of national prominence
that is not an Affiliate of WWI to the effect that such arrangement or
contract is fair, from a financial standpoint, to WWI and its
Subsidiaries; and
(b) except that, so long as no Default or Event of Default has
occurred and is continuing or would be caused thereby, WWI and its
Subsidiaries may pay (i) annual management, consulting, monitoring and
advisory fees to The Invus Group, Ltd. in an aggregate total amount in any
Fiscal Year not to exceed the greater of (x) $1,000,000 and (y) 1.0% of
EBITDA for the relevant period, and any related out-of-pocket expenses and
(ii) fees to The Invus Group, Ltd. and its Affiliates in connection with
any acquisition or divestiture transaction entered into by WWI or any
Subsidiary; provided, however, that the aggregate amount of fees paid to
The Invus Group, Ltd. and its Affiliates in respect of any acquisition or
divestiture transaction shall not exceed 1% of the total amount of such
transaction.
SECTION 7.2.12. Negative Pledges, Restrictive Agreements, etc. Each of the
Borrowers will not, and will not permit any of its respective Subsidiaries to,
enter into any agreement (excluding (i) any restrictions existing under the Loan
Documents or, in the case of clauses (a)(i) and (b), any other agreements in
effect on the date hereof, (ii) in the case of clauses (a)(i) and (b), any
restrictions with respect to a Subsidiary imposed pursuant to an agreement which
has been entered into in connection with the sale or disposition of all or
substantially all of the Capital Securities or assets of such Subsidiary
pursuant to a transaction otherwise permitted hereby, (iii) in the case of
clause (a), restrictions in respect of Indebtedness secured by Liens permitted
by Section 7.2.3, but only to the extent such
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restrictions apply to the assets encumbered thereby, (iv) in the case of clause
(a), restrictions under the Senior Subordinated Note Indenture or (v) any
restrictions existing under any agreement that amends, refinances or replaces
any agreement containing the restrictions referred to in clause (i), (ii) or
(iii) above; provided, that the terms and conditions of any such agreement
referred to in clause (i), (ii) or (iii) are not materially less favorable to
the Lenders or materially more restrictive to any Obligor a party thereto than
those under the agreement so amended, refinanced or replaced) prohibiting
(a) the (i) creation or assumption of any Lien upon its properties,
revenues or assets, whether now owned or hereafter acquired, or (ii)
ability of WWI or any other Obligor to amend or otherwise modify this
Agreement or any other Loan Document; or
(b) the ability of any Subsidiary to make any payments, directly or
indirectly, to the Borrowers by way of dividends, advances, repayments of
loans or advances, reimbursements of management and other intercompany
charges, expenses and accruals or other returns on investments, or any
other agreement or arrangement which restricts the ability of any such
Subsidiary to make any payment, directly or indirectly, to the Borrowers.
SECTION 7.2.13. Stock of Subsidiaries. Each of the Borrowers will not, and
will not permit any of its respective Subsidiaries to issue any Capital
Securities (whether for value or otherwise) to any Person other than WWI or
another Wholly-owned Subsidiary of WWI except in connection with a Local
Management Plan; provided, that, WW Australia shall at all times be the record
and beneficial direct owner of all of the issued and outstanding Capital
Securities of the SP1 Borrower.
SECTION 7.2.14. Sale and Leaseback. Each of the Borrowers will not, and
will not permit any of its respective Subsidiaries to, enter into any agreement
or arrangement with any other Person providing for the leasing by WWI or any of
its Subsidiaries of real or personal property which has been or is to be sold or
transferred by WWI or any of its Subsidiaries to such other Person or to any
other Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of WWI or any of its
Subsidiaries.
SECTION 7.2.15. Fiscal Year. Each of the Borrowers will not and will not
permit any of its respective Subsidiaries to change its Fiscal Year; provided,
that on or prior to the end of Fiscal Year 2001, each of the Borrowers may
change its respective Fiscal Year upon at least 30 days prior written notice to
the Administrative Agent and subject to such reasonable adjustments to Sections
7.1.1 and 7.2.4 (as to the measurement dates) as are agreed to by the
Administrative Agent in writing.
SECTION 7.2.16. Designation of Senior Indebtedness. WWI will not designate
any Indebtedness as "Designated Senior Indebtedness" pursuant to clause (1) of
the definition of such term in the Senior Subordinated Note Indenture, without
the consent of the Required Lenders.
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SECTION 7.3. Maintenance of Separate Existence. The SP1 Borrower covenants
and agrees with the Administrative Agent, the Issuer and each Lender as follows:
(a) Other Business. It will not engage in any business or enterprise
or enter into any transaction other than the borrowing of Loans under the
Agreement, and the incurrence and payment of ordinary course operating
expenses, and as otherwise contemplated by the Loan Documents.
(b) Maintenance of Separate Existence. In order to maintain its
corporate existence separate and apart from that of WWI, any Subsidiary of
WWI and any Affiliates thereof and any other Person, it will perform all
necessary acts to maintain such separation, including without limitation,
(i) practicing and adhering to corporate formalities, such as
maintaining appropriate corporate books and records;
(ii) complying with Article Sixth of its certificate of
incorporation;
(iii) owning or leasing (including through shared arrangements
with Affiliates) all office furniture and equipment necessary to
operate its business;
(iv) refraining from (A) guaranteeing or otherwise becoming
liable for any obligations of any of its Affiliates or any other
Person, (B) having its Obligations guaranteed by its Affiliates or
any other Person (except as otherwise contemplated by the Loan
Documents), (C) holding itself out as responsible for debts of any
of its Affiliates or any other Person or for decisions or actions
with respect to the affairs of any of its Affiliates or any other
Person, and (D) being directly or indirectly named as a direct or
contingent beneficiary or loss payee on any insurance policy of any
Affiliate;
(v) maintaining its deposit and other bank accounts and all of
its assets separate from those of any other Person;
(vi) maintaining its financial records separate and apart from
those of any other Person;
(vii) compensating all its employees, officers, consultants
and agents for services provided to it by such Persons, or
reimbursing any of its Affiliates in respect of services provided to
it by employees, officers, consultants and agents of such Affiliate,
out of its own funds;
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(viii) maintaining any owned or leased office space separate
and apart from that of any of its Affiliates (even if such office
space is subleased from or is on or near premises occupied by any of
its Affiliates);
(ix) accounting for and managing all of its liabilities
separately from those of any of its Affiliates and any other Person,
including, without limitation, payment directly by the SP1 Borrower
of all payroll, accounting and other administrative expenses and
taxes;
(x) allocating, on an arm's-length basis, all shared corporate
operating services, leases and expenses, including, without
limitation, those associated with the services of shared consultants
and agents and shared computer and other office equipment and
software;
(xi) refraining from filing or otherwise initiating or
supporting the filing of a motion in any bankruptcy or other
insolvency proceeding involving it, WWI, any Subsidiary of WWI, any
Affiliate thereof or any other Person to substantively consolidate
it with WWI, any Subsidiary of WWI, any Affiliate thereof or any
other Person;
(xii) remaining solvent;
(xiii) conducting all of its business (whether written or
oral) solely in its own name;
(xiv) refraining from commingling its assets with those of any
of its Affiliates or any other Person;
(xv) maintaining an arm's-length relationship with all of its
Affiliates;
(xvi) refraining from acquiring obligations or securities of
WWI, any Subsidiary of WWI or any Affiliate thereof;
(xvii) refraining from pledging its assets for the benefit of
any of its Affiliates or any other Person or making any loans or
advances to any of its Affiliates or any other Person (in each case,
except as otherwise permitted pursuant to the Loan Documents); and
(xviii) correcting any known misunderstanding regarding its
separate identity.
(c) Independent Directors. It will not cause or allow its board of
directors to take any action requiring the unanimous affirmative vote of
100% of the members of its board of
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directors unless the Independent Director(s) (as defined in the
certificate of incorporation of the XX0 Xxxxxxxx) shall have participated
in such vote, and it shall comply in all respects with Article Seventh of
its certificate of incorporation.
(d) Unanimous Consent Required for Certain Actions. It shall not,
without the unanimous consent of all of the members of its board of
directors, including its independent director(s), (i) file, or authorize
or consent to the filing of, a bankruptcy or insolvency petition or
otherwise institute insolvency proceedings with respect to itself or to
any other entity in which it has a direct or indirect legal or beneficial
ownership interest, (ii) dissolve, liquidate, consolidate, merge, or sell
all or substantially all of its assets or any other entity in which it has
a direct or indirect legal or beneficial ownership interest, (iii) engage
in any other business activity or (iv) amend Articles Third, Sixth and
Seventh of its Certificate of Incorporation.
(e) No Powers of Attorney. The SP1 Borrower shall not grant any
powers of attorney to any Person for any purposes except (i) for the
purpose of permitting any Person to perform any ministerial or
administrative functions on behalf of the XX0 Xxxxxxxx which are not
inconsistent with the terms of the Loan Documents, (ii) to the
Administrative Agent for the purposes of the Security Agreements, Pledge
Agreements and Guaranties, or (iii) where otherwise provided or permitted
by the Loan Documents.
ARTICLE VIII
GUARANTY
SECTION 8.1. The Guaranty. WWI hereby unconditionally and irrevocably
guarantees the full and prompt payment when due, whether at stated maturity, by
acceleration or otherwise (including all amounts which would have become due but
for the operation of the automatic stay under Section 362(a) of the Federal
Bankruptcy Code, 11 U.S.C. 362(a), and the operation of Sections 502(b) and
506(b) of the United States Bankruptcy Code, 11 U.S.C. ss.502(b) and ss.506(b)),
of the following (collectively, the "Guaranteed Obligations"),
(a) all Obligations of the SP1 Borrower and each other Obligor to
the Administrative Agent and each of the Lenders now or hereafter existing
under this Agreement and each other Loan Document, whether for principal,
interest, fees, expenses or otherwise; and
(b) all other Obligations to the Administrative Agent and each of
the Lenders now or hereafter existing under any of the Loan Documents,
whether for principal, interest, fees, expenses or otherwise.
The obligations of WWI under this Article VIII constitute a guaranty of payment
when due and not of collection, and WWI specifically agrees that it shall not be
necessary or required that the Administrative
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Agent, any Lender or any holder of any Note exercise any right, assert any claim
or demand or enforce any remedy whatsoever against the SP1 Borrower or any other
Obligor (or any other Person) before or as a condition to the obligations of WWI
under this Article VIII.
SECTION 8.2. Guaranty Unconditional. The obligations of WWI under this
Article VIII shall be construed as a continuing, absolute, unconditional and
irrevocable guaranty of payment and shall remain in full force and effect until
the Final Termination Date. WWI guarantees that the Guaranteed Obligations will
be paid strictly in accordance with the terms of the agreement, instrument or
document under which they arise, regardless of any law, regulation or order now
or hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Administrative Agent or any of the Lenders with respect thereto.
The liability of WWI hereunder shall be absolute and unconditional irrespective
of:
(a) any lack of validity, legality or enforceability of this
Agreement, the Notes, the TLCs, any Rate Protection Agreement with a
Lender or any other Loan Document or any other agreement or instrument
relating to any thereof;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations, or any
compromise, renewal, extension, acceleration or release with respect
thereto, or any other amendment or waiver of or any consent to departure
from this Agreement, the Notes, the TLCs, any Rate Protection Agreement
with a Lender or any other Loan Document;
(c) any addition, exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(d) the failure of the Administrative Agent or any Lender
(i) to assert any claim or demand or to enforce any right or
remedy against the SP1 Borrower, any other Obligor or any other
Person (including any other guarantor) under the provisions of this
Agreement, any Note, any TLC, any Rate Protection Agreement with a
Lender or any other Loan Document or otherwise, or
(ii) to exercise any right or remedy against any other
guarantor of, or collateral securing, any of the Guaranteed
Obligations;
(e) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of this Agreement, any
Note, any TLC, any Rate Protection Agreement with a Lender or any other
Loan Document;
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(f) any defense, setoff or counter-claim which may at any time be
available to or be asserted by any Obligor against the Administrative
Agent or any Lender;
(g) any reduction, limitation, impairment or termination of the
Guaranteed Obligations for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to
(and WWI hereby waives any right to or claim of) any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting, the
Guaranteed Obligations or otherwise; or
(h) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, WWI, any other
Obligor or any surety or guarantor.
SECTION 8.3. Reinstatement in Certain Circumstances. If at any time any
payment in whole or in part of any of the Guaranteed Obligations is rescinded or
must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of WWI, any other Obligor or otherwise, WWI's obligations under
this Article VIII with respect to such payment shall be reinstated as though
such payment had been due but not made at such time.
SECTION 8.4. Waiver. WWI irrevocably waives promptness, diligence, notice
of acceptance hereof, presentment, demand, protest and any other notice with
respect to any of the Guaranteed Obligations, as well as any requirement that at
any time any action be taken by any Person against the SP1 Borrower or any other
Person.
SECTION 8.5. Postponement of Subrogation, etc. WWI will not exercise any
rights which it may acquire by way of rights of subrogation by any payment made
hereunder or otherwise, prior to the Final Termination Date. Any amount paid to
WWI on account of any such subrogation rights prior to Final Termination Date
shall be held in trust for the benefit of the Lenders and each holder of a Note
and/or TLC and shall immediately be paid to the Administrative Agent and
credited and applied against the Guaranteed Obligations, whether matured or
unmatured, in accordance with the terms of this Agreement; provided, however,
that if
(a) WWI has made payment to the Lenders and each holder of a Note of
all or any part of the Guaranteed Obligations, and
(b) the Final Termination Date has occurred,
each Lender and each holder of a Note agrees that, at WWI's request, the
Administrative Agent, on behalf of the Lenders and the holders of the Notes,
will execute and deliver to WWI appropriate documents (without recourse and
without representation or warranty) necessary to evidence the transfer by
subrogation to WWI of an interest in the Guaranteed Obligations resulting from
such payment by WWI. In furtherance of the foregoing, at all times prior to the
Final Termination Date,
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WWI shall refrain from taking any action or commencing any proceeding against
the SP1 Borrower (or its successors or assigns, whether in connection with a
bankruptcy proceeding or otherwise) to recover any amounts in the respect of
payments to any Lender or any holder of a Note and/or TLC; provided, however,
that WWI may make any necessary filings solely to preserve its claims against
the SP1 Borrower.
SECTION 8.6. Stay of Acceleration. If acceleration of the time for payment
of any amount payable by the SP1 Borrower under this Agreement or any Note or
TLC is stayed upon the occurrence of any event referred to in Section 9.1.9 with
respect to the SP1 Borrower, all such amounts otherwise subject to acceleration
under the terms of this Agreement shall nonetheless be payable by WWI hereunder
forthwith.
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.1. Listing of Events of Default. Each of the following events or
occurrences described in this Section 9.1 shall constitute an "Event of
Default".
SECTION 9.1.1. Non-Payment of Obligations. (a) Any Borrower shall default
in the payment or prepayment of (i) any Reimbursement Obligation (including
pursuant to Sections 2.6 and 2.6.2) on the applicable Disbursement Due Date or
any deposit of cash for collateral purposes on the date required pursuant to
Section 2.6.4 or (ii) any principal of any Loan when due, or (b) any Obligor
(including WWI and the XX0 Xxxxxxxx) shall default (and such default shall
continue unremedied for a period of three Business Days) in the payment when due
of any interest or commitment fee or of any other monetary Obligation.
SECTION 9.1.2. Breach of Warranty. Any representation or warranty of any
Borrower or any other Obligor made or deemed to be made hereunder or in any
other Loan Document executed by it or any other writing or certificate
(including the Closing Date Certificate) furnished by or on behalf of the
Borrowers or any other Obligor to the Administrative Agent, the Issuer or any
Lender for the purposes of or in connection with this Agreement or any such
other Loan Document (including any certificates delivered pursuant to Article V)
is or shall be incorrect when made in any material respect.
SECTION 9.1.3. Non-Performance of Certain Covenants and Obligations. Any
Borrower shall default in the due performance and observance of any of its
obligations under Section 7.1.9, Section 7.1.10, Section 7.1.12 or Section 7.2.
SECTION 9.1.4. Non-Performance of Other Covenants and Obligations. Any
Obligor shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days
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after notice thereof shall have been given to WWI by the Administrative Agent at
the direction of the Required Lenders.
SECTION 9.1.5. Default on Other Indebtedness. A default shall occur (i) in
the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness, other than Indebtedness
described in Section 9.1.1, of WWI or any of its Subsidiaries or any other
Obligor having a principal amount, individually or in the aggregate, in excess
of $1,000,000, or (ii) a default shall occur in the performance or observance of
any obligation or condition with respect to such Indebtedness having a principal
amount, individually or in the aggregate, in excess of $5,000,000 if the effect
of such default is to accelerate the maturity of any such Indebtedness or such
default shall continue unremedied for any applicable period of time sufficient
to permit the holder or holders of such Indebtedness, or any trustee or agent
for such holders, to cause such Indebtedness to become due and payable prior to
its expressed maturity.
SECTION 9.1.6. Judgments. Any judgment or order for the payment of money
in excess of $1,000,000 (not covered by insurance from a responsible insurance
company that is not denying its liability with respect thereto) shall be
rendered against WWI or any of its Subsidiaries or any other Obligor and remain
unpaid and either
(a) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order; or
(b) there shall be any period of 60 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect.
SECTION 9.1.7. Pension Plans. Any of the following events shall occur with
respect to any Pension Plan
(a) the termination of any Pension Plan if, as a result of such
termination, WWI or any Subsidiary would be required to make a
contribution to such Pension Plan, or would reasonably expect to incur a
liability or obligation to such Pension Plan, in excess of $5,000,000; or
(b) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under section 302(f) of ERISA in an
amount in excess of $5,000,000.
SECTION 9.1.8. Change in Control. Any Change in Control shall occur.
SECTION 9.1.9. Bankruptcy, Insolvency, etc. WWI or any of its Subsidiaries
(other than any Immaterial Subsidiary or the Designated Subsidiary) or any other
Obligor shall
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(a) become insolvent or generally fail to pay, or admit in writing
its inability or unwillingness to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for WWI or any of its
Subsidiaries or any other Obligor or any property of any thereof, or make
a general assignment for the benefit of creditors;
(c) in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for WWI or any of its Subsidiaries or any
other Obligor or for a substantial part of the property of any thereof,
and such trustee, receiver, sequestrator or other custodian shall not be
discharged within 60 days, provided that WWI or each Subsidiary and each
other Obligor hereby expressly authorizes the Administrative Agent, the
Issuer and each Lender to appear in any court conducting any relevant
proceeding during such 60-day period to preserve, protect and defend their
rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or
liquidation proceeding, in respect of WWI or any of its Subsidiaries or
any other Obligor, and, if any such case or proceeding is not commenced by
WWI or such Subsidiary or such other Obligor, such case or proceeding
shall be consented to or acquiesced in by WWI or such Subsidiary or such
other Obligor or shall result in the entry of an order for relief or shall
remain for 60 days undismissed, provided that WWI, each Subsidiary and
each other Obligor hereby expressly authorizes the Administrative Agent,
the Issuer and each Lender to appear in any court conducting any such case
or proceeding during such 60-day period to preserve, protect and defend
their rights under the Loan Documents; or
(e) take any action (corporate or otherwise) authorizing, or in
furtherance of, any of the foregoing.
SECTION 9.1.10. Impairment of Security, etc. Any Loan Document, or any
Lien granted thereunder, shall (except in accordance with its terms), in whole
or in part, terminate, cease to be in full force and effect or cease to be the
legally valid, binding and enforceable obligation of any Obligor party thereto;
any Borrower or any other Obligor shall, directly or indirectly, contest in any
manner the effectiveness, validity, binding nature or enforceability thereof; or
any Lien securing any Obligation shall, in whole or in part, cease to be a
perfected first priority Lien, subject only to those exceptions expressly
permitted by such Loan Document, except to the extent any event referred to
above (a) results from the failure of the Administrative Agent to maintain
possession of certificates representing securities pledged under the WWI Pledge
Agreement or to file continuation statements under the Uniform Commercial Code
of any applicable jurisdiction or (b) is covered by a lender's title insurance
policy and the relevant insurer promptly after the occurrence thereof shall have
acknowledged in writing that the same is covered by such title insurance policy.
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SECTION 9.1.11. Senior Subordinated Notes. The subordination provisions
relating to the Senior Subordinated Note Indenture (the "Subordination
Provisions") shall fail to be enforceable by the Lenders (which have not
effectively waived the benefits thereof) in accordance with the terms thereof,
or the principal or interest on any Loan, Reimbursement Obligation or other
monetary Obligations shall fail to constitute Senior Debt, or the same (or any
other similar term) used to define the monetary Obligations.
SECTION 9.1.12. Redemption. Any Senior Subordinated Noteholder of any
Subordinated Debt shall file an action seeking the rescission thereof or damages
or injunctive relief relating thereto; or any event shall occur which, under the
terms of any agreement or indenture relating to Subordinated Debt, shall require
WWI or any of its Subsidiaries to purchase, redeem or otherwise acquire or offer
to purchase, redeem or otherwise acquire all or any portion of the principal
amount of the Subordinated Debt (other than as provided under Section 7.2.6); or
WWI or any of its Subsidiaries shall for any other reason purchase, redeem or
otherwise acquire or offer to purchase, redeem or otherwise acquire, or make any
other payments in respect of the principal amount of any such Subordinated Debt
(other than as provided under Section 7.2.6).
SECTION 9.2. Action if Bankruptcy, etc. If any Event of Default described
in Section 9.1.3 (as it relates to Section 7.1.10) or in clauses (a) through (d)
of Section 9.1.9 shall occur with respect to WWI, any Subsidiary or any other
Obligor, the Commitments (if not theretofore terminated) shall automatically
terminate and the outstanding principal amount of all outstanding Loans and all
other Obligations shall automatically be and become immediately due and payable,
without notice or demand.
SECTION 9.3. Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in Section 9.1.3 (as it relates to
Section 7.1.10) or clauses (a) through (d) of Section 9.1.9 with respect to WWI
or any Subsidiary or any other Obligor) shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Administrative Agent, upon the
direction of the Required Lenders, shall by notice to WWI declare all or any
portion of the outstanding principal amount of the Loans and other Obligations
to be due and payable, require the Borrowers to provide cash collateral to be
deposited with the Administrative Agent in an amount equal to the Stated Amount
of all issued Letters of Credit and/or declare the Commitments (if not
theretofore terminated) to be terminated, whereupon the full unpaid amount of
such Loans and other Obligations which shall be so declared due and payable
shall be and become immediately due and payable, without further notice, demand
or presentment, the Borrowers shall deposit with the Administrative Agent cash
collateral in an amount equal to the Stated Amount of all issued Letters of
Credit and/or, as the case may be, the Commitments shall terminate.
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ARTICLE X
THE AGENTS
SECTION 10.1. Actions. Each Lender hereby appoints Scotiabank as its
Administrative Agent and as a Lead Agent and Book Manager under and for purposes
of this Agreement, the Notes and each other Loan Document. Each Lender
authorizes the Administrative Agent to act on behalf of such Lender under this
Agreement, the Notes, the TLCs, and each other Loan Document and, in the absence
of other written instructions from the Required Lenders received from time to
time by the Administrative Agent (with respect to which the Administrative Agent
agrees that it will comply, except as otherwise provided in this Section or as
otherwise advised by counsel), to exercise such powers hereunder and thereunder
as are specifically delegated to or required of the Administrative Agent by the
terms hereof and thereof, together with such powers as may be reasonably
incidental thereto. Each Lender hereby appoints CSFB as the Syndication Agent
and as a Lead Agent and Book Manager. Each Lender hereby indemnifies (which
indemnity shall survive any termination of this Agreement) each Agent, ratably
in accordance with their respective Term Loans and TLCs outstanding and
Commitments (or, if no Term Loans, TLCs or Commitments are at the time
outstanding and in effect, then ratably in accordance with the principal amount
of Term Loans or, as the case may be, TLCs held by such Lender, and their
respective Commitments as in effect in each case on the date of the termination
of this Agreement), from and against any and all liabilities, obligations,
losses, damages, claims, costs or expenses of any kind or nature whatsoever
which may at any time be imposed on, incurred by, or asserted against, the
Agents in any way relating to or arising out of this Agreement, the Notes, the
TLCs and any other Loan Document, including reasonable attorneys' fees, and as
to which any Agent is not reimbursed by the Borrowers or any other Obligor (and
without limiting the obligation of the Borrowers or any other Obligor to do so);
provided, however, that no Lender shall be liable for the payment of any portion
of such liabilities, obligations, losses, damages, claims, costs or expenses
which are determined by a court of competent jurisdiction in a final proceeding
to have resulted solely from an Agent's gross negligence or willful misconduct.
The Agents shall not be required to take any action hereunder, under the Notes,
the TLCs or under any other Loan Document, or to prosecute or defend any suit in
respect of this Agreement, the Notes, the TLCs or any other Loan Document,
unless it is indemnified hereunder to its satisfaction. If any indemnity in
favor of the Agents shall be or become, in any Agent's determination,
inadequate, any Agent may call for additional indemnification from the Lenders
and cease to do the acts indemnified against hereunder until such additional
indemnity is given. Notwithstanding the foregoing, the Lead Arrangers and Book
Managers shall have no duties, obligations or liabilities under any Loan
Document.
SECTION 10.2. Funding Reliance, etc. Unless the Administrative Agent shall
have been notified by telephone, confirmed in writing, by any Lender by 5:00
p.m., New York time, on the day prior to a Borrowing that such Lender will not
make available the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent and,
in reliance upon such assumption, make available to the applicable Borrower a
corresponding amount. If and to the extent
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that such Lender shall not have made such amount available to the Administrative
Agent, such Lender severally agrees and the Borrowers jointly and severally
agree to repay the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date the
Administrative Agent made such amount available to the applicable Borrower to
the date such amount is repaid to the Administrative Agent, at the interest rate
applicable at the time to Loans comprising such Borrowing (in the case of any
Borrower) and (in the case of a Lender), at the Federal Funds Rate (for the
first two Business Days after which such amount has not been repaid, and
thereafter at the interest rate applicable to Loans comprising such Borrowing.
SECTION 10.3. Exculpation. Neither any Agent nor any of their respective
directors, officers, employees or agents shall be liable to any Lender for any
action taken or omitted to be taken by it under this Agreement or any other Loan
Document, or in connection herewith or therewith, except for its own willful
misconduct or gross negligence, nor responsible for any recitals or warranties
herein or therein, nor for the effectiveness, enforceability, validity or due
execution of this Agreement or any other Loan Document, nor for the creation,
perfection or priority of any Liens purported to be created by any of the Loan
Documents, or the validity, genuineness, enforceability, existence, value or
sufficiency of any collateral security, nor to make any inquiry respecting the
performance by the Borrowers of their obligations hereunder or under any other
Loan Document. Any such inquiry which may be made by any Agent shall not
obligate it to make any further inquiry or to take any action. The Agents shall
be entitled to rely upon advice of counsel concerning legal matters and upon any
notice, consent, certificate, statement or writing which the Agents believe to
be genuine and to have been presented by a proper Person.
SECTION 10.4. Successor. The Syndication Agent may resign as such upon one
Business Day's notice to WWI and the Administrative Agent. The Administrative
Agent may resign as such at any time upon at least 30 days prior notice to WWI
and all Lenders. If the Administrative Agent at any time shall resign, the
Required Lenders may, with the prior consent of WWI (which consent shall not be
unreasonably withheld), appoint another Lender as a successor Administrative
Agent which shall thereupon become the Administrative Agent hereunder. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S. (or any State thereof) or a
U.S. branch or agency of a commercial banking institution, and having a combined
capital and surplus of at least $250,000,000; provided, however, that if, such
retiring Administrative Agent is unable to find a commercial banking institution
which is willing to accept such appointment and which meets the qualifications
set forth in above, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and the Lenders shall assume and perform
all of the duties of the Administrative Agent hereunder until such time, if any,
as the Required Lenders appoint a successor as provided for above. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall be entitled to
receive from the retiring Administrative Agent such documents of transfer and
assignment as such successor
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Administrative Agent may reasonably request, and shall thereupon succeed to and
become vested with all rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring
Administrative Agent's resignation hereunder as the Administrative Agent, the
provisions of
(a) this Article X shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Administrative Agent
under this Agreement; and
(b) Section 11.3 and Section 11.4 shall continue to inure to its
benefit.
SECTION 10.5. Credit Extensions by each Agent. Each Agent shall have the
same rights and powers with respect to (x) the Credit Extensions made by it or
any of its Affiliates, and (y) the Notes or TLCs held by it or any of its
Affiliates as any other Lender and may exercise the same as if it were not an
Agent. Each Agent and its respective Affiliates may accept deposits from, lend
money to, and generally engage in any kind of business with any Borrower or any
Subsidiary or Affiliate of WWI, as if such Agent were not an Agent hereunder.
SECTION 10.6. Credit Decisions. Each Lender acknowledges that it has,
independently of each Agent and each other Lender, and based on such Lender's
review of the financial information of the Borrowers, this Agreement, the other
Loan Documents (the terms and provisions of which being satisfactory to such
Lender) and such other documents, information and investigations as such Lender
has deemed appropriate, made its own credit decision to extend its Commitments.
Each Lender also acknowledges that it will, independently of each Agent and each
other Lender, and based on such other documents, information and investigations
as it shall deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time any rights and
privileges available to it under this Agreement or any other Loan Document.
SECTION 10.7. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by any Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by such Borrower). The
Administrative Agent will distribute to each Lender each document or instrument
received for its account and copies of all other communications received by the
Administrative Agent from any Borrower for distribution to the Lenders by the
Administrative Agent in accordance with the terms of this Agreement.
SECTION 10.8. Reliance by the Administrative Agent. The Administrative
Agent shall be entitled to rely upon any certification, notice or other
communication (including any thereof by telephone, telecopy, telegram or cable)
believed by it to be genuine and correct and to have been signed or sent by or
on behalf of the proper Person, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Administrative Agent.
As to any matters not expressly provided for by this Agreement or any other Loan
Document, the Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder or thereunder in
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accordance with instructions given by the Required Lenders or all of the Lenders
as is required in such circumstance, and such instructions of such Lenders and
any action taken or failure to act pursuant thereto shall be binding on all of
the Lenders. For purposes of applying amounts in accordance with this Section,
the Administrative Agent shall be entitled to rely upon any Secured Party that
has entered into a Rate Protection Agreement with any Obligor for a
determination (which such Secured Party agrees to provide or cause to be
provided upon request of the Administrative Agent) of the outstanding Secured
Obligations owed to such Secured Party under any Rate Protection Agreement.
Unless it has actual knowledge evidenced by way of written notice from any such
Secured Party and any Borrower to the contrary, the Administrative Agent, in
acting hereunder and under each other Loan Document, shall be entitled to assume
that no Rate Protection Agreements or Obligations in respect thereof are in
existence or outstanding between any Secured Party and any Obligor.
SECTION 10.9. Defaults. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of a Default unless the
Administrative Agent has received notice from a Lender or any Borrower
specifying such Default and stating that such notice is a "Notice of Default".
In the event that the Administrative Agent receives such a notice of the
occurrence of a Default, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall (subject to Section 11.1)
take such action with respect to such Default as shall be directed by the
Required Lenders; provided, that unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interest of the Lenders
except to the extent that this Agreement expressly requires that such action be
taken, or not be taken, only with the consent or upon the authorization of the
Required Lenders or all Lenders.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc. The provisions of this Agreement
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
by the Borrowers and the Required Lenders; provided, however, that no such
amendment, modification or waiver shall:
(a) modify this Section 11.1 without the consent of all Lenders;
(b) increase the aggregate amount of any Lender's Percentage of any
Commitment Amount, increase the aggregate amount of any Loans or TLCs
required to be made or purchased by a Lender pursuant to its Commitments,
extend the final Commitment Termination Date of Credit Extensions made (or
participated in) by a Lender or reduce any fees described in Article III
payable to any Lender without the consent of such Lender;
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(c) extend the final Stated Maturity Date for any Lender's Loan or
TLC, or reduce the principal amount of or rate of interest on any Lender's
Loan or TLC or extend the date on which scheduled payments of principal,
or payments of interest or fees are payable in respect of any Lender's
Loans or TLCs, in each case, without the consent of such Lender (it being
understood and agreed, however, that any vote to rescind any acceleration
made pursuant to Section 9.2 and Section 9.3 of amounts owing with respect
to the Loans, TLCs and other Obligations shall only require the vote of
the Required Lenders);
(d) reduce the percentage set forth in the definition of "Required
Lenders" or any requirement hereunder that any particular action be taken
by all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit or extend the
Stated Expiry Date of any Letter of Credit to a date which is subsequent
to the Revolving Loan Commitment Termination Date, in each case, unless
consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in this Agreement or
another Loan Document, release (i) any Guarantor from its obligations
under a Guaranty other than in connection with a Disposition of all or
substantially all of the Capital Securities of such Guarantor in a
transaction permitted by Section 7.2.9 as in effect from time to time or
(ii) all or substantially all of the collateral under the Loan Documents,
in either case without the consent of all Lenders;
(g) change any of the terms of clause (c) of Section 2.1.4 or
Section 2.3.2 without the consent of the Swingline Lender; or
(h) affect adversely the interests, rights or obligations of the
Administrative Agent (in its capacity as the Administrative Agent), the
Syndication Agent (in its capacity as the Syndication Agent) or any Issuer
(in its capacity as Issuer), unless consented to by the Administrative
Agent, the Syndication Agent or such Issuer, as the case may be.
No failure or delay on the part of the Administrative Agent, the Syndication
Agent, any Issuer or any Lender in exercising any power or right under this
Agreement or any other Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power or right preclude any
other or further exercise thereof or the exercise of any other power or right.
No notice to or demand on any Borrower or any other Obligor in any case shall
entitle it to any notice or demand in similar or other circumstances. No waiver
or approval by the Administrative Agent, the Syndication Agent, any Issuer or
any Lender under this Agreement or any other Loan Document shall, except as may
be otherwise stated in such waiver or approval, be applicable to subsequent
transactions. No waiver or approval hereunder shall require any similar or
dissimilar waiver or approval thereafter to be granted hereunder.
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SECTION 11.2. Notices. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party at
its address or facsimile number set forth on Schedule III hereto or set forth in
the Lender Assignment Agreement or at such other address or facsimile number as
may be designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid or if properly addressed and
sent by pre-paid courier service, shall be deemed given when received; any
notice, if transmitted by facsimile, shall be deemed given when transmitted
(telephonic confirmation in the case of facsimile).
SECTION 11.3. Payment of Costs and Expenses. The Borrowers jointly and
severally agree to pay on demand all reasonable expenses of the Administrative
Agent (including the reasonable fees and out-of-pocket expenses of Xxxxx, Xxxxx
& Xxxxx, special New York counsel to the Administrative Agent and of local
counsel, if any, who may be retained by counsel to the Administrative Agent) in
connection with:
(a) the syndication by the Agents of the Loans, the TLCs, the
negotiation, preparation, execution and delivery of this Agreement and of
each other Loan Document, including schedules and exhibits, and any
amendments, waivers, consents, supplements or other modifications to this
Agreement or any other Loan Document as may from time to time hereafter be
required, whether or not the transactions contemplated hereby are
consummated;
(b) the filing, recording, refiling or rerecording of each Mortgage,
each Pledge Agreement and each Security Agreement and/or any Uniform
Commercial Code financing statements or other instruments relating thereto
and all amendments, supplements and modifications to any thereof and any
and all other documents or instruments of further assurance required to be
filed or recorded or refiled or rerecorded by the terms hereof or of such
Mortgage, Pledge Agreement or Security Agreement; and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrowers further jointly and severally agree to pay, and to save each
Agent, the Issuer and the Lenders harmless from all liability for, any stamp or
other similar taxes which may be payable in connection with the execution or
delivery of this Agreement, the Credit Extensions made hereunder, or the
issuance of the Notes, the TLCs and Letters of Credit or any other Loan
Documents. The Borrowers also agree to reimburse the Administrative Agent, the
Issuer and each Lender upon demand for all reasonable out-of-pocket expenses
(including attorneys' fees and legal expenses) incurred by the Administrative
Agent, the Issuer or such Lender in connection with (x) the negotiation of any
restructuring or "work-out", whether or not consummated, of any Obligations and
(y) the enforcement of any Obligations.
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SECTION 11.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Borrowers hereby jointly and severally indemnify, exonerate and hold the
Administrative Agent, the Syndication Agent, the Issuer and each Lender and each
of their respective Affiliates, and each of their respective partners, officers,
directors, employees and agents, and each other Person controlling any of the
foregoing within the meaning of either Section 15 of the Securities Act of 1933,
as amended, or Section 20 of the Securities Exchange Act of 1934, as amended
(collectively, the "Indemnified Parties"), free and harmless from and against
any and all actions, causes of action, suits, losses, costs, liabilities and
damages, and expenses actually incurred in connection therewith (irrespective of
whether any such Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable attorneys' fees and
disbursements (collectively, the "Indemnified Liabilities"), incurred by the
Indemnified Parties or any of them as a result of, or arising out of, or
relating to
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Credit Extension;
(b) the entering into and performance of this Agreement and any
other Loan Document by any of the Indemnified Parties (including any
action brought by or on behalf of any Borrower as the result of any
determination by the Required Lenders pursuant to Article V not to make
any Credit Extension);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by WWI or any of its Subsidiaries of
all or any portion of the stock or assets of any Person, whether or not
the Administrative Agent, the Syndication Agent, the Issuer or such Lender
is party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to the
protection of the environment or the Release by WWI or any of its
Subsidiaries of any Hazardous Material;
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by WWI or any Subsidiary thereof of any
Hazardous Material present on or under such property in a manner giving
rise to liability at or prior to the time WWI or such Subsidiary owned or
operated such property (including any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any
Environmental Law), regardless of whether caused by, or within the control
of, WWI or such Subsidiary; or
(f) each Lender's Environmental Liability (the indemnification
herein shall survive repayment of the Notes and the TLCs and any transfer
of the property of WWI or any of its Subsidiaries by foreclosure or by a
deed in lieu of foreclosure for any Lender's Environmental Liability,
regardless of whether caused by, or within the control of, WWI or such
Subsidiary);
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except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or willful misconduct. WWI, the Borrowers and their permitted
successors and assigns hereby waive, release and agree not to make any claim, or
bring any cost recovery action against, the Administrative Agent, the
Syndication Agent, the Issuer or any Lender under CERCLA or any state
equivalent, or any similar law now existing or hereafter enacted, except to the
extent arising out of the gross negligence or willful misconduct of any
Indemnified Party. It is expressly understood and agreed that to the extent that
any of such Persons is strictly liable under any Environmental Laws, any
Borrower's obligation to such Person under this indemnity shall likewise be
without regard to fault on the part of such Borrower with respect to the
violation or condition which results in liability of such Person. If and to the
extent that the foregoing undertaking may be unenforceable for any reason, each
of the Borrowers hereby jointly and severally agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
SECTION 11.5. Survival. The obligations of the Borrowers under Sections
4.3, 4.4, 4.5, 4.6, 11.3 and 11.4, and the obligations of the Lenders under
Sections 4.8 and 10.1, shall in each case survive any termination of this
Agreement, the payment in full of all Obligations, the termination or expiration
of all Letters of Credit and the termination of all Commitments. The
representations and warranties made by the Borrowers and each other Obligor in
this Agreement and in each other Loan Document shall survive the execution and
delivery of this Agreement and each such other Loan Document.
SECTION 11.6. Severability. Any provision of this Agreement or any other
Loan Document which is prohibited or unenforceable in any jurisdiction shall, as
to such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such Loan Document or affecting the validity or enforceability
of such provision in any other jurisdiction.
SECTION 11.7. Headings. The various headings of this Agreement and of each
other Loan Document are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or such other Loan Document or any
provisions hereof or thereof.
SECTION 11.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement. This Agreement shall become effective
when counterparts hereof executed on behalf of the Borrowers, the Syndication
Agent, the Issuer and each Lender (or notice thereof satisfactory to the
Administrative Agent) shall have been received by the Administrative Agent (and
the Administrative Agent shall have executed such a counterpart) and notice
thereof shall have been given by the Administrative Agent to the Borrowers, the
Syndication Agent, the Issuer and each Lender.
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SECTION 11.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE NOTES,
THE TLCS AND EACH OTHER LOAN DOCUMENT (OTHER THAN THE LETTERS OF CREDIT, TO THE
EXTENT SPECIFIED BELOW AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN A LOAN
DOCUMENT), INCLUDING PROVISIONS WITH RESPECT TO INTEREST, LOAN CHARGES AND
COMMITMENT FEES, SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE
SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK). EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO LAWS OR
RULES ARE DESIGNATED, THE INTERNATIONAL STANDBY PRACTICES (ISP98--INTERNATIONAL
CHAMBER OF COMMERCE PUBLICATION NUMBER 590 (THE "ISP RULES")) AND, AS TO MATTERS
NOT GOVERNED BY THE ISP RULES, THE INTERNAL LAWS OF THE STATE OF NEW YORK. This
Agreement and the other Loan Documents constitute the entire understanding among
the parties hereto with respect to the subject matter hereof and thereof and
supersede any prior agreements, written or oral, with respect thereto.
SECTION 11.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
(a) none of the Borrowers may assign or transfer its rights or
obligations hereunder without the prior written consent of the
Administrative Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders are
subject to Section 11.11.
SECTION 11.11. Sale and Transfer of Loans and Notes; Participations in
Loans, Notes and TLCs. Each Lender may assign, or sell participations in, its
Loans, its TLCs, Letters of Credit and Commitments to one or more other Persons,
on a non pro rata basis, in accordance with this Section 11.11.
SECTION 11.11.1. Assignments. Any Lender,
(a) with the written consents of WWI and the Administrative Agent
(which consents shall not be unreasonably delayed or withheld and which
consent, in the case of WWI, shall be deemed to have been given in the
absence of a written notice delivered by WWI to the Administrative Agent,
on or before the fifth Business Day after receipt by WWI of such Lender's
request for such consent), may at any time assign and delegate to one or
more commercial banks or other financial institutions, and
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(b) with notice to WWI and the Administrative Agent, but without the
consent of any Borrower or the Administrative Agent, may assign and
delegate to any of its Affiliates or to any other Lender,
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "Assignee Lender"), all or any fraction of such Lender's total Loans,
TLCs, participations in Letters of Credit and Letter of Credit Outstandings with
respect thereto and Commitments in a minimum aggregate amount of (x) $1,000,000
(if such assignment and delegation is to a then existing Lender) or (y)
$5,000,000 (if such assignment and delegation is to a Person not then a Lender;
unless otherwise agreed to by the Administrative Agent and the Borrower) or the
then remaining amount of a Lender's Loans and Commitments; provided, however,
that (i) with respect to assignments of Revolving Loans, the assigning Lender
must assign a pro rata portion of each of its Revolving Loan Commitments,
Revolving Loans and interest in Letters of Credit Outstandings and (ii) the
Administrative Agent, in its own discretion, or by instruction from the Issuer,
may refuse acceptance of an assignment of Revolving Loans and Revolving Loan
Commitments to a Person not satisfying long-term certificate of deposit ratings
published by S&P or Xxxxx'x, of at least BBB- or Baa3, respectively, or (unless
otherwise agreed to by the Issuer), if such assignment would, pursuant to any
applicable laws, rules or regulations, be binding on the Issuer, result in a
reduced rate of return to the Issuer or require the Issuer to set aside capital
in an amount that is greater than that which is required to be set aside for
other Lenders participating in the Letters of Credit; provided, further, that
any such Assignee Lender will comply, if applicable, with the provisions
contained in Section 4.6 and the Borrowers, each other Obligor and the
Administrative Agent shall be entitled to continue to deal solely and directly
with such Lender in connection with the interests so assigned and delegated to
an Assignee Lender until
(i) written notice of such assignment and delegation, together with
payment instructions, addresses and related information with respect to
such Assignee Lender, shall have been given to the Borrowers and the
Administrative Agent by such Lender and such Assignee Lender;
(ii) such Assignee Lender shall have executed and delivered to the
Borrowers and the Administrative Agent a Lender Assignment Agreement,
accepted by the Administrative Agent; and
(iii) the processing fees described below shall have been paid.
From and after the date that the Administrative Agent accepts such Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan
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Documents. Within ten Business Days after its receipt of notice that the
Administrative Agent has received an executed Lender Assignment Agreement, the
applicable Borrower shall execute and deliver to the Administrative Agent (for
delivery to the relevant Assignee Lender) new Notes or TLCs, as the case may be,
evidencing such Assignee Lender's assigned Loans, TLCs, TLC Commitments and
Commitments and, if the assignor Lender has retained Loans, TLCs, TLC
Commitments and Commitments hereunder, replacement Notes or TLCs, as the case
may be, in the principal amount of the Loans or TLCs, as the case may be, and
TLC Commitments or Commitments, as the case may be, retained by the assignor
Lender hereunder (such Notes or TLCs, as the case may be, to be in exchange for,
but not in payment of, those Notes or TLCs, as the case may be, then held by
such assignor Lender). Each such Note or TLC, as the case may be, shall be dated
the date of the predecessor Notes or TLCs, as the case may be. The assignor
Lender shall xxxx the predecessor Notes or TLCs, as the case may be, "exchanged"
and deliver them to the applicable Borrower. Accrued interest on that part of
the predecessor Notes or TLCs, as the case may be, evidenced by the new Notes or
TLCs, as the case may be, and accrued fees, shall be paid as provided in the
Lender Assignment Agreement. Accrued interest on that part of the predecessor
Notes or TLCs, as the case may be, evidenced by the replacement Notes or TLCs,
as the case may be, shall be paid to the assignor Lender. Accrued interest and
accrued fees shall be paid at the same time or times provided in the predecessor
Notes or TLCs, as the case may be, and in this Agreement. Such assignor Lender
or such Assignee Lender must also pay a processing fee to the Administrative
Agent upon delivery of any Lender Assignment Agreement, in the amount of $3,500,
unless such assignment and delegation is by a Lender to its Affiliate or if such
assignment and delegation is by a Lender to the Federal Reserve Bank, as
provided below. Any attempted assignment and delegation not made in accordance
with this Section 11.11.1 shall be null and void.
Notwithstanding any other term of this Section 11.11.1, the agreement of the
Swing Line Lender to provide the Swing Line Loan Commitment shall not impair or
otherwise restrict in any manner the ability of the Swing Line Lender to make
any assignment of its Loans or Commitments, it being understood and agreed that
the Swing Line Lender may terminate its Swing Line Loan Commitment, to the
extent such Swing Line Commitment would exceed its Revolving Loan Commitment
after giving effect to such assignment, in connection with the making of any
assignment. Nothing contained in this Section 11.11.1 shall prevent or prohibit
any Lender from pledging its rights (but not its obligations to make Loans)
under this Agreement and/or its Loans and/or its Notes hereunder to a Federal
Reserve Bank (or in the case of a Lender which is a fund, to the trustee of, or
other Eligible Institution affiliated with, such fund for the benefit of its
investors) in support of borrowings made by such Lender from such Federal
Reserve Bank.
In the event that S&P or Xxxxx'x shall, after the date that any Lender with a
Commitment to make Revolving Loans or participate in Letters of Credit or Swing
Line Loans becomes a Lender, downgrade the long-term certificate of deposit
rating or long-term senior unsecured debt rating of such Lender, and the
resulting rating shall be below BBB- or Baa3, then each of the Issuer and (if
different) the Swing Line Lender shall have the right, but not the obligation,
upon notice to such Lender and the Administrative Agent, to replace such Lender
with an Assignee Lender in accordance with and subject
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to the restrictions contained in this Section, and such Lender hereby agrees to
transfer and assign without recourse (in accordance with and subject to the
restrictions contained in this Section) all its interests, rights and
obligations in respect of its Revolving Loan Commitment under this Agreement to
such Assignee Lender; provided, however, that (i) no such assignment shall
conflict with any law, rule and regulation or order of any governmental
authority and (ii) such Assignee Lender shall pay to such Lender in immediately
available funds on the date of such assignment the principal of and interest and
fees (if any) accrued to the date of payment on the Loans made, and Letters of
Credit participated in, by such Lender hereunder and all other amounts accrued
for such Lender's account or owed to it hereunder.
SECTION 11.11.2. Participations. (a) Any Lender may at any time sell to
one or more commercial banks or other Persons (each of such commercial banks and
other Persons being herein called a "Participant") participating interests in
any of the Loans, TLCs, Commitments, or other interests of such Lender
hereunder; provided, however, that
(i) no participation contemplated in this Section shall relieve such
Lender from its Commitments or its other obligations hereunder or under
any other Loan Document;
(ii) such Lender shall remain solely responsible for the performance
of its Commitments and such other obligations;
(iii) each Borrower and each other Obligor and the Administrative
Agent shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement
and each of the other Loan Documents;
(iv) no Participant, unless such Participant is an Affiliate of such
Lender, or is itself a Lender, shall be entitled to require such Lender to
take or refrain from taking any action hereunder or under any other Loan
Document, except that such Lender may agree with any Participant that such
Lender will not, without such Participant's consent, take any action of
the type described in clause (a), (b), (f) or, to the extent requiring the
consent of each Lender, clause (c) of Section 11.1; and
(v) the Borrowers shall not be required to pay any amount under this
Agreement that is greater than the amount which it would have been
required to pay had no participating interest been sold.
The Borrowers acknowledge and agree, subject to clause (v) above, that each
Participant, for purposes of Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 11.3 and
11.4, shall be considered a Lender. Each Participant shall only be indemnified
for increased costs pursuant to Section 4.3, 4.5 or 4.6 if and to the extent
that the Lender which sold such participating interest to such Participant
concurrently is entitled to make, and does make, a claim on any Borrower for
such increased costs. Any Lender that sells a participating interest in any
Loan, TLC, Commitment or other interest to a Participant under this Section
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shall indemnify and hold harmless each Borrower and the Administrative Agent
from and against any taxes, penalties, interest or other costs or losses
(including reasonable attorneys' fees and expenses) incurred or payable by any
Borrower or the Administrative Agent as a result of the failure of such Borrower
or the Administrative Agent to comply with its obligations to deduct or withhold
any Taxes from any payments made pursuant to this Agreement to such Lender or
the Administrative Agent, as the case may be, which Taxes would not have been
incurred or payable if such Participant had been a Non-U.S. Lender that was
entitled to deliver to such Borrower, the Administrative Agent or such Lender,
and did in fact so deliver, a duly completed and valid Form 1001 or 4224 (or
applicable successor form) entitling such Participant to receive payments under
this Agreement without deduction or withholding of any United States federal
taxes.
(b) Each Lender agrees and represents with and for the benefit of the SP1
Borrower and WW Australia that it:
(i) has not (directly or indirectly) offered by subscription or
purchase or issued invitations to subscribe for or buy nor has it sold the
TLCs;
(ii) will not (directly or indirectly) offer for subscription or
purchase or issue invitations to subscribe for or buy nor will it sell the
TLCs; and
(iii) has not distributed and will not distribute any draft,
preliminary or definitive offering memorandum, advertisements or other
offering material relating to the TLCs,
in the Commonwealth of Australia, its territories or possessions, unless (x) the
consideration is payable by each offeree or invitee in a minimum amount of
A$500,000 or the offer or invitation is otherwise an excluded offer or excluded
invitation for the purposes of the Australian Corporations Law and the
Corporations Regulations made under the Australian Corporations Law, and (y) the
offer, invitation or distribution complies with all applicable laws, regulations
and directives and does not require any document to be lodged with, or
registered by, the ASIC.
(c) Each Lender agrees and represents with and for the benefit of the SP1
Borrower and WW Australia that it has not sold and will not sell the TLCs to any
person if, at the time of such sale, the employees of the Lender aware of, or
involved in, the sale knew or had reasonable grounds to suspect that, as a
result of such sale, any TLCs or an interest in any TLCs were being, or would
later be, acquired (directly or indirectly) by an associate of the SP1 Borrower
or WW Australia for the purposes of section 128F(5) of the Income Tax Assessment
Xxx 0000 of Australia.
(d) The SP1 Borrower holds the benefit of the agreements and
representations in para graphs (b) and (c) in trust for WW Australia.
SECTION 11.11.3. Register. The Borrowers hereby designate the
Administrative Agent to serve as the Borrowers' agent, solely for the purpose of
this Section, to maintain a register (the
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"Register") on which the Administrative Agent will record each Lender's
Commitment, the Loans made by each Lender and the Notes evidencing such Loans
and the TLCs, and each repayment in respect of the principal amount of the Loans
and the TLCs of each Lender and annexed to which the Administrative Agent shall
retain a copy of each Lender Assignment Agreement delivered to the
Administrative Agent pursuant to this Section. Failure to make any recordation,
or any error in such recordation, shall not affect any Borrower's or any other
Obligor's Obligations in respect of such Loans or Notes or TLCs. The entries in
the Register shall be conclusive, in the absence of manifest error, and WWI, the
Borrowers, the Administrative Agent and the Lenders shall treat each Person in
whose name a Loan and related Note or TLC is registered as the owner thereof for
all purposes of this Agreement, notwithstanding notice or any provision herein
to the contrary. A Lender's Commitment and the Loans made pursuant thereto and
the Notes evidencing such Loans or TLCs may be assigned or otherwise transferred
in whole or in part only by registration of such assignment or transfer in the
Register. Any assignment or transfer of a Lender's Commitment or the Loans or
the Notes evidencing such Loans or TLCs made pursuant thereto shall be
registered in the Register only upon delivery to the Administrative Agent of a
Lender Assignment Agreement duly executed by the assignor thereof. No assignment
or transfer of a Lender's Commitment or the Loans made pursuant thereto or the
Notes evidencing such Loans or TLCs shall be effective unless such assignment or
transfer shall have been recorded in the Register by the Administrative Agent as
provided in this Section.
SECTION 11.12. Other Transactions. Nothing contained herein shall preclude
the Administrative Agent, the Issuer or any other Lender from engaging in any
transaction, in addition to those contemplated by this Agreement or any other
Loan Document, the Borrowers or any of their Affiliates in which any Borrower or
such Affiliate is not restricted hereby from engaging with any other Person.
SECTION 11.13. Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE
SYNDICATION AGENT, THE LENDERS, ANY ISSUER OR THE BORROWERS IN CONNECTION
HEREWITH OR THEREWITH SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS
OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE
AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. EACH OF THE BORROWERS IRREVOCABLY CONSENTS TO THE SERVICE
OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR
WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR NOTICES SPECIFIED IN SECTION
11.2. EACH OF THE BORROWERS HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE
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FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER
MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT
REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT ANY OF WWI OR THE BORROWERS HAVE OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY, EACH OF WWI AND THE BORROWERS HEREBY IRREVOCABLY WAIVES TO THE FULLEST
EXTENT PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 11.14. Waiver of Jury Trial. THE ADMINISTRATIVE AGENT, THE
SYNDICATION AGENT, EACH LENDER, EACH ISSUER AND EACH BORROWER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ANY
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON,
OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE SYNDICATION AGENT,
SUCH LENDER, SUCH ISSUER OR ANY BORROWER IN CONNECTION HEREWITH OR THEREWITH.
EACH OF THE BORROWERS ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH
OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT, THE SYNDICATION AGENT, EACH
LENDER AND EACH ISSUER ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN
DOCUMENT.
SECTION 11.15. Confidentiality. The Lenders shall hold all non-public
information obtained pursuant to or in connection with this Agreement or
obtained by such Lender based on a review of the books and records of WWI or any
of its Subsidiaries in accordance with their customary procedures for handling
confidential information of this nature, but may make disclosure to any of their
examiners, Affiliates, outside auditors, counsel and other professional advisors
in connection with this Agreement or as reasonably required by any potential
bona fide transferee, participant or assignee, or in connection with the
exercise of remedies under a Loan Document, or as requested by any governmental
agency or representative thereof or pursuant to legal process; provided,
however, that
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(a) unless specifically prohibited by applicable law or court order,
each Lender shall notify WWI of any request by any governmental agency or
representative thereof (other than any such request in connection with an
examination of the financial condition of such Lender by such governmental
agency) for disclosure of any such non-public information prior to
disclosure of such information;
(b) prior to any such disclosure pursuant to this Section 11.15,
each Lender shall require any such bona fide transferee, participant and
assignee receiving a disclosure of non-public information to agree in
writing
(i) to be bound by this Section 11.15; and
(ii) to require such Person to require any other Person to
whom such Person discloses such non-public information to be
similarly bound by this Section 11.15; and
(c) except as may be required by an order of a court of competent
jurisdiction and to the extent set forth therein, no Lender shall be
obligated or required to return any materials furnished by WWI or any
Subsidiary.
SECTION 11.16. Judgment Currency. If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum due hereunder, under any
Note, TLC or under any other Loan Document in another currency into U.S. Dollars
or into a Foreign Currency, as the case may be, the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which, in accordance with normal banking procedures, the
applicable Secured Party could purchase such other currency with U.S. Dollars or
with such Foreign Currency, as the case may be, in New York City, at the close
of business on the Business Day immediately preceding the day on which final
judgment is given, together with any premiums and costs of exchange payable in
connection with such purchase.
SECTION 11.17. Release of Security Interests. (a) Notwithstanding anything
to the contrary contained herein or in any other Loan Document, the
Administrative Agent is hereby irrevocably authorized by each Lender (without
requirement of notice to or consent of any Lender except as expressly required
by Section 11.1) to take any action requested by the Borrowers having the effect
of releasing any collateral or guarantee obligations (i) to the extent necessary
to permit consummation of any transaction expressly permitted by any Loan
Document or that has been consented to in accordance with Section 11.1 or (ii)
under the circumstances described in paragraph (b) below.
(b) At such time as the Loans, the Reimbursement Obligations and the other
obligations under the Loan Documents shall have been paid in full, the
Commitments have been terminated and no letters of Credit shall be outstanding,
the collateral shall be released from the Liens created by the Security
Agreements, and the Security Agreements and all obligations (other than those
expressly stated to survive such
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termination) of the Administrative Agent and each Obligor under the Security
Agreements shall terminate, all without delivery of any instrument or
performance of any act by any Person
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
BORROWERS
WEIGHT WATCHERS INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
WW FUNDING CORP.
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Secretary
AGENTS
CREDIT SUISSE FIRST BOSTON
as the Syndication Agent
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
THE BANK OF NOVA SCOTIA
as the Administrative Agent
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Authorized Signatory
ISSUER
THE BANK OF NOVA SCOTIA
as the Issuer
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Authorized Signatory
LENDERS
THE BANK OF NOVA SCOTIA
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Authorized Signatory
CREDIT SUISSE FIRST BOSTON,
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
BHF (USA) Capital Corporation
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Associate
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
Balanced High-Yield Fund II LTD.
By: BHF (USA) Capital Corporation
As Attorney-in-Fact
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Associate
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
BANK ONE, NA (Main Office Chicago)
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
CREDIT CONTACT
Name: Xxxxxxx X. Xxxxxxxx
------------------------------------
Address: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
OPERATIONS CONTACT
Name: Xxx Xxxxx
----------------------------------
Address: 0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
FORTIS (USA) FINANCE LLC
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
CREDIT CONTACT
Xxxxxxx X. Xxxxx
Vice President
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
OPERATIONS CONTACT
Name:
Address:
Telephone:
Facsimile:
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Dingbar
------------------------------------
Name: Xxxxx X. Dingbar
Title: Director
CREDIT CONTACT
Xxxxx Xxxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
OPERATIONS CONTACT
Xxxx Xxxxxxxxxx
0000 Xxx Xxxxx Xxxx
Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
PPM SPYGLASS FUNDING TRUST
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Agent
CREDIT CONTACT
Xxxxx X. Xxxxxx / Xxxxxx X. Xxxxxxxx
Banc of America Securities LLC
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000 / (000) 000-0000
Facsimile: (000) 000-0000
OPERATIONS CONTACT
Xxxxxx Xxxxxxxxx / Xxxxxx X. Xxxx
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000 / (000) 000-0000
Facsimile: (000) 000-0000 / (000) 000-0000
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Capital Management LLC, a
Delaware Limited Liability Company, its
Authorized Signatory
By: /s/ [Illegible]
------------------------------------
Name: [Illegible]
Title:
By: /s/ [Illegible]
------------------------------------
Name: [Illegible]
Title: [Illegible]
CREDIT CONTACT
Xxxxxxx Xxxxx
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
OPERATIONS CONTACT
Xxxxxxxx Xxxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SRF TRADING, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
CREDIT CONTACT
Xxxxx X. Xxxxxx / Xxxxxx X. Xxxxxxxx
Banc of America Securities LLC
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000 / (000) 000-0000
Facsimile: (000) 000-0000
OPERATIONS CONTACT
Xxxxx Xxxxxxx / Xxxxxxxx X. Xxxxxx
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000 / (000) 000-0000
Facsimile: (000) 000-0000 / (000) 000-0000
XXXXX XXX FLOATING RATE LIMITED
LIABILITY COMPANY
By: /s/ Xxxxx X. Good
------------------------------------
Name: Xxxxx X. Good
Title: Vice President,
Xxxxx Xxx & Farnham Incorporated,
as Advisor to the Xxxxx Xxx
Floating Rate Limited Liability
Company
CREDIT CONTACT
Xxxxx X. Good
Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
OPERATIONS CONTACT
Xxxxxx X. Xxxxx
Xxx Xxxxx Xxxxxx Xxxxx,
00xx Xxxxx
Xxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
