1
EXHIBIT 4.2
================================================================================
CREDIT AGREEMENT
AMONG
ALLEGHENY TELEDYNE INCORPORATED,
TELEDYNE TECHNOLOGIES
INCORPORATED
AND
BANK OF AMERICA, N.A.
AS ADMINISTRATIVE AGENT, SWING LINE LENDER
AND
ISSUING LENDER
AND
THE OTHER FINANCIAL
INSTITUTIONS PARTY HERETO
DATED AS OF OCTOBER 19, 0000
XXXX XX XXXXXXX SECURITIES LLC,
AS
SOLE ARRANGER AND SOLE BOOK MANAGER
[BANK OF AMERICA LOGO]
================================================================================
2
TABLE OF CONTENTS
Section Page
------- ----
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS................................................................1
1.01 Defined Terms...................................................................................1
1.02 Use of Certain Terms...........................................................................27
1.03 Accounting Terms...............................................................................27
1.04 Rounding.......................................................................................27
1.05 Exhibits and Schedules.........................................................................27
1.06 References to Agreements and Laws..............................................................28
SECTION 2. THE COMMITMENTS AND EXTENSIONS OF CREDIT.......................................................28
2.01 Amount and Terms of Commitments................................................................28
2.02 Borrowings, Conversions and Continuations of Loans.............................................28
2.03 Letters of Credit..............................................................................29
2.04 Swing Line.....................................................................................34
2.05 Prepayments....................................................................................35
2.06 Reduction or Termination of Commitments........................................................36
2.07 Principal and Interest.........................................................................36
2.08 Fees...........................................................................................36
2.09 Computation of Interest and Fees...............................................................37
2.10 Making Payments................................................................................38
2.11 Funding Sources................................................................................38
2.12 Release of ALT.................................................................................39
SECTION 3. TAXES, YIELD PROTECTION AND ILLEGALITY.........................................................39
3.01 Taxes..........................................................................................39
3.02 Illegality.....................................................................................40
3.03 Inability to Determine Rates...................................................................40
3.04 Increased Cost and Reduced Return; Capital Adequacy............................................41
3.05 Breakfunding Costs.............................................................................42
3.06 Matters Applicable to all Requests for Compensation............................................42
3.07 Survival.......................................................................................42
SECTION 4. CONDITIONS PRECEDENT...........................................................................42
4.01 Conditions to Effectiveness of the Credit Agreement............................................42
4.02 Conditions of Initial Extension of Credit to ALT...............................................45
4.03 Conditions to Assumption of Obligations and Initial Extensions of Credit to TTI................47
4.04 Conditions to all Extensions of Credit.........................................................49
SECTION 5. REPRESENTATIONS AND WARRANTIES.................................................................50
5.01 Existence and Qualification; Power; Compliance with Laws.......................................50
5.02 Power; Authorization; Enforceable Obligations..................................................50
3
5.03 No Legal Bar...................................................................................50
5.04 Financial Statements; No Material Adverse Effect...............................................51
5.05 Litigation.....................................................................................51
5.06 No Default.....................................................................................51
5.07 Ownership of Property; Liens...................................................................52
5.08 Taxes..........................................................................................52
5.09 Margin Regulations; Investment Company Act; Public Utility Holding Company Act.................52
5.10 ERISA Compliance...............................................................................52
5.11 Intellectual Property..........................................................................53
5.12 Compliance With Laws...........................................................................53
5.13 Environmental Compliance.......................................................................53
5.14 Insurance......................................................................................53
5.15 Year 2000......................................................................................53
5.16 Disclosure.....................................................................................54
5.17 Solvency.......................................................................................54
SECTION 6. AFFIRMATIVE COVENANTS..........................................................................54
6.01 Financial Statements...........................................................................54
6.02 Certificates, Notices and Other Information....................................................55
6.03 Payment of Taxes...............................................................................56
6.04 Preservation of Existence......................................................................56
6.05 Maintenance of Properties......................................................................56
6.06 Maintenance of Insurance.......................................................................56
6.07 Compliance With Laws...........................................................................56
6.08 Inspection Rights..............................................................................57
6.09 Keeping of Records and Books of Account........................................................57
6.10 Compliance with ERISA..........................................................................57
6.11 Compliance With Agreements.....................................................................57
6.12 Use of Proceeds................................................................................57
6.13 Additional Borrower Parties....................................................................57
SECTION 7. NEGATIVE COVENANTS.............................................................................58
7.01 Indebtedness...................................................................................58
7.02 Liens and Negative Pledges.....................................................................59
7.03 Fundamental Changes............................................................................60
7.04 Dispositions...................................................................................61
7.05 Investments....................................................................................61
7.06 Restricted Payments............................................................................62
7.07 ERISA..........................................................................................62
7.08 Limitation on Nature of Business...............................................................62
7.09 Transactions with Affiliates...................................................................62
7.10 Hostile Acquisitions...........................................................................62
7.11 Limitations on Upstreaming, etc................................................................62
7.12 Financial Covenants............................................................................63
- ii -
4
7.13 Limitation on Amendments to Spinoff Documents..................................................63
7.14 Limitation on Modifications of Indebtedness....................................................63
SECTION 8. EVENTS OF DEFAULT AND REMEDIES.................................................................63
8.01 Events of Default..............................................................................63
8.02 Remedies Upon Event of Default.................................................................66
SECTION 9. ADMINISTRATIVE AGENT...........................................................................68
9.01 Appointment and Authorization of Administrative Agent..........................................68
9.02 Delegation of Duties...........................................................................68
9.03 Liability of Administrative Agent..............................................................68
9.04 Reliance by Administrative Agent...............................................................69
9.05 Notice of Default..............................................................................69
9.06 Credit Decision; Disclosure of Information by Administrative Agent.............................70
9.07 Indemnification of Administrative Agent........................................................70
9.08 Administrative Agent in Individual Capacity....................................................71
9.09 Successor Administrative Agent.................................................................71
SECTION 10. MISCELLANEOUS..................................................................................72
10.01 Amendments; Consents...........................................................................72
10.02 Release of Collateral..........................................................................72
10.03 Transmission and Effectiveness of Notices and Signatures.......................................73
10.04 Attorney Costs, Expenses and Taxes.............................................................74
10.05 Binding Effect; Assignment.....................................................................75
10.06 Set-off........................................................................................76
10.07 Sharing of Payments............................................................................76
10.08 No Waiver; Cumulative Remedies.................................................................77
10.09 Usury..........................................................................................78
10.10 Counterparts...................................................................................78
10.11 Integration....................................................................................78
10.12 Nature of Lenders' Obligations.................................................................78
10.13 Survival of Representations and Warranties.....................................................78
10.14 Indemnity by Borrower..........................................................................79
10.15 Nonliability of Lenders........................................................................79
10.16 No Third Parties Benefited.....................................................................80
10.17 Severability...................................................................................80
10.18 Confidentiality................................................................................80
10.19 Further Assurances.............................................................................81
10.20 Headings.......................................................................................81
10.21 Time of the Essence............................................................................81
10.22 Foreign Lenders and Participants...............................................................81
10.23 Removal and/or Replacement of Lenders..........................................................82
10.24 Governing Law..................................................................................83
10.25 Waiver of Right to Trial by Jury; Other Waivers................................................83
10.26 Entire Agreement...............................................................................84
- iii -
5
EXHIBITS
FORM OF
A Request for Extension of Credit
B Compliance Certificate
C Note
D Notice of Assignment and Acceptance
E-1 Opinion of Counsel on the Signing Date
E-2 Opinion of Counsel on the ALT Closing Date
E-3 Opinion of Counsel on the TTI Closing Date
F ALT Global Note
G Guaranty
H Pledge Agreement
I ALT Subordination Agreement
J Assumption Agreement
SCHEDULES
1.01 Consolidated EBITDA; Consolidated EBIT; Consolidated Interest
Charges
2.01 Commitments and Pro Rata Shares
7.01(b) Existing Indebtedness of ALT and its Subsidiaries
7.01(c) Existing Indebtedness of TTI and its Subsidiaries
7.02(a) Liens of ALT and its Subsidiaries
7.02(b) Liens of TTI and its Subsidiaries
7.05(a) Investments by ALT and its Subsidiaries
7.05(b) Investments by TTI and its Subsidiaries
10.03 Eurodollar and Domestic Lending Offices, Addresses for Notices
- iv -
6
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of October 19, 1999, by and
among ALLEGHENY TELEDYNE INCORPORATED, a Delaware corporation ("ALT"), TELEDYNE
TECHNOLOGIES INCORPORATED, a Delaware corporation ("TTI"), each lender from time
to time party hereto (collectively, "Lenders" and individually, a "Lender"), and
BANK OF AMERICA, N.A., as Administrative Agent, Issuing Lender and Swing Line
Lender. BANK OF AMERICA SECURITIES LLC has acted as sole arranger and sole book
manager.
RECITALS
WHEREAS, ALT has incorporated TTI, a wholly-owned Subsidiary of ALT,
for the purpose of effecting the transfer by ALT to TTI of certain assets and
liabilities and operations of the Aerospace and Electronics segment of ALT (the
"Line of Business Transfer") in accordance with the Spinoff Documents (as
defined below).
WHEREAS, following consummation of the Line of Business Transfer, ALT
will make a distribution of all the capital stock of TTI to the stockholders of
ALT (the "Spinoff") in accordance with the Spinoff Documents (as defined below).
WHEREAS, ALT and TTI have requested that Lenders make credit facilities
available to ALT and TTI for the purposes set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and agree intending to be legally
bound as follows:
AGREEMENT
SECTION 1.
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Acquired Indebtedness" means Indebtedness of any Person that becomes a
Subsidiary of TTI after the TTI Closing Date pursuant to a Permitted
Acquisition, if such Indebtedness was outstanding prior to the time such Person
became a Subsidiary of TTI and was not created in contemplation of or in
connection with such Person becoming a Subsidiary of TTI and constitutes either
(i) obligations under capital leases or (ii) purchase money or other
Indebtedness incurred to finance the acquisition of fixed or capital assets and
otherwise satisfying the requirements of Section 7.02(h).
"Acquisition" means the acquisition, in one transaction or a series of
transactions, by Borrower or any of its Subsidiaries of all or substantially all
the stock, partnership or other equity interests or assets of any other Person
or all or substantially all of the assets of any division or business of any
other Person.
- 1 -
7
"Acquisition Consideration" means the purchase consideration for any
Permitted Acquisition and all other payments made and liabilities incurred by
Borrower or any of its Subsidiaries in exchange for, or as part of, or in
connection with, any Permitted Acquisition, whether paid in cash or by exchange
of assets or otherwise and whether payable at or prior to the consummation of
such Permitted Acquisition or deferred for payment at any future time, whether
or not any such future payment is subject to the occurrence of any contingency,
and includes any and all payments and liabilities representing the purchase
price and any assumptions of liabilities, "earn-outs" and other Profit Payment
Agreements, consulting agreements, services agreements and non-competition
agreements and other liabilities of every type and description.
"Administrative Agent" means Bank of America, N.A., in its capacity as
administrative agent under any of the Loan Documents, and any successor
administrative agent.
"Administrative Agent's Office" means Administrative Agent's address
and, as appropriate, account as set forth on Schedule 10.03, or such other
address or account as Administrative Agent hereafter may designate by written
notice to Borrower and Lenders.
"Administrative Agent-Related Persons" means Administrative Agent
(including any successor agent), together with its Affiliates (including, in the
case of Administrative Agent, the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Affiliate" means any Person directly or indirectly controlling,
controlled by, or under direct or indirect common control with, another Person.
A Person shall be deemed to be "controlled by" any other Person if such other
Person possesses, directly or indirectly, power (a) to vote 10% 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.
"Agreement" means this Credit Agreement, as amended, restated,
extended, supplemented or otherwise modified in writing from time to time.
"ALT" has the meaning set forth in the introductory paragraph hereto.
"ALT Closing Date" means the date on which all the conditions precedent
in Section 4.02 are satisfied or waived in accordance with Section 4.02, which
date shall be no later than [November 15], 1999.
"ALT Global Note" means the promissory note made by Borrower in favor
of Administrative Agent for the account of Lenders, substantially in the form of
Exhibit F.
"ALT Subordination Agreement" means the ALT subordination and indemnity
agreement in the form of Exhibit I.
"Applicable Amount" means (a) prior to the consummation of a Qualified
Public Offering, (i) with respect to the Facility Fee, .35%, (ii) with respect
to the Utilization Fee, 0.0%,
- 2 -
8
(iii) with respect to the Base Rate, 0.75%, and (iv) with respect to the
Eurodollar Rate and Letters of Credit, 1.15%, and (b) from and after the
consummation of a Qualified Public Offering, the following amounts per annum,
based upon the Capitalization Ratio as set forth in the then most recent
Compliance Certificate received by Administrative Agent pursuant to Section
6.02(b) (provided, however, that, if this clause (b) is applicable, until
Administrative Agent receives the first Compliance Certificate after the TTI
Closing Date, such amounts shall be those indicated for pricing level I set
forth below):
PRICING CAPITALIZATION RATIO FACILITY UTILIZATION BASE EURODOLLAR RATE/
LEVEL FEE FEE RATE LETTERS OF CREDIT
--------------------- --------------------- -------------- ----------------- ----------------- -----------------------
I Greater than or
equal to 55% .35% .25% .50% .90%
II Greater than or
equal to 45% .30% .25% .375% .825%
III Greater than or
equal to 35% .25% .25% .125% .625%
IV Less than 35% .20% .125% 0% .55%
The Applicable Amount shall be in effect from the date the most recent
Compliance Certificate is received by Administrative Agent to but excluding the
date the next Compliance Certificate is received; provided, however, that if
Borrower fails to timely deliver the next Compliance Certificate, the Applicable
Amount from the date such Compliance Certificate was due to but excluding the
date such Compliance Certificate is received by Administrative Agent shall be
the highest pricing level set forth above, and, thereafter, the pricing level
indicated by such Compliance Certificate when received.
"Applicable Payment Date" means, (a) as to any Eurodollar Rate Loan,
the last day of the relevant Interest Period and any date that such Loan is
prepaid or converted in whole or in part and the Maturity Date; provided,
however, that if any Interest Period for a Eurodollar Rate Loan exceeds three
months, interest shall also be paid on the date which falls every three months
after the beginning of such Interest Period, and (b) as to any other
Obligations, the last Business Day of each calendar quarter and the Maturity
Date; provided, further, that interest accruing at the Default Rate shall be
payable from time to time at any time upon written demand of Administrative
Agent.
"Arranger" means Banc of America Securities LLC, in its capacity as
sole arranger and sole book manager.
"Assumption Agreement" means an assumption agreement in the form of
Exhibit J.
- 3 -
9
"Attorney Costs" means and includes all fees and disbursements of any
law firm or other external counsel and the allocated cost of internal legal
services and all disbursements of internal counsel.
"Audited ALT Financial Statements" means the audited consolidated
balance sheet of ALT and its Subsidiaries for the fiscal year ended December 31,
1998, and the related consolidated statements of income and cash flows for such
fiscal year of ALT.
"Audited TTI Financial Statements" means, collectively, (i) the audited
combined balance sheet of TTI for the fiscal years ended December 31, 1997 and
December 31, 1998, and (ii) the combined statements of income, stockholders
equity and cash flows for the fiscal years ended December 31, 1996, December 31,
1997 and December 31, 1998.
"Bank of America" means Bank of America, N.A.
"Base Rate" means, for any day, a fluctuating rate per annum equal to
the higher of (a) the Federal Funds Rate for such day plus 1/2 of 1% and (b) the
rate of interest in effect for such day as publicly announced from time to time
by Bank of America as its "prime rate." Such prime rate is a rate set by Bank of
America based upon various factors including Bank of America's costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such prime rate announced by Bank of America
shall take effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Loan" means a Loan which bears interest based on the Base
Rate.
"Borrower" means (i) on or prior to the TTI Closing Date and the
assumption by TTI pursuant to the Assumption Agreement of ALT's Obligations
(other than ALT's Obligations under the ALT Subordination Agreement), ALT, and
(ii) thereafter, TTI.
"Borrower Party" means Borrower or any Person other than Lenders and
any Affiliates of Lenders, Administrative Agent and Issuing Lender from time to
time party to a Loan Document.
"Borrowing" and "Borrow" each mean, a borrowing hereunder consisting of
Loans of the same type made on the same day and, other than in the case of Base
Rate Loans, having the same Interest Period.
"Borrowing Date" means the date that a Loan is made, which shall be a
Business Day.
"Business Day" means any day other than a Saturday, Sunday, or other
day on which commercial banks are authorized to close under the Laws of, or are
in fact closed in, the state where Administrative Agent's Office is located or
the State of California and, if such day relates to any Eurodollar Rate Loan,
means any such day on which dealings in Dollar deposits are conducted by and
between banks in the London interbank eurodollar market.
- 4 -
10
"Capitalization Ratio" means, as of any date of determination, for
Borrower and its Subsidiaries on a consolidated basis, the ratio of (a)
Consolidated Total Indebtedness as of such date to (b) Consolidated Total
Capitalization as of such date.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral" means all property of the Borrower Parties, now owned or
hereafter acquired, with respect to which a Lien is purported to be created by
the Pledge Agreement.
"Collateral Release Date" means the date on which each of the following
shall have occurred: (i) TTI shall have consummated a Qualified Public Offering
on or before the date that is 12 months after the ALT Closing Date, (ii) no
Default or Event of Default shall have occurred and be continuing, (iii)
Borrower shall have delivered to Administrative Agent a written request for the
release of the Collateral and a certificate of the chief financial officer of
Borrower certifying that the requirements of clauses (i) and (ii) of this
definition have been satisfied.
"Commitment" means, for each Lender, the obligation of such Lender to
make Extensions of Credit in an aggregate principal amount not exceeding the
amount set forth opposite such Lender's name on Schedule 2.01 at any one time
outstanding, as such amount may be reduced or adjusted from time to time in
accordance with this Agreement (collectively, the "combined Commitments").
"Compliance Certificate" means a certificate in the form of Exhibit B,
properly completed and signed by a Responsible Officer of Borrower.
"Consolidated EBIT" means, for any period, for TTI and its Subsidiaries
on a consolidated basis, an amount equal to the sum of (a) Consolidated Net
Income, (b) Consolidated Interest Charges, and (c) the amount of taxes, based on
or measured by income, used or included in the determination of such
Consolidated Net Income.
"Consolidated EBITDA" means, for any period, for TTI and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (a)
Consolidated Net Income, (b) Consolidated Interest Charges, (c) the amount of
taxes, based on or measured by income, used or included in the determination of
such Consolidated Net Income, and (d) the amount of depreciation and
amortization expense deducted in determining such Consolidated Net Income;
provided that for purposes of calculating Consolidated EBITDA of TTI and its
Subsidiaries for any period, (i) the Consolidated EBITDA of any Person or assets
acquired by TTI and its Subsidiaries in a Permitted Acquisition during such
period shall be included on a pro forma basis for such period (assuming the
consummation of such Permitted Acquisition and the incurrence or assumption of
any Indebtedness in connection therewith occurred on the first day of such
period) and (ii) the Consolidated EBITDA of any Person or assets Disposed of by
TTI or its Subsidiaries during such period shall be excluded for such period
(assuming the consummation of such Disposition and the repayment of any
Indebtedness in connection therewith occurred on the first day of such period).
- 5 -
11
"Consolidated Interest Charges" means, for any period, for TTI and its
Subsidiaries on a consolidated basis, the sum of all interest, premium payments,
fees, charges and related expenses payable for such period by TTI and its
Subsidiaries in connection with Indebtedness (including capitalized interest and
other fees and charges incurred under any asset securitization program), in each
case to the extent treated as interest in accordance with GAAP (including any
such amounts payable in respect of Indebtedness of any Person acquired during
such period and in respect of Indebtedness incurred in connection with such
acquisition, in each case as if such Indebtedness was incurred on the first day
of such period).
"Consolidated Net Income" means, for any period, for TTI and its
Subsidiaries on a consolidated basis, the net income of TTI and its Subsidiaries
from continuing operations after extraordinary items (excluding gains or losses
from Dispositions of assets) for that period, determined in accordance with
GAAP.
"Consolidated Net Worth" means, as of any date of determination, for
TTI and its Subsidiaries on a consolidated basis, Stockholders' Equity of TTI
and its Subsidiaries on that date, determined in accordance with GAAP.
"Consolidated Total Assets" means, as of any date of determination, for
TTI and its Subsidiaries on a consolidated basis, the value of all properties
and all right, title and interest in such properties which would be classified
as assets of TTI and its Subsidiaries, determined in accordance with GAAP.
"Consolidated Total Capitalization" means, as of any date of
determination, the sum of (i) Consolidated Total Indebtedness, and (ii)
Consolidated Net Worth, in each case as of such date.
"Consolidated Total Indebtedness" means, as of any date of
determination, for TTI and its Subsidiaries on a consolidated basis, the sum of
(a) the outstanding principal amount of all obligations and liabilities of TTI
and its Subsidiaries, whether current or long-term, for borrowed money
(including Extensions of Credit hereunder), (b) that portion of obligations with
respect to capital leases that are capitalized in the consolidated balance sheet
of TTI and its Subsidiaries, (c) without duplication, all Guaranty Obligations
with respect to Indebtedness of the type specified in subsections (a) and (b)
above of Persons other than TTI or any of its Subsidiaries, (d) the outstanding
principal amount of all obligations and liabilities, whether current or
long-term, associated with any sale by TTI or any of its Subsidiaries of its
accounts receivable, (e) Synthetic Lease Obligations of TTI and its
Subsidiaries, (f) Indebtedness of TTI and its Subsidiaries in respect of Swap
Contracts, in each case, determined in accordance with GAAP, and (g) Joint
Venture Indebtedness of TTI and its Subsidiaries.
"Continuation" and "Continue" mean, with respect to any Eurodollar Rate
Loan, the continuation of such Eurodollar Rate Loan as a Eurodollar Rate Loan on
the last day of the Interest Period for such Loan.
- 6 -
12
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or undertaking to
which such Person is a party or by which it or any of its property is bound.
"Conversion" and "Convert" mean, with respect to any Loan, the
conversion of such Loan from or into another type of Loan.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States of America or
other applicable jurisdictions from time to time in effect affecting the rights
of creditors generally.
"Default" means any event that, with the giving of any notice, the
passage of time, or both, would be an Event of Default.
"Default Rate" means an interest rate equal to the Base Rate plus the
Applicable Amount, if any, applicable to Base Rate Loans plus 2% per annum, to
the fullest extent permitted by applicable Laws; provided, however, that with
respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate
equal to the interest rate (including any Applicable Amount) otherwise
applicable to such Loan plus 2% per annum.
"Designated Deposit Account" means a deposit account to be maintained
by Borrower with Bank of America, as from time to time designated by Borrower by
written notification to Administrative Agent.
"Disposition" means the sale, transfer, license (excluding the license
of property that has a fair market value, individually or in the aggregate, of
not greater than $________) or other disposition (including any sale and
leaseback transaction) of any property by any Person, including any sale,
assignment, transfer or other disposal with or without recourse of any notes or
accounts receivable or any rights and claims associated therewith, and the terms
"Dispose" and "Disposed of" have correlative meanings.
"Dollar" and "$" means lawful money of the United States of America.
"Eligible Assignee" means (a) a financial institution organized under
the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (b) a commercial bank organized
under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development, or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or agency located in the
United States; (c) a Person that is primarily engaged in the business of
commercial banking and that is (i) a Subsidiary of a Lender, (ii) a Subsidiary
of a Person of which a Lender is a Subsidiary, or (iii) a Person of which a
Lender is a Subsidiary; (d) another Lender; (e) any other entity which is an
"accredited investor" (as defined in Regulation D under the Securities Act of
1933, as
- 7 -
13
amended) which extends credit or buys loans as one of its businesses, including
but not limited to, insurance companies, mutual funds and lease financing
companies; or (f) other lenders or institutional investors consented to in
writing in advance by Administrative Agent and, so long as no Default or Event
of Default shall have occurred and be continuing, Borrower. No Borrower Party or
any Affiliate of a Borrower Party shall be an Eligible Assignee.
"Environmental Laws" means all foreign, federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes, together
with all administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case relating to environmental, health, safety and land use matters
applicable to any property.
"ERISA" means the Employee Retirement Income Security Act of 1974 and
any regulations issued pursuant thereto, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with Borrower within the meaning of Sections
414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes
of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by Borrower or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by Borrower or any ERISA Affiliate
from a Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment
of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or
the commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which might reasonably be expected
to constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or Multiemployer Plan;
or (f) the imposition of any liability under Title IV of ERISA, other than PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon Borrower or
any ERISA Affiliate.
"Eurodollar Base Rate" has the meaning set forth in the definition of
Eurodollar Rate.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan, a rate per annum determined by Administrative Agent
pursuant to the following formula:
Eurodollar Base Rate
Eurodollar Rate = ------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Base Rate" means, for such Interest Period:
- 8 -
14
(a) the rate per annum (carried out to the fifth decimal
place) equal to the rate determined by Administrative Agent to be the
offered rate that appears on the page of the Telerate Screen that
displays an average British Bankers Association Interest Settlement
Rate for deposits in dollars (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, or
(b) in the event the rate referenced in the preceding
subsection (a) does not appear on such page or service or such page or
service shall cease to be available, the rate per annum (carried out to
the fifth decimal place) equal to the rate determined by Administrative
Agent to be the offered rate on such other page or other service that
displays an average British Bankers Association Interest Settlement
Rate for deposits in dollars (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, or
(c) in the event the rates referenced in the preceding
subsections (a) and (b) are not available, the rate per annum
determined by Administrative Agent as the rate of interest at which
dollar deposits (for delivery on the first day of such Interest Period)
in same day funds in the approximate amount of the applicable
Eurodollar Rate Loan and with a term equivalent to such Interest Period
would be offered by its London Branch to major banks in the eurodollar
market at their request at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period.
"Eurodollar Reserve Percentage" means, for any day during any
Interest Period, the reserve percentage (expressed as a decimal,
rounded upward to the next 1/100th of 1%) in effect on such day,
whether or not applicable to any Lender, under regulations issued from
time to time by the Board of Governors of the Federal Reserve System
for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with
respect to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"). The Eurodollar Rate for each outstanding Eurodollar Rate
Loan shall be adjusted automatically as of the effective date of any
change in the Eurodollar Reserve Percentage.
"Eurodollar Rate Loan" means a Loan bearing interest based on
the Eurodollar Rate.
"Event of Default" means any of the events specified in
Section 8.
"Existing ALT Credit Agreement" means that certain Credit Agreement,
dated as of August 30, 1996, among ALT, the lenders from time to time parties
thereto, Bank of America Illinois, The Chase Manhattan Bank, Mellon Bank, N.A.
and PNC Bank, National Association, as managing agents, and PNC Bank, National
Association, as documentation and administrative agent, as amended by First
Amendment to Credit Agreement, dated as of August 31, 1997, Second Amendment to
Credit Agreement, dated as of March 24, 1998, Third Amendment to Credit
Agreement dated as of March 30, 1999, Fourth Amendment to Credit Agreement and
- 9 -
15
Waiver, dated as of August 6, 1999, and [identify any additional required
consent to Loan Documents and Spinoff Documents].
"Extension of Credit" means (a) the Borrowing of Loans, (b) the
Conversion or Continuation of any Loans, or (c) any Letter of Credit Action
which has the effect of increasing the amount of any Letter of Credit, extending
the maturity of any Letter of Credit or making any material modification to any
Letter of Credit or the reimbursement of drawings thereunder (collectively, the
"Extensions of Credit").
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards to the nearest 1/100 of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank on the Business Day next succeeding such day; provided that
(a) if such day is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to Bank of America on such day on such
transactions as determined by Administrative Agent.
"Foreign Subsidiary" means any "controlled foreign corporation" within
the meaning of Section 957(a) of the Code as to which TTI or any of its
Subsidiaries is a "United States shareholder" as defined in Section 951(b) of
the Code; provided that a "controlled foreign corporation" that is treated as a
pass through entity for United States federal income tax purposes shall not be a
Foreign Subsidiary while so treated.
"Form 10" means TTI's Form 10 Report, as filed with the Securities and
Exchange Commission on September 13, 1999, including, without limitation, the
information statement contained therein, as amended, restated, extended,
supplemented or otherwise modified in writing from time to time in accordance
with this Agreement.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or such other principles as may be
approved by a significant segment of the accounting profession, that are
applicable to the circumstances as of the date of determination, consistently
applied. If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in any Loan Document, and either
Borrower or the Required Lenders shall so request, Administrative Agent, Lenders
and Borrower shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of, and to reflect, such change in
GAAP (subject to the approval of the Required Lenders), provided that, until so
amended, (a) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (b) Borrower shall provide
to Administrative Agent and Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting forth
a reconciliation between calculations of such ratio or requirement made before
and after giving effect to such change in GAAP.
- 10 -
16
"Governing State" means the State of New York.
"Governmental Authority" means (a) any international, foreign, federal,
state, county or municipal government, or political subdivision thereof, (b) any
governmental or quasi-governmental agency, authority, board, bureau, commission,
department, instrumentality, central bank or public body, or (c) any court,
administrative tribunal or public utility.
"Guaranty" means collectively, (i) the guaranty substantially in the
form of Exhibit G, and (ii) any supplements thereto substantially in the form of
Annex A to Exhibit G executed and delivered pursuant to Section 6.13.
"Guarantor" means each Material Subsidiary of TTI (other than any
Foreign Subsidiary) that is a party to the Guaranty.
"Guaranty Obligation" means, as to any Person, any (a) guaranty by that
Person of Indebtedness of, or other obligation payable or performable by, any
other Person or (b) agreement, undertaking or arrangement given by that Person
to an obligee of any other Person with respect to the payment or performance of
an obligation by, or the financial condition of, such other Person, whether
direct, indirect or contingent, including any purchase or repurchase agreement
covering such obligation or any collateral security therefor, any agreement to
provide funds (by means of loans, capital contributions or otherwise) to such
other Person, any agreement to support the solvency or level of any balance
sheet item of such other Person or any "keep-well" or other arrangement of
whatever nature given for the purpose of assuring or holding harmless such
obligee against loss with respect to any obligation of such other Person;
provided, however, that the term Guaranty Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guaranty Obligation shall be deemed to be an amount
equal to the stated or determinable amount of the related primary obligation, or
portion thereof, covered by such Guaranty Obligation or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the Person in good faith.
"Indebtedness" means, as to any Person at any time, all items which
would, in conformity with GAAP, be classified as liabilities on a balance sheet
of such Person at such time (excluding trade and other accounts payable in the
ordinary course of business in accordance with customary trade terms and which
are not overdue for a period of more than 90 days and excluding deferred taxes),
but in any event including:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
(b) any direct or contingent obligations of such Person
arising under letters of credit (including standby and commercial),
banker's acceptances, bank guaranties, surety bonds and similar
instruments;
- 11 -
17
(c) net obligations under any Swap Contract in an amount equal
to (i) if such Swap Contract has been closed out, any outstanding
termination value thereof, or (ii) if such Swap Contract has not been
closed out, the xxxx-to-market value thereof determined on the basis of
readily available quotations provided by any recognized dealer in such
type of Swap Contract;
(d) 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, and indebtedness (excluding prepaid
interest thereon) secured by a Lien on property owned or being
purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not
such indebtedness shall have been assumed by such Person or is limited
in recourse;
(e) lease payment obligations under capital leases or
Synthetic Lease Obligations;
(f) all Guaranty Obligations of such Person in respect of any
of the foregoing;
(g) obligations and liabilities associated with any sale by
such Person of its accounts receivable; and
(h) Joint Venture Indebtedness.
"Indemnified Liabilities" has the meaning set forth in Section 10.14.
"Interest Coverage Ratio" means, as of any date of determination, the
ratio of (a) Consolidated EBIT for the period of the four prior fiscal quarters
ending on such date to (b) Consolidated Interest Charges during such period
(giving pro forma effect to the Line of Business Transfer and the Spinoff);
provided, however, that for purposes of determining Consolidated EBIT and
Consolidated Interest Charges for any period of four fiscal quarters that
includes the quarters ended December 31, 1998, March 31, 1999, June 30, 1999 or
September 30, 1999, Consolidated EBIT and Consolidated Interest Charges for such
fiscal quarters shall be as set forth on Schedule 1.01 (which shall give pro
forma effect to the Line of Business Transfer and the Spinoff).
"Interest Period" means, for each Eurodollar Rate Loan as requested by
Borrower, (a) initially, the period commencing on the date such Eurodollar Rate
Loan is disbursed, Continued as, or Converted into, a Eurodollar Rate Loan and
(b) thereafter, the period commencing on the last day of the preceding Interest
Period, and ending, in each case, on the earlier of (x) the scheduled Maturity
Date, or (y) one, two, three or six months thereafter; provided that:
(i) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day unless
such Business Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Business Day;
- 12 -
18
(ii) any Interest Period which begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period; and
(iii) unless Administrative Agent otherwise consents, there may not
be more than 10 Interest Periods in effect at any time.
"Investment" means, as to any Person, any acquisition or any investment
by such Person, whether by means of the purchase or other acquisition of stock
or other securities of any other Person or by means of a loan, creating a debt,
capital contribution, guaranty or other debt or equity participation or interest
in any other Person, including any partnership and joint venture interests in
such other Person. For purposes of covenant compliance, the amount of any
Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
"IRS" means the Internal Revenue Service.
"Issuing Lender" means Bank of America, or any successor issuing lender
hereunder.
"Joint Venture Indebtedness" means, as to any Person at any time, all
Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer, unless and to the extent such Indebtedness
is expressly made non-recourse to such Person except for customary exceptions
approved by the Required Lenders.
"Laws" or "Law" means, collectively, all international, foreign,
federal, state and local statutes, treaties, rules, guidelines, regulations,
ordinances, codes and administrative or judicial precedents or authorities,
including the interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation or administration
thereof, in each case whether or not having the force of law.
"Lender" means each lender from time to time party hereto, Issuing
Lender and Swing Line Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such on Schedule 10.03, or such other office or offices as
such Lender may from time to time notify Borrower and Administrative Agent.
"Letter of Credit" means any letter of credit issued or outstanding
hereunder. A Letter of Credit may be a financial letter of credit only.
"Letter of Credit Action" means the issuance, supplement, amendment,
renewal, extension, modification or other action relating to a Letter of Credit.
"Letter of Credit Application" means an application for a Letter of
Credit Action as shall at any time be in use by Issuing Lender.
- 13 -
19
"Letter of Credit Cash Collateral Account" means a blocked deposit
account at Bank of America with respect to which Borrower hereby grants a
security interest in such account to Administrative Agent for and on behalf of
Lenders as security for Letter of Credit Usage and with respect to which
Borrower agrees to execute and deliver from time to time such documentation as
Administrative Agent may reasonably request to further assure and confirm such
security interest.
"Letter of Credit Commitment" means an amount equal to the lesser of
the combined Commitments and $25,000,000.
"Letter of Credit Expiration Date" means the date which is 30 days
prior to the Maturity Date.
"Letter of Credit Usage" means, as at any date of determination, the
aggregate undrawn face amount of outstanding Letters of Credit plus the
aggregate amount of all drawings under the Letters of Credit honored by Issuing
Lender and not reimbursed to Issuing Lender by Borrower or converted into Loans.
"Leverage Ratio" means, as of any date of determination, for TTI and
its Subsidiaries on a consolidated basis, the ratio of (a) Consolidated Total
Indebtedness as of such date (giving pro forma effect to the Line of Business
Transfer and the Spinoff) to (b) Consolidated EBITDA for the period of the four
fiscal quarters ending on that date; provided, however, that for purposes of
determining Consolidated EBITDA for any period of four fiscal quarters that
includes the quarters ended December 31, 1998, March 31, 1999, June 30, 1999 or
September 30, 1999, Consolidated EBITDA for such fiscal quarters shall be as set
forth on Schedule 1.01 (which shall give pro forma effect to the Line of
Business Transfer and the Spinoff and shall be subject to adjustments for
Permitted Acquisitions occurring after the TTI Closing Date as described in the
definition of "Consolidated EBITDA").
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement (in the nature of compensating balances, cash collateral accounts or
security interests), encumbrance, lien (statutory or other), charge, or
preference, priority or other security interest or preferential arrangement of
any kind or nature whatsoever (including any conditional sale or other title
retention agreement, any financing lease having substantially the same economic
effect as any of the foregoing, and the filing of any financing statement under
the Uniform Commercial Code or comparable Laws of any jurisdiction), including
the interest of a purchaser of accounts receivable.
"Line of Business Transfer" has the meaning set forth in the recitals
hereto.
"Loan" means any advance made by any Lender to Borrower as provided in
Section 2 (collectively, the "Loans").
"Loan Documents" means this Agreement, the Guaranty, the Pledge
Agreement, the ALT Subordination Agreement, the Assumption Agreement, any Letter
of Credit Application, any
- 14 -
20
Request for Extension of Credit and any Note (including, without limitation, the
ALT Global Note), certificate, any fee letter, any commitment letter, and other
instrument, document or agreement from time to time delivered in connection with
this Agreement.
"Material Adverse Effect" means any set of circumstances or events
which (a) has or would reasonably be expected to have any material adverse
effect whatsoever upon the validity or enforceability of any Loan Document, (b)
is or would reasonably be expected to be material and adverse to the condition
(financial or otherwise), business, assets, operations or liabilities
(contingent or otherwise) of Borrower and its Subsidiaries taken as a whole, or
(c) materially impairs or would reasonably be expected to materially impair the
ability of any Borrower and its Subsidiaries taken as a whole to perform the
Obligations. For purposes of this definition, the phrase "Borrower and its
Subsidiaries" means (i) on and prior to the consummation of the Spinoff and the
assumption by TTI of ALT's Obligations (other than ALT's Obligations under the
ALT Subordination Agreement) pursuant to the Assumption Agreement, each of (a)
ALT and its Subsidiaries, or (b) the assets and liabilities and operations of
the Aerospace and Electronics segment of ALT intended to be transferred in
connection with the Line of Business Transfer to TTI and its Subsidiaries, and
(ii) following the consummation of the Spinoff and the assumption by TTI of
ALT's Obligations (other than ALT's Obligations under the ALT Subordination
Agreement) pursuant to the Assumption Agreement, TTI and its Subsidiaries.
"Material Subsidiary" means, as of any date of determination, any
Subsidiary of TTI that has on such date (i) Total Assets constituting ten
percent or more of Consolidated Total Assets or (ii) total revenues constituting
ten percent or more of the consolidated total revenues of TTI and its
Subsidiaries, determined in accordance with GAAP.
"Maturity Date" means (i) if the Spinoff has not been consummated in
accordance with the terms of the Spinoff Documents and applicable Law on or
before such date, the date that is one month following the ALT Closing Date and
(ii) otherwise, the date that is five years following the ALT Closing Date, in
each case, as it may be earlier terminated or extended in accordance with the
terms hereof.
"Minimum Amount" means, with respect to each of the following actions,
the minimum amount and any multiples in excess thereof set forth opposite such
action:
- 15 -
21
MINIMUM AMOUNT INCREMENTS IN
TYPE OF ACTION EXCESS THEREOF
--------------------------------------------- ------------------- ---------------------
Borrowing of, prepayment of, or Conversion $500,000 $100,000
into, Base Rate Loans
Borrowing of, prepayment of, Continuation $5,000,000 $1,000,000
of, or Conversion into, Eurodollar Rate
Loans
Borrowing of, or prepayment of, Swing Line $100,000 None
Loans
Letter of Credit Action [$100,000] None
Reduction in Commitments $1,000,000 $500,000
Assignments $10,000,000 $1,000,000
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA.
"Notes" means, collectively (i) each promissory note made by Borrower
in favor of a Lender evidencing Loans made by such Lender, substantially in the
form of Exhibit C.
"Notice of Assignment and Acceptance" means a Notice of Assignment and
Acceptance substantially in the form of Exhibit D.
"Obligations" means all advances to, and debts, liabilities,
obligations (including, without limitation, obligations to provide cash
collateral and indemnification obligations), covenants and duties of, any
Borrower Party arising under any Loan Document, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereafter arising and including interest that
accrues after the commencement of any proceeding under any Debtor Relief Laws by
or against any Borrower Party or any Subsidiary or Affiliate of any Borrower
Party.
"Ordinary Course Dispositions" means:
(a) Dispositions of obsolete or worn out property, whether now
owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of cash, cash equivalents, inventory and
other property in the ordinary course of business;
(c) Dispositions of property in the ordinary course of
business to the extent that such property is exchanged for credit
against the purchase price of similar replacement property, or the
proceeds of such sale are reasonably promptly applied to the purchase
price of such replacement property or where TTI or its Subsidiary
determine
- 16 -
22
in good faith that the failure to replace such equipment will not be
detrimental to the business of TTI or such Subsidiary; and
(d) Dispositions of assets or property by any Subsidiary of
TTI to TTI or another wholly-owned Solvent Subsidiary of TTI;
provided, however, that no such Disposition shall be for less than the fair
market value of the property being disposed of.
"Ordinary Course Indebtedness" means:
(a) Indebtedness under the Loan Documents;
(b) intercompany Guaranty Obligations of TTI or any of its
Subsidiaries guarantying Indebtedness and other obligations otherwise
permitted hereunder of TTI or any wholly-owned Subsidiary of TTI;
(c) Indebtedness arising from the honoring of a check, draft
or similar instrument against insufficient funds; and
(d) Ordinary Course Swap Obligations.
"Ordinary Course Investments" means:
(a) Investments consisting of cash and cash equivalents;
(b) Investments consisting of advances to officers, directors
and employees of TTI and its Subsidiaries for travel, entertainment,
relocation and analogous ordinary business purposes;
(c) Investments of TTI in any Guarantor and Investments of any
Subsidiary of TTI in TTI or any Guarantor;
(d) Investments consisting of or evidencing the extension of
credit to customers or suppliers of TTI and its Subsidiaries in the
ordinary course of business and any Investments received in
satisfaction or partial satisfaction thereof; and
(e) Investments consisting of Guaranty Obligations permitted
by Section 7.01.
"Ordinary Course Liens" means:
(a) Liens pursuant to any Loan Document;
(b) Liens for taxes not yet due or which are being contested
in good faith and by appropriate proceedings, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;
- 17 -
23
(c) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 30 days or
which are being contested in good faith and by appropriate proceedings,
if adequate reserves with respect thereto are maintained on the books
of the applicable Person;
(d) pledges or deposits in connection with worker's
compensation, unemployment insurance and other social security
legislation;
(e) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(f) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract
from the value of the property subject thereto or materially interfere
with the ordinary conduct of the business of any Person; and
(g) attachment, judgment or other similar Liens arising in
connection with litigation or other legal proceedings (and not
otherwise a Default hereunder) in the ordinary course of business that
is currently being contested in good faith by appropriate proceedings,
so long as adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP and no material
property is subject to a material risk of loss or forfeiture.
"Ordinary Course Swap Obligations" means all obligations (contingent or
otherwise) of TTI or any Subsidiary existing or arising under any Swap Contract,
provided that each of the following criteria is satisfied: (a) such obligations
are (or were) entered into by such Person in the ordinary course of business for
the purpose of directly mitigating risks associated with liabilities,
commitments or property held or reasonably anticipated by such Person, or
changes in the value of securities issued by such Person in conjunction with a
securities repurchase program not otherwise prohibited hereunder, and not for
purposes of speculation or taking a "market view;" and (b) such Swap Contracts
do not contain (i) any provision ("walk-away" provision) exonerating the
non-defaulting party from its obligation to make payments on outstanding
transactions to the defaulting party, or (ii) any provision creating or
permitting the declaration of an event of default, termination event or similar
event upon the occurrence of an Event of Default hereunder (other than an Event
of Default under Section 8.01(f)(ii)).
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws; (b) with respect to
any limited liability company, the articles of formation and operating
agreement; and (c) with respect to any partnership, joint venture or other form
of business entity, the partnership agreement and any agreement, filing or
notice with respect thereto filed with the secretary of state of the state of
its formation, in each case as amended from time to time.
- 18 -
24
"Outstanding Obligations" means, as of any date, and giving effect to
making any Extensions of Credit requested on such date and all payments,
repayments and prepayments made on such date, (a) when reference is made to all
Lenders, the sum of (i) the aggregate outstanding principal amount of all Loans,
and (ii) all Letter of Credit Usage, and (b) when reference is made to one
Lender the sum of (i) the aggregate outstanding principal amount of all Loans
(excluding, in the case of the Swing Line Lender, Swing Line Loans) made by such
Lender, (ii) such Lender's ratable participation in all Letter of Credit Usage,
and (iii) such Lender's ratable participation in all outstanding Swing Line
Loans.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto established under ERISA.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by Borrower or any
ERISA Affiliates or to which Borrower or any ERISA Affiliate contributes or has
an obligation to contribute, or in the case of a multiple employer plan (as
described in Section 4064(a) of ERISA) has made contributions at any time during
the immediately preceding five plan years.
"Permitted Acquisition" means any non-hostile Acquisition by TTI or any
Guarantor if all of the following conditions are met:
(a) before and immediately after giving effect thereto, (i) no
Default or Event of Default has occurred and is continuing or would
result therefrom, and (ii) the representations and warranties of each
Borrower Party set forth in the Loan Documents shall be true and
correct in all material respects on and as of the date of such
Acquisition, as though made on and as of such date, other than any such
representations or warranties that by their terms refer to a date other
than the date of such Acquisition, in which case such representations
and warranties shall be true and correct in all material respects as of
such other date;
(b) such Acquisition has not been preceded by an unsolicited
tender offer for such Person by TTI or any of its Affiliates;
(c) all transactions related thereto shall be consummated in
accordance with applicable Laws;
(d) in the case of any Acquisition of shares, partnership
interests or other equity interests in any Person, such Acquisition is
an Acquisition of 80% of the equity interests in such Person and, after
giving effect to such Acquisition, such Person becomes an 80%-owned
Subsidiary of TTI;
(e) all actions required to be taken, if any, with respect to
any acquired or newly formed Subsidiary under Section 6.13 shall have
been taken;
- 19 -
25
(f) such assets are used for, or such Person is engaged in, a
line of business permitted under Section 7.08;
(g) in the event that the Acquisition Consideration payable in
connection with such Acquisition is in excess of $50,000,000, (i) at
least 10 days prior to entering into such Acquisition, or any agreement
therefor, TTI delivers notice thereof to Administrative Agent, (ii) at
least 5 days prior to the consummation of such Acquisition, TTI
delivers to Administrative Agent and Lenders a certificate signed by
the chief financial officer of TTI calculating the Capitalization
Ratio, Consolidated Net Worth, the Interest Coverage Ratio and the
Leverage Ratio, each on a pro forma basis so as to give effect to such
Acquisition and all Acquisition Consideration therefor and all other
Indebtedness assumed or incurred by TTI or any of its Subsidiaries in
connection therewith, and attaching TTI's then-current good faith and
reasonable financial projections for the first fiscal quarter ending
after the consummation of such Acquisition and the succeeding three
quarters, demonstrating (to the reasonable satisfaction of the Required
Lenders) that, after giving effect to such Acquisition, (A) TTI would
have been in compliance with the covenants set forth in Section 7.12 as
of the last day of TTI's fiscal quarter most recently ended prior to
the consummation of such Acquisition and (B) based solely on such
projections and without any assurance that such projections will be
achieved, TTI can reasonably be expected to remain in compliance with
such covenants for the twelve-month period following the consummation
of such Acquisition, and to have sufficient cash liquidity to conduct
its business, to support working capital requirements, to make required
income tax distributions and pay its debts and other liabilities as
they become due and otherwise remain Solvent, and (iii) prior to the
inclusion in the calculation of Consolidated EBITDA of the Consolidated
EBITDA of the Person and its consolidated Subsidiaries or the assets to
be acquired in such Acquisition, TTI delivers to Administrative Agent
the consolidated balance sheet of such acquired Person and its
consolidated Subsidiaries (or, in the case of an Acquisition of assets,
a consolidated balance sheet reflecting such assets in a manner
reasonably satisfactory to Administrative Agent) as at the end of the
period preceding the acquisition of such Person or assets and the
related consolidated statements of income and stockholders' equity and
of cash flows for the period in respect of which Consolidated EBITDA is
to be calculated, and such financial statements (x) have been
previously provided to Administrative Agent and Lenders and (y) either
(1) have been reported on without a qualification arising out of the
scope of the audit by independent certified public accountants of
nationally recognized standing or (2) have been approved by
Administrative Agent;
(h) after giving effect to such Acquisition, (A) TTI would
have been in compliance with the covenants set forth in Section 7.12 as
of the last day of TTI's fiscal quarter most recently ended prior to
the consummation of such Acquisition and (B) based solely on TTI's
then-current good faith and reasonable financial projections for the
fiscal quarter ending after the consummation of such Acquisition and
the succeeding three quarters and without any assurance that such
projections will be achieved, TTI can reasonably be expected to remain
in compliance with such covenants for the twelve-
- 20 -
26
month period following the consummation of such Acquisition, and to
have sufficient cash liquidity to conduct its business, to support
working capital requirements, to make required income tax distributions
and pay its debts and other liabilities as they become due and
otherwise remain Solvent;
(i) neither TTI nor any of its Subsidiaries shall incur,
assume or otherwise become liable for or subject to any Indebtedness in
connection with such Acquisition except for Indebtedness permitted by
Section 7.01;
(j) the assets acquired in such Acquisition shall be acquired
free and clear of all Liens other than Ordinary Course Liens and Liens
permitted by Section 7.02(i); and
(k) as soon as reasonably practicable and, in any event,
within 45 days following the date of such Acquisition, Administrative
Agent shall have received copies of all acquisition documents related
thereto and legal opinions, evidence of solvency and other documents
and instruments reasonably requested by Administrative Agent in
connection with such Acquisition.
"Person" means any individual, trustee, corporation, general
partnership, limited partnership, limited liability company, joint stock
company, trust, unincorporated organization, bank, business association, firm,
joint venture, Governmental Authority, or otherwise.
"Plan" means any employee benefit plan maintained or contributed to by
a Borrower Party or by any trade or business (whether or not incorporated) under
common control with a Borrower Party as defined in Section 4001(b) of ERISA and
insured by the Pension Benefit Guaranty Corporation under Title IV of ERISA.
"Pledge Agreement" means, collectively, (i) the pledge agreement
executed and delivered by each Material Subsidiary of TTI (other than any
Foreign Subsidiary), substantially in the form of Exhibit H, and (ii) any
supplements thereto substantially in the form of Annex A to Exhibit H executed
and delivered pursuant to Section 6.13.
"Private Letter Ruling" mean an IRS private letter ruling confirming
the tax free treatment of the Spinoff under Section 355 of the Code, as amended,
restated, extended, supplemented or otherwise modified in writing from time to
time in accordance with this Agreement.
"Profit Payment Agreement" means any agreement to make any payment the
amount of which is, or the terms of payment of which are, in any respect subject
to or contingent upon the revenues, income, cash flow or profits (or the like)
of any Person or business.
"Pro Rata Share" means, with respect to each Lender, the percentage of
the combined Commitments set forth opposite the name of that Lender on Schedule
2.01, as such share may be adjusted pursuant to Section 10.23.
- 21 -
27
"Qualified Public Offering" means an underwritten public offering,
pursuant to an effective registration statement under the Securities Act of
1933, as amended, of shares of common stock of TTI which results in gross
proceeds to TTI of not less than $115,000,000.
"Reportable Event" means any of the events set forth in Section 4043(b)
of ERISA or the regulations thereunder, a withdrawal from a Plan described in
Section 4063 of ERISA, or a cessation of operations described in Section 4062(e)
of ERISA.
"Request for Extension of Credit" means a written request substantially
in the form of Exhibit A duly completed and signed by a Responsible Officer, or
a telephonic request followed by such a written request, in each case delivered
to Administrative Agent by Requisite Notice. In the case of a request for a new
or amended Letter of Credit, the written Letter of Credit Application shall be
deemed to be the Request for Extension of Credit.
"Required Lenders" means (a) as of any date of determination if the
Commitments are then in effect, Lenders (excluding any Lenders not funding when
required to so hereunder) having in the aggregate more than 50% of the combined
Commitments then in effect and (b) as of any date of determination if the
Commitments have then been terminated and there are Loans and/or Letter of
Credit Usage outstanding, Lenders holding Loans and Letter of Credit Usage
aggregating more than 50% of the aggregate outstanding principal amount of the
Loans and Letter of Credit Usage.
"Requisite Notice" means, unless otherwise provided herein, (a)
irrevocable written notice to the intended recipient or (b) except with respect
to Letter of Credit Actions (which must be in writing), irrevocable telephonic
notice to the intended recipient, promptly followed by a written notice to such
recipient. Such notices shall be (i) delivered to such recipient at the address
or telephone number specified on Schedule 10.03 or as otherwise designated by
such recipient by Requisite Notice to each other party hereto, and (ii) if made
by any Borrower Party, given or made by a Responsible Officer of such Borrower
Party. Any written notice delivered in connection with any Loan Document shall
be in the form, if any, prescribed in the applicable section hereof or thereof
and may be delivered as provided in Section 10.03. Any notice sent by other than
hardcopy shall be promptly confirmed by a telephone call to the recipient and,
if requested by Administrative Agent, by a manually-signed hardcopy thereof.
"Requisite Time" means, with respect to any of the actions listed
below, the time and date set forth below opposite such action (all times are
local time (standard or daylight) as observed in the state where Administrative
Agent's Office is located):
TYPE OF ACTION TIME DATE OF ACTION
---------------------------------------------------- ---------------- --------------------------------------------
Delivery of Request for Extension of
Credit for, or notice for:
o Borrowing of, prepayment of, or 9:00 A.M. Same date as such Borrowing, prepayment or
Conversion into, Base Rate Loans Conversion
o Borrowing of, prepayment of, Continuation 10:00 A.M. 3 Business Days prior to such Borrowing,
of, or Conversion into, Eurodollar Rate Loans prepayment or Conversion
- 22 -
28
o Borrowing of, or prepayment of, Swing 1:00 P.M. Same date as such Borrowing or prepayment
Line Loans
2 Business Days prior to such action (or
o Letter of Credit Action 10:00 A.M. such lesser time which is acceptable to
Issuing Lender)
o Voluntary reduction in or termination of 10:00 A.M. 2 Business Days prior to such reduction or
Commitments termination
o Payments by Lenders or Borrower to 11:00 A.M. On date payment is due
Administrative Agent
"Responsible Officer" means the president, chief financial officer,
treasurer or assistant treasurer of any Borrower Party. Any document or
certificate hereunder that is signed by a Responsible Officer of a Borrower
Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Borrower Party
and such Responsible Officer shall be conclusively presumed to have acted on
behalf of such Borrower Party.
"Restricted Payment" means:
(a) the declaration or payment of any dividend or distribution
by Borrower or any of its Subsidiaries, either in cash or property, on
any shares of the capital stock of any class of Borrower or any of its
Subsidiaries (except dividends or other distributions payable solely in
shares of capital stock of Borrower or any of its Subsidiaries or
payable by a Subsidiary to Borrower or another wholly-owned Subsidiary
of Borrower that is a Guarantor);
(b) the purchase, redemption or retirement by Borrower or any
of its Subsidiaries of any shares of its capital stock of any class or
any warrants, rights or options to purchase or acquire any shares of
its capital stock, whether directly or indirectly;
(c) any other payment or distribution by Borrower or any of
its Subsidiaries in respect of its capital stock, either directly or
indirectly;
(d) any Investment other than an Investment otherwise
permitted under any Loan Document; and
(e) the prepayment, repayment, redemption, defeasance or other
acquisition or retirement for value prior to any scheduled maturity,
scheduled repayment or scheduled sinking fund payment, or the
segregation of funds for any such prepayment, repayment, redemption,
defeasance or other acquisition or retirement for value, of any
Indebtedness
- 23 -
29
not otherwise expressly permitted under any Loan Document to be so
paid, except scheduled repayments of Indebtedness created under the
Existing ALT Credit Agreement, as in effect on the date hereof.
"Separation and Distribution Agreement" means that certain Separation
and Distribution Agreement, entered into in connection with the Spinoff, among
ALT, TII Holdings, LLC, Teledyne Industries, Inc. and TTI.
"Signing Date" means the date on which all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 4.01, which date
shall be no later than October 29, 1999.
"Solvent" means, when used with respect to any Person, as of any date
of determination, that (a) the amount of the "present fair saleable value" of
the assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise", as of such date, as such
quoted terms are determined in accordance with applicable federal and state Laws
governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, (d) such Person will be able to pay its debts as they mature, and
(e) such Person is not insolvent within the meaning of any applicable Law. For
purposes of this definition, (i) "debt" means liability on a "claim", and (ii)
"claim" means any (x) right to payment, whether or not such a right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured
or unsecured.
"Spinoff" has the meaning set forth in the introductory paragraph
hereto.
"Spinoff Documents" means, collectively, (i) the Form 10, (ii) the
Private Letter Ruling, (iii) the Separation and Distribution Agreement, (iv) the
Tax Sharing and Indemnification Agreement, (iv) the Interim Services Agreement,
entered into in connection with the Spinoff, between ALT and TTI, (v) the
Employee Benefits Agreement, entered into in connection with the Spinoff,
between ALT and TTI, (vi) the Trademark License Agreement, entered into in
connection with the Spinoff, among TII Holdings, LLC and TTI, and (vii) and all
schedules, exhibits, annexes and amendments thereto and all side letters and
agreements affecting the terms thereof or entered into in connection therewith.
"Stockholders' Equity" means, as of any date of determination for TTI
and its Subsidiaries on a consolidated basis, stockholders' equity as of that
date determined in accordance with GAAP.
- 24 -
30
"Subsidiary" means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of
securities or other interests having ordinary voting power for the election of
directors or other governing body (other than securities or interests having
such power only by reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise controlled,
directly, or indirectly through one or more intermediaries, or both, by
Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price
or bond index swaps or options or forward bond or forward bond price or forward
bond index transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar transactions,
currency swap transactions, cross-currency rate swap transactions, currency
options, or any other similar transactions or any combination of any of the
foregoing (including any options to enter into any of the foregoing), whether or
not any such transaction is governed by or subject to any master agreement, or
(b) any and all transactions of any kind, and the related confirmations, which
are subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association,
Inc., or any other master agreement (any such master agreement, together with
any related schedules, as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, a "Master Agreement"), including any such
obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, any outstanding termination value(s), and
(b) for any date prior to the date referenced in clause (a) the amount(s)
determined as the xxxx-to-market value(s) for such Swap Contracts, as determined
based upon one or more mid-market or other readily available quotations provided
by any recognized dealer in such Swap Contracts (which may include any Lender).
"Swing Line" means the revolving line of credit established by Swing
Line Lender in favor of Borrower pursuant to Section 2.04.
"Swing Line Commitment" means an amount equal to the lesser of (a)
$10,000,000 and (b) the combined Commitments.
"Swing Line Lender" means Bank of America, or any successor swing line
lender hereunder.
"Swing Line Loan" means a loan which bears interest at a rate per annum
equal to interest payable on a Base Rate Loan (plus the Applicable Amount, if
any) and made by Swing Line Lender to Borrower under the Swing Line.
- 25 -
31
"Swing Line Outstandings" means, as of any date, the aggregate
principal amount of all outstanding Swing Line Loans.
"Synthetic Lease Obligations" means all monetary obligations of a
Person under (a) a so-called synthetic, off-balance sheet or tax retention
lease, or (b) an agreement for the use or possession of property creating
obligations which do not appear on the balance sheet of such Person but which,
upon the insolvency or bankruptcy of such Person, would be characterized as the
Indebtedness of such Person (without regard to accounting treatment).
"Tax Sharing and Indemnification Agreement" means that certain Tax
Sharing and Indemnification Agreement, entered into in connection with the
Spinoff, between ALT and TTI.
"Threshold Amount" means $10,000,000.
"Total Assets" means, as of any date of determination, for any Person,
the value of all properties and all right, title and interest in such properties
which would be classified as assets of such Person, determined in accordance
with GAAP.
"to the best knowledge of" means, when modifying a representation,
warranty or other statement of any Person, that the fact or situation described
therein is known by such Person (or, in the case of a Person other than a
natural Person, known by any officer of such Person) making the representation,
warranty or other statement, or with the exercise of reasonable due diligence
under the circumstances (in accordance with the standard of what a reasonable
Person in similar circumstances would have done) would have been known by such
Person (or, in the case of a Person other than a natural Person, would have been
known by an officer of such Person).
"TTI" has the meaning set forth in the introductory paragraph hereto.
"TTI Closing Date" means the date on which all the conditions precedent
in Section 4.03 are satisfied or waived in accordance with Section 4.03, which
date shall be no later the date that is one month following the ALT Closing
Date.
"TTI Financial Statements" means, collectively, (i) the Audited TTI
Financial Statements and (ii) the Unaudited TTI Financial Statements.
"TTI Group" means, collectively, TTI and its Subsidiaries.
"type", when used with respect to any Loan, means the designation of
whether such Loan is a Base Rate Loan or a Eurodollar Rate Loan.
"Unaudited TTI Financial Statements" means the unaudited pro forma
consolidated statement of income of TTI for the fiscal year ended December 31,
1998, (ii) the unaudited pro forma consolidated balance sheet of TTI as at June
30, 1999, (iii) the unaudited pro forma consolidated statement of income of TTI
for the six months ended June 30, 1999, and (iv) [___________________].
- 26 -
32
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even though the right
so to vote has been suspended by the happening of such a contingency.
1.02 USE OF CERTAIN TERMS.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto or thereto, unless otherwise defined therein.
(b) As used herein, unless the context requires otherwise, the
masculine, feminine and neuter genders and the singular and plural include one
another.
(c) The words "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement. The term "including" is by
way of example and not limitation. References herein to a Section, subsection or
clause shall refer to the appropriate Section, subsection or clause in this
Agreement.
(d) The term "or" is disjunctive; the term "and" is
conjunctive. The term "shall" is mandatory; the term "may" is permissive.
Masculine terms also apply to females; feminine terms also apply to males.
1.03 ACCOUNTING TERMS. All accounting terms not specifically or
completely defined in this Agreement shall be construed in conformity with, and
all financial data required to be submitted by this Agreement shall be prepared
in conformity with, GAAP applied on a consistent basis, as in effect from time
to time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed herein.
1.04 ROUNDING. Any financial ratios required to be maintained by
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.05 EXHIBITS AND SCHEDULES. All exhibits and schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference.
- 27 -
33
1.06 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to the Loan Documents, the Private Letter
Ruling, the Form 10 and the other Spinoff Documents shall include all
amendments, restatements, extensions, supplements or other modifications thereto
in accordance with this Agreement, (b) references to agreements and other
contractual instruments (other than those included in clause (a) above) shall
include all amendments, restatements, extensions, supplements or other
modifications thereto (unless prohibited by any Loan Document), and (c)
references to any statute or regulation shall include all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or
interpreting the statute or regulation.
SECTION 2.
THE COMMITMENTS AND EXTENSIONS OF CREDIT
2.01 AMOUNT AND TERMS OF COMMITMENTS.
(a) Subject to the terms and conditions set forth in this
Agreement, each Lender severally agrees to make, Convert and Continue Loans
until the Maturity Date as Borrower may from time to time request; provided,
however, that the Outstanding Obligations of each Lender shall not exceed such
Lender's Commitment, and the Outstanding Obligations of all Lenders shall not
exceed the combined Commitments at any time. Subject to the foregoing and the
other terms and conditions hereof, Borrower may borrow, Convert, Continue,
prepay and reborrow Loans as set forth herein without premium or penalty.
(b) Loans made by each Lender shall be evidenced by one or
more loan accounts or records maintained by such Lender in the ordinary course
of business. Upon the request of any Lender made through Administrative Agent,
such Lender's Loans may be evidenced by one or more Notes, instead of or in
addition to loan accounts; provided that Loans made to ALT shall be evidenced by
the ALT Global Note only. Each such Lender may attach schedules to its Note(s)
and endorse thereon the date, amount and maturity of its Loans and payments with
respect thereto. Such loan accounts, records or Notes shall be conclusive absent
manifest error of the amount of such Loans and payments thereon. Any failure to
so record or any error in doing so shall not, however, limit or otherwise affect
the obligation of Borrower to pay any amount owing with respect to the Loans.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS.
(a) Borrower may irrevocably request a Borrowing, Conversion
or Continuation of Loans in a Minimum Amount therefor by delivering a Request
for Extension of Credit therefor by Requisite Notice to Administrative Agent not
later than the Requisite Time therefor. All Borrowings, Conversions and
Continuations shall constitute Base Rate Loans unless properly and timely
otherwise designated as set forth in the prior sentence.
(b) Following receipt of a Request for Extension of Credit,
Administrative Agent shall promptly notify each Lender of its Pro Rata Share
thereof by Requisite Notice. In the case of a Borrowing of Loans, each Lender
shall make the funds for its Loan available to
- 28 -
34
Administrative Agent at Administrative Agent's Office not later than the
Requisite Time therefor on the Business Day specified in such Request for
Extension of Credit. Upon satisfaction of the applicable conditions set forth in
Section 4, all funds so received shall be made available to Borrower in like
funds received.
(c) Administrative Agent shall promptly notify Borrower and
Lenders of the interest rate applicable to any Loan other than a Base Rate Loan
upon determination of same.
(d) Except as otherwise provided herein, a Eurodollar Rate
Loan may be Continued or Converted only on the last day of the Interest Period
for such Eurodollar Rate Loan. No Loans may be requested as, Converted into or
Continued as Eurodollar Rate Loans during the existence of a Default or Event of
Default. During the existence of a Default or Event of Default, the Required
Lenders may demand that any or all of the then outstanding Eurodollar Rate Loans
be Converted immediately into Base Rate Loans. Such Conversion shall be
effective upon notice to Borrower and shall continue so long as such Default or
Event of Default continues to exist.
(e) If a Loan is to be made on the same date that another Loan
is due and payable, Borrower or Lenders, as the case may be, shall, unless
Administrative Agent otherwise requests, make available to Administrative Agent
the net amount of funds giving effect to both such Loans and the effect for
purposes of this Agreement shall be the same as if separate transfers of funds
had been made with respect to each such Loan.
(f) The failure of any Lender to make any Loan on any date
shall not relieve any other Lender of any obligation to make a Loan on such
date, but no Lender shall be responsible for the failure of any other Lender to
so make its Loan.
2.03 LETTERS OF CREDIT.
(a) THE LETTER OF CREDIT COMMITMENT. Subject to the terms and
conditions hereof, at any time and from time to time from the TTI Closing Date
through the Letter of Credit Expiration Date, Issuing Lender shall take such
Letter of Credit Actions under the Commitments as Borrower may request;
provided, however, that (i) the Outstanding Obligations of each Lender shall not
exceed such Lender's Commitment and the Outstanding Obligations of all Lenders
shall not exceed the combined Commitments at any time, and (ii) the aggregate
outstanding Letter of Credit Usage shall not exceed the Letter of Credit
Commitment at any time. Each Letter of Credit Action shall be in a form
reasonably acceptable to Issuing Lender and shall not violate any policies of
Issuing Lender. Subject to subsection (f) below and unless consented to by the
Issuing Lender and the Required Lenders, no Letter of Credit may expire more
than 12 months after the date of its issuance or last renewal; provided,
however, that no Letter of Credit shall expire after the Letter of Credit
Expiration Date. If any Letter of Credit Usage remains outstanding after the
Letter of Credit Expiration Date, Borrower shall, not later than the Letter of
Credit Expiration Date, deposit cash in an amount equal to such Letter of Credit
Usage in a Letter of Credit Cash Collateral Account.
- 29 -
35
(b) REQUESTING LETTER OF CREDIT ACTIONS. Borrower may
irrevocably request a Letter of Credit Action in a Minimum Amount therefor by
delivering a Letter of Credit Application therefor to Issuing Lender, with a
copy to Administrative Agent (who shall notify Lenders), by Requisite Notice not
later than the Requisite Time therefor. Unless Administrative Agent notifies
Issuing Lender that such Letter of Credit Action is not permitted hereunder or
Issuing Lender determines that such Letter of Credit Action is contrary to any
Laws or policies of Issuing Lender or does not otherwise conform to the
requirements of this Agreement, Issuing Lender shall effect such Letter of
Credit Action. This Agreement shall control in the event of any conflict with
any Letter of Credit Application. Upon the issuance of a Letter of Credit, each
Lender shall be deemed to have purchased a pro rata participation in such Letter
of Credit from Issuing Lender in an amount equal to that Lender's Pro Rata
Share.
(c) REIMBURSEMENT OF PAYMENTS UNDER LETTERS OF CREDIT.
Borrower shall reimburse Issuing Lender through Administrative Agent for any
payment that Issuing Lender makes under a Letter of Credit on or before the date
of such payment; provided, however, that if the conditions precedent set forth
in Section 4 can be satisfied, Borrower may request a Borrowing of Loans to
reimburse Issuing Lender for such payment on or before the date thereof by
complying with Section 2.02, or Borrower may allow a deemed Borrowing of Loans
which are Base Rate Loans to take place on such payment date pursuant to
subsection (e) below.
(d) FUNDING BY LENDERS WHEN ISSUING LENDER NOT REIMBURSED.
Upon any drawing under a Letter of Credit, Issuing Lender shall notify
Administrative Agent and Borrower. If Borrower fails to timely make the payment
required pursuant to subsection (c) above, Issuing Lender shall notify
Administrative Agent of such fact and the amount of such unreimbursed payment.
Administrative Agent shall promptly notify each Lender of its Pro Rata Share of
such amount by Requisite Notice. Each Lender shall make funds in an amount equal
its Pro Rata Share of such amount available to Administrative Agent at
Administrative Agent's Office not later than the Requisite Time on the Business
Day specified by Administrative Agent, and Administrative Agent shall remit the
funds so received to reimburse Issuing Lender. The obligation of each Lender to
so reimburse Issuing Lender shall be absolute and unconditional and shall not be
affected by the occurrence of an Event of Default or any other occurrence or
event. Any such reimbursement shall not relieve or otherwise impair the
obligation of Borrower to reimburse Issuing Lender for the amount of any payment
made by Issuing Lender under any Letter of Credit, together with interest as
provided herein.
(e) NATURE OF LENDERS' FUNDING. If the conditions precedent
set forth in Section 4 can be satisfied (except for the giving of a Request for
Extension of Credit) on the date Borrower is obligated to make, but fails to
make, a reimbursement of a payment under a Letter of Credit, the funding by
Lenders pursuant to subsection (d) above shall be deemed to be part of a
Borrowing of Loans which are Base Rate Loans (without regard to the Minimum
Amount therefor) requested by Borrower. If the conditions precedent set forth in
Section 4 cannot be satisfied on the date Borrower is obligated to make, but
fails to make, a reimbursement of a payment under a Letter of Credit, the
funding by Lenders pursuant to subsection (d) above shall be deemed to be a
funding by each Lender of its participation in such Letter of Credit, and such
funds shall be payable by Borrower upon demand and shall bear interest at the
Default Rate
- 30 -
36
payable on demand, and each Lender making such funding shall thereupon acquire a
pro rata participation, to the extent of such reimbursement, in the claim of
Issuing Lender against Borrower in respect of such payment and shall share, in
accordance with that pro rata participation, in any payment made by Borrower
with respect to such claim. If Administrative Agent or Issuing Lender is
required at any time to return to Borrower, or to a trustee, receiver,
liquidator, custodian, or any official under any proceeding under Debtor Relief
Laws, any portion of the payments made by Borrower to Administrative Agent for
the account of Issuing Lender pursuant to this subsection in reimbursement of a
payment made under a Letter of Credit or interest or fee thereon, each Lender
shall, on demand of Administrative Agent, forthwith return to Administrative
Agent or Issuing Lender the amount of its Pro Rata Share of any amounts so
returned by Administrative Agent or Issuing Lender plus interest thereon from
the date such demand is made to the date such amounts are returned by such
Lender to Administrative Agent or Issuing Lender, at a rate per annum equal to
the daily Federal Funds Rate.
(f) SPECIAL PROVISIONS RELATING TO EVERGREEN LETTERS OF
CREDIT. Borrower may request Letters of Credit that have automatic extension or
renewal provisions ("evergreen" Letters of Credit) so long as Issuing Lender has
the right to not permit any such extension or renewal at least annually within a
notice period to be agreed upon at the time each such Letter of Credit is
issued. Once an evergreen Letter of Credit is issued, unless Administrative
Agent has notified Issuing Lender that all Lenders have elected not to permit
such extension or renewal, the Borrower Parties, Administrative Agent and
Lenders shall be deemed to authorize (but may not require) Issuing Lender to, in
its sole and absolute discretion, permit the renewal of such evergreen Letter of
Credit at any time to a date not later than the Letter of Credit Expiration
Date, and, unless directed by Issuing Lender, Borrower shall not be required to
request such extension or renewal. Notwithstanding the foregoing, Issuing Lender
may, in its sole and absolute discretion, upon not less than 60 days' advance
notice to Borrower, elect not to permit an evergreen Letter of Credit to be
extended or renewed at any time.
(g) OBLIGATIONS ABSOLUTE. The obligation of Borrower to pay to
Issuing Lender the amount of any payment made by Issuing Lender under any Letter
of Credit shall be absolute, unconditional, and irrevocable. Without limiting
the foregoing, Borrower's obligation shall not be affected by any of the
following circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, this Agreement, or any other agreement or instrument relating
thereto;
(ii) any amendment or waiver of or any consent to
departure from the Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto;
(iii) the existence of any claim, setoff, defense, or
other rights which Borrower may have at any time against Issuing Lender,
Administrative Agent or any Lender, any beneficiary of the Letter of Credit (or
any persons or entities for whom any such beneficiary may be acting) or any
other Person, whether in connection with the Letter of Credit, this Agreement,
or any other agreement or instrument relating thereto, or any unrelated
transactions;
- 31 -
37
(iv) any demand, statement, or any other document
presented under the Letter of Credit proving to be forged, fraudulent, invalid,
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever so long as any such document appeared to
comply with the terms of the Letter of Credit;
(v) payment by Issuing Lender in good faith under the
Letter of Credit against presentation of a draft or any accompanying document
which does not strictly comply with the terms of the Letter of Credit; or any
payment made by Issuing Lender under any Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative of or
successor to any beneficiary or any transferee of any Letter of Credit,
including any arising in connection with any proceeding under any Debtor Relief
Laws;
(vi) the existence, character, quality, quantity,
condition, packing, value or delivery of any property purported to be
represented by documents presented in connection with any Letter of Credit or
for any difference between any such property and the character, quality,
quantity, condition, or value of such property as described in such documents;
(vii) the time, place, manner, order or contents of
shipments or deliveries of property as described in documents presented in
connection with any Letter of Credit or the existence, nature and extent of any
insurance relative thereto;
(viii) the solvency or financial responsibility of
any party issuing any documents in connection with a Letter of Credit;
(ix) any failure or delay in notice of shipments or
arrival of any property;
(x) any error in the transmission of any message
relating to a Letter of Credit not caused by Issuing Lender, or any delay or
interruption in any such message;
(xi) any error, neglect or default of any
correspondent of Issuing Lender in connection with a Letter of Credit;
(xii) any consequence arising from acts of God, wars,
insurrections, civil unrest, disturbances, labor disputes, emergency conditions
or other causes beyond the control of Issuing Lender;
(xiii) so long as Issuing Lender in good faith
determines that the document appears to comply with the terms of the Letter of
Credit, the form, accuracy, genuineness or legal effect of any contract or
document referred to in any document submitted to Issuing Lender in connection
with a Letter of Credit; and
(xiv) where Issuing Lender has acted in good faith
under any other circumstances whatsoever.
- 32 -
38
In addition, Borrower will promptly examine a copy of each Letter of
Credit and amendments thereto delivered to it and, in the event of any claim of
noncompliance with Borrower's instructions or other irregularity, Borrower will
immediately notify Issuing Lender in writing. Borrower shall be conclusively
deemed to have waived any such claim against Issuing Lender and its
correspondents unless such notice is given as aforesaid.
(h) ROLE OF ISSUING LENDER. Each Lender and Borrower Party
agree that, in paying any drawing under a Letter of Credit, Issuing Lender shall
not have any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. No
Administrative Agent-Related Person nor any of the respective correspondents,
participants or assignees of Issuing Lender shall be liable to any Lender for
any action taken or omitted in connection herewith at the request or with the
approval of Lenders or the Required Lenders, as applicable; any action taken or
omitted in the absence of gross negligence or willful misconduct as determined
in a final, nonappealable judgment by a court of competent jurisdiction; or the
due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit. Borrower hereby assumes all risks of
the acts or omissions of any beneficiary or transferee with respect to its use
of any Letter of Credit; provided, however, that this assumption is not intended
to, and shall not, preclude Borrower's pursuing such rights and remedies as it
may have against the beneficiary or transferee at law or under any other
agreement. No Administrative Agent-Related Person, nor any of the respective
correspondents, participants or assignees of Issuing Lender, shall be liable or
responsible for any of the matters described in subsection (g) above. In
furtherance and not in limitation of the foregoing, Issuing Lender may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and Issuing Lender shall not be responsible for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.
(i) APPLICABILITY OF ISP98. Unless otherwise expressly agreed
by the Issuing Lender and Borrower when a Letter of Credit is issued,
performance under Letters of Credit by the Issuing Lender, its correspondents,
and beneficiaries will be governed by the rules of the "International Standby
Practices 1998" (ISP98) or such later revision as may be published by the
International Chamber of Commerce.
(j) LETTER OF CREDIT FEE. On each Applicable Payment Date,
Borrower shall pay to Administrative Agent in arrears, for the account of each
Lender in accordance with its Pro Rata Share, a Letter of Credit fee equal to
the indicated Applicable Amount for Letters of Credit times the actual daily
maximum amount available to be drawn under each Letter of Credit since the later
of the TTI Closing Date and the previous Applicable Payment Date. If there is
any change in the Applicable Amount during any quarter, the actual daily amount
shall be computed and multiplied by the Applicable Amount separately for each
period during such quarter that such Applicable Amount was in effect.
- 33 -
39
(k) FRONTING FEE AND DOCUMENTARY AND PROCESSING CHARGES
PAYABLE TO ISSUING LENDER. Borrower shall pay to Administrative Agent for the
sole account of Issuing Lender a fronting fee in an amount equal to 1/8 of 1%
per annum on the daily average face amount thereof, payable quarterly in arrears
on each Applicable Payment Date. In addition, Borrower shall pay directly to
Issuing Lender for its sole account its customary documentary and processing
charges in accordance with its standard schedule, as from time to time in
effect, for any Letter of Credit Action or other occurrence relating to a Letter
of Credit for which such charges are customarily made. Such fees and charges are
nonrefundable.
2.04 SWING LINE.
(a) Subject to the terms and conditions set forth in this
Agreement, Swing Line Lender agrees to make Swing Line Loans from the TTI
Closing Date until the Maturity Date in such amounts as Borrower may from time
to time request; provided, however, that (i) the aggregate principal amount of
all Swing Line Loans shall not exceed the Swing Line Commitment, and (ii) the
Outstanding Obligations of each Lender shall not exceed such Lender's Commitment
and the Outstanding Obligations of all Lenders shall not exceed the combined
Commitments at any time. Swing Line Lender may terminate or suspend the Swing
Line at any time and from time to time in its sole discretion upon at least 24
hours prior notice to Borrower. Without the consent of the Required Lenders and
Swing Line Lender, no Swing Line Loan shall be made during the continuation of
an Event of Default. Borrower may borrow, repay and reborrow under this Section.
Unless notified to the contrary by Swing Line Lender, Borrowings under the Swing
Line shall be made in the Minimum Amount therefor upon Requisite Notice made to
Swing Line Lender not later than the Requisite Time therefor. Each such request
for a Swing Line Loan shall constitute a representation and warranty by Borrower
that the conditions set forth in Sections 4.04(a) and (b) are satisfied.
Promptly after receipt of such request, Swing Line Lender shall obtain
telephonic verification from Administrative Agent that there is availability for
such Swing Line Loan under the Commitments. Unless notified to the contrary by
Swing Line Lender, each repayment of a Swing Line Loan shall be made directly to
Swing Line Lender in the Minimum Amount therefor by payment or debit at a demand
deposit account at the Swing Line Lender. All payments received after the
Requisite Time therefor shall be deemed received on the next succeeding Business
Day. Swing Line Lender shall promptly notify Administrative Agent of the Swing
Line Outstandings each time there is a change therein. Upon the making of a
Swing Line Loan, each Lender shall be deemed to have purchased from Swing Line
Lender a risk participation therein in an amount equal to that Lender's Pro Rata
Share times the amount of the Swing Line Loan.
(b) Swing Line Loans shall bear interest at a fluctuating rate
per annum equal to the rate of interest payable on Base Rate Loans (plus the
Applicable Amount, if any) payable on such dates, not more frequent than
monthly, as may be specified by Swing Line Lender and, in any event, on the
Maturity Date. Interest on Swing Line Loans shall be payable upon demand of
Swing Line Lender, and Swing Line Lender shall be responsible for invoicing
Borrower for such interest. The interest payable on Swing Line Loans is solely
for the account of Swing Line Lender.
- 34 -
40
(c) The Swing Line Loans shall be payable on the earliest of
(i) the fifth Business Day after it is made, (ii) the Maturity Date and (iii)
upon demand made by Swing Line Lender.
(d) Unless Borrower has made other arrangements satisfactory
to Swing Line Lender in Swing Line Lender's sole discretion, if any Swing Line
Loan remains outstanding in excess of five consecutive Business Days, then on
the next Business Day, Borrower shall repay such Swing Line Loan by payment
directly to Swing Line Lender or by debit at a demand deposit account at Swing
Line Lender not later than the Requisite Time for payments hereunder. Borrower
shall also pay accrued interest on any principal amount so repaid.
(e) If Borrower fails to timely make any principal or interest
payment required pursuant to subsection (d) above, Swing Line Lender shall
notify Administrative Agent of such fact and the unpaid amount. Administrative
Agent shall promptly notify each Lender of its Pro Rata Share of such amount by
Requisite Notice. Each Lender shall make funds in an amount equal its Pro Rata
Share of such amount available to Administrative Agent at Administrative Agent's
Office not later than the Requisite Time for payments hereunder on the following
Business Day. The obligation of each Lender to make such payment shall be
absolute and unconditional and shall not be affected by the occurrence of an
Event of Default or any other occurrence or event. Any such payment shall not
relieve or otherwise impair the obligation of Borrower to repay Swing Line
Lender for any amount of Swing Line Loans, together with interest as provided
herein.
(f) If the conditions precedent set forth in Section 4 can be
satisfied (except for the giving of a Request for Extension of Credit) on any
date Borrower is obligated to make, but fails to make, a repayment of Swing Line
Loans, the funding by Lenders pursuant to subsection (e) above shall be deemed
to be part of a Borrowing of Loans which are Base Rate Loans (without regard to
the Minimum Amount therefor) requested by Borrower. If the conditions precedent
set forth in Section 4 cannot be satisfied on the date Borrower is obligated to
make, but fails to make, such payment, the funding by Lenders pursuant to
subsection (e) above shall be deemed to be a funding by each Lender of its
participation in such Swing Line Loans, and such funds shall be payable by
Borrower upon demand and shall bear interest at the Default Rate, and each
Lender making such funding shall thereupon acquire a pro rata participation, to
the extent of such payment, in the claim of Swing Line Lender against Borrower
in respect of such payment and shall share, in accordance with that pro rata
participation, in any payment made by Borrower with respect to such claim.
2.05 PREPAYMENTS.
(a) Upon Requisite Notice to Administrative Agent not later
than the Requisite Time therefor, Borrower may at any time and from time to time
voluntarily prepay Loans in part in the Minimum Amount therefor or in full
without premium or penalty. Administrative Agent will promptly notify each
Lender thereof and of such Lender's Pro Rata Share of such prepayment. Any
prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued
interest thereon, together with the costs set forth in Section 3.05.
- 35 -
41
(b) If for any reason the Outstanding Obligations exceed the
combined Commitments as in effect or as reduced or because of any limitation set
forth in this Agreement or otherwise, Borrower shall immediately prepay Loans
and/or deposit cash in a Letter of Credit Cash Collateral Account in an
aggregate amount equal to such excess.
2.06 REDUCTION OR TERMINATION OF COMMITMENTS. Upon Requisite Notice to
Administrative Agent not later than the Requisite Time therefor, Borrower may at
any time and from time to time, without premium or penalty, permanently and
irrevocably reduce the Commitments in a Minimum Amount therefor to an amount not
less than the Outstanding Obligations at such time or terminate the Commitments.
Any such reduction or termination shall be accompanied by payment of all accrued
and unpaid fees payable under Section 2.08 with respect to the portion of the
Commitments being reduced or terminated. Administrative Agent shall promptly
notify Lenders of any such request for reduction or termination of the
Commitments. Each Lender's Commitment shall be reduced by an amount equal to
such Lender's Pro Rata Share times the amount of such reduction.
2.07 PRINCIPAL AND INTEREST.
(a) If not sooner paid, Borrower agrees to pay the outstanding
principal amount of each Loan on the Maturity Date.
(b) Subject to subsection (c) below, Borrower shall pay
interest on the unpaid principal amount of each Loan (before and after default,
before and after maturity, before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Laws) from the date
borrowed until paid in full (whether by acceleration or otherwise) on each
Applicable Payment Date at a rate per annum equal to the interest rate
determined in accordance with the definition of such type of Loan, plus, to the
extent applicable in each case, the Applicable Amount.
(c) If any amount payable by any Borrower Party under any Loan
Document is not paid when due (without regard to any applicable grace periods),
it shall thereafter bear interest (after as well as before entry of judgment
thereon to the extent permitted by law) at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by
applicable Law. Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be payable upon demand.
2.08 FEES.
(a) UTILIZATION FEE. After the consummation of a Qualified
Public Offering, Borrower shall pay to Administrative Agent for the account of
each Lender pro rata according to its Pro Rata Share, a utilization fee equal to
the Applicable Amount times the actual daily amount of the Outstanding
Obligations (including Swing Line Loans) in respect of each day on which the
actual daily amount of such Outstanding Obligations exceeds an amount equal to
50% of the combined Commitments. The utilization fee shall accrue at all times
from and after the consummation of a Qualified Public Offering until the
Maturity Date and shall be payable
- 36 -
42
quarterly in arrears on each Applicable Payment Date. The utilization fee shall
be calculated quarterly in arrears, and if there is any change in the Applicable
Amount during any quarter, the actual daily amount shall be computed and
multiplied by the Applicable Amount separately for each period during such
quarter that such Applicable Amount was in effect.
(b) FACILITY FEE. Borrower shall pay to Administrative Agent
for the account of each Lender a facility fee equal to the Applicable Amount
times the actual daily amount of each Lender's Commitment, regardless of usage.
The facility fee shall accrue at all times from the Signing Date until the
Maturity Date and shall be payable quarterly in arrears on each Applicable
Payment Date. The facility fee shall be calculated quarterly in arrears, and if
there is any change in the Applicable Amount during any quarter, the actual
daily amount shall be computed and multiplied by the Applicable Amount
separately for each period during such quarter that such Applicable Amount was
in effect. The facility fee shall accrue at all times, including at any time
during which one or more conditions in Section 4 are not met.
(c) AGENT FEES. Borrower shall pay to Administrative Agent an
agency fee and such other fees, if any, in such amounts and at such times as set
forth in a separate letter agreement or agreements among Borrower,
Administrative Agent and Arranger. The agency fee is for the services to be
performed by Administrative Agent in acting as Administrative Agent and is fully
earned on the date paid. Any such fees paid to Administrative Agent are solely
for its own account and are nonrefundable.
(d) STRUCTURING AND SYNDICATING FEE. On the Signing Date,
Borrower shall pay to the Arranger a structuring and syndicating fee in the
amount set forth in a separate letter agreement among Borrower, Administrative
Agent and Arranger. Such arrangement fee is for the services of Arranger in
structuring and syndicating the credit facilities under this Agreement and is
fully earned on the date paid. The structuring and syndicating fee paid to
Arranger is solely for its own account and is nonrefundable.
(e) LENDERS' UPFRONT FEE. On the ALT Closing Date, Borrower
shall pay to Administrative Agent, for the respective accounts of Lenders pro
rata according to their Pro Rata Share, an upfront fee in an amount set forth in
a separate letter from the Arranger to each Lender and acknowledged by that
Lender as the applicable upfront fee for such Lender. Such upfront fees are for
the credit facilities committed by each Lender under this Agreement and are
fully earned on the date paid. The upfront fee paid to each Lender is solely for
its own account and is nonrefundable.
2.09 COMPUTATION OF INTEREST AND FEES. Computation of interest on Base
Rate Loans when the Base Rate is determined by Bank of America's "prime rate"
shall be calculated on the basis of a year of 365 or 366 days, as the case may
be, and the actual number of days elapsed. Computation of all other types of
interest and all fees shall be calculated on the basis of a year of 360 days and
the actual number of days elapsed, which results in a higher yield to Lenders
than a method based on a year of 365 or 366 days. Interest shall accrue on each
Loan for the day on which the Loan is made, and shall not accrue on a Loan, or
any portion thereof, for the day on
- 37 -
43
which the Loan or such portion is paid, provided that any Loan that is repaid on
the same day on which it is made shall bear interest for one day.
2.10 MAKING PAYMENTS.
(a) Except as otherwise provided herein, all payments by
Borrower or any Lender shall be made to Administrative Agent at Administrative
Agent's Office not later than the Requisite Time for such type of payment. All
payments received after such Requisite Time shall be deemed received on the next
succeeding Business Day. All payments shall be made in immediately available
funds in lawful money of the United States of America. All payments by Borrower
shall be made without condition or deduction for any counterclaim, defense,
recoupment or setoff.
(b) Upon satisfaction of any applicable terms and conditions
set forth herein, Administrative Agent shall promptly make any amounts received
in accordance with the prior subsection available in like funds received as
follows: (i) if payable to Borrower, by crediting the Designated Deposit
Account, and (ii) if payable to any Lender, by wire transfer to such Lender at
the address specified in Schedule 10.03.
(c) Subject to the definition of "Interest Period," if any
payment to be made by any Borrower Party shall come due on a day other than a
Business Day, payment shall instead be considered due on the next succeeding
Business Day, and such extension of time shall be reflected in computing
interest and fees.
(d) Except as otherwise provided in Section 2.03(c) with
respect to Borrower reimbursing drawings under Letters of Credit, unless
Borrower or any Lender has notified Administrative Agent prior to the date any
payment to be made by it is due, that it does not intend to remit such payment,
Administrative Agent may, in its sole and absolute discretion, assume that
Borrower or such Lender, as the case may be, has timely remitted such payment
and may, in its sole and absolute discretion and in reliance thereon, make
available such payment to the Person entitled thereto. If such payment was not
in fact remitted to Administrative Agent in immediately available funds, then:
(i) if Borrower failed to make such payment, each
Lender shall forthwith on demand repay to Administrative Agent the amount of
such assumed payment made available to such Lender, together with interest
thereon in respect of each day from and including the date such amount was made
available by Administrative Agent to such Lender to the date such amount is
repaid to Administrative Agent at the Federal Funds Rate; and
(ii) if any Lender failed to make such payment,
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender. If such Lender does not pay such corresponding amount
forthwith upon Administrative Agent's demand therefor, Administrative Agent
promptly shall notify Borrower, and Borrower shall pay such corresponding amount
to Administrative Agent. Administrative Agent also shall be entitled to recover
interest on such corresponding amount in respect of each day from the date such
- 38 -
44
corresponding amount was made available by Administrative Agent to Borrower to
the date such corresponding amount is recovered by Administrative Agent, (A)
from such Lender at a rate per annum equal to the daily Federal Funds Rate, and
(B) from Borrower, at a rate per annum equal to the interest rate applicable to
such Borrowing. Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment or to prejudice any rights which
Administrative Agent or Borrower may have against any Lender as a result of any
default by such Lender hereunder.
2.11 FUNDING SOURCES. Nothing in this Agreement shall be deemed to
obligate any Lender to obtain the funds for any Loan in any particular place or
manner or to constitute a representation by any Lender that it has obtained or
will obtain the funds for any Loan in any particular place or manner.
2.12 RELEASE OF ALT. Upon the effectiveness of the assumption by TTI
pursuant to the Assumption Agreement of the Obligations of ALT, ALT shall be
released in full from such Obligations (other than ALT's Obligations under the
ALT Subordination Agreement) and shall have no further Obligations under the
Loan Documents (except for its Obligations under the ALT Subordination
Agreement), in each case, without further action on the part of Administrative
Agent or any Lender. In connection with such release, Administrative Agent shall
execute all such further documents and instruments as may be reasonably
requested by ALT in order to more fully evidence or effect such release. All
such deliveries shall be at the expense of ALT, with no liability to
Administrative Agent or any Lender, and with no representation or warranty by or
recourse to Administrative Agent or any Lender.
SECTION 3.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by Borrower to or for the account of
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case of
Administrative Agent and any Lender, taxes imposed on or measured by its net
income, and franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the Laws of which
Administrative Agent or such Lender, as the case may be, is organized or
maintains a lending office (all such non-excluded taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and
liabilities being hereinafter referred to as "Taxes"). If Borrower shall be
required by any Laws to deduct any Taxes from or in respect of any sum payable
under any Loan Document to Administrative Agent or any Lender, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section), Administrative Agent and such Lender receives an amount equal to
the sum it would have received had no such deductions been made, (ii) Borrower
shall make such deductions, (iii) Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority
- 39 -
45
in accordance with applicable Laws, and (iv) within 30 days after the date of
such payment, Borrower shall furnish to Administrative Agent (who shall forward
the same to such Lender) the original or a certified copy of a receipt
evidencing payment thereof.
(b) In addition, Borrower agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If Borrower shall be required by the Laws of any
jurisdiction outside the United States to deduct any Taxes from or in respect of
any sum payable under any Loan Document to Administrative Agent or any Lender,
Borrower shall also pay to such Lender or Administrative Agent (for the account
of such Lender), at the time interest is paid, such additional amount that the
respective Lender specifies as necessary to preserve the after-tax yield (after
factoring in United States (federal and state) taxes imposed on or measured by
net income) the Lender would have received if such deductions (including
deductions applicable to additional sums payable under this Section) had not
been made.
(d) Borrower agrees to indemnify Administrative Agent and each
Lender for the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) paid by Administrative Agent and such Lender and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. The obligations of Borrower under this subsection shall survive payment
of all Obligations.
3.02 ILLEGALITY. If any Lender determines that any Laws have made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or materially restricts the authority of such Lender to
purchase or sell, or to take deposits of, Dollars in the applicable eurodollar
market, or to determine or charge interest rates based upon the Eurodollar Rate,
then, on notice thereof by Lender to Borrower through Administrative Agent, any
obligation of that Lender to make Eurodollar Rate Loans shall be suspended until
Lender notifies Administrative Agent and Borrower that the circumstances giving
rise to such determination no longer exist. Upon receipt of such notice,
Borrower shall, upon demand from such Lender (with a copy to Administrative
Agent), prepay or Convert all Eurodollar Rate Loans of that Lender, either on
the last day of the Interest Period thereof, if Lender may lawfully continue to
maintain such Eurodollar Rate Loans to such day, or immediately, if Lender may
not lawfully continue to maintain such Eurodollar Rate Loans. Each Lender agrees
to designate a different Lending Office if such designation will avoid the need
for such notice and will not, in the good faith judgment of such Lender,
otherwise be materially disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES. If, in connection with any Request
for Extension of Credit involving any Eurodollar Rate Loan, Administrative Agent
determines that (a) Dollar deposits are not being offered to banks in the
applicable eurodollar market for the applicable
- 40 -
46
amount and Interest Period of the requested Eurodollar Rate Loan, (b) adequate
and reasonable means do not exist for determining the underlying interest rate
for such Eurodollar Rate Loan, or (c) such underlying interest rate does not
adequately and fairly reflect the cost to any Lender of funding such Eurodollar
Rate Loan, Administrative Agent will promptly notify Borrower and all Lenders.
Thereafter, the obligation of all Lenders to make or maintain such Eurodollar
Rate Loan shall be suspended until Administrative Agent revokes such notice.
Upon receipt of such notice, Borrower may revoke any pending request for a
Borrowing of Eurodollar Rate Loans or, failing that, be deemed to have converted
such request into a request for a Borrowing of Base Rate Loans in the amount
specified therein.
3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY.
(a) If any Lender determines that any Laws:
(i) subject such Lender to any Tax, duty, or other
charge with respect to any Eurodollar Rate Loans or its obligation to make
Eurodollar Rate Loans, or change the basis on which taxes are imposed on any
amounts payable to such Lender under this Agreement in respect of any Eurodollar
Rate Loans;
(ii) shall impose or modify any reserve, special
deposit, or similar requirement (other than the reserve requirement utilized in
the determination of the Eurodollar Rate) relating to any extensions of credit
or other assets of, or any deposits with or other liabilities or commitments of,
such Lender (including its Commitment); or
(iii) shall impose on such Lender or on the
eurodollar interbank market any other condition affecting this Agreement or any
of such extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender of
making, Converting into, Continuing, or maintaining any Eurodollar Rate Loans or
to reduce any sum received or receivable by such Lender under this Agreement
with respect to any Eurodollar Rate Loans, then from time to time upon demand of
such Lender (with a copy of such demand to Administrative Agent), Borrower shall
pay to such Lender such additional amounts as will compensate such Lender for
such increased cost or reduction.
(b) If any Lender determines that any change in or the
interpretation of any Laws have the effect of reducing the rate of return on the
capital of such Lender or compliance by such Lender (or its Lending Office) or
any corporation controlling such Lender as a consequence of such Lender's
obligations hereunder (taking into consideration its policies with respect to
capital adequacy and such Lender's desired return on capital), then from time to
time upon demand of such Lender (with a copy to Administrative Agent), Borrower
shall pay to such Lender such additional amounts as will compensate such Lender
for such reduction.
- 41 -
47
3.05 BREAKFUNDING COSTS. Upon demand of any Lender (with a copy to
Administrative Agent) from time to time, Borrower shall promptly compensate such
Lender for and hold such Lender harmless from any loss, cost or expense incurred
by it as a result of:
(a) any Continuation, Conversion, payment or prepayment of any
Loan other than a Base Rate Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise); or
(b) any failure by Borrower (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, Continue or Convert
any Loan other than a Base Rate Loan on the date or in the amount notified by
Borrower;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
Borrower shall also pay any customary administrative fees charged by such Lender
in connection with the foregoing.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
(a) A certificate of Administrative Agent claiming
compensation under this Section 3 and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of clearly
demonstrable error. In determining such amount, Administrative Agent may use any
reasonable averaging and attribution methods. For purposes of this Section 3, a
Lender shall be deemed to have funded each Eurodollar Rate Loan at the
Eurodollar Base Rate used in determining the Eurodollar Rate for such Loan by a
matching deposit or other borrowing in the eurodollar interbank market, whether
or not such Eurodollar Rate Loan was in fact so funded.
(b) Upon any Lender making a claim for compensation under
Sections 3.01 or 3.04, Borrower may remove and replace such Lender in accordance
with Section 10.23.
3.07 SURVIVAL. All of Borrower's obligations under this Section 3 shall
survive termination of the Commitments and payment in full of all Obligations.
SECTION 4.
CONDITIONS PRECEDENT
4.01 CONDITIONS TO EFFECTIVENESS OF THE CREDIT AGREEMENT. The
effectiveness of this Agreement is subject to satisfaction of the following
conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent
with respect to immaterial matters, or items specified in subsections (iv) or
(v) below, that the Borrower has given assurances reasonably satisfactory to
Administrative Agent that they will be delivered promptly following the Signing
Date), Administrative Agent's receipt of the following, each of which shall be
originals unless otherwise specified, each properly executed by a Responsible
- 42 -
48
Officer of each applicable Borrower Party, each dated on or about the Signing
Date and each in form and substance reasonably satisfactory to Administrative
Agent and its legal counsel:
(i) executed counterparts of this Agreement and the
ALT Subordination Agreement, sufficient in number for distribution to
Administrative Agent, Lenders, ALT and TTI;
(ii) the ALT Global Note executed by ALT in favor of
Administrative Agent for the account of each Lender, in a principal amount equal
to the combined Commitments;
(iii) such certificates or resolutions or other
action, incumbency certificates and/or other certificates of Responsible
Officers of each Borrower Party as Administrative Agent may reasonably require
to establish the identities of and verify the authority and capacity of each
Responsible Officer thereof authorized to act as a Responsible Officer thereof;
(iv) certified copies of each Borrower Party's
Organization Documents and a certificate of good standing for each Borrower
Party in its jurisdiction of organization;
(v) a certificate signed by a Responsible Officer of
ALT certifying that (A) the conditions specified in Sections 4.01(c) and 4.01(d)
have been satisfied, and (B) there has been no event or circumstance since
December 31, 1998 which would reasonably be expected to have a Material Adverse
Effect;
(vi) an opinion of counsel to Borrower substantially
in the form of Exhibit E-1 hereto; and
(vii) such other assurances, certificates, documents,
consents or opinions as Administrative Agent, Issuing Lender or the Required
Lenders reasonably may require.
(b) Administrative Agent, Arranger, each Lender and/or their
respective Affiliates shall have received all fees and expenses required to be
paid on or before the Signing Date.
(c) The representations and warranties made by Borrower
herein, or which are contained in any certificate, document or financial or
other statement furnished at any time under or in connection herewith or
therewith, shall be true and correct in all material respects on and as of the
Signing Date.
(d) Each Borrower Party shall be in compliance with all the
terms and provisions of the Loan Documents to which it is a party, and no
Default or Event of Default shall have occurred and be continuing.
- 43 -
49
(e) Borrower shall have paid all Attorney Costs of
Administrative Agent to the extent invoiced prior to or on the Signing Date,
plus such additional amounts of Attorney Costs as shall constitute its
reasonable estimate of Attorney Costs incurred or to be incurred by it through
the closing proceedings (provided that such estimate shall not thereafter
preclude final settling of accounts between Borrower and Administrative Agent).
(f) Administrative Agent and Lenders shall have received the
Form 10 and all amendments thereto and the other Spinoff Documents (or, to the
extent not then finalized, the then current drafts thereof), including (x) the
form and substance of the private letter requests to the IRS regarding the tax
free treatment of the Spinoff, (y) the Private Letter Ruling, and (z) all
documents relating to the indemnification by TTI of ALT regarding the tax-free
treatment of the Spinoff (which indemnification shall be subordinated to the
prior payment in full of all Obligations pursuant to the ALT Subordination
Agreement), which documents shall, in each case, be satisfactory in form and
substance to Administrative Agent and the Lenders. The Spinoff Documents shall
contain mutual indemnification terms relating to existing direct and contingent
obligations of ALT and TTI, all in form and substance satisfactory to
Administrative Agent in its discretion.
(g) The corporate, capital and ownership structure and
management of TTI and its Subsidiaries (before and after giving effect to the
Line of Business Transfer and to the Spinoff) including, without limitation, the
execution of employment contracts with key executives of the lines of business
transferred in connection with the Line of Business Transfer, shall be
satisfactory to Administrative Agent.
(h) Administrative Agent shall have completed, with results
reasonably satisfactory to Administrative Agent and its counsel, its reasonable
due diligence investigation, including, without limitation, with respect to
litigation, tax (including all matters relating to the tax free treatment of the
Spinoff), accounting, labor, insurance, pension liabilities (actual or
contingent), real estate leases, environmental matters, material contracts, debt
agreements, property ownership, contingent liabilities and management of ALT,
TTI and their respective Subsidiaries (before and after giving effect to the
Line of Business Transfer and to the Spinoff).
(i) There shall not have occurred a material adverse change
since December 31, 1998 in the business, assets, liabilities (actual or
contingent), operations or condition (financial or otherwise) of Borrower and
its Subsidiaries taken as a whole or of TTI and its Subsidiaries taken as a
whole or in the facts and information regarding such entities as represented on
or prior to the Signing Date.
(j) Administrative Agent and Lenders shall have received and
reviewed, with results satisfactory to Administrative Agent and Lenders,
information confirming that (a) ALT, TTI and their respective Subsidiaries are
taking all necessary and appropriate steps to ascertain the extent of, and to
quantify and successfully address, business and financial risks facing ALT, TTI
and their respective Subsidiaries as a result of what is commonly referred to as
the "Year 2000 problem" (i.e., the inability of certain computer applications
and devices containing imbedded computer chips to recognize correctly and
perform properly date-sensitive functions
- 44 -
50
involving certain dates prior to and after December 31, 1999), including risks
resulting from the failure of key vendors and customers of ALT, TTI and their
respective Subsidiaries to successfully address the Year 2000 problem, and (b)
ALT's, TTI's and their respective Subsidiaries' material computer applications
and those of their key vendors and customers will, on a timely basis, adequately
address the Year 2000 problem in all material respects.
(k) All governmental and third party consents required to be
obtained on or before the Signing Date (other than any third party consents the
failure of which to obtain on or before the Signing Date would not reasonably be
expected to have a Material Adverse Effect), including but not limited to the
consent of the lenders under the Existing ALT Credit Agreement, necessary or
desirable in connection with the Line of Business Transfer, the Spinoff and the
other transactions contemplated hereby and by the Spinoff Documents shall have
been obtained; all such consents and approvals shall be in full force and
effect; and all applicable waiting periods shall have expired without any action
being taken by any authority that could restrain, prevent or impose any material
adverse conditions on the Line of Business Transfer, the Spinoff or such other
transactions or that could seek to enjoin or threaten any of the foregoing, and
no Law shall be applicable which in the judgment of Administrative Agent could
have such effect.
(l) There shall not exist (a) any order, decree, judgment,
ruling or injunction which restrains the consummation of the Spinoff or the
Extensions of Credit in the manner contemplated by the Spinoff Documents or the
Loan Documents, and (b) any pending or threatened action, suit, investigation or
proceeding, which, if adversely determined, could materially and adversely
affect ALT, TTI or any of their respective Subsidiaries, any transaction
contemplated hereby or by the Spinoff Documents or the ability of ALT, TTI or
any of their respective Subsidiaries to perform their obligations under the Loan
Documents or the ability of Lenders to exercise their rights thereunder.
(m) Borrower shall have delivered to Administrative Agent a
certificate of a Responsible Officer of Borrower certifying that the insurance
required to be maintained pursuant to Section 6.06 is in full force and effect,
is adequate in nature and amount and complies with Borrower's and each
Subsidiary's obligations under Section 6.06.
4.02 CONDITIONS OF INITIAL EXTENSION OF CREDIT TO ALT. The obligation
of each Lender to make the initial Extension of Credit to ALT is subject to
satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent
with respect to immaterial matters, or items specified in subsections (ii) or
(iii) below, that the Borrower has given assurances reasonably satisfactory to
Administrative Agent that they will be delivered promptly following the ALT
Closing Date), Administrative Agent's receipt of the following, each of which
shall be originals unless otherwise specified, each properly executed by a
Responsible Officer of each applicable Borrower Party, each dated on or about
the ALT Closing Date and each in form and substance reasonably satisfactory to
Administrative Agent and its legal counsel:
- 45 -
51
(i) such certificates or resolutions or other action,
incumbency certificates and/or other certificates of Responsible Officers of
each Borrower Party as Administrative Agent may reasonably require to establish
the identities of and verify the authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer thereof;
(ii) certified copies of each Borrower Party's
Organization Documents and a certificate of good standing for each Borrower
Party in its jurisdiction of organization;
(iii) a certificate signed by a Responsible Officer
of ALT certifying that (A) the conditions specified in Sections 4.02(c) and
4.02(d) have been satisfied, and (B) there has been no event or circumstance
since December 31, 1998 which would reasonably be expected to have a Material
Adverse Effect;
(iv) an opinion of counsel to Borrower substantially
in the form of Exhibit E-2 hereto; and
(v) such other assurances, certificates, documents,
consents or opinions as Administrative Agent, Issuing Lender or the Required
Lenders reasonably may require.
(b) Administrative Agent, Arranger, each Lender and/or their
respective Affiliates shall have received all fees and expenses required to be
paid on or before the ALT Closing Date.
(c) The representations and warranties made by Borrower
herein, or which are contained in any certificate, document or financial or
other statement furnished at any time under or in connection herewith or
therewith, shall be true and correct in all material respects on and as of the
ALT Closing Date.
(d) Each Borrower Party shall be in compliance with all the
terms and provisions of the Loan Documents to which it is a party, and no
Default or Event of Default shall have occurred and be continuing.
(e) All conditions precedent to the Spinoff set forth in the
Spinoff Documents (in each case, with no material modifications from such
documents (or, to the extent applicable, the drafts thereof) reviewed by Lenders
on or before the Signing Date) shall have been satisfied in accordance with the
terms thereof.
(f) All governmental and third party consents (other than any
third party consents the failure of which to obtain on or before the ALT Closing
Date would not reasonably be expected to have a Material Adverse Effect),
including but not limited to (x) the consent of the lenders under the Existing
ALT Credit Agreement and (y) the receipt of the Private Letter Ruling in form
and substance satisfactory to all Lenders, and approvals necessary or desirable
in connection with the Line of Business Transfer, the Spinoff and the other
transactions contemplated hereby and by the Spinoff Documents shall have been
obtained; all such rulings,
- 46 -
52
consents and approvals shall be in full force and effect without modification;
and all applicable waiting periods shall have expired without any action being
taken by any authority that could restrain, prevent or impose any material
adverse conditions on the Line of Business Transfer, the Spinoff or such other
transactions or that could seek to enjoin or threaten any of the foregoing, and
no Law shall be applicable which in the judgment of Administrative Agent could
have such effect.
(g) There shall not exist (a) any order, decree, judgment,
ruling or injunction which restrains the consummation of the Line of Business
Transfer or the Spinoff or the Extensions of Credit in the manner contemplated
by the Spinoff Documents or the Loan Documents, and (b) any pending or
threatened action, suit, investigation or proceeding, which, if adversely
determined, could reasonably be expected to materially and adversely affect ALT,
TTI or any of their respective Subsidiaries, any transaction contemplated hereby
or by the Spinoff Documents or the ability of ALT, TTI or any of their
respective Subsidiaries to perform their obligations under the Loan Documents or
the ability of Lenders to exercise their rights thereunder.
(h) There shall not have occurred a material adverse change
since December 31, 1998 in the business, assets, liabilities (actual or
contingent), operations or condition (financial or otherwise) of ALT and its
Subsidiaries taken as a whole or of TTI and its Subsidiaries taken as a whole or
in the facts and information regarding such entities as represented on or prior
to the ALT Closing Date.
(i) [Administrative Agent shall have received a satisfactory
reliance letter entitling Administrative Agent, Arranger and Lenders to rely on
all fairness and/or solvency opinions delivered in connection with the Line of
Business Transfer and the Spinoff.]
4.03 CONDITIONS TO ASSUMPTION OF OBLIGATIONS AND INITIAL EXTENSIONS OF
CREDIT TO TTI. The assumption by TTI of the Obligations of ALT (other than ALT's
Obligations under the ALT Subordination Agreement) and the obligation of each
Lender to make the initial Extensions of Credit to TTI are subject to
satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent
with respect to immaterial matters, or items specified in subsections (iii) or
(iv) below, that Borrower has given assurances reasonably satisfactory to
Administrative Agent that they will be delivered promptly following the Signing
Date), Administrative Agent's receipt of the following, each of which shall be
originals unless otherwise specified, each properly executed by a Responsible
Officer of each applicable Borrower Party, each dated on or about the Signing
Date and each in form and substance reasonably satisfactory to Administrative
Agent and its legal counsel:
(i) executed counterparts of the Assumption
Agreement, the Guaranty and the Pledge Agreement, sufficient in number for
distribution to Administrative Agent, Lenders, ALT and TTI;
- 47 -
53
(ii) Notes executed by TTI in favor of each Lender
requesting a Note, each in a principal amount equal to that Lender's Commitment;
(iii) such certificates or resolutions or other
action, incumbency certificates and/or other certificates of Responsible
Officers of each Borrower Party as Administrative Agent may reasonably require
to establish the identities of and verify the authority and capacity of each
Responsible Officer thereof authorized to act as a Responsible Officer thereof;
(iv) certified copies of each Borrower Party's
Organization Documents and a certificate of good standing for each Borrower
Party in its jurisdiction of organization;
(v) a certificate signed by a Responsible Officer of
each of ALT and TTI certifying that (A) the conditions specified in Sections
4.03(c) and 4.03(d) have been satisfied, and (B) there has been no event or
circumstance since December 31, 1998 which would reasonably be expected to have
a Material Adverse Effect;
(vi) an opinion of counsel to Borrower substantially
in the form of Exhibit E-3 hereto; and
(vii) such other assurances, certificates, documents,
consents or opinions as Administrative Agent, Issuing Lender or the Required
Lenders reasonably may require.
(b) Administrative Agent, Arranger, each Lender and/or their
respective Affiliates shall have received all fees and expenses required to be
paid on or before the TTI Closing Date.
(c) The representations and warranties made by Borrower
herein, or which are contained in any certificate, document or financial or
other statement furnished at any time under or in connection herewith or
therewith, shall be true and correct in all material respects on and as of the
TTI Closing Date.
(d) Each Borrower Party shall be in compliance with all the
terms and provisions of the Loan Documents to which it is a party, and no
Default or Event of Default shall have occurred and be continuing.
(e) Both the Line of Business Transfer and the Spinoff shall
have been (or shall concurrently be) consummated in accordance with the terms of
the Spinoff Documents (in each case, with no material modifications from such
documents (or, to the extent applicable, the drafts thereof) reviewed by
Administrative Agent and Lenders prior to the ALT Closing Date) and in
compliance in all material respects with applicable Law and regulatory
approvals. None of the Spinoff Documents shall have been altered, amended or
otherwise changed or supplemented or any condition therein waived without the
prior written consent of Administrative Agent.
- 48 -
54
(f) There shall not exist (i) any order, decree, judgment,
ruling or injunction which restrains the consummation of the Line of Business
Transfer or the Spinoff or the Extensions of Credit in the manner contemplated
by the Spinoff Documents or the Loan Documents, and (ii) any pending or
threatened action, suit, investigation or proceeding, which, if adversely
determined, could materially and adversely affect ALT, TTI or any of their
respective Subsidiaries, any transaction contemplated hereby or by the Spinoff
Documents or the ability of ALT, TTI or any of their respective Subsidiaries to
perform their obligations under the Loan Documents or the ability of Lenders to
exercise their rights thereunder.
(g) After giving effect to the transactions contemplated by
the Line of Business Transfer and the Spinoff, and the assumption by TTI of
ALT's Obligations (other than ALT's Obligations under the ALT Subordination
Agreement) pursuant to the Assumption Agreement, (i) each of TTI and each of its
Subsidiaries, taken as a whole, Borrower and each Material Subsidiary shall be
Solvent, and (ii) the Leverage Ratio on such date shall be not greater than 3.0:
1.0, and, with respect to the matters set forth in clauses (i) and (ii), TTI
shall have delivered to Administrative Agent and all Lenders a certificate of
its chief financial officer (together with supporting calculations), in form and
substance satisfactory to Administrative Agent, to such effect.
(h) After giving effect to any outstanding Extensions of
Credit, the combined Commitments shall exceed the Outstanding Obligations by not
less than $100,000,000.
4.04 CONDITIONS TO ALL EXTENSIONS OF CREDIT. In addition to any
applicable conditions precedent set forth elsewhere in this Section 4 or in
Section 2, the obligation of each Lender to honor any Request for Extension of
Credit is subject to the following conditions precedent:
(a) the representations and warranties of Borrower contained
in Section 5, or which are contained in any certificate, document or financial
or other statement furnished at any time under or in connection herewith or
therewith, shall be true and correct in all material respects on and as of the
date of such Extension of Credit, except to the extent that such representations
and warranties specifically refer to any earlier date.
(b) no Default or Event of Default exists or would result from
such proposed Extension of Credit.
(c) Administrative Agent shall have timely received a Request
for Extension of Credit by Requisite Notice by the Requisite Time therefor.
(d) Administrative Agent shall have received, in form and
substance satisfactory to it, such other assurances, certificates, documents or
consents related to the foregoing as Administrative Agent or Required Lenders
reasonably may require.
Each Request for Extension of Credit by Borrower shall be deemed to be
a representation and warranty that the conditions specified in Sections 4.04(a)
and (b) have been satisfied and on and as of the date of such Extension of
Credit.
- 49 -
55
SECTION 5.
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Administrative Agent and Lenders
that:
5.01 EXISTENCE AND QUALIFICATION; POWER; COMPLIANCE WITH LAWS. Each
Borrower Party is a corporation, partnership or limited liability company duly
organized or formed, validly existing and in good standing under the Laws of the
state of its incorporation or organization, has the power and authority and the
legal right to own and operate its properties, to lease the properties it
operates and to conduct its business, is duly qualified and in good standing
under the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification (other
than under the Laws of any jurisdiction in which the failure to be so qualified
as a foreign corporation or other entity would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect), and is in
compliance with all Laws except to the extent that noncompliance does not have a
Material Adverse Effect.
5.02 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. Each Borrower Party
has the power and authority and the legal right to make, deliver and perform
each Loan Document and Spinoff Document to which it is a party and Borrower has
power and authority to Borrow and request the issuance of Letters of Credit
hereunder and has taken all necessary action to authorize the Borrowings and
other Extensions of Credit on the terms and conditions of this Agreement and to
authorize the execution, delivery and performance of this Agreement and the
other Loan Documents and Spinoff Documents to which it is a party. No consent or
authorization of, filing with, or other act by or in respect of any Governmental
Authority, is required in connection with the Borrowings and other Extensions of
Credit hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement, any of the other Loan Documents or any Spinoff
Document, other than any consent or authorization of, filing with, or other act
by or in respect of any Governmental Authority, the failure of which to have
been obtained on or before the date hereof would not reasonably be expected to
have a Material Adverse Effect. The Loan Documents have been duly executed and
delivered by each Borrower Party party thereto, and constitute a legal, valid
and binding obligation of each such Borrower Party, enforceable against each
such Borrower Party in accordance with their respective terms. Upon the due
execution and delivery by each Borrower Party party thereto, the Spinoff
Documents shall constitute a legal, valid and binding obligation of each such
Borrower Party, enforceable against each such Borrower Party in accordance with
their respective terms.
5.03 NO LEGAL BAR. Other than exceptions to any of the following (other
than the requirements of clause (a)(i) below) that could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect, the
execution, delivery, and performance by each Borrower Party of the Loan
Documents and Spinoff Documents to which it is a party and compliance with the
provisions thereof have been duly authorized by all requisite action on the part
of such Borrower Party and do not and will not (a) violate or conflict with, or
result in a breach of, or require any consent under (i) any Organization
Documents of such Borrower Party or any of its Subsidiaries, (ii) any applicable
Laws, rules, or regulations or any order, writ, injunction, or decree of any
Governmental Authority or arbitrator, or (iii) any Contractual
- 50 -
56
Obligation (including, without limitation, any Spinoff Document) of such
Borrower Party or any of its Subsidiaries or by which any of them or any of
their property is bound or subject, (b) constitute a default under any such
Contractual Obligation, or (c) result in, or require, the creation or imposition
of any Lien on any of the properties of such Borrower Party or any of its
Subsidiaries. Neither the consummation of the transactions contemplated by, nor
the execution and delivery of, the Loan Documents and the Spinoff Documents will
constitute or result in a tortious interference with any Contractual Obligation
of any Borrower Party.
5.04 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited ALT Financial Statements and the Audited TTI
Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the periods covered thereby, except as otherwise expressly
noted therein; (ii) fairly present in all material respects the financial
condition of ALT and its Subsidiaries and TTI and its Subsidiaries,
respectively, as of the dates thereof and their results of operations for the
periods covered thereby in accordance with GAAP consistently applied throughout
the periods covered thereby, except as otherwise expressly noted therein; and
(iii) show all material indebtedness and other liabilities, direct or
contingent, of ALT and its Subsidiaries and TTI and its Subsidiaries,
respectively, as of the dates thereof, including liabilities for taxes, material
commitments and Indebtedness in accordance with GAAP consistently applied
throughout the periods covered thereby.
(b) The Unaudited TTI Financial Statements (i) were prepared
in accordance with GAAP consistently applied throughout the periods covered
thereby, except as otherwise expressly noted therein, (ii) fairly present in all
material respects the pro forma financial condition of TTI and its Subsidiaries
as of the dates thereof and their pro forma results of operations for the
periods covered thereby; and (iii) show all pro forma material indebtedness and
other liabilities, direct or contingent, of TTI and its Subsidiaries as of the
dates thereof, including liabilities for taxes, material commitments and
Indebtedness in accordance with GAAP consistently applied throughout the periods
covered thereby.
(c) Since December 31, 1998, there has been no event or
circumstance which would reasonably be expected to have a Material Adverse
Effect.
5.05 LITIGATION. No litigation, investigation or proceeding of or
before an arbitrator or Governmental Authority is pending or, to the knowledge
of Borrower, threatened by or against any Borrower Party or any of its
Subsidiaries or against any of their properties or revenues which, if determined
adversely, would reasonably be expected to have a Material Adverse Effect.
5.06 NO DEFAULT. Neither any Borrower Party nor any of their respective
Subsidiaries are in default under or with respect to any Contractual Obligation
(including, without limitation, any Spinoff Document) which could have a
Material Adverse Effect, and no Default or Event of Default has occurred and is
continuing or will result from the consummation of this Agreement, any of the
other Loan Documents or any Spinoff Document, or the making of the Extensions of
Credit hereunder.
- 51 -
57
5.07 OWNERSHIP OF PROPERTY; LIENS. Each Borrower Party and its
Subsidiaries have valid fee or leasehold interests in all material real property
which they use in their respective businesses, and each Borrower Party and their
respective Subsidiaries have good and marketable title to all their other
material property, and none of such material property is subject to any Lien,
except as permitted in Section 7.02.
5.08 TAXES. Each Borrower Party and its Subsidiaries have filed all
[federal and other material] tax returns which are required to be filed, and
have paid, or made provision for the payment of, all taxes with respect to the
periods, property or transactions covered by said returns, or pursuant to any
assessment received by such Borrower Party or its respective Subsidiaries,
except (a) such taxes, if any, as are being contested in good faith by
appropriate proceedings and as to which adequate reserves have been established
and maintained in accordance with GAAP, and (b) immaterial taxes; provided,
however, that in each case no material item or portion of property of any
Borrower Party or any of its Subsidiaries is in jeopardy of being seized, levied
upon or forfeited.
5.09 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT.
(a) No Borrower Party is engaged or will engage, principally
or as one of its important activities, in the business of extending credit for
the purpose of "purchasing" or "carrying" "margin stock" within the respective
meanings of each of the quoted terms under Regulation U of the Board of
Governors of the Federal Reserve System as now and from time to time hereafter
in effect. No part of the proceeds of any Extensions of Credit hereunder will be
used for "purchasing" or "carrying" "margin stock" as so defined or for any
purpose which violates, or which would be inconsistent with, the provisions of
Regulations T, U or X of such Board of Governors.
(b) No Borrower Party or any of its Subsidiaries (i) is a
"holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
as amended, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940, as amended.
5.10 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other federal or state Laws.
Each Plan that is intended to qualify under Section 401(a) of the Code has
received a favorable determination letter from the IRS or an application for
such a letter is currently being processed by the IRS with respect thereto and,
to the best knowledge of Borrower, nothing has occurred which would prevent, or
cause the loss of, such qualification. Borrower and each ERISA Affiliate have
made all required contributions to each Plan subject to Section 412 of the Code,
and no application for a funding waiver or an extension of any amortization
period pursuant to Section 412 of the Code has been made with respect to any
Plan.
- 52 -
58
(b) There are no pending or, to the best knowledge of
Borrower, threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan that would reasonably be expected to have a
Material Adverse Effect. There has been no prohibited transaction or violation
of the fiduciary responsibility rules with respect to any Plan that would
reasonably be expected to have a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected
to occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Sections 4201 or
4243 of ERISA with respect to a Multiemployer Plan; and (v) neither Borrower nor
any ERISA Affiliate has engaged in a transaction that could be subject to
Sections 4069 or 4212(c) of ERISA.
5.11 INTELLECTUAL PROPERTY. Each Borrower Party and its Subsidiaries
own, or possess the right to use, all material trademarks, trade names,
copyrights, patents, patent rights, franchises, licenses and other intangible
assets that are used in the conduct of their respective businesses as now
operated, and none of such items conflicts with the valid trademark, trade name,
copyright, patent, patent right or intangible asset of any other Person to the
extent that such conflict would reasonably be expected to have a Material
Adverse Effect.
5.12 COMPLIANCE WITH LAWS. Each Borrower Party and its Subsidiaries are
in compliance in all material respects with all Laws that are applicable to it.
5.13 ENVIRONMENTAL COMPLIANCE. Each Borrower Party and its Subsidiaries
conduct in the ordinary course of business a review of the effect of existing
Environmental Laws and claims alleging potential liability or responsibility for
violation of any Environmental Law on their respective businesses, operations
and properties, and as a result thereof Borrower has reasonably concluded that
such Environmental Laws and claims could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
5.14 INSURANCE. The properties of each Borrower Party and its
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of Borrower, in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where Borrower or such
Subsidiary operates.
5.15 YEAR 2000. Borrower has (a) initiated a review and assessment of
all material areas within its and each of its Subsidiaries' business and
operations (including those affected by customers and vendors) that could be
adversely affected by the "Year 2000 Problem" (that is, the risk that computer
applications and devices containing imbedded computer chips used by any Borrower
Party or any of its Subsidiaries (or their respective key customers and vendors)
may be unable to recognize and perform properly date-sensitive functions
involving certain dates prior to
- 53 -
59
and any date after December 31, 1999), (b) developed a plan and timeline for
addressing the Year 2000 Problem on a timely basis, and (c) to date, implemented
that plan in all material respects in accordance with that timetable. Based on
the foregoing, Borrower believes that all computer applications and devices
containing imbedded computer chips (including those of its and its Subsidiaries'
key customers and vendors) that are material to its or any of its Subsidiaries'
business and operations are reasonably expected on a timely basis to be able to
perform properly date-sensitive functions for all dates before and after January
1, 2000 (that is, be "Year 2000 Compliant"), except to the extent that a failure
to do so would not reasonably be expected to have a Material Adverse Effect.
5.16 DISCLOSURE. No statement, information, report, representation, or
warranty made by any Borrower Party in any Loan Document or Spinoff Document or
furnished to Administrative Agent or any Lender in connection with any Loan
Document or Spinoff Document contains any untrue statement of a material fact or
omits to state any material fact necessary to make the statements herein or
therein not misleading.
5.17 SOLVENCY. Each of Borrower and its Subsidiaries, taken as a whole,
the Borrower and each Material Subsidiary is, and after giving effect to the
Line of Business Transfer, the Spinoff, the assumption by TTI of ALT's
Obligations (other than ALT's Obligations under the ALT Subordination Agreement)
pursuant to the Assumption Agreement and the incurrence of all Indebtedness and
obligations being incurred in connection with the Loan Documents, the Line of
Business Transfer and the Spinoff will be and will continue to be, Solvent.
SECTION 6.
AFFIRMATIVE COVENANTS
So long as any Obligation remains unpaid or unperformed, or any portion
of the Commitments remains outstanding, Borrower shall, and shall (except in the
case of Borrower's reporting covenants) cause each of its Subsidiaries to:
6.01 FINANCIAL STATEMENTS. Deliver to Administrative Agent in form and
detail reasonably satisfactory to Administrative Agent and the Required Lenders,
with sufficient copies for each Lender:
(a) as soon as available, but in any event within 100 days
after the end of each fiscal year of Borrower, a consolidated balance sheet of
Borrower and its Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all in reasonable detail, audited and accompanied by a report and opinion of an
independent certified public accountant of nationally recognized standing, which
report and opinion shall be prepared in accordance with GAAP and shall not be
subject to any qualifications or exceptions as to the scope of the audit nor to
any qualifications and exceptions (including possible errors generated by
financial reporting and related systems due to the Year 2000 Problem) not
reasonably acceptable to the Required Lenders; and
- 54 -
60
(b) as soon as available, but in any event within 50 days
after the end of each of the first three fiscal quarters of each fiscal year of
Borrower [commencing with the fiscal quarter ended March 31, 2000], a
consolidated balance sheet of Borrower and its Subsidiaries as at the end of
such fiscal quarter, and the related consolidated statements of income and cash
flows for such fiscal quarter and for the portion of Borrower's fiscal year then
ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding
portion of the previous fiscal year, all in reasonable detail and certified by a
Responsible Officer of Borrower as fairly presenting in all material respects
the financial condition, results of operations and cash flows of Borrower and
its Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes.
6.02 CERTIFICATES, NOTICES AND OTHER INFORMATION. Deliver to
Administrative Agent in form and detail reasonably satisfactory to
Administrative Agent and the Required Lenders, with sufficient copies for each
Lender:
(a) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate
signed by a Responsible Officer of Borrower;
(b) promptly after the same are available, copies of each
annual report, proxy or financial statement or other report or communication
sent to the stockholders of Borrower, and copies of all annual, regular,
periodic and special reports and registration statements which Borrower may file
or be required to file with the Securities and Exchange Commission under
Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not
otherwise required to be delivered to Administrative Agent pursuant hereto;
(c) promptly after the occurrence thereof, notice of any
Default or Event of Default;
(d) promptly after the commencement thereof, notice of any
litigation, investigation or proceeding affecting any Borrower Party in which
there is a reasonable possibility of an adverse determination and which, if
adversely determined, would reasonably be expected to have a Material Adverse
Effect;
(e) promptly after the occurrence thereof, notice of any
Reportable Event with respect to any Plan or a decision to terminate any Plan,
or the institution of proceedings or the taking or expected taking of any other
action to terminate any Plan or withdraw from any Plan;
(f) promptly of any discovery or determination that any
computer application (including those of its key suppliers and vendors) that is
material to any Borrower Parties' or any of their Subsidiaries' business and
operations will not be Year 2000 Compliant on a timely basis, except to the
extent that such failure would not reasonably be expected to have a Material
Adverse Effect;
- 55 -
61
(g) promptly after receipt thereof, copies of any notice
relating to revocation of the Private Letter Ruling and any claim for
indemnification, individually or in the aggregate, in excess of the Threshold
Amount under any Spinoff Document;
(h) concurrently with the delivery of the financial statements
referred to in Section 6.01(a), a certificate of a Responsible Officer of
Borrower certifying that the insurance required to be maintained pursuant to
Section 6.06 is in full force and effect, is adequate in nature and amount and
complies with Borrower's and each Subsidiary's obligations under Section 6.06;
and
(i) promptly, such other data and information as from time to
time may be reasonably requested by Administrative Agent, or, through
Administrative Agent or any Lender.
Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer of Borrower in reasonable detail setting
forth details of the occurrence referred to therein and stating what action
Borrower has taken and proposes to take with respect thereto.
6.03 PAYMENT OF TAXES. Pay and discharge in all material respects when
due all taxes, assessments, and governmental charges, Ordinary Course Liens or
levies imposed on any Borrower Party or its Subsidiaries or on its income or
profits or any of its property, except for any such tax, assessment, charge, or
levy which is an Ordinary Course Lien under subsection (b) of the definition of
such term.
6.04 PRESERVATION OF EXISTENCE. Preserve and maintain its existence,
licenses, permits, rights, franchises and privileges necessary or desirable in
the normal conduct of its business, except as permitted under Section 7.03 or,
with respect to such licenses, permits, rights, franchises and privileges, where
failure to do so would not reasonably be expected to have a Material Adverse
Effect.
6.05 MAINTENANCE OF PROPERTIES. Maintain, preserve and protect all of
its material properties and equipment necessary in the operation of its business
in good order and condition, subject to wear and tear in the ordinary course of
business, and not permit any waste of its properties, except where the failure
to do so would not reasonably be expected to have a Material Adverse Effect.
6.06 MAINTENANCE OF INSURANCE. Maintain liability and casualty
insurance with responsible insurance companies in such amounts and against such
risks as is customary for similarly situated businesses.
6.07 COMPLIANCE WITH LAWS.
(a) Comply with the requirements of all applicable Laws and
orders of any Governmental Authority, noncompliance with which would reasonably
be expected to have a Material Adverse Effect.
- 56 -
62
(b) Conduct its operations and keep and maintain its property
in compliance with all Environmental Laws, noncompliance with which would
reasonably be expected to have a Material Adverse Effect.
6.08 INSPECTION RIGHTS. At any time during regular business hours and
as often as reasonably requested, permit Administrative Agent or any Lender, or
any employee, agent or representative thereof, to examine and make copies and
abstracts from the Borrower Parties' records and books of account and to visit
and inspect their properties and to discuss their affairs, finances and accounts
with any of their Responsible Officers, and, upon request, furnish promptly to
Administrative Agent or any Lender true copies of all [publicly available]
financial information.
6.09 KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Keep in all material
respects adequate records and books of account reflecting all financial
transactions in conformity with GAAP, consistently applied, and in material
conformity with all applicable requirements of any Governmental Authority having
regulatory jurisdiction over Borrower or any of its Subsidiaries.
6.10 COMPLIANCE WITH ERISA. Cause, and cause each of its ERISA
Affiliates to: (a) maintain each Plan in compliance in all material respects
with the applicable provisions of ERISA, the Code and other federal or state
Law; (b) cause each Plan which is qualified under Section 401(a) of the Code to
maintain such qualification; and (c) make all required contributions to any Plan
subject to Section 412 of the Code.
6.11 COMPLIANCE WITH AGREEMENTS. Promptly and comply [fully] [in all
material respects] with the Private Letter Ruling and all Spinoff Documents and
all other Contractual Obligations under all material agreements, indentures,
leases and/or instruments to which any one or more of them is a party, except
for any such Contractual Obligations (a) the performance of which would cause a
Default, (b) then being contested by any of them in good faith by appropriate
proceedings, or (c) if the failure to comply therewith would not reasonably be
expected to have a Material Adverse Effect.
6.12 USE OF PROCEEDS. Use the proceeds of Extensions of Credit: (i) for
the repayment of a portion of ALT's indebtedness related to the assets to be
transferred by ALT to TTI in accordance with the Spinoff Documents in
conjunction with the Spinoff, (ii) for working capital, capital expenditures,
and other lawful general corporate purposes of TTI following consummation of the
Spinoff, and (iii) to finance acquisitions by TTI following consummation of the
Spinoff to the extent expressly permitted under the Loan Documents.
6.13 ADDITIONAL BORROWER PARTIES. Substantially concurrently with the
formation or acquisition of any Material Subsidiary of TTI (and upon any
Subsidiary of TTI becoming a Material Subsidiary), (i) cause such Subsidiary
(unless such Subsidiary is a Foreign Subsidiary) to guarantee the payment and
performance of the Obligations hereunder and under the other Loan Documents by
executing and delivering to Administrative Agent a supplement to the Guaranty in
substantially the form of Annex A to Exhibit G, (ii) at all times prior to the
Collateral Release Date, (A) cause such Subsidiary (unless such Subsidiary is a
Foreign
- 57 -
63
Subsidiary) to execute and deliver to Administrative Agent a supplement to the
Pledge Agreement, in substantially the form of Annex A to Exhibit H (whereby
such Subsidiary shall xxxxx x Xxxx on those of its assets described in the
Pledge Agreement), (B) promptly pledge to Administrative Agent or cause to be
pledged to Administrative Agent all of the outstanding capital stock of such
Subsidiary (or, if such Subsidiary is a Foreign Subsidiary, 65% of such capital
stock) owned by TTI or any of its Subsidiaries to secure such Borrower Party's
Obligations under the Loan Documents, and (C) promptly take, and cause such
Subsidiary and each other Borrower Party to take all action necessary or (in the
opinion of Administrative Agent or the Required Lenders) desirable to perfect
and protect the Liens intended to be created by the Pledge Agreement, as amended
pursuant to this Section 6.13, and (iii) promptly deliver to Administrative
Agent such opinions of counsel, if any, as Administrative Agent or the Required
Lenders may reasonably require with respect to the foregoing (including opinions
as to enforceability and, prior to the Collateral Release Date, perfection of
security interests).
SECTION 7.
NEGATIVE COVENANTS
So long as any Obligations remain unpaid or unperformed, or any portion
of the Commitments remains outstanding, Borrower shall not, nor shall it permit
any of its Subsidiaries to, directly or indirectly:
7.01 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Ordinary Course Indebtedness of TTI and its Subsidiaries;
(b) Indebtedness of ALT and its Subsidiaries (other than any
member of the TTI Group) outstanding on the date hereof and listed on Schedule
7.01(b) and any refinancings, refundings, renewals or extensions thereof,
provided that (i) the amount of such Indebtedness is not increased at the time
of such refinancing, refunding, renewal or extension except by an amount equal
to the premium or other amount paid, and fees and expenses incurred, in
connection with such refinancing and by an amount equal to any utilized
commitments thereunder, and (ii) no member of the TTI Group is an obligor or
guarantor in respect thereof;
(c) Indebtedness of TTI and its Subsidiaries outstanding on
the date hereof and listed on Schedule 7.01(c) and any refinancings, refundings,
renewals or extensions thereof, provided that the amount of such Indebtedness is
not increased at the time of such refinancing, refunding, renewal or extension
except by an amount equal to the premium or other amount paid, and fees and
expenses incurred, in connection with such refinancing and by an amount equal to
any utilized commitments thereunder;
(d) Indebtedness of TTI and the Guarantors secured by Liens
permitted by Section 7.02(h) in an aggregate principal amount not to exceed
$25,000,000 at any time outstanding;
- 58 -
64
(e) additional unsecured (except to the extent of any Liens
permitted pursuant to Section 7.02(k)) Indebtedness of TTI and the Guarantors;
provided such additional Indebtedness, when added to the then outstanding
Indebtedness of TTI and its Subsidiaries, would not cause TTI to be in violation
of Section 7.12; and provided further that (i) the additional Indebtedness
permitted pursuant to this clause (e) which is incurred by (A) the Guarantors
shall not exceed, in the aggregate at any one time outstanding, $25,000,000 or
(B) Joint Venture Indebtedness of TTI and its Subsidiaries shall not exceed, in
the aggregate at any time outstanding $10,000,000, and (ii) Indebtedness
incurred pursuant to this clause (e) may not contain covenants more restrictive
than or in addition to those contained herein;
(f) Acquired Indebtedness of TTI and its Subsidiaries in an
aggregate principal amount not to exceed $25,000,000 at any time outstanding;
and
(g) on and prior to the TTI Closing Date, Indebtedness of ALT
and its Subsidiaries (other than any member of the TTI Group) to the extent
permitted under Section 5.1 of the Existing ALT Credit Agreement, as in effect
on the date hereof.
7.02 LIENS. Incur, assume or suffer to exist, any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired, except:
(a) Liens of ALT and its Subsidiaries (other than any member
of the TTI Group) existing on the date hereof and listed on Schedule 7.02(a) and
any renewals or extensions thereof, provided that (i) the obligations secured or
benefited thereby or the property covered thereby are not increased, except as
permitted by Section 7.01(b), and (ii) no capital stock of or assets of any
member of the TTI Group are encumbered thereby;
(b) Liens of TTI and its Subsidiaries existing on the date
hereof and listed on Schedule 7.02(b) and any renewals or extensions thereof,
provided that the obligations secured or benefited thereby or the property
covered thereby are not increased, except as permitted by Section 7.01(c);
(c) Ordinary Course Liens of TTI and its Subsidiaries;
(d) Security interests granted by TTI or any of its
Subsidiaries in favor of lessors of personal property, which property is the
subject of a true lease between such lessor and TTI or any of its Subsidiaries
as lessee;
(e) [Liens granted by TTI or any of its Subsidiaries against
production contracts to secure Indebtedness of TTI or any of its Subsidiaries
permitted hereunder that is incurred to acquire equipment and facilities
required to produce the items being sold pursuant to such production contracts;]
(f) [Liens granted by TTI or any of its Subsidiaries in favor
of any Governmental Authority created pursuant to production contracts with such
Governmental Authority to which TTI or any of its Subsidiaries is a party in
[describe property subject to Liens];]
- 59 -
65
(g) Liens of TTI and its Subsidiaries arising solely by virtue
of any statutory or common law provision relating to banker's liens, rights of
set-off or similar rights and remedies as to deposit accounts or other funds
maintained with a creditor depository institution; provided that (i) such
deposit account is not a dedicated cash collateral account and is not subject to
restrictions against access by TTI or any of its Subsidiaries in excess of those
set forth by regulations promulgated by the Federal Reserve Board, and (ii) such
deposit account is not intended by TTI or any of its Subsidiaries to provide
collateral to the depository institution;
(h) Liens granted by TTI and the Guarantors securing
Indebtedness of TTI or any Guarantor incurred after the TTI Closing Date
pursuant to Section 7.02(d) to finance the acquisition of fixed or capital
assets, provided that (i) such Liens shall be created substantially
simultaneously with the acquisition of such fixed or capital assets, (ii) such
Liens do not at any time encumber any property other than the property financed
by such Indebtedness and (iii) the amount of Indebtedness secured thereby is not
increased;
(i) any Lien on any property or asset owned by TTI or any of
its Subsidiaries that was existing on such property or asset prior to the
acquisition thereof by TTI or such Subsidiary or that was owned by any Person
that becomes a Subsidiary of TTI after the date hereof prior to the time such
Person became a Subsidiary of TTI, in each case, if (i) such Lien was not
created in contemplation of or in connection with such acquisition or such
Person becoming a Subsidiary of TTI, as the case may be, (ii) such Lien is not
enforceable against, or spread to cover, any other property or assets of TTI or
any of its Subsidiaries, and (iii) such Lien secures only (A) those obligations
(including Acquired Indebtedness other than Acquisition Consideration) that it
secures on the date of such acquisition or the date such Person becomes a
Subsidiary of TTI, as the case may be and (B) Acquired Indebtedness permitted
hereunder;
(j) on and prior to the TTI Closing Date, Liens granted by ALT
and its Subsidiaries (other than any member of the TTI Group) on property and
assets of ALT and its Subsidiaries (other than any capital stock of or assets of
any member of the TTI Group) to the extent permitted under Section 5.2 of the
Existing ALT Credit Agreement, as in effect on the date hereof; and
(k) other Liens which secure Indebtedness of TTI and its
Subsidiaries; provided that neither the aggregate principal amount of
Indebtedness secured thereby nor the fair market value of the property subject
to such Liens shall at any time exceed $10,000,000.
7.03 FUNDAMENTAL CHANGES. Merge or consolidate with or into any Person
or liquidate, wind-up or dissolve itself, or permit or suffer any liquidation or
dissolution or sell all or substantially all of its assets, except, that so long
as no Default or Event of Default exists or would result therefrom:
(a) any Solvent Subsidiary of TTI may merge with (i) TTI
provided that TTI shall be the continuing or surviving corporation, (ii) with
any one or more other Solvent Subsidiaries of TTI (provided that if either party
to such merger is a Guarantor, the surviving entity shall be a Guarantor), and
(iii) with any joint ventures, partnerships and other Persons, so
- 60 -
66
long as such joint ventures, partnerships and other Persons will, as a result of
making such merger and all other contemporaneous related transactions, become a
wholly owned Subsidiary of TTI; provided that when any wholly-owned Material
Subsidiary of TTI is merging into another Subsidiary of TTI, the wholly-owned
Material Subsidiary of TTI shall be the continuing or surviving Person;
(b) any Subsidiary of TTI may sell all or substantially all of
its assets (upon voluntary liquidation or otherwise), to TTI or any of its
Solvent Subsidiaries that is a Guarantor; provided that when any wholly-owned
Subsidiary of TTI is selling all or substantially all of its assets to another
Subsidiary of TTI, the Subsidiary acquiring such assets shall be a wholly-owned
Subsidiary of TTI;
(c) on and prior to the TTI Closing Date, ALT and its
Subsidiaries (other than any member of the TTI Group) may merge or consolidate
with other Persons to the extent permitted under Section 5.6 of the Existing ALT
Credit Agreement, as in effect on the date hereof;
(d) Dispositions permitted under Sections 7.04(a), (c) and
(d); and
(e) [Teledyne to describe specific elements of Spinoff that
need to be permitted].
7.04 DISPOSITIONS. Make any Dispositions, except:
(a) Ordinary Course Dispositions by TTI and its Subsidiaries;
(b) Dispositions by TTI and its Subsidiaries permitted by
Section 7.03;
(c) Dispositions by TTI and its Subsidiaries, so long as the
book value of any assets or property Disposed of in any fiscal year of TTI does
not exceed in the aggregate ten percent of Consolidated Total Assets determined
as of the last day of the immediately preceding fiscal year; and
(d) on and prior to the TTI Closing Date, Dispositions by ALT
and its Subsidiaries (other than any member of the TTI Group) to the extent
permitted under Section 5.5 of the Existing ALT Credit Agreement, as in effect
on the date hereof.
7.05 INVESTMENTS. Make or hold any Investments, except:
(a) Investments by ALT and its Subsidiaries (other than any
member of the TTI Group) existing on the date hereof and listed on Schedule
7.05(a);
(b) Investments by TTI and its Subsidiaries existing on the
date hereof and listed on Schedule 7.05(b);
(c) Ordinary Course Investments by TTI and its Subsidiaries;
- 61 -
67
(d) Investments by TTI and its Subsidiaries permitted by
Section 7.03;
(e) Permitted Acquisitions;
(f) Investments by TTI and the Guarantors after the TTI
Closing Date in an aggregate amount not to exceed, when combined with the amount
of Restricted Payments made pursuant to clause (iii) of Section 7.06, an amount
equal to the sum of $5,000,000 and 25% of cumulative Consolidated Net Income
since the TTI Closing Date; and
(g) on and prior to the TTI Closing Date, Investments by ALT
and its Subsidiaries (other than any member of the TTI Group) permitted under
Section 5.1 of the Existing ALT Credit Agreement, as in effect on the date
hereof.
7.06 RESTRICTED PAYMENTS. Make any Restricted Payments, except (i) the
special distribution by ALT of all of the capital stock of TTI to the
stockholders of ALT in accordance with the Spinoff Documents, (ii) on and prior
to the TTI Closing Date, ALT and its Subsidiaries (other than any member of the
TTI Group) may make Restricted Payments to the extent permitted under the
Existing ALT Credit Agreement, as in effect on the date hereof, and (iii) from
and after the TTI Closing Date, TTI and its Subsidiaries may make dividends and
other distributions payable solely in cash in an aggregate amount not to exceed,
when combined with the amount of Investments made pursuant to Section 7.05(f),
an amount equal to the sum of $5,000,000 and 25% of cumulative Consolidated Net
Income since the TTI Closing Date.
7.07 ERISA. At any time engage in a transaction which could be subject
to Sections 4069 or 4212(c) of ERISA, or permit any Pension Plan to (a) engage
in any non-exempt "prohibited transaction" (as defined in Section 4975 of the
Code); (b) fail to comply with ERISA or any other applicable Laws; or (c) incur
any material "accumulated funding deficiency" (as defined in Section 302 of
ERISA), which, with respect to each event listed above, would reasonably be
expected to have a Material Adverse Effect.
7.08 LIMITATION ON NATURE OF BUSINESS. Enter into any business, either
directly or through a Subsidiary, except for (i) any business in which Borrower
or the applicable Subsidiary is engaged on the date hereof, (ii) any business
that is reasonably related thereto, or (iii) any business that is in
substantially the same industry as any business conducted by Borrower or such
Subsidiary on the date hereof.
7.09 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any
kind with any Affiliate of Borrower other than arm's-length transactions with
Affiliates that are otherwise permitted hereunder.
7.10 HOSTILE ACQUISITIONS. Use the proceeds of any Extension of Credit
in connection with the acquisition of any voting interest in any Person if such
acquisition is opposed by the board of directors or management of such Person.
7.11 LIMITATIONS ON UPSTREAMING, ETC. Suffer to exist or become
effective any restriction or limitation on the ability of Borrower or any of its
Subsidiaries (or, in the case of
- 62 -
68
clause (a) only, any Subsidiary of Borrower) to: (a) make Restricted Payments,
(b) pay or subordinate any Indebtedness owed to Borrower or any other
Subsidiary, (c) make Investments in Borrower or any other Subsidiary or (d)
transfer any of its assets to Borrower or any other Subsidiary, except for the
restrictions contained in the Loan Documents.
7.12 FINANCIAL COVENANTS.
(a) CONSOLIDATED NET WORTH. Permit Consolidated Net Worth at
any time to be less than the sum of (a) an amount equal to 75% of Consolidated
Net Worth as of the TTI Closing Date, (b) an amount equal to 50% of the
Consolidated Net Income earned in each fiscal quarter of TTI ending after the
TTI Closing Date (with no deduction for a net loss in any such fiscal quarter)
and (c) an amount equal to 75% of the net proceeds after the TTI Closing Date of
the issuance and sale of capital stock of TTI (including upon any conversion of
debt securities of TTI into such capital stock).
(b) INTEREST COVERAGE RATIO. Permit the Interest Coverage
Ratio as of the end of any fiscal quarter of TTI to be less than 3.0: 1.0.
(c) LEVERAGE RATIO. Permit the Leverage Ratio at any time to
be greater than 3.0: 1.0.
7.13 LIMITATION ON AMENDMENTS TO SPINOFF DOCUMENTS. Amend, supplement,
replace or otherwise modify (whether pursuant to a waiver granted by or to such
Person or otherwise) or fail to enforce the terms and conditions of any Spinoff
Document, except for exceptions to the foregoing that could not, individually or
in the aggregate, reasonably be expected to be adverse to Administrative Agent
or any Lender.
7.14 LIMITATION ON MODIFICATIONS OF INDEBTEDNESS. Except as otherwise
permitted under Section 7.01(b), amend, modify or otherwise change, or consent
or agree to any amendment, modification, waiver or other change to, any of the
terms (including, without limitation, the subordination terms) of any
Indebtedness (excluding the Indebtedness hereunder) (other than any such
amendment, modification, waiver or other change which (i) would extend the
maturity or reduce the amount of any payment of principal thereof, reduce the
rate or extend the date for payment of interest thereon and (ii) does not
involve the payment of a consent fee).
SECTION 8.
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any one or more of the following events shall
constitute an Event of Default:
(a) Borrower fails to pay any principal on any Outstanding
Obligation (other than fees) as and on the date when due; or
(b) Borrower fails to pay any interest on any Outstanding
Obligation, or any fees payable under Section 2.08 due hereunder, or any other
fees or amount payable to
- 63 -
69
Administrative Agent or any Lender under any Loan Document, in each case, within
five days after the date when due; or
(c) Any default occurs in the observance or performance of any
agreement contained in Sections 6.01, 6.02, 6.08 or 7; or
(d) The occurrence of an Event of Default (as such term is or
may hereafter be specifically defined in any other Loan Document) under any
other Loan Document; or any Borrower Party fails to perform or observe any other
covenant or agreement (not specified in subsections (a), (b) or (c) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for 30 days; or
(e) Any representation or warranty in any Loan Document or in
any certificate, agreement, instrument or other document made or delivered by
any Borrower Party pursuant to or in connection with any Loan Document proves to
have been incorrect in any material respect when made or deemed made; or
(f) (i) any Borrower Party (x) defaults in any payment when
due of principal of or interest on any Indebtedness (other than Indebtedness
hereunder) or (y) defaults in the observance or performance of any other
agreement or condition relating to any Indebtedness (other than Indebtedness
hereunder) or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur, the effect of which default or
other event is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, Indebtedness
having an aggregate principal amount in excess of the Threshold Amount to be
demanded or become due (automatically or otherwise) prior to its stated
maturity, or any Guaranty Obligation in such amount to become payable or cash
collateral in respect thereof to be demanded, or any Borrower Party is unable or
admits in writing its inability to pay its debts as they mature; or (ii) the
occurrence under any Swap Contract of an Early Termination Date (as defined in
such Swap Contract) resulting from (x) any event of default under such Swap
Contract as to which Borrower or any Subsidiary is the Defaulting Party (as
defined in such Swap Contract) or (y) any Termination Event under any Swap
Contract (as defined therein) as to which Borrower or any Subsidiary is an
Affected Party (as defined therein), if, in either event, the Swap Termination
Value owed by Borrower or such Subsidiary as a result thereof is greater than
the Threshold Amount; or
(g) Any Loan Document, at any time after its execution and
delivery and for any reason other than the agreement of all Lenders or
satisfaction in full of all the Obligations and termination of the combined
Commitments, ceases (other than, in the case of the Pledge Agreement, pursuant
to the terms thereof on or after the Collateral Release Date) to be in full
force and effect or is declared by a court of competent jurisdiction to be null
and void, invalid or unenforceable in any respect; or any Borrower Party denies
that it has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document; or
- 64 -
70
(h) The Pledge Agreement, at any time after its execution and
delivery and for any reason other than the agreement of all Lenders or
satisfaction in full of all the Obligations and termination of the combined
Commitments, ceases (other than pursuant to the terms thereof on or after the
Collateral Release Date) to create a valid and perfected first priority Lien on
the Collateral purported to be covered thereby; or
(i) A final judgment against any Borrower Party is entered for
the payment of money in excess of the Threshold Amount, or any non-monetary
final judgment is entered against any Borrower Party which has a Material
Adverse Effect and, in each case if such judgment remains unsatisfied without
procurement of a stay of execution within 30 calendar days after the date of
entry of judgment or, if earlier, five days prior to the date of any proposed
sale, or any writ or warrant of attachment or execution or similar process is
issued or levied against all or any material part of the property of any such
Person and is not released, vacated or fully bonded within 30 calendar days
after its issue or levy; or
(j) Any Borrower Party or any of its Subsidiaries institutes
or consents to the institution of any proceeding under Debtor Relief Laws, or
makes an assignment for the benefit of creditors; or applies for or consents to
the appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of its
property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent
of that Person and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under Debtor Relief Laws relating to any such
Person or to all or any part of its property is instituted without the consent
of that Person and continues undismissed or unstayed for 60 calendar days, or an
order for relief is entered in any such proceeding; or
(k) (i) An ERISA Event occurs with respect to a Pension Plan
or Multiemployer Plan which has resulted or would reasonably be expected to
result in liability of Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount; (ii) the aggregate amount of Unfunded Pension Liability among all
Pension Plans at any time exceeds the Threshold Amount; or (iii) Borrower or any
ERISA Affiliate fails to pay when due, after the expiration of any applicable
grace period, any installment payment with respect to its withdrawal liability
under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in
excess of the Threshold Amount; or
(l) TTI fails, on or before the date that is 12 months after
the ALT Closing Date, to consummate a Qualified Public Offering; or
(m) The Private Letter Ruling is withdrawn or otherwise ceases
to be in full force and effect or is declared by a court of competent
jurisdiction to be null and void, invalid or unenforceable in any respect; or,
prior to its satisfaction of its liabilities and obligations thereunder, any
Borrower Party denies that it has any or further liability or obligation under
the Private Letter Ruling, or fails to satisfy any condition contained therein,
or purports to revoke, terminate or rescind the Private Letter Ruling; or
- 65 -
71
(n) Any Person or two or more Persons acting in concert shall
have acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as
amended), directly or indirectly, of Voting Stock of Borrower (or other
securities convertible into such Voting Stock) representing 25% or more of the
combined voting power of all Voting Stock of Borrower; or (ii) during any period
of up to 24 consecutive months, commencing after the date of this Agreement,
individuals who at the beginning of such 24-month period were directors of
Borrower, or individuals whose nomination for election to the board of directors
of Borrower was recommended by at least 66-2/3% of the then directors of
Borrower, shall cease for any reason to constitute a majority of the board of
directors of Borrower; or (iii) any Person or two or more Persons acting in
concert shall have acquired by contract or otherwise, or shall have entered into
a contract or arrangement that, upon consummation, will result in its or their
acquisition of, control over Voting Stock of Borrower (or other securities
convertible into such securities) representing 25% or more of the combined
voting power of all Voting Stock of Borrower; or
(o) There shall be any suspension or debarment of any
contracting rights of Borrower or any of its Material Subsidiaries (or a
division of any thereof) in effect for more than 30 days from its commencement
(or Borrower shall learn that any such suspension or debarment shall be imposed
for a period in excess of 30 days); or
(p) An indemnification claim in excess of the Threshold Amount
shall be made against any member of the TTI Group by ALT, any of its Affiliates
or any of their respective stockholders pursuant to, or in connection with, any
of the Spinoff Documents including, without limitation, pursuant to Section 6.1
of the Tax Sharing and Indemnification Agreement and Section 5.02 of the
Separation and Distribution Agreement.
8.02 REMEDIES UPON EVENT OF DEFAULT. Without limiting any other rights
or remedies of Administrative Agent or Lenders provided for elsewhere in this
Agreement, or the other Loan Documents, or by applicable Law, or in equity, or
otherwise:
(a) Upon the occurrence, and during the continuance, of any
Event of Default other than an Event of Default described in Section 8.01(j):
(i) the Required Lenders may request Administrative
Agent to, and Administrative Agent thereupon shall, terminate the Commitments
and/or declare all or any part of the unpaid principal of all Loans, all
interest accrued and unpaid thereon and all other amounts payable under the Loan
Documents to be immediately due and payable, whereupon the same shall become and
be immediately due and payable, without protest, presentment, notice of
dishonor, demand or further notice of any kind, all of which are expressly
waived by Borrower; and
(ii) Issuing Lender may, with the approval of
Administrative Agent on behalf of the Required Lenders, demand immediate payment
by Borrower of an amount equal to the aggregate amount of all outstanding
Letters of Credit Usage to be held in a Letter of Credit Cash Collateral
Account.
- 66 -
72
(b) Upon the occurrence of any Event of Default described in
Section 8.01(j):
(i) the Commitments and all other obligations of
Administrative Agent or Lenders shall automatically terminate without notice to
or demand upon Borrower, which are expressly waived by Borrower;
(ii) the unpaid principal of all Loans, all interest
accrued and unpaid thereon and all other amounts payable under the Loan
Documents shall be immediately due and payable, without protest, presentment,
notice of dishonor, demand or further notice of any kind, all of which are
expressly waived by Borrower; and
(iii) an amount equal to the aggregate amount of all
outstanding Letters of Credit Usage shall be immediately due and payable to
Issuing Lender without notice to or demand upon Borrower, which are expressly
waived by Borrower, to be held in a Letter of Credit Cash Collateral Account.
(c) Upon the occurrence of any Event of Default, Lenders and
Administrative Agent, or any of them, without notice to (except as expressly
provided for in any Loan Document) or demand upon Borrower, which are expressly
waived by Borrower (except as to notices expressly provided for in any Loan
Document), may proceed to (but only with the consent of the Required Lenders)
protect, exercise and enforce their rights and remedies under the Loan Documents
against any Borrower Party and such other rights and remedies as are provided by
Law or equity or otherwise.
(d) Except as permitted by Section 10.06, no Lender may
exercise any rights or remedies with respect to the Obligations without the
consent of the Required Lenders in their sole and absolute discretion. The order
and manner in which Administrative Agent's and Lenders' rights and remedies are
to be exercised shall be determined by the Required Lenders in their sole and
absolute discretion. Regardless of how a Lender may treat payments for the
purpose of its own accounting, for the purpose of computing the Obligations
hereunder, payments shall be applied first, to costs and expenses (including
Attorney Costs) incurred by Administrative Agent and each Lender, second, to the
payment of accrued and unpaid interest on the Loans to and including the date of
such application, third, to the payment of the unpaid principal of the Loans,
and fourth, to the payment of all other amounts (including fees) then owing to
Administrative Agent and Lenders under the Loan Documents, in each case paid pro
rata to each Lender in the same proportions that the aggregate Obligations owed
to each Lender under the Loan Documents bear to the aggregate Obligations owed
under the Loan Documents to all Lenders, without priority or preference among
Lenders. No application of payments will cure any Event of Default, or prevent
acceleration, or continued acceleration, of amounts payable under the Loan
Documents, or prevent the exercise, or continued exercise, of rights or remedies
of Administrative Agent and Lenders hereunder or thereunder or at Law or in
equity or otherwise.
- 67 -
73
SECTION 9.
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
(a) Each Lender hereby irrevocably (subject to Section 9.09)
appoints, designates and authorizes Administrative Agent to take such action on
its behalf under the provisions of this Agreement and each other Loan Document
and to exercise such powers and perform such duties as are expressly delegated
to it by the terms of this Agreement or any other Loan Document, together with
such powers as are reasonably incidental thereto. Notwithstanding any provision
to the contrary contained elsewhere in this Agreement or in any other Loan
Document, Administrative Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall Administrative Agent have or
be deemed to have any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Loan Document or otherwise exist
against Administrative Agent. Without limiting the generality of the foregoing
sentence, the use of the term "agent" in this Agreement with reference to
Administrative Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
(b) Issuing Lender shall act on behalf of Lenders with respect
to any Letters of Credit issued by it and the documents associated therewith
until such time and except for so long as Administrative Agent may agree at the
request of the Required Lenders to act for Issuing Lender with respect thereto;
provided, however, that Issuing Lender shall have all of the benefits and
immunities (i) provided to Administrative Agent in this Section 9 with respect
to any acts taken or omissions suffered by Issuing Lender in connection with
Letters of Credit issued by it or proposed to be issued by it and the
application and agreements for letters of credit pertaining to the Letters of
Credit as fully as if the term "Administrative Agent" as used in this Section 9
included Issuing Lender with respect to such acts or omissions, and (ii) as
additionally provided in this Agreement with respect to Issuing Lender.
9.02 DELEGATION OF DUTIES. Administrative Agent may execute any of its
duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Administrative Agent shall not
be responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
9.03 LIABILITY OF ADMINISTRATIVE AGENT. None of Administrative
Agent-Related Persons shall (i) be liable for any action taken or omitted to be
taken by any of them under or in connection with this Agreement or any other
Loan Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct as determined in a final, nonappealable
judgment by a court of competent jurisdiction), or (ii) be responsible in any
manner to any Lender for any recital, statement, representation or warranty made
by Borrower or
- 68 -
74
any Subsidiary or Affiliate of Borrower, or any officer thereof, contained in
this Agreement or in any other Loan Document or Spinoff Document, or in any
certificate, report, statement or other document referred to or provided for in,
or received by Administrative Agent under or in connection with, this Agreement,
any other Loan Document or any Spinoff Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement, any other Loan
Document or any Spinoff Document, or for any failure of Borrower or any other
party to any Loan Document or Spinoff Document to perform its obligations
hereunder or thereunder. No Administrative Agent-Related Person shall be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement, any other Loan Document or any Spinoff Document, or to inspect the
properties, books or records of Borrower or any of Borrower's Subsidiaries or
Affiliates.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to Borrower),
independent accountants and other experts selected by Administrative Agent.
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders or all Lenders, as
the case may be, as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of the Required Lenders or all
Lenders, if required hereunder, and such request and any action taken or failure
to act pursuant thereto shall be binding upon all Lenders. Where this Agreement
expressly permits or prohibits an action unless the Required Lenders otherwise
determine, and in all other instances, Administrative Agent may, but shall not
be required to, initiate any solicitation for the consent or a vote of Lenders.
(b) For purposes of determining compliance with the conditions
specified in Sections 4.01, 4.02 and 4.03, each Lender that has executed this
Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter either sent by Administrative
Agent to such Lender for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to such Lender.
9.05 NOTICE OF DEFAULT. Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to Administrative Agent for the account of Lenders, unless
Administrative Agent shall have received written notice from a Lender or
Borrower referring to this Agreement, describing such Default or Event of
Default and
- 69 -
75
stating that such notice is a "notice of default". Administrative Agent will
notify Lenders of its receipt of any such notice. Administrative Agent shall
take such action with respect to such Default or Event of Default as may be
requested by the Required Lenders in accordance with Section 8; provided,
however, that unless and until Administrative Agent has received any such
request, Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable or in the best interest of Lenders.
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE
AGENT. Each Lender acknowledges that none of Administrative Agent-Related
Persons has made any representation or warranty to it, and that no act by
Administrative Agent hereinafter taken, including any consent to and acceptance
of any assignment or review of the affairs of Borrower and its Subsidiaries,
shall be deemed to constitute any representation or warranty by any
Administrative Agent-Related Person to any Lender as to any matter, including
whether Administrative Agent-Related Persons have disclosed material information
in their possession. Each Lender, including any Lender by assignment, represents
to Administrative Agent and Borrower that it has, independently and without
reliance upon any Administrative Agent-Related Person and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, prospects, operations, property,
financial and other condition and creditworthiness of Borrower and its
Subsidiaries, and all applicable bank regulatory laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to Borrower hereunder. Each Lender also
represents that it will, independently and without reliance upon any
Administrative Agent-Related Person and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Loan Documents, and to make such investigations as it
deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of Borrower or any
of its Subsidiaries. Except for notices, reports and other documents expressly
required to be furnished to Lenders by Administrative Agent herein,
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of
Borrower or any of its Subsidiaries which may come into the possession of any of
Administrative Agent-Related Persons.
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, Lenders shall indemnify upon
demand each Administrative Agent-Related Person (to the extent not reimbursed by
or on behalf of Borrower and without limiting the obligation of Borrower to do
so), pro rata, and hold harmless each Administrative Agent-Related Person from
and against any and all Indemnified Liabilities incurred by it; provided,
however, that no Lender shall be liable for the payment to any Administrative
Agent-Related Person of any portion of such Indemnified Liabilities resulting
from such Person's gross negligence or willful misconduct as determined by a
final nonappealable judgment by a court of competent jurisdiction; provided,
however, that no action
- 70 -
76
taken in accordance with the directions of the Required Lenders or all Lenders,
as the case may be, shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. Without limitation of the foregoing,
each Lender shall reimburse Administrative Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs) incurred
by Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that
Administrative Agent is not reimbursed for such expenses by or on behalf of
Borrower. The undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of Administrative
Agent.
9.08 ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY. Bank of America and
its Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
Borrower and its Subsidiaries and Affiliates as though Bank of America were not
Administrative Agent or Issuing Lender hereunder or Swing Line Lender and
without notice to or consent of Lenders. Lenders acknowledge that, pursuant to
such activities, Bank of America or its Affiliates may receive information
regarding Borrower or its Affiliates (including information that may be subject
to confidentiality obligations in favor of Borrower or such Affiliate) and
acknowledge that Administrative Agent shall be under no obligation to provide
such information to them. With respect to its Loans and Letters of Credit, Bank
of America shall have the same rights and powers under this Agreement as any
other Lender and may exercise the same as though it were not Administrative
Agent or Issuing Lender.
9.09 SUCCESSOR ADMINISTRATIVE AGENT. Administrative Agent may, and at
the request of the Required Lenders shall, resign as Administrative Agent upon
30 days' notice to Lenders and Borrower. If Administrative Agent resigns under
this Agreement, the Required Lenders shall appoint from among Lenders a
successor administrative agent for Lenders which successor administrative agent
shall, so long as no Default or Event of Default shall have occurred and be
continuing, be approved by Borrower. If no successor administrative agent is
appointed prior to the effective date of the resignation of Administrative
Agent, Administrative Agent may appoint, after consulting with Lenders and
Borrower, a successor administrative agent from among Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, such
successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor administrative agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Section 9 and Sections 10.04 and
10.12 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and Lenders shall perform all of the duties of
- 71 -
77
Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above. Notwithstanding the foregoing,
however, Bank of America may not be removed as Administrative Agent at the
request of the Required Lenders unless Bank of America shall also simultaneously
be replaced as "Issuing Lender" and "Swing Line Lender" hereunder pursuant to
documentation in form and substance reasonably satisfactory to Bank of America.
SECTION 10.
MISCELLANEOUS
10.01 AMENDMENTS; CONSENTS. No amendment, modification, supplement,
extension, termination or waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder, and no consent to any
departure by any Borrower Party therefrom shall be effective unless in writing
signed by Borrower and the Required Lenders and acknowledged by Administrative
Agent, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. Except as otherwise
expressly provided herein, without the approval in writing of Borrower,
Administrative Agent and all Lenders, no amendment, modification, supplement,
termination, waiver or consent may be effective:
(a) to reduce the amount of principal, principal prepayments
or the rate of interest payable on, any Loan, or the amount of any fee or other
amount payable to any Lender under the Loan Documents (unless such modification
is consented to by each Lender entitled to receive such fee) or to waive an
Event of Default consisting of the failure of Borrower to pay when due
principal, interest or any utilization fee or facility fee;
(b) to postpone any date fixed for any payment of principal
of, prepayment of principal of, or any installment of interest on, any Loan or
any installment of any fee payable to Lenders under Section 2.08, to extend the
term of, or increase the amount of, any Lender's Commitment (it being understood
that a waiver of an Event of Default shall not constitute an extension or
increase in the Commitment of any Lender) or modify the Pro Rata Share of any
Lender;
(c) to amend the provisions of the definition of "Required
Lenders", Sections 4, 9, this Section 10.01 or Section 10.07;
(d) to amend any provision of this Agreement that expressly
requires the consent or approval of all Lenders;
(e) to release all or substantially all of the Guarantors from
their guarantee obligations under the Guaranty; or
(f) to release all or substantially all of the Collateral
(other than pursuant to Section 10.02);
- 72 -
78
provided, however, that (i) no amendment, waiver or consent shall, unless in
writing and signed by Issuing Lender in addition to Borrower and Required
Lenders or all Lenders, as the case may be, affect the rights or duties of
Issuing Lender under any Loan Document relating to Letters of Credit, (ii) no
amendment, waiver or consent shall, unless in writing and signed by
Administrative Agent in addition to Borrower and Required Lenders or all
Lenders, as the case may be, affect the rights or duties of Administrative Agent
under any Loan Document, (iii) no amendment, waiver or consent shall, unless in
writing and signed by Swing Line Lender in addition to Borrower and Required
Lenders or all Lenders, as the case may be, affect the rights or duties of Swing
Line Lender under any Loan Document, and (iv) any fee letter may be amended, or
rights or privileges thereunder waived, in a writing executed by the parties
thereto. Any amendment, modification, supplement, termination, waiver or consent
pursuant to this Section shall apply equally to, and shall be binding upon, all
Lenders and Administrative Agent.
10.02 Release of Collateral. Anything contained in this Agreement or
any of the other Loan Documents to the contrary notwithstanding, on the
Collateral Release Date, the Pledge Agreement shall be terminated, and all
Collateral pledged thereunder shall be released, without further action on the
part of Administrative Agent or any Lender (the date of such release, the
"Collateral Release Date"). Any release of Collateral pledged under the Pledge
Agreement in accordance with the provisions of this Section 10.02 shall be
deemed to be a release of such pledged Collateral approved by all Lenders for
purposes of the Loan Documents. In connection with any such release,
Administrative Agent shall execute all such further documents and instruments as
may be reasonably requested by Borrower in order to more fully evidence or
effect such release. All such deliveries shall be at the expense of Borrower,
with no liability to Administrative Agent or any Lender, and with no
representation or warranty by or recourse to Administrative Agent or any Lender.
Notwithstanding anything to the contrary herein or in any other Loan Document,
the Guaranty shall not be terminated on the Collateral Release Date.
10.03 TRANSMISSION AND EFFECTIVENESS OF NOTICES AND SIGNATURES.
(a) MODES OF DELIVERY. Except as otherwise provided in any
Loan Document, notices, requests, demands, directions, agreements and documents
delivered in connection with the Loan Documents (collectively, "communications")
shall be transmitted by Requisite Notice to the number and address set forth on
Schedule 10.03, may be delivered by the following modes of delivery, and shall
be effective as follows:
MODE OF DELIVERY EFFECTIVE ON EARLIER OF ACTUAL RECEIPT AND:
--------------------------------------------------------------------------------
Courier Scheduled delivery date
Facsimile When transmission in legible form complete
Mail Fourth Business Day after deposit in U.S.
mail first class postage pre-paid
Personal delivery When received
Telephone When conversation completed
- 73 -
79
provided, however, that communications delivered to Administrative Agent
pursuant to Section 2 shall not be effective until actually received by
Administrative Agent.
(b) RELIANCE BY ADMINISTRATIVE AGENT AND LENDERS.
Administrative Agent and Lenders shall be entitled to rely and act on any
communications purportedly given by or on behalf of any Borrower Party even if
such communications (i) were not made in a manner specified herein, (ii) were
incomplete, (iii) were not preceded or followed by any other notice specified
herein, or (iv) the terms thereof, as understood by the recipient, varied from
any subsequent related communications provided for herein. Borrower shall
indemnify Administrative Agent and Lenders from any loss, cost, expense or
liability as a result of relying on any communications permitted herein. The
obligations of Borrower in this subsection shall survive payment of all
Obligations.
(c) EFFECTIVENESS OF FACSIMILE SIGNATURES. Signatures on
communications may be transmitted by facsimile; provided that the Administrative
Agent may, in its sole and absolute discretion in each instance, require the
delivery of originally executed signature pages. The effectiveness of any such
facsimile signatures accepted by Administrative Agent shall, subject to
applicable Law, have the same force and effect as manual signatures and shall be
binding on all Borrower Parties and Administrative Agent and Lenders.
Administrative Agent may also require that any such facsimile signature be
confirmed by a manually-signed hardcopy thereof; provided, however, that the
failure to request any such manually-signed hardcopy confirmation shall not
affect the effectiveness of any facsimile signatures.
10.04 ATTORNEY COSTS, EXPENSES AND TAXES. Borrower agrees (a) to pay or
reimburse Administrative Agent for all reasonable costs and expenses incurred in
connection with the development, preparation, negotiation and execution of the
Loan Documents, and the development, preparation, negotiation and execution of
any amendment, waiver, consent, supplement or modification to, any Loan
Documents, and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including reasonable Attorney Costs, and (b) to pay or reimburse
Administrative Agent and each Lender for all costs and expenses incurred in
connection with any refinancing, restructuring, reorganization (including a
bankruptcy reorganization) and enforcement or attempted enforcement, or
preservation of any rights under any Loan Documents, and any other documents
prepared in connection herewith or therewith, or in connection with any
refinancing, or restructuring of any such documents in the nature of a "workout"
or of any insolvency or bankruptcy proceeding, including all Attorney Costs. The
foregoing costs and expenses shall include all (and, in the case of clause (a)
of the immediately preceding sentence only, all reasonable) search, filing,
recording, title insurance and appraisal charges and fees and taxes related
thereto, and other out-of-pocket expenses incurred by Administrative Agent and
the cost of independent public accountants and other outside experts retained by
Administrative Agent or any Lender. Such costs and expenses shall also include
administrative costs of Administrative Agent reasonably attributable to the
administration of the
- 74 -
80
Loan Documents. Any amount payable by Borrower under this Section shall bear
interest from the second Business Day following the date of demand for payment
at the Default Rate, unless waived by Administrative Agent. The agreements in
this Section shall survive repayment of all Obligations.
10.05 BINDING EFFECT; ASSIGNMENT.
(a) This Agreement and the other Loan Documents to which
Borrower is a party will be binding upon and inure to the benefit of Borrower,
Administrative Agent, Lenders and their respective successors and assigns,
except that, Borrower may not assign its rights hereunder or thereunder or any
interest herein or therein without the prior written consent of all Lenders and
any such attempted assignment shall be void. Any Lender may at any time pledge
its Note or any other instrument evidencing its rights as a Lender under this
Agreement to a Federal Reserve Bank, but no such pledge shall release that
Lender from its obligations hereunder or grant to such Federal Reserve Bank the
rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Signing Date, each Lender
may assign to one or more Eligible Assignees all or any portion of its Pro Rata
Share of its Commitment and/or Extensions of Credit; provided that (i) such
assignment, if not to a Lender or an Affiliate of the assigning Lender, shall be
consented to by Borrower at all times other than during the existence of a
Default or Event of Default and Administrative Agent, Issuing Lender and Swing
Line Lender (which approval of Borrower shall not be unreasonably withheld or
delayed), (ii) a copy of a duly signed and completed Notice of Assignment and
Acceptance shall be delivered to Administrative Agent, (iii) except in the case
of an assignment to an Affiliate of the assigning Lender, to another Lender or
of the entire remaining Commitment of the assigning Lender, the assignment shall
not assign a Pro Rata Share equivalent to less than the Minimum Amount therefor,
and (iv) the effective date of any such assignment shall be as specified in the
Notice of Assignment and Acceptance, but not earlier than the date which is five
Business Days after the date Administrative Agent has received the Notice of
Assignment and Acceptance. Upon acceptance by Administrative Agent of such
Notice Assignment and Acceptance and consent thereto by Administrative Agent,
Issuing Lender and Swing Line Lender and payment of the requisite fee described
below, the Eligible Assignee named therein shall be a Lender for all purposes of
this Agreement, with the Pro Rata Share therein set forth and, to the extent of
such Pro Rata Share, the assigning Lender shall be released from its further
obligations under this Agreement. Borrower agrees that it shall execute and
deliver upon request (against delivery by the assigning Lender to Borrower of
any Note) to such assignee Lender, one or more Notes evidencing that assignee
Lender's Pro Rata Share, and to the assigning Lender if requested, one or more
Notes evidencing the remaining balance Pro Rata Share retained by the assigning
Lender; provided that Loans made to ALT shall be evidenced by the ALT Global
Note only. Administrative Agent's consent to and acceptance of any assignment
shall not be deemed to constitute any representation or warranty by any
Administrative Agent-Related Person as to any matter.
- 75 -
81
(c) After receipt of a completed Notice of Assignment and
Acceptance, and receipt of an assignment fee of $3,500 from such Eligible
Assignee (including Affiliates of assigning Lenders), Administrative Agent
shall, promptly following the effective date thereof, provide to Borrower and
Lenders a revised Schedule 10.03 giving effect thereto.
(d) Each Lender may from time to time grant participations to
one or more other Person (including another Lender) all or any portion of its
Pro Rata Share of its Commitment and/or Extensions of Credit; provided, however,
that (i) such Lender's obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) the participating banks or other
financial institutions shall not be a Lender hereunder for any purpose except,
if the participation agreement so provides, for the purposes of Section 3 (but
only to the extent that the cost of such benefits to Borrower does not exceed
the cost which Borrower would have incurred in respect of such Lender absent the
participation) and subject to Sections 10.06 and 10.07, (iv) Borrower,
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, (v) the participation shall not restrict an
increase in the Commitment or in granting Lender's Pro Rata Share, so long as
the amount of the participation interest is not affected thereby, and (vi) the
consent of the holder of such participation interest shall not be required for
amendments or waivers of provisions of the Loan Documents; provided, however,
that the assigning Lender may, in any agreement with a participant, give such
participant the right to consent to any matter which (A) extends the Maturity
Date as to such participant or any other date upon which any payment of money is
due to such participant, (B) reduces the rate of interest owing to such
participant, any fee or any other monetary amount owing to such participant, (C)
reduces the amount of any installment of principal owing to such participant, or
(D) releases of all or substantially all of the Guarantors or releases of all or
substantially all of the Collateral (other than pursuant to Section 10.02).
10.06 SET-OFF. In addition to any rights and remedies of Administrative
Agent and Lenders or any assignee or participant of Lenders or any Affiliates
thereof (each, a "Proceeding Party") provided by law or in equity or otherwise,
upon the occurrence and during the continuance of any Event of Default, each
Proceeding Party is authorized at any time and from time to time, without prior
notice to Borrower, any such notice being waived by Borrower to the fullest
extent permitted by law, to proceed directly, by right of set-off, banker's lien
or counterclaim, or otherwise, against any assets of the Borrower Parties which
may be in the hands of such Proceeding Party (including all general or special,
time or demand, provisional or other deposits and other indebtedness owing by
such Proceeding Party to or for the credit or the account of Borrower) and apply
such assets against the Obligations, irrespective of whether such Proceeding
Party shall have made any demand therefor and although such Obligations may be
unmatured. Each Lender agrees promptly to notify Borrower and Administrative
Agent after any such set-off and application made by such Lender; provided,
however, that the failure to give such notice shall not affect the validity of
such set-off and application.
10.07 SHARING OF PAYMENTS. Each Lender severally agrees that if it,
through the exercise of any right of setoff, banker's lien or counterclaim
against Borrower, or otherwise,
- 76 -
82
receives payment of the Obligations held by it that is ratably more than any
other Lender, through any means, receives in payment of the Obligations held by
that Lender, then, subject to applicable Laws: (a) Lender exercising the right
of setoff, banker's lien or counterclaim or otherwise receiving such payment
shall purchase, and shall be deemed to have simultaneously purchased, from the
other Lender a participation in the Obligations held by the other Lender and
shall pay to the other Lender a purchase price in an amount so that the share of
the Obligations held by each Lender after the exercise of the right of setoff,
banker's lien or counterclaim or receipt of payment shall be in the same
proportion that existed prior to the exercise of the right of setoff, banker's
lien or counterclaim or receipt of payment; and (b) such other adjustments and
purchases of participations shall be made from time to time as shall be
equitable to ensure that all of Lenders share any payment obtained in respect of
the Obligations ratably in accordance with each Lender's Pro Rata Share of the
Obligations immediately prior to, and without taking into account, the payment;
provided that, if all or any portion of a disproportionate payment obtained as a
result of the exercise of the right of setoff, banker's lien, counterclaim or
otherwise is thereafter recovered from the purchasing Lender by Borrower or any
Person claiming through or succeeding to the rights of Borrower, the purchase of
a participation shall be rescinded and the purchase price thereof shall be
restored to the extent of the recovery, but without interest. Each Lender that
purchases a participation in the Obligations pursuant to this Section shall from
and after the purchase have the right to give all notices, requests, demands,
directions and other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as though the purchasing
Lender were the original owner of the Obligations purchased. Borrower expressly
consents to the foregoing arrangements and agrees that any Lender holding a
participation in an Obligation so purchased may exercise any and all rights of
setoff, banker's lien or counterclaim or otherwise with respect to the
participation as fully as if Lender were the original owner of the Obligation
purchased.
10.08 NO WAIVER; CUMULATIVE REMEDIES.
(a) No failure by any Lender or Administrative Agent to
exercise, and no delay by any Lender or Administrative Agent in exercising, any
right, remedy, power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege under any Loan Document preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege.
(b) The rights, remedies, powers and privileges herein or
therein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by Law. Any decision by Administrative Agent or
any Lender not to require payment of any interest (including Default Interest),
fee, cost or other amount payable under any Loan Document or to calculate any
amount payable by a particular method on any occasion shall in no way limit or
be deemed a waiver of Administrative Agent's or such Lender's right to require
full payment thereof, or to calculate an amount payable by another method that
is not inconsistent with this Agreement, on any other or subsequent occasion.
(c) The terms and conditions of Section 9 are inserted for the
sole benefit of Administrative Agent and Lenders; the same may be waived in
whole or in part, with or without
- 77 -
83
terms or conditions, in respect of any Extension of Credit without prejudicing
Administrative Agent's or Lenders' rights to assert them in whole or in part in
respect of any other Extension of Credit.
10.09 USURY. Notwithstanding anything to the contrary contained in any
Loan Document, the interest and fees paid or agreed to be paid under the Loan
Documents shall not exceed the maximum rate of non-usurious interest permitted
by applicable Law (the "Maximum Rate"). If Administrative Agent or any Lender
shall receive interest or a fee in an amount that exceeds the Maximum Rate, the
excessive interest or fee shall be applied to the principal of the Outstanding
Obligations or, if it exceeds the unpaid principal, refunded to Borrower. In
determining whether the interest or a fee contracted for, charged, or received
by Administrative Agent or a Lender exceeds the Maximum Rate, such Person may,
to the extent permitted by applicable Law, (a) characterize any payment that is
not principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations.
10.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.11 INTEGRATION. This Agreement, together with the other Loan
Documents and any letter agreements referred to herein, comprises the complete
and integrated agreement of the parties on the subject matter hereof and
supersedes all prior agreements, written or oral, on the subject matter hereof.
In the event of any conflict between the provisions of this Agreement and those
of any other Loan Document, the provisions of this Agreement shall control and
govern; provided that the inclusion of supplemental rights or remedies in favor
of Administrative Agent or Lenders in any other Loan Document shall not be
deemed a conflict with this Agreement. Each Loan Document was drafted with the
joint participation of the respective parties thereto and shall be construed
neither against nor in favor of any party, but rather in accordance with the
fair meaning thereof.
10.12 NATURE OF LENDERS' OBLIGATIONS. The obligations of Lenders
hereunder are several and not joint or joint and several. Nothing contained in
this Agreement or any other Loan Document and no action taken by Administrative
Agent or Lenders or any of them pursuant hereto or thereto may, or may be deemed
to, make Lenders a partnership, an association, a joint venture or other entity,
either among themselves or with Borrower or any Affiliate of Borrower. Each
Lender's obligation to make any Extension of Credit pursuant hereto is several
and not joint or joint and several, and in the case of the initial Extension of
Credit only is conditioned upon the performance by all other Lenders of their
obligations to make initial Extensions of Credit. A default by any Lender will
not increase the Pro Rata Share attributable to any other Lender.
10.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder and in any Loan Document, certificate or statement
delivered
- 78 -
84
pursuant hereto or thereto or in connection herewith or therewith shall survive
the execution and delivery thereof but shall terminate the later of (a) when the
Commitments are terminated and (b) when no Obligations remain outstanding under
any Loan Document. Such representations and warranties have been or will be
relied upon by Administrative Agent and each Lender, notwithstanding any
investigation made by Administrative Agent or any Lender or on their behalf.
10.14 INDEMNITY BY BORROWER. Borrower agrees to indemnify, save and
hold harmless each Administrative Agent-Related Person and each Lender and their
respective Affiliates, directors, officers, agents, advisors and employees
(collectively the "Indemnitees") from and against, and to pay upon demand: (a)
any and all claims, demands, actions or causes of action that are asserted
against any Indemnitee by any Person relating directly or indirectly to a claim,
demand, action or cause of action that such Person asserts or may assert against
any Borrower Party, any of their Affiliates or any of their officers or
directors; (b) any and all claims, demands, actions or causes of action arising
out of or relating to, the Spinoff Documents, the Spinoff, the Line of Business
Transfer, the Loan Documents, any predecessor loan documents, the Commitments,
the use or contemplated use of the proceeds of any Extension of Credit, or the
relationship of any Borrower Party, Administrative Agent and Lenders under this
Agreement; (c) any administrative or investigative proceeding by any
Governmental Authority arising out of or related to a claim, demand, action or
cause of action described in subsection (a) or (b) above; and (d) any and all
liabilities, losses, costs or expenses (including reasonable Attorney Costs)
that any Indemnitee suffers or incurs as a result of the assertion of any
foregoing claim, demand, action, cause of action or proceeding, or as a result
of the preparation of any defense in connection with any foregoing claim,
demand, action, cause of action or proceeding, in all cases, whether or not an
Indemnitee is a party to such claim, demand, action, cause of action or
proceeding, including those liabilities caused by an Indemnitee's own negligence
(all the foregoing, collectively, the "Indemnified Liabilities"); provided that
no Indemnitee shall be entitled to indemnification for any loss caused by its
own gross negligence or willful misconduct as determined by a final
nonappealable judgment by a court of competent jurisdiction. No Indemnitee shall
be liable for any damages arising from the use by others of information or other
materials obtained through internet, Intralinks or other similar information
transmission systems in connection with Extensions of Credit or the Loan
Documents. The obligations of Borrower under this Section shall survive payment
of all Obligations.
10.15 NONLIABILITY OF LENDERS. Borrower acknowledges and agrees that:
(a) Any inspections of any property of Borrower made by or
through Administrative Agent or Lenders are for purposes of administration of
the Loan Documents only, and Borrower is not entitled to rely upon the same
(whether or not such inspections are at the expense of Borrower);
(b) By accepting or approving anything required to be
observed, performed, fulfilled or given to Administrative Agent or Lenders
pursuant to the Loan Documents, neither Administrative Agent nor Lenders shall
be deemed to have warranted or represented the sufficiency, legality,
effectiveness or legal effect of the same, or of any term, provision or
- 79 -
85
condition thereof, and such acceptance or approval thereof shall not constitute
a warranty or representation to anyone with respect thereto by Administrative
Agent or Lenders;
(c) The relationship between Borrower and Administrative Agent
and Lenders is, and shall at all times remain, solely that of borrower and
lenders; neither Administrative Agent nor Lenders shall under any circumstance
be construed to be partners or joint venturers of Borrower or its Affiliates;
neither Administrative Agent nor Lenders shall under any circumstance be deemed
to be in a relationship of confidence or trust or a fiduciary relationship with
Borrower or its Affiliates, or to owe any fiduciary duty to Borrower or its
Affiliates; neither Administrative Agent nor Lenders undertake or assume any
responsibility or duty to Borrower or its Affiliates to select, review, inspect,
supervise, pass judgment upon or inform Borrower or its Affiliates of any matter
in connection with their property or the operations of Borrower or its
Affiliates; Borrower and its Affiliates shall rely entirely upon their own
judgment with respect to such matters; and any review, inspection, supervision,
exercise of judgment or supply of information undertaken or assumed by
Administrative Agent or Lenders in connection with such matters is solely for
the protection of Administrative Agent and Lenders and neither Borrower nor any
other Person is entitled to rely thereon; and
(d) Administrative Agent and Lenders shall not be responsible
or liable to any Person for any loss, damage, liability or claim of any kind
relating to injury or death to Persons or damage to property caused by the
actions, inaction or negligence of Borrower and/or its Affiliates and Borrower
hereby indemnifies and holds Administrative Agent and Lenders harmless from any
such loss, damage, liability or claim. The obligations of Borrower under this
subsection shall survive payment of all Obligations.
10.16 NO THIRD PARTIES BENEFITED. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
Borrower, Administrative Agent and Lenders in connection with the Extensions of
Credit, and is made for the sole benefit of Borrower, Administrative Agent and
Lenders, and Administrative Agent's and Lenders' successors and assigns. Except
as provided in Sections 10.05 and 10.14, no other Person shall have any rights
of any nature hereunder or by reason hereof.
10.17 SEVERABILITY. Any provision of the Loan Documents that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.18 CONFIDENTIALITY. Administrative Agent and each Lender shall use
any confidential non-public information concerning the Borrower Parties and
their Subsidiaries that is furnished to Administrative Agent or such Lender by
or on behalf of the Borrower Parties and their Subsidiaries in writing in
connection with the Loan Documents (collectively, "Confidential Information")
solely for the purpose of evaluating and providing products and services to them
and administering and enforcing the Loan Documents, and it will hold the
Confidential Information in confidence. Notwithstanding the foregoing,
Administrative Agent and each
- 80 -
86
Lender may disclose Confidential Information (a) to their Affiliates or any of
their or their Affiliates' directors, officers, employees, advisors, or
representatives (collectively, the "Representatives") whom it determines need to
know such information for the purposes set forth in this Section; (b) to any
bank or financial institution or other entity to which such Lender has assigned
or desires to assign an interest or participation in the Loan Documents or the
Obligations, provided that any such foregoing recipient of such Confidential
Information agrees to keep such Confidential Information confidential as
specified herein; (c) to any governmental agency or regulatory body having or
claiming to have authority to regulate or oversee any aspect of Administrative
Agent's or such Lender's business or that of their Representatives in connection
with the exercise of such authority or claimed authority; (d) to the extent
necessary or appropriate to effect or preserve Administrative Agent's or such
Lender's or any of their Affiliates' security (if any) for any Obligation or to
enforce any right or remedy or in connection with any claims asserted by or
against Administrative Agent or such Lender or any of their Representatives; and
(e) pursuant to, and as required to comply with, any subpoena or any similar
legal process; provided that, to the extent permitted under applicable Law,
Administrative Agent or such Lender, as the case may be, shall notify Borrower
of any such requirement applicable to it so that Borrower may seek a protective
order or other appropriate remedy to prevent the disclosure thereof. For
purposes hereof, the term "Confidential Information" shall not include
information that (x) is in Administrative Agent's or a Lender's possession prior
to its being provided by or on behalf of the Borrower Parties, provided that
such information is not known by Administrative Agent or such Lender to be
subject to another confidentiality agreement with, or other legal or contractual
obligation of confidentiality to, a Borrower Party, (y) is or becomes publicly
available (other than through a breach hereof by Administrative Agent or such
Lender), or (z) becomes available to Administrative Agent or such Lender on a
nonconfidential basis, provided that the source of such information was not
known by Administrative Agent or such Lender to be bound by a confidentiality
agreement or other legal or contractual obligation of confidentiality with
respect to such information.
10.19 FURTHER ASSURANCES. Borrower and its Subsidiaries shall, at their
expense and without expense to Lenders or Administrative Agent, do, execute and
deliver such further acts and documents as any Lender or Administrative Agent
from time to time reasonably requires for the assuring and confirming unto
Lenders or Administrative Agent of the rights hereby created or intended now or
hereafter so to be, or for carrying out the intention or facilitating the
performance of the terms of any Loan Document.
10.20 HEADINGS. Section headings in this Agreement and the other Loan
Documents are included for convenience of reference only and are not part of
this Agreement or the other Loan Documents for any other purpose.
10.21 TIME OF THE ESSENCE. Time is of the essence of the Loan
Documents.
10.22 FOREIGN LENDERS AND PARTICIPANTS. Each Lender, and each holder of
a participation interest herein, that is a "foreign corporation, partnership or
trust" within the meaning of the Code shall deliver to Administrative Agent,
prior to receipt of any payment subject to withholding (or after accepting an
assignment or receiving a participation interest
- 81 -
87
herein), two duly signed completed copies of either Form W-8BEN or any successor
thereto (relating to such Person and entitling it to a complete exemption from
withholding on all payments to be made to such Person by Borrower pursuant to
this Agreement) or Form W-8ECI or any successor thereto (relating to all
payments to be made to such Person by Borrower pursuant to this Agreement) of
the IRS or such other evidence satisfactory to Borrower and Administrative Agent
that no withholding under the federal income tax Laws is required with respect
to such Person. Thereafter and from time to time, each such Person shall (a)
promptly submit to Administrative Agent such additional duly completed and
signed copies of one of such forms (or such successor forms as shall be adopted
from time to time by the relevant United States taxing authorities) as may then
be available under then current United States Laws and regulations to avoid, or
such evidence as is satisfactory to Borrower and Administrative Agent of any
available exemption from, United States withholding taxes in respect of all
payments to be made to such Person by Borrower pursuant to this Agreement, and
(b) take such steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Lender, and as may be reasonably necessary
(including the re-designation of its Lending Office, if any) to avoid any
requirement of applicable Laws that Borrower make any deduction or withholding
for taxes from amounts payable to such Person. If such Persons fails to deliver
the above forms or other documentation, then Administrative Agent may withhold
from any interest payment to such Person an amount equivalent to the applicable
withholding tax imposed by Sections 1441 and 1442 of the Code, without
reduction. If any Governmental Authority asserts that Administrative Agent did
not properly withhold any tax or other amount from payments made in respect of
such Person, such Person shall indemnify Administrative Agent therefor,
including all penalties and interest and costs and expenses (including Attorney
Costs) of Administrative Agent. The obligation of Lenders under this subsection
shall survive the payment of all Obligations and the resignation or replacement
of Administrative Agent.
10.23 REMOVAL AND/OR REPLACEMENT OF LENDERS.
(a) Under any circumstances set forth in this Agreement
providing that Borrower shall have the right to remove and/or replace a Lender
as a party to this Agreement, Borrower may, upon notice to such Lender and
Administrative Agent, remove such Lender by (i) non ratably terminating such
Lender's Commitment and/or (ii) causing such Lender to assign its Commitment to
one or more other Lenders or Eligible Assignees acceptable to Borrower,
Administrative Agent, Swing Line Lender and Issuing Bank. Any removed or
replaced Lender shall be entitled to (x) payment in full of all principal,
interest, fees and other amounts owing to such Lender through the date of
termination or assignment (including any amounts payable pursuant to Section
3.05), (y) appropriate assurances and indemnities (which may include letters of
credit) as such Lender may reasonably require with respect to its participation
interest in any Letters of Credit or any Swing Line Loans then outstanding and
(z) a release of such Lender from its obligations under the Loan Documents. Any
Lender being replaced shall execute and deliver a Notice of Assignment and
Acceptance covering that Lender's Commitment. Administrative Agent shall
distribute an amended Schedule 2.01, which shall thereafter be incorporated into
this Agreement, to reflect adjustments to Lenders and their Commitments.
- 82 -
88
(b) In order to make all Lender's interests in any outstanding
Extensions of Credit ratable in accordance with any revised Pro Rata Shares
after giving effect to the removal or replacement of a Lender, Borrower shall
pay or prepay, if necessary, on the effective date thereof, all outstanding
Extensions of Credit of all Lenders, together with any amounts due under Section
3.05. Borrower may then request Extensions of Credit from Lenders in accordance
with their revised Pro Rata Shares.
10.24 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, the LAW OF THE GOVERNING STATE applicable to agreements made
and to be performed entirely within such State; PROVIDED THAT ADMINISTRATIVE
Agent AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF THE GOVERNING STATE OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF THE
GOVERNING STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH BORROWER
PARTY, ADMINISTRATIVE Agent AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH
BORROWER PARTY, ADMINISTRATIVE Agent AND EACH LENDER IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED HERETO. EACH BORROWER PARTY, ADMINISTRATIVE
Agent AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF THE
GOVERNING STATE.
10.25 WAIVER OF RIGHT TO TRIAL BY JURY; OTHER WAIVERS. EACH PARTY TO
THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO
- 83 -
89
TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT WAIVES, TO THE FULLEST EXTENT NOT
PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION
OR PROCEEDING REFERRED TO IN SECTION 10.24(b) ANY SPECIAL, EXEMPLARY, PUNITIVE
OR CONSEQUENTIAL DAMAGES.
10.26 ENTIRE AGREEMENT. THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND
ANY LETTER AGREEMENTS REFERRED TO HEREIN REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
- 84 -
90
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed as of the date first above written.
ALLEGHENY TELEDYNE INCORPORATED
By: /s/ Xxxxxx X. Park
--------------------------------------
Name: Xxxxxx X. Park
Title: Vice President-Treasurer
TELEDYNE TECHNOLOGIES INCORPORATED
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Executive Vice President and Chief
Financial Officer
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
BANK OF AMERICA, N.A.,
as Issuing Lender, Lender and Swing Line Lender
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
- 85 -
91
MELLON BANK, N.A.,
as Syndication Agent and Lender
By: /s/ Xxxx X. Xxxx
--------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
- 86 -
92
THE CHASE MANHATTAN BANK,
as Syndication Agent and Lender
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
- 00 -
00
XXX XXXX XX XXX XXXX,
as Co-Agent and Lender
By: /s/ Xxxxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Vice President
- 88 -
94
BANK ONE, NA,
as Co-Agent and Lender
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
Title: First Vice President
- 89 -
95
NATIONAL CITY BANK OF PENNSYLVANIA,
as Co-Agent and Lender
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Assistant Vice President
- 90 -
96
BANK OF TOKYO - MITSUBISHI TRUST COMPANY,
as Lender
By: /s/ J. R. Xxxxxxx
--------------------------------------
Name: J. R. Xxxxxxx
Title: SVP & Manager
- 91 -
97
THE FUJI BANK, LIMITED,
as Lender
By: /s/ Hiromitsu Ugawa
--------------------------------------
Name: Hiromitsu Ugawa
Title: Senior Vice President
- 92 -
98
WACHOVIA BANK, N.A.,
as Lender
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
- 93 -
