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CONFORMED COPY
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CREDIT AGREEMENT
among
TELEX COMMUNICATIONS, INC.,
(successor by assumption to GST Acquisition
Corp.)
THE SEVERAL LENDERS FROM TIME TO TIME PARTIES HERETO,
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Documentation Agent
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of May 6, 1997
CHASE SECURITIES INC.,
as Arranger
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS.................................................................. 2
1.1 Defined Terms.................................................................. 2
1.2 Other Definitional Provisions.................................................. 31
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.............................................. 31
2.1 Revolving Credit Commitments................................................... 31
2.2 Revolving Credit Notes......................................................... 31
2.3 Procedure for Revolving Credit Borrowing....................................... 32
2.4 Termination or Reduction of Revolving Credit Commitments....................... 32
2.5 Swing Line Commitment.......................................................... 33
2.6 Term Loans..................................................................... 35
2.7 Tranche A Term Notes........................................................... 35
2.8 Tranche B Term Notes........................................................... 36
2.9 Procedure for Term Loan Borrowing.............................................. 37
2.10 Repayment of Loans............................................................ 38
SECTION 3. LETTERS OF CREDIT............................................................ 38
3.1 L/C Commitment................................................................. 38
3.2 Procedure for Issuance of Letters of Credit.................................... 39
3.3 Fees, Commissions and Other Charges............................................ 39
3.4 L/C Participations............................................................. 40
3.5 Reimbursement Obligation of the Borrower....................................... 41
3.6 Obligations Absolute........................................................... 41
3.7 Letter of Credit Payments...................................................... 42
3.8 Application.................................................................... 42
SECTION 4. GENERAL PROVISIONS APPLICABLE
TO LOANS AND LETTERS OF CREDIT........................................................... 43
4.1 Interest Rates and Payment Dates............................................... 43
4.2 Conversion and Continuation Options............................................ 43
4.3 Minimum Amounts of Sets........................................................ 44
4.4 Optional and Mandatory Prepayments and Commitment Reductions................... 44
4.5 Commitment Fees................................................................ 47
4.6 Computation of Interest and Fees............................................... 47
4.7 Inability to Determine Interest Rate........................................... 47
4.8 Pro Rata Treatment and Payments................................................ 48
4.9 Illegality..................................................................... 49
4.10 Requirements of Law........................................................... 50
4.11 Taxes......................................................................... 51
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4.12 Indemnity..................................................................... 53
4.13 Certain Rules Relating to the Payment of Additional Amounts................... 54
SECTION 5. REPRESENTATIONS AND WARRANTIES............................................... 55
5.1 Financial Condition............................................................ 56
5.2 No Change; Solvent............................................................. 56
5.3 Corporate Existence; Compliance with Law....................................... 56
5.4 Corporate Power; Authorization; Enforceable Obligations........................ 57
5.5 No Legal Bar................................................................... 57
5.6 No Material Litigation......................................................... 58
5.7 No Default..................................................................... 58
5.8 Ownership of Property; Liens................................................... 58
5.9 Intellectual Property.......................................................... 58
5.10 No Burdensome Restrictions.................................................... 58
5.11 Taxes......................................................................... 58
5.12 Federal Regulations........................................................... 59
5.13 ERISA......................................................................... 59
5.14 Collateral.................................................................... 59
5.15 Investment Company Act; Other Regulations..................................... 60
5.16 Subsidiaries.................................................................. 60
5.17 Purpose of Loans.............................................................. 60
5.18 Environmental Matters......................................................... 61
5.19 No Material Misstatements..................................................... 62
5.20 Delivery of the Transaction Documents......................................... 62
5.21 Representations and Warranties Contained in the Transaction Documents......... 62
5.22 Labor Matters................................................................. 62
SECTION 6. CONDITIONS PRECEDENT......................................................... 63
6.1 Conditions to Initial Extension of Credit...................................... 63
6.2 Conditions to Each Other Extension of Credit................................... 68
SECTION 7. AFFIRMATIVE COVENANTS........................................................ 69
7.1 Financial Statements........................................................... 69
7.2 Certificates; Other Information................................................ 70
7.3 Payment of Obligations......................................................... 71
7.4 Conduct of Business and Maintenance of Existence............................... 71
7.5 Maintenance of Property; Insurance............................................. 71
7.6 Inspection of Property; Books and Records; Discussions......................... 72
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7.7 Notices....................................................................... 73
7.8 Environmental Laws............................................................ 74
7.9 After-Acquired Real Property and Fixtures..................................... 75
7.10 Certain Post-Closing Matters................................................. 76
SECTION 8. NEGATIVE COVENANTS.......................................................... 77
8.1 Financial Condition Covenants................................................. 78
8.2 Limitation on Indebtedness.................................................... 80
8.3 Limitation on Liens........................................................... 82
8.4 Limitation on Guarantee Obligations........................................... 84
8.5 Limitation on Fundamental Changes............................................. 85
8.6 Limitation on Sale of Assets.................................................. 86
8.7 Limitation on Restricted Payments............................................. 86
8.8 Limitation on Capital Expenditures............................................ 87
8.9 Limitation on Investments, Loans and Advances................................. 88
8.10 Limitation on Transactions with Affiliates................................... 89
8.11 Limitation on Sale and Leaseback Transactions................................ 91
8.12 Limitation on Optional Payments and Modifications of Debt Instruments
and Other Documents....................................................... 91
8.13 Limitation on Changes in Fiscal Year......................................... 92
8.14 Limitation on Negative Pledge Clauses........................................ 92
8.15 Limitation on Lines of Business; Creation of Subsidiaries.................... 92
8.16 Limitations on Currency and Commodity Hedging Transactions................... 92
8.17 Holding Company Status of TCI Holding........................................ 93
8.18 Payment of Special Bonuses to Management..................................... 93
SECTION 9. EVENTS OF DEFAULT........................................................... 93
SECTION 10. THE ADMINISTRATIVE AGENT AND THE OTHER
REPRESENTATIVES................................................................ 97
10.1 Appointment.................................................................. 97
10.2 Delegation of Duties......................................................... 97
10.3 Exculpatory Provisions....................................................... 97
10.4 Reliance by Administrative Agent............................................. 98
10.5 Notice of Default............................................................ 98
10.6 Acknowledgements and Representations by Lenders.............................. 98
10.7 Indemnification.............................................................. 99
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10.8 Administrative Agent and Other Representatives in Their Individual
Capacity.................................................................. 100
10.9 Successor Administrative Agent............................................... 100
10.10 Swing Line Lender........................................................... 100
10.11 Assumption Agreement........................................................ 100
10.12 Release of Liens on Excluded Foreign Accounts............................... 100
SECTION 11. MISCELLANEOUS.............................................................. 101
11.1 Amendments and Waivers....................................................... 101
11.2 Notices...................................................................... 102
11.3 No Waiver; Cumulative Remedies............................................... 103
11.4 Survival of Representations and Warranties................................... 104
11.5 Payment of Expenses and Taxes................................................ 104
11.6 Successors and Assigns; Participations and Assignments....................... 105
11.7 Adjustments; Set-off......................................................... 108
11.8 Counterparts................................................................. 108
11.9 Severability................................................................. 109
11.10 Integration................................................................. 109
11.11 GOVERNING LAW............................................................... 109
11.12 Submission To Jurisdiction; Waivers......................................... 109
11.13 Acknowledgements............................................................ 110
11.14 WAIVER OF JURY TRIAL........................................................ 110
11.15 Confidentiality............................................................. 110
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SCHEDULES
I Commitments and Addresses
II Applicable Margin and Commitment Fee Step-Downs
III Reserved
IV Borrower's Past Practices Regarding the Inclusion of Custom-Made
Parts in Raw Materials
5.2(a) Material Adverse Effect Disclosure
5.4 Consents Required
5.6 Litigation
5.8 Mortgaged Properties
5.9 Intellectual Property Claims
5.14 Filing Jurisdictions and Lien Searches
5.16 Subsidiaries
6.1(o) Local Counsel Jurisdictions
8.2(g) Permitted Indebtedness
8.3(j) Permitted Liens
8.4(a) Permitted Guarantee Obligations
8.9(c) Permitted Investments
8.10 Permitted Transactions with Affiliates
EXHIBITS
A-1 Form of Revolving Credit Note
A-2 Form of Tranche A Term Note
A-3 Form of Tranche B Term Note
A-4 Form of Swing Line Note
B Guarantee and Collateral Agreement
C Form of Patent and Trademark Security Agreement
D Form of Mortgage
E Form of Solvency Opinion
F Form of Opinion of Debevoise & Xxxxxxxx
G Form of U.S. Tax Compliance Certificate
H Form of Assignment and Acceptance
I Form of Borrowing Certificate
J Form of Borrowing Base Certificate
K Form of Landlord Waiver
L Reserved
M Form of Telex Assumption Agreement
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Exhibit 4D
CREDIT AGREEMENT, dated as of May 6, 1997, among GST ACQUISITION CORP.,
a Delaware corporation ("Acquisition Co."), the several banks and other
financial institutions from time to time parties to this Agreement
(collectively, the "Lenders"; individually, a "Lender"), XXXXXX XXXXXXX SENIOR
FUNDING, INC., as documentation agent for the Lenders hereunder (in such
capacity, the "Documentation Agent"), and THE CHASE MANHATTAN BANK ("Chase"), a
New York banking corporation, as administrative agent for the Lenders hereunder
(in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, Acquisition Co. is a newly formed Delaware corporation
organized by Greenwich Street Capital Partners, Inc., a Delaware corporation
("GSCP"), and is wholly owned by Greenwich II LLC, a Delaware limited liability
company ("Greenwich II"); and
WHEREAS, Acquisition Co. will, at GSCP's option, be capitalized by
either (i) $103,100,000 of equity provided by GSCP and certain co-investors or
(ii) $83.3 million of equity provided by GSCP and certain co-investors and $25.2
million of proceeds provided by Acquisition Co.'s issuance of Subordinated
Debentures with Warrants (the "Subordinated Debentures With Warrants"; either
such capitalization, as reduced by any offsetting increase in the aggregate
value of the Management Equity Investment (as defined below), the "GSCP Equity
Investment"); and
WHEREAS, Telex Communications Group, Inc., a Delaware corporation
("Holdings"), owns all of the capital stock of Telex Communications, Inc., a
Delaware corporation ("Telex"); and
WHEREAS, Acquisition Co., Greenwich II and Holdings are parties to a
Recapitalization Agreement, dated as of March 4, 1997 (as amended, supplemented
or otherwise modified in accordance with terms of this Agreement, the
"Recapitalization Agreement"), providing for, among other things, the
recapitalization of Holdings (the "Recapitalization"); and
WHEREAS, the Recapitalization will be accomplished through the merger
(the "Merger") of Acquisition Co. with and into Holdings on the Effective Date
(as defined below), with Holdings continuing as the surviving corporation;
WHEREAS, under the Recapitalization Agreement (i) all of the shares of
common stock of Holdings ("Holdings Common Stock") and all options and warrants
to acquire Holdings Common Stock (other than certain shares of Holdings Common
Stock and certain options to acquire Holdings Common Stock owned by certain
members of management of Telex) will be converted in the Merger into the right
to receive an aggregate amount of cash equal to approximately $252.7 million, as
adjusted pursuant to the terms of the Recapitalization
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Agreement, and (ii) certain shares of Holdings Common Stock held by management
of Telex (the "Management Investors") and certain options to acquire additional
shares of Holdings Common Stock with an aggregate value of at least $21.1
million (or $26,500,000, if Acquisition Co. doesn't issue the Subordinated
Debentures With Warrants) will be retained by such managers (the "Management
Equity Investment"; collectively, with the GSCP Equity Investment, the "Equity
Investment"); and
WHEREAS, immediately upon consummation of the Recapitalization and the
Merger and on the Effective Date, Holdings will assign to Telex and Telex will
assume from Holdings (the "Telex Assumption") all of the obligations of
Holdings, as successor in interest to Acquisition Co., under this Agreement
whereupon Telex shall be the borrower hereunder for all purposes hereof; and
WHEREAS, in connection with the Recapitalization, Acquisition Co. will
issue not less than $125,000,000 in aggregate principal amount of senior
subordinated notes (the "Senior Subordinated Notes"), on terms and conditions
reasonably satisfactory to the Lenders and, upon the consummation of the
Recapitalization and the Merger, Holdings will assign to Telex and Telex will
assume from Holdings all of the obligations of Holdings, as successor in
interest to Acquisition Co., under the Senior Subordinated Notes; and
WHEREAS, in connection with the Recapitalization, Telex has commenced a
tender offer (the "Tender Offer") to repurchase all of the $100,000,000
aggregate outstanding principal amount of its 12% Senior Notes due 2004 (the
"Telex Notes") and has commenced a related consent solicitation to eliminate all
of the restrictive covenants relating to any Telex Notes that remain outstanding
after the Tender Offer; and
WHEREAS, in order to (i) finance a portion of the Recapitalization,
(ii) pay certain fees, taxes and expenses related to the Recapitalization and
(iii) finance the working capital and other business requirements of Telex and
its subsidiaries following the consummation of the Recapitalization and the
Merger, the Borrower (as defined below) has requested that the Lenders make the
loans and issue and participate in the letters of credit provided for herein;
and
WHEREAS, all the obligations of the Borrower hereunder shall be secured
and guaranteed by, among other things, (i) a perfected first lien on and
security interest in the collateral described in the Security Documents (as
hereinafter defined), (ii) a pledge of all the issued and outstanding capital
stock of Telex and each of its direct or indirect domestic subsidiaries, whether
now existing or subsequently organized or acquired and a pledge of 65% of the
issued and outstanding capital stock of each of the direct or indirect foreign
subsidiaries of Telex, whether now existing or subsequently organized or
acquired and (iii) unconditional guarantees by each of Holdings and such direct
or indirect domestic subsidiaries of Telex;
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NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall
have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in effect on
such day, (b) the Base CD Rate in effect on such day plus 1% and (c) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. For purposes hereof:
"Prime Rate" shall mean the rate of interest per annum publicly announced from
time to time by Chase as its prime rate in effect at its principal office in New
York City (the Prime Rate not being intended to be the lowest rate of interest
charged by Chase in connection with extensions of credit to debtors); "Base CD
Rate" shall mean the sum of (a) the product of (i) the Three-Month Secondary CD
Rate and (ii) a fraction, the numerator of which is one and the denominator of
which is one minus the C/D Reserve Percentage and (b) the C/D Assessment Rate;
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary market
rate for three-month certificates of deposit reported as being in effect on such
day (or, if such day shall not be a Business Day, the next preceding Business
Day) by the Board of Governors of the Federal Reserve System (the "Board")
through the public information telephone line of the Federal Reserve Bank of New
York (which rate will, under the current practices of the Board, be published in
Federal Reserve Statistical Release H.15(519) during the week following such
day), or, if such rate shall not be so reported on such day or such next
preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 A.M., New York City time, on such day (or, if
such day shall not be a Business Day, on the next preceding Business Day) by the
Administrative Agent from three New York City negotiable certificate of deposit
dealers of recognized standing selected by it; and "Federal Funds Effective
Rate" shall mean, for any day, the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for the day of
such transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it. Any change in the ABR due to a
change in the Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the effective
day of such change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate, respectively.
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"ABR Loans": Loans the rate of interest applicable to which is based
upon the ABR.
"Acceleration": as defined in Section 9(e).
"Account": as defined in the Uniform Commercial Code as in effect in
the State of New York.
"Acquisition Co." as defined in the Preamble hereto.
"Adjustment Date": each date on or after December 31, 1997 that is the
second Business Day following receipt by the Lenders of both (i) the financial
statements required to be delivered pursuant to subsection 7.1(a) or 7.1(b), as
applicable, for the most recently completed fiscal period and (ii) the related
compliance certificate required to be delivered pursuant to subsection 7.2(b)
with respect to such fiscal period.
"Administrative Agent": as defined in the Preamble hereto.
"Affected Eurodollar Loans": as defined in subsection 4.9.
"Affected Eurodollar Rate": as defined in subsection 4.7.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person. For purposes of this definition,
"control" of a Person means the power, directly or indirectly, either to (a)
vote 10% or more of the securities having ordinary voting power for the election
of directors of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Aggregate Outstanding Revolving Credit": as to any Revolving Credit
Lender at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Credit Loans made by such Revolving Credit Lender then
outstanding and (b) such Revolving Credit Lender's Revolving Credit Commitment
Percentage of the L/C Obligations then outstanding and (c) such Revolving Credit
Lender's Revolving Credit Commitment Percentage of the Swing Line Loans then
outstanding.
"Agreement": this Credit Agreement, as amended, supplemented, waived or
otherwise modified from time to time.
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"Alternative Currency": any freely available currency that is freely
transferrable and freely convertible into Dollars and requested by the Borrower
and acceptable to the Issuing Bank and the Administrative Agent.
"Alternative Currency L/C Exposure": at any time, the Assigned Dollar
Value of the aggregate undrawn amount of all outstanding Letters of Credit
denominated in an Alternative Currency at such time.
"Applicable Margin": during the period from the Effective Date until
the first Adjustment Date, the Applicable Margin shall equal (i) 1.50% per annum
with respect to Revolving Credit Loans and Tranche A Term Loans which are ABR
Loans, (ii) 2.00% per annum with respect to Tranche B Term Loans which are ABR
Loans, (iii) 2.50% per annum with respect to Revolving Credit Loans and Tranche
A Term Loans which are Eurodollar Loans and (iv) 3.00% per annum with respect to
Tranche B Term Loans which are Eurodollar Loans. The Applicable Margin for
Revolving Credit Loans, Tranche A Term Loans and Tranche B Term Loans will be
adjusted on each Adjustment Date to the applicable rate per annum set forth
under the heading "ABR Applicable Margin" or "Eurodollar Applicable Margin" on
Schedule II which corresponds to the achievement of certain performance criteria
determined from the financial statements and compliance certificate relating to
the end of the fiscal quarter immediately preceding such Adjustment Date;
provided that in the event that the financial statements required to be
delivered pursuant to subsection 7.1(a) or 7.1(b), as applicable, and the
related compliance certificate required to be delivered pursuant to subsection
7.2(b), are not delivered when due, then
(a) if such financial statements and compliance certificate are
delivered after the date such financial statements and compliance
certificate were required to be delivered (without giving effect to any
applicable cure period) and the Applicable Margin increases from that
previously in effect as a result of the delivery of such financial
statements, then the Applicable Margin in respect of the Revolving Credit
Loans, Tranche A Term Loans and Tranche B Term Loans during the period from
the date upon which such financial statements were required to be delivered
(without giving effect to any applicable cure period) until the date upon
which they actually are delivered shall, except as otherwise provided in
clause (c) below, be the Applicable Margin as so increased;
(b) if such financial statements and compliance certificate are
delivered after the date such financial statements and compliance
certificate were required to be delivered and the Applicable Margin
decreases from that previously in effect as a result of the delivery of
such financial statements, then such decrease in the Applicable Margin
shall not become applicable until the date upon which the financial
statements and certificate actually are delivered; and
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(c) if such financial statements and compliance certificate are not
delivered prior to the expiration of the applicable cure period, then,
effective upon such expiration, for the period from the date upon which
such financial statements and compliance certificate were required to be
delivered (after the expiration of the applicable cure period) until two
Business Days following the date upon which they actually are delivered,
the Applicable Margin in respect of the Loans shall be (i) 1.50% per annum
with respect to Revolving Credit Loans and Tranche A Term Loans which are
ABR Loans, (ii) 2.00% per annum with respect to Tranche B Term Loans which
are ABR Loans, (iii) 2.50% per annum with respect to Revolving Credit Loans
and Tranche A Term Loans which are Eurodollar Loans and (iv) 3.00% per
annum with respect to Tranche B Term Loans which are Eurodollar Loans (it
being understood that the foregoing shall not limit the rights of the
Administrative Agent and the Lenders set forth in Section 9).
"Application": an application, in such form as the Issuing Lender may
specify from time to time, requesting the Issuing Lender to open a Letter of
Credit.
"Asset Sale": any sale, issuance, conveyance, transfer, lease or other
disposition (including, without limitation, through a Sale and Leaseback
Transaction) (a "Disposition") by the Borrower or any of its Subsidiaries, in
one or a series of related transactions, of any real or personal, tangible or
intangible, property (including, without limitation, Capital Stock) of the
Borrower or such Subsidiary to any Person (other than to Holdings or any of its
domestic Wholly Owned Subsidiaries).
"Assigned Dollar Value": (a) in respect of the undrawn amount of any
Letter of Credit denominated in an Alternative Currency, the Dollar Equivalent
thereof determined based upon the applicable Spot Exchange Rate as of (i) the
date of issuance of such Letter of Credit, until the first Calculation Date
thereafter and (ii) thereafter, the most recent Calculation Date and (b) in
respect of a Reimbursement Obligation denominated in an Alternative Currency,
the Dollar Equivalent thereof determined based upon the applicable Spot Exchange
Rate as of the date such Reimbursement Obligation was incurred.
"Assignee": as defined in subsection 11.6(c).
"Available Revolving Credit Commitment": as to any Revolving Credit
Lender at any time, an amount equal to the excess, if any, of (a) the amount of
such Revolving Credit Lender's Revolving Credit Commitment at such time over (b)
the sum of (i) the aggregate unpaid principal amount at such time of all
Revolving Credit Loans made by such Revolving Credit Lender and (ii) an amount
equal to such Revolving Credit Lender's Revolving Credit Commitment Percentage
of the aggregate unpaid principal amount at such time of all Swing Line Loans,
provided that for purposes of calculating Available Revolving Credit Commitments
pursuant to subsection 4.5 such amount shall be zero, and (iii) an amount equal
to such
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Revolving Credit Lender's Revolving Credit Commitment Percentage of the
outstanding L/C Obligations at such time; collectively, as to all the Lenders,
the "Available Revolving Credit Commitments".
"Base CD Rate": as defined in the definition of the term "ABR" in this
subsection 1.1.
"Board": as defined in the definition of the term "ABR" in this
subsection 1.1.
"Borrower": initially, Acquisition Co., upon consummation of the
Merger, Holdings and, after giving effect to the Telex Assumption, Telex.
"Borrowing Base": at any date of determination thereof, an amount equal
to the sum of (i) 80% of the Eligible Accounts Receivable at such date minus the
Dilution Reserve at such date and (ii) 50% of the Eligible Inventory at such
date; provided that the amount represented by the Eligible Inventory shall at no
time be more than 50% of the Borrowing Base. The Borrowing Base shall be
determined from time to time by the Administrative Agent in its reasonable
judgment by reference to the Borrowing Base Certificate then most recently
delivered to it; provided that the information contained in such Borrowing Base
Certificate shall not be conclusive in calculating the Borrowing Base and, after
consultation with the Borrower, the Administrative Agent shall be entitled to
adjust the amounts and other information contained therein to the extent that it
believes in its reasonable credit judgment that such adjustment is appropriate
to cause the Borrowing Base (as so adjusted) to reflect the standards set forth
in the definitions of the terms "Eligible Accounts Receivable" and "Eligible
Inventory".
"Borrowing Base Certificate": a certificate executed and delivered by
the Borrower, substantially in the form of Exhibit J, delivered pursuant to
subsection 7.2(e).
"Borrowing Date": the Effective Date and any Business Day specified in
a notice pursuant to subsection 2.3, 2.5 or 3.2 as a date on which the Borrower
requests the Lenders to make Loans hereunder or the Issuing Lender to issue
Letters of Credit hereunder.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York, New York are authorized or required by law
to close, except that, when used in connection with a Eurodollar Loan, "Business
Day" shall mean, any Business Day on which dealings in Dollars between banks may
be carried on in London, England and New York, New York.
"Calculation Date": the last Business Day of each calendar month.
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"Capital Expenditures": with respect to any Person for any period, the
sum of the aggregate of all expenditures by such Person and its consolidated
Subsidiaries during such period which, in accordance with GAAP, are or should be
included in "capital expenditures".
"Capital Stock": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants or options to purchase any of the foregoing.
"Cash Equivalents": (a) securities issued or fully guaranteed or
insured by the United States Government or any agency or instrumentality
thereof, (b) time deposits, certificates of deposit or bankers' acceptances of
(i) any Lender or (ii) any commercial bank having capital and surplus in excess
of $500,000,000 and the commercial paper of the holding company of which is
rated at least A-2 or the equivalent thereof by Standard & Poor's Ratings Group
(a division of McGraw Hill Inc.) or any successor rating agency ("S&P") or at
least P-2 or the equivalent thereof by Xxxxx'x Investors Service, Inc. or any
successor rating agency ("Moody's") (or if at such time neither is issuing
ratings, then a comparable rating of such other nationally recognized rating
agency as shall be approved by the Administrative Agent in its reasonable
judgment), (c) commercial paper rated at least A-2 or the equivalent thereof by
S&P or at least P-2 or the equivalent thereof by Moody's (or if at such time
neither is issuing ratings, then a comparable rating of such other nationally
recognized rating agency as shall be approved by the Administrative Agent in its
reasonable judgment) and (d) investments in money market funds complying with
the risk limiting conditions of Rule 2a-7 or any successor rule of the
Securities and Exchange Commission under the Investment Company Act.
"C/D Assessment Rate": for any day as applied to any ABR Loan, the
annual assessment rate in effect on such day which is payable by a member of the
Bank Insurance Fund classified as well-capitalized and within supervisory
subgroup "B" (or a comparable successor assessment risk classification) within
the meaning of 12 C.F.R. Section 327.4 (or any successor provision) to the
Federal Deposit Insurance Corporation (or any successor) for such Corporation's
(or such successor's) insuring time deposits at offices of such institution in
the United States.
"C/D Reserve Percentage": for any day as applied to any ABR Loan, that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board, for determining the maximum reserve requirement for a
Depositary Institution (as defined in Regulation D of the Board) in respect of
new non-personal time deposits in Dollars of $100,000 or more having a maturity
of 30 days or more.
"Change of Control": the occurrence of any of the following events: (i)
the GSCP Group shall in the aggregate beneficially, directly or indirectly, own
shares of Capital Stock having less than 51% of the total voting power of all of
the outstanding Capital Stock of
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Holdings, (ii) one or more members of the GSCP Group shall not have the power
(whether or not exercised), by virtue of owning shares of the Capital Stock of
Holdings or by contract or otherwise, to elect or cause the election of a
majority of the board of directors of Holdings, (iii) Holdings shall cease to
own 100% of the Capital Stock of Telex or (iv) a "Change of Control" as defined
in the Senior Subordinated Indenture shall have occurred at a time when any
principal amount of Indebtedness is outstanding under the Senior Subordinated
Indenture.
"Chase": as defined in the preamble hereto.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all assets of the Loan Parties, now owned or hereafter
acquired, upon which a Lien is purported to be created by any Security Document.
"Commercial Letter of Credit": as defined in subsection 3.1(a).
"Commitments": the collective reference to the Revolving Credit
Commitments, the Swing Line Commitment, the Term Loan Commitments and the L/C
Commitment; individually, a "Commitment".
"Commitment Percentage": as to any Lender, the percentage of the
aggregate Revolving Credit Commitments and Term Loan Commitments constituted by
such Lender's Revolving Credit Commitments and Term Loan Commitments or
following the Effective Date, the percentage representing a fraction the
numerator of which is the sum of (i) the aggregate principal amount of such
Lender's Term Loans then outstanding plus (ii) the Revolving Credit Commitment
of such Lender (or, following the termination or expiration of the Revolving
Credit Commitments, the sum of (x) the aggregate principal amount of such
Lender's Revolving Credit Loans then outstanding plus (y) such Lender's
Revolving Commitment Percentage of all L/C Obligations), and the denominator of
which is the sum of (i) the aggregate principal amount of Term Loans of all
Lenders then outstanding plus (ii) the aggregate Revolving Credit Commitments of
all Lenders (or, following the termination or expiration of the Revolving Credit
Commitments, the sum of (x) the aggregate principal amount of all Revolving
Credit Loans then outstanding plus (y) the aggregate principal amount of all L/C
Obligations then outstanding).
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with Holdings within the meaning of Section 4001
of ERISA or is part of a group which includes the Borrower and which is treated
as a single employer under Section 414(b) or (c) of the Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Sections 414(m) and (o) of the Code.
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"Consolidated EBITDA": for any period, Consolidated Net Income for such
period adjusted to exclude the following items (without duplication) of income
or expense to the extent that such items are included in the calculation of
Consolidated Net Income: (a) Consolidated Interest Expense, (b) any non-cash
expenses and charges, (c) total income tax expense, (d) depreciation expense,
(e) the expense associated with amortization of intangible and other assets
(including amortization or other expense recognition of any costs associated
with asset write-ups in accordance with APB Nos. 16 and 17), (f) non-cash
provisions for reserves for discontinued operations, (g) any gain or loss
associated with the sale or write-down of assets not in the ordinary course of
business, (h) all cash expenses relating to the Transactions, (i) any income or
loss accounted for by the equity method of accounting (except in the case of
income to the extent of the amount of cash dividends or cash distributions paid
to the Borrower or any of its Subsidiaries by the entity accounted for by the
equity method of accounting), (j), except for purposes of calculating "Excess
Cash Flow", cash payments made to GSCP permitted by subsection 8.10(ii) hereof
for the rendering of management consulting or financial advisory services and
(k), except for purposes of calculating "Excess Cash Flow", cash payments made
to management in respect of special bonuses (to the extent not prohibited
pursuant to subsection 8.18) in accordance with the terms of their respective
employment agreements or otherwise.
"Consolidated Fixed Charges": for any period the sum of (without
duplication) (i) the aggregate amount of Consolidated Interest Expense for such
period plus (ii) the amount, if any, by which the aggregate principal amount of
Revolving Credit Loans outstanding at the beginning of such period shall exceed
the aggregate amount of the Revolving Credit Commitments scheduled to be in
effect at the end of such period after giving effect to any reductions of the
Revolving Credit Commitments scheduled to occur during such period (if any) plus
(iii) scheduled principal amortization of Term Loans during such period (whether
or not such payments are made), plus (iv) the aggregate amount of all
regularly-scheduled payments of principal of any other Indebtedness (including,
without limitation, the principal component of any obligations under Financing
Leases) made during such period plus (v) the aggregate amount paid, or required
to be paid, in cash in respect of income taxes during such period (net of tax
credits and benefits, including tax benefits from net operating losses) plus
(vi) the aggregate amount of all Capital Expenditures made during such period;
in each case of the Borrower and its consolidated Subsidiaries determined on a
consolidated basis in accordance with GAAP.
"Consolidated Fixed Charges Ratio": at any date of determination
thereof, the ratio of (a) Consolidated EBITDA for the period of one year ending
on such date of determination to (b) Consolidated Fixed Charges for the period
of one year ending on such date of determination.
"Consolidated Funded Indebtedness": at the date of determination
thereof, all Indebtedness of the Borrower and its consolidated Subsidiaries
which by its terms matures more than one year after the date of calculation,
including, in any event, under this Agreement and the
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Senior Subordinated Notes, and any such Indebtedness maturing within one year
from such date which is renewable or extendable at the option of the obligor to
a date more than one year from such date, including, in any event, the Term
Loans, the Revolving Credit Loans and the Swing Line Loans, in each case
determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense": for any period, the sum of (a)
interest expense (accrued and paid or payable in cash for such period, and in
any event excluding any amortization or write-off of financing costs) on
Indebtedness of the Borrower and its consolidated Subsidiaries for such period
minus (b) interest income (accrued and received or receivable in cash for such
period) of the Borrower and its consolidated Subsidiaries for such period, in
each case determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income": for any period, net income of the Borrower
and its consolidated Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP.
"Consolidated Tangible Assets": as of the any date of determination,
the total assets, less goodwill, deferred financing costs and other intangibles
(other than patents, trademarks, copyrights, licenses and other intellectual
property) less accumulated amortization, shown on the balance sheet of the
Borrower and its Restricted Subsidiaries as of the most recent date for which
such a balance sheet is available, determined on a consolidated basis in
accordance with GAAP. At December 31, 1996, on a pro forma basis giving effect
to the Transactions, the Consolidated Tangible Assets of the Borrower was $97.9
million.
"Contractual Obligation": as to any Person, any provision of any
material security issued by such Person or of any material agreement, instrument
or other undertaking to which such Person is a party or by which it or any of
its property is bound.
"CSI": Chase Securities Inc.
"Default": any of the events specified in Section 9, whether or not any
requirement for the giving of notice (other than, in the case of Section 9(e), a
Default Notice), the lapse of time, or both, or any other condition, has been
satisfied.
"Defaulted Account": any Account of the Borrower or its Subsidiaries
which has been or should have been charged-off as not collectable in conformity
with the accounting policies of the Borrower and its Subsidiaries as in effect
from time to time.
"Default Notice": as defined in Section 9(e).
"Dilution Factor": with respect to each quarterly period ended on March
31, June 30, September 30 and December 31 of each year, the product of (a) the
aggregate amount of all
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deductions, negative contractual adjustments and other negative adjustments,
credit memos and write-offs with respect to Accounts during such quarterly
period to the extent not otherwise deducted in calculating the Eligible Accounts
Receivable to which such Dilution Reserve relates, net of any recoveries with
respect to Accounts during such quarterly period, divided by (b) the aggregate
gross revenues of the Borrower and its domestic Wholly Owned Subsidiaries
attributable to Accounts during such quarterly period. Notwithstanding the
foregoing, the Dilution Factor shall be 5% for the period from the Effective
Date through September 30, 1997.
"Dilution Reserve": as of any date, the product of (i) the Dilution
Factor for the immediately preceding quarterly period multiplied by (ii) the
Eligible Accounts Receivable on such date.
"Disposition": as defined in the definition of the term "Asset Sale" in
this subsection 1.1.
"Dollar Equivalent": with respect to an amount of any Alternative
Currency on any date, the amount of Dollars that may be purchased with such
amount of such Alternative Currency at the Spot Exchange Rate with respect to
such Alternative Currency on such date.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Domestic Subsidiary": any Subsidiary of the Borrower which is not a
Foreign Subsidiary.
"Effective Date": the date on which all the conditions precedent set
forth in subsection 6.1 shall be satisfied or waived.
"Eligible Accounts Receivable": at any time, an amount equal to the
aggregate outstanding balance of all Accounts of the Borrower and its Domestic
Subsidiaries payable in the United States of America in Dollars, as set forth in
the aging reports of billed Accounts for the Borrower and its Domestic
Subsidiaries as of such time, provided that, unless otherwise approved in
writing by the Administrative Agent, no amount owing in respect of any Account
of the Borrower or any of its Domestic Subsidiaries shall be deemed to be
included in any calculation of Eligible Accounts Receivable if:
(a)(i) such Account is not a bona fide, valid and legally enforceable
obligation of the Obligor thereon arising from the actual sale and delivery
of goods to or rendition to and acceptance of services by such Obligor,
(ii) the goods giving rise to such Account have not been shipped and
delivered to the Obligor thereon or the services giving rise to such
Account have not been performed, (iii) such Account arises from a progress
billing or percentage of completion invoice, but only to the extent the
amount billed exceeds the
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value of the goods sold and delivered or the services performed with
respect thereto, or (iv) such Account otherwise does not represent a final
sale or transfer of title to such Obligor;
(b) such Account has been adjusted to reflect the return or rejection
of, or any loss of or damage to, any of the Inventory giving rise to such
Account; provided that amounts owing in respect of such Account shall only
be excluded to the extent of such adjustment;
(c) such Account includes any material financing charges or late or
other fees; provided that amounts owing in respect of such Account shall
only be excluded to the extent of such charges or fees;
(d) the Obligor thereon is the Borrower or any Subsidiary or Affiliate
thereof or any employee, officer, sales representative, agent (other than
any such sales representative or agent which has an independent contractor
relationship with the Borrower or its Subsidiaries), director or
stockholder of the Borrower or any of its Subsidiaries or Affiliates or the
sale giving rise to such Account is to an Obligor in any jurisdiction
outside the United States or Canada unless the obligations of such Obligor
thereunder are backed by a letter of credit acceptable to the
Administrative Agent or guaranteed by a guarantor acceptable to the
Administrative Agent;
(e) the Obligor thereon is any Governmental Authority unless all
Requirements of Law relating to the creation and perfection of a Lien
thereon in favor of the Administrative Agent for the benefit of the Lenders
shall have been satisfied in all material respects, provided that Accounts
the Obligor with respect to which is The Library of Congress shall be
deemed to satisfy the requirements of this clause (e) for the period of 60
days after the Effective Date regardless of whether all such Requirements
of Law have been satisfied, but thereafter all such Accounts must satisfy
the requirements of this clause (e);
(f) such Account was, at the date of the original issuance of the
respective invoice therefor, payable more than 90 days after such date;
(g) such Account remains unpaid for more than 60 days after the date
set forth for payment in the invoice originally issued therefor; provided
that the aggregate Accounts of any Obligor with an original invoice date
more recent than 60 days prior to the date of determination shall be
reduced by the amount of net credit balances of such Obligor the dates of
which are earlier than 60 days prior to such date of determination;
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20
(h) greater than 50% of the aggregate amount owing in respect of
Accounts by the Obligor thereon to the Borrower and its Subsidiaries remain
unpaid more than 60 days after the date set forth for payment in the
respective invoices originally issued therefor;
(i) such Account is a Defaulted Account, unless the obligations of the
Obligor under such Account are supported by a letter of credit issued by a
bank or other credit insurance reasonably acceptable to the Administrative
Agent;
(j) the Obligor thereon has been the Obligor in respect of Defaulted
Accounts at any time during the immediately preceding 12-month period
unless the payment of Accounts from such Obligor is secured in a manner
reasonably satisfactory to the Administrative Agent or, if the Account
arises subsequent to a decree or order for relief with respect to such
Obligor under the federal bankruptcy laws, as now or hereinafter in effect,
the timely payment and collection of such Account will not be impaired, as
determined by the Administrative Agent in its reasonable judgment;
(k) a proceeding under bankruptcy or similar laws has occurred and is
continuing with respect to the Obligor thereon unless the payment of
Accounts from such Obligor is secured in a manner reasonably satisfactory
to the Administrative Agent or, if the Account arises subsequent to a
decree or order for relief with respect to such Obligor under the federal
bankruptcy laws, as now or hereinafter in effect, the timely payment and
collection of such Account will not be impaired, as determined by the
Administrative Agent in its reasonable judgment;
(l) it is an Account which pursuant to any agreement between the
Borrower or any of its Domestic Subsidiaries, on the one hand, and the
Obligor thereon, on the other hand, may be set off or charged against (i)
any adverse security deposit or other similar deposit made by or for the
benefit of such Obligor or (ii) any trade payable, rebate obligation or
other similar liability owing to such Obligor; provided that amounts owing
in respect of such Account shall only be excluded to the extent of such
set-off or charge against such adverse security deposit, payable, rebate
obligation or other similar liability;
(m) if the aggregate amount owing in respect of Accounts by the Obligor
thereon to the Borrower and its Domestic Subsidiaries exceeds 20% of the
aggregate of all amounts owing in respect of all Accounts of the Borrower
and its Domestic Subsidiaries at such time; provided that amounts owing by
such Obligor in respect of Accounts shall only be excluded to the extent
such amounts exceed 20% of the aggregate of all amounts owing in respect of
all Accounts of the Borrower and its Domestic Subsidiaries at such time;
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21
(n) such Account is the result of a chargeback, debit memo or a
reinvoice of a disputed Account or Defaulted Account;
(o) such Account arises from (i) the sale to the Obligor on a
xxxx-and-hold, guarantied sale, sale-or-return, sale on approval,
consignment, sample or trial basis, (ii) a sale subject to any retainages
or holdbacks of any type or (iii) any other sale to the Obligor made
pursuant to any other written agreement providing for repurchase or return;
provided that no amount owing in respect of such Account shall be excluded
pursuant to this clause solely as a result of customary quality warranties
or the general right to return goods provided by the Borrower or any of its
Domestic Subsidiaries;
(p) the Obligor thereon has disputed its liability on, or the Obligor
thereon has made any claim or defense with respect to, such Account or any
other Account due from such Obligor to any Loan Party, which has not been
resolved; provided that (x) amounts owing in respect of such Account shall
only be excluded to the extent of the amount owed by such Loan Party to the
Obligor thereon or the amount of such dispute, claim or defense, as
applicable, and (y) routine adjustments to an Account common in the
industry in which the Borrower and its Domestic Subsidiaries participate
and common to their businesses, such as for volume or quantity differences
or returned goods, will be deemed not to constitute a dispute, claim,
defense or set-off;
(q) such Account does not comply in all material respects with all
applicable legal requirements;
(r) such Account is not owned solely by the Borrower or any of its
Domestic Subsidiaries free and clear of all Liens or other rights or claims
of any other Person (except in favor of the Administrative Agent);
(s) except to the extent provided in the proviso to clause (e) above,
such Account is subject to any material restrictions on the transfer,
assignability or sale thereof, enforceable against the assignee, except
pursuant to any Loan Document or any other agreement or instrument
governing any Indebtedness of the Borrower or any of its Domestic
Subsidiaries which is permitted to be incurred by the Borrower or such
Domestic Subsidiary pursuant to this Agreement;
(t) except to the extent provided in the proviso to clause (e) above,
the Administrative Agent does not have a valid and perfected first priority
security interest in such Account for the benefit of the Lenders (except
for liens arising by operation of law, appropriate reserves for which have
been reasonably established for borrowing base purposes by the Borrower or
a Domestic Subsidiary) or such Account does not conform
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in all material respects to the representations and warranties
contained in this Agreement or any of the Security Documents; or
(u) such Account arose from a non-trade customer billing or non-trade
hearing aid billing.
"Eligible Inventory": at any time, an amount equal to the aggregate
value of all Inventory of the Borrower and its Domestic Subsidiaries as reported
per the perpetual inventory records, excluding (without duplication) (i) work in
process subassemblies included in raw materials, (ii) 100% of the aggregate
value of work in process, (iii) 100% of the aggregate value of supplies or
materials used or consumed in the business of the Borrower and its Domestic
Subsidiaries, (iv) manufacturing overhead for work in process and raw material
inventories (freight, scrap, obsolescence and shrink), (v) prepaid inventory,
(vi) preobsolescence inventory and (vii) custom-made parts included in raw
materials consistent with the past practices of the Borrower as described on
Schedule IV. In determining the amount to be so included, such Inventory shall
be valued at the standard cost maintained on a basis consistent with the
Borrower's or such Domestic Subsidiary's current and historical accounting
practice less reserves taken and adjustments made, if any, (i) on account of
physical inventory adjustments, (ii) for standard cost variances and shrinkage
accruals, (iii) for obsolete or slow moving goods as determined by Inventory
remaining unsold or not placed into production for a period of 52 weeks, (iv)
for goods returned or rejected by the Borrower's or such Domestic Subsidiary's
customers as damaged or defective, obsolete or otherwise nonsalable, (v) for
goods in transit to third parties that are not excluded pursuant to clause (a),
(b), (c) or (d) below, (vii) for Liens referred to in clause (c)(i) below and
(vii) for Liens referred to in clause (c)(ii) below as established by the
Administrative Agent in its sole discretion. Unless otherwise approved in
writing by the Administrative Agent, no amount with respect to any Inventory
shall be deemed to be included in any calculation of Eligible Inventory if:
(a) the Inventory is not owned solely by the Borrower or such Domestic
Subsidiary or is leased or on consignment or the Borrower or such Domestic
Subsidiary does not have good and valid title thereto;
(b) the Inventory is not located at property that is owned or leased by
the Borrower or such Domestic Subsidiary in the United States and that is
set forth on Schedule 5 to the Guarantee and Collateral Agreement;
(c) the Inventory is not subject to a perfected Lien in favor of the
Administrative Agent for the benefit of the Lenders prior to all other
Liens except (i) for Liens in favor of landlords with respect to which
either (x) a Landlord Lien Waiver has been obtained or (y) a Rent
Adjustment has been subtracted from the calculation of Eligible Inventory,
provided that if the Borrower or the respective Domestic Subsidiary
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fails to make all rental payments with respect to the property at which
such Inventory is located for a period of three consecutive months, such
Inventory shall not be included in the calculation of Eligible Inventory
and (ii) with respect to Eligible Inventory located at or in transit to
sites described in clause (b) above, for Liens for normal and customary
warehousing and transportation charges (appropriate reserves for which have
been reasonably established for Borrowing Base purposes by the Borrower or
such Domestic Subsidiary); or
(d) the Inventory does not conform in all material respects to the
representations and warranties contained in this Agreement or any of the
Security Documents.
"Environmental Costs": any and all costs or expenses (including,
without limitation, attorney's and consultant's fees, investigation and
laboratory fees, response costs, court costs and litigation expenses, fines,
penalties, damages, settlement payments, judgments and awards), of whatever kind
or nature, known or unknown, contingent or otherwise, arising out of, or in any
way relating to, any violation of, noncompliance with or liability under any
Environmental Laws or any orders, requirements, demands, or investigations of
any person related to any Environmental Laws. Environmental Costs include any
and all of the foregoing, without regard to whether they arise out of or are
related to any past, pending or threatened proceeding of any kind.
"Environmental Laws": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, and such requirements of any Governmental Authority properly
promulgated and having the force and effect of law or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as have been, or now or at any relevant time hereafter are, in effect.
"Environmental Permits": any and all permits, licenses, registrations,
notifications, exemptions and any other authorization required under any
Environmental Law.
"Environmental Program": as defined in subsection 7.8(c).
"Equity Investment": as defined in the recitals hereto.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurodollar Base Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum determined by the
Administrative Agent to
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be the arithmetic mean (rounded to the nearest 1/100th of 1%) of the offered
rates for deposits in Dollars with a term comparable to such Interest Period
that appears on the Telerate British Bankers Assoc. Interest Settlement Rates
Page (as defined below) at approximately 11:00 A.M., London time, on the second
full Business Day preceding the first day of such Interest Period; provided,
however, that if there shall at any time no longer exist a Telerate British
Bankers Assoc. Interest Settlement Rates Page, "Eurodollar Base Rate" shall
mean, with respect to each day during each Interest Period pertaining to a
Eurodollar Loan, the rate per annum equal to the rate at which Chase is offered
deposits in Dollars at approximately 11:00 A.M., London time, two Business Days
prior to the first day of such Interest Period in the interbank eurodollar
market where the eurodollar and foreign currency and exchange operations in
respect of Dollars are then being conducted for delivery on the first day of
such Interest Period for the number of days comprised therein and in an amount
comparable to the amount of its Eurodollar Loan to be outstanding during such
Interest Period. "Telerate British Bankers Assoc. Interest Settlement Rates
Page" shall mean the display designated as Page 3750 on the Telerate System
Incorporated Service (or such other page as may replace such page on such
service for the purpose of displaying the rates at which Dollar deposits are
offered by leading banks in the London interbank deposit market).
"Eurodollar Loans": Loans the rate of interest applicable to which is
based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, a rate per annum determined for such day in
accordance with the following formula (rounded upward to the nearest 1/100th of
1%):
Eurodollar Base Rate
--------------------------------------
1.00 - Eurodollar Reserve Requirements
"Eurodollar Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates (expressed as
a decimal fraction) of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurodollar funding (currently referred to as "Eurodollar Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.
"Event of Default": any of the events specified in Section 9, provided
that any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
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25
"Excess Cash Flow": for any period, Consolidated EBITDA, minus (i) any
Capital Expenditures made in cash during such period, minus (ii) any principal
payments (other than principal payments during such period pursuant to
subsection 4.4(c) or (d) unless and to the extent that the event giving rise to
such mandatory prepayment causes an increase in Consolidated EBITDA) on the Term
Loans made during such period, minus (iii) any principal payments resulting in a
permanent reduction of any other Indebtedness of the Borrower or any of its
consolidated Subsidiaries made during such period, minus (iv) Consolidated
Interest Expense for such period, minus (v) any taxes paid or payable in cash
for such period, minus (vi) the Net Cash Proceeds from any Asset Sale to the
extent that such Net Cash Proceeds (A) (without duplication of clause (i) or
(vii) of this definition) consist of any Reinvested Amount and (B) are included
in the calculation of Consolidated EBITDA, minus (vii) (without duplication of
clause (i) of this definition) any Investment made in accordance with subsection
8.9(e), (g) or (i), minus (viii) the proceeds of any Sale and Leaseback
Transactions entered into by the Borrower or any of its Subsidiaries during such
period, plus (ix) the excess, if any, of Working Investment at the beginning of
such period over Working Investment at the end of such period (or minus the
excess, if any, of Working Investment at the end of such period over Working
Investment at the beginning such period).
"Exchange Act": the Securities Exchange Act of 1934, as amended from
time to time.
"Excluded Foreign Account": an Account the sale giving rise to which is
to an Obligor in any jurisdiction outside the United States or Canada.
"Extension of Credit": as to any Lender, the making of, or the issuance
of, or participation in, a Loan by such Lender or the issuance of, or
participation in, a Letter of Credit by such Lender.
"FIRREA": the Financial Institutions Reform, Recovery and Enforcement
Act of 1989, as amended from time to time.
"Federal Funds Effective Rate": as defined in the definition of the
term "ABR" in this subsection 1.1.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
"Foreign Subsidiary": any Subsidiary of the Borrower which is organized
and existing under the laws of any jurisdiction outside of the United States of
America, TCI Holding and the Foreign Subsidiary Holding Company.
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26
"Foreign Subsidiary Holding Company": as defined in subsection 7.10(b).
"Foreign Subsidiary Indebtedness Amount": as of any date of
determination, the greater of (x) $10,000,000 and (y) an amount equal to 10% of
Consolidated Tangible Assets as of such date.
"GAAP": with respect to the covenants contained in subsections 8.1, 8.2
and 8.8 and all defined terms relating thereto (including, without limitation,
the defined term "Consolidated Funded Indebtedness") and the defined term
"Excess Cash Flow", generally accepted accounting principles in the United
States of America in effect on the Effective Date and, for all other purposes
under this Agreement, generally accepted accounting principles in the United
States of America in effect from time to time.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
including, without limitation, the European Union.
"Greenwich II": as defined in the recitals hereto.
"GSCP": as defined in the recitals hereto.
"GSCP Equity Investment": as defined in the recitals hereto.
"GSCP Group": Greenwich Street Capital Partners, L.P., Greenwich Street
Capital Offshore Fund, Ltd., The Travelers Insurance Company, The Travelers Life
and Annuity Company, TRV Employees Fund, Inc., Xxxxx Xxxxxx Holdings Inc. and
their respective Affiliates; any other investment fund or vehicle managed or
sponsored by Greenwich Street Capital Partners, Inc., The Travelers Insurance
Company, The Travelers Life and Annuity Company, Xxxxx Xxxxxx Holdings Inc. or
any of their respective Affiliates; and any limited or general partners of, or
other investors in, any member of the GSCP Group.
"Guarantee": as defined in the definition of "Guarantor".
"Guarantee and Collateral Agreement": the Guarantee and Collateral
Agreement to be executed and delivered by Holdings, the Borrower, each Domestic
Subsidiary of the Borrower in existence on the Effective Date and the
Administrative Agent, substantially in the form of Exhibit B, as the same may be
amended, supplemented or otherwise modified from time to time.
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"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to induce the creation
of which the guaranteeing person has issued a reimbursement, counterindemnity or
similar obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any such obligation of
the guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (1) for the purchase or payment of any
such primary obligation or (2) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum amount
for which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary obligation
and the maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.
"Guarantor": any Person which is now or hereafter a party to (a) the
Guarantee and Collateral Agreement or (b) any other guarantee (a "Guarantee")
hereafter delivered to the Administrative Agent guaranteeing the obligations and
liabilities of the Loan Parties hereunder or under any other Loan Documents.
"Holdings": as defined in the Recitals hereto.
"Indebtedness": of any Person at any date, (a) all indebtedness of such
Person for borrowed money or for the deferred purchase price of property or
services (other than trade liabilities incurred in the ordinary course of
business and payable in accordance with customary practices), (b) any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar instrument, (c) all obligations of such Person under Financing Leases,
(d) all obligations of such Person in respect of acceptances issued or created
for the account of such Person, (e) for purposes of subsection 8.2 and Section
9(e) only, all obligations of such Person in respect of interest rate protection
agreements, interest rate futures, interest rate options, interest rate caps and
any other interest rate hedge arrangements, (f) for purposes of subsection 8.2
only,
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all preferred stock issued by such person and (g) all indebtedness or
obligations of the types referred to in the preceding clauses (a) through (f)
secured by any Lien on any property owned by such Person even though such Person
has not assumed or otherwise become liable for the payment thereof.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": as defined in subsection 5.9.
"Interest Payment Date": (a) as to any ABR Loan, the last day of each
February, May, August and November to occur while such Loan is outstanding and,
if such ABR Loan is a Term Loan, the date of each payment of principal thereof,
(b) as to any Eurodollar Loan having an Interest Period of three months or less,
the last day of such Interest Period, and (c) as to any Eurodollar Loan having
an Interest Period longer than three months, (x) each day which is three months,
or a whole multiple thereof, after the first day of such Interest Period and (y)
the last day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurodollar Loan and ending
one, two, three or six months thereafter, as selected by the Borrower in
its notice of borrowing or notice of conversion, as the case may be, given
with respect thereto; and
(ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending
one, two, three or six months thereafter, as selected by the Borrower by
irrevocable notice to the Administrative Agent not less than three Business
Days prior to the last day of the then current Interest Period with respect
thereto;
provided that all of the foregoing provisions relating to Interest Periods are
subject to the following:
(1) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
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(2) any Interest Period that would otherwise extend beyond (a) the
Termination Date (in the case of Revolving Credit Loans) shall end on the
Termination Date (for all purposes other than subsection 4.12), (b) the
Tranche A Maturity Date (in the case of the Tranche A Term Loans) shall end
on the Tranche A Maturity Date (for all purposes other than subsection
4.12) and (c) the Tranche B Maturity Date (in the case of the Tranche B
Term Loans) shall end on the Tranche B Maturity Date (for all purposes
other than subsection 4.12);
(3) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month; and
(4) the Borrower shall select Interest Periods so as not to require a
scheduled payment of any Eurodollar Loan during an Interest Period for such
Loan.
"Interest Rate Protection Agreement": any interest rate protection
agreement, interest rate future, interest rate option, interest rate cap or
collar or other interest rate hedge arrangement with (i) any Lender or (ii) any
financial institution reasonably acceptable to the Administrative Agent, to or
under which the Borrower is a party or a beneficiary on the Effective Date or
becomes a party or a beneficiary after the Effective Date.
"Inventory": as defined in the Uniform Commercial Code as in effect in
the State of New York from time to time, and including, without limitation, raw
materials and all sub-assemblies held for sale.
"Investment Company Act": the Investment Company Act of 1940, as
amended from time to time.
"Investments": as defined in subsection 8.9.
"Issuing Lender": Chase or any of its Affiliates, in its capacity as
issuer of any Letter of Credit.
"Landlord Lien Waiver": a written agreement in substantially the form
of Exhibit K or otherwise reasonably acceptable to the Administrative Agent.
"L/C Fee Payment Date": with respect to any Letter of Credit, the last
day of each February, May, August and November to occur after the date of
issuance thereof and the first such day to occur on or after the date of expiry
thereof.
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"L/C Obligations": at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to subsection 3.5(a).
"L/C Participants": the collective reference to all the Revolving
Credit Lenders other than the Issuing Lender.
"Lenders": as defined in the Preamble hereto.
"Letters of Credit": as defined in subsection 3.1(a).
"Leverage Ratio": at any date of determination, the ratio of (a)
Consolidated Funded Indebtedness at such date to (b) Consolidated EBITDA for the
period of one year ending on such date.
"Lien": any mortgage, pledge, hypothecation, assignment, security
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and any
Financing Lease having substantially the same economic effect as any of the
foregoing).
"Loan": a Revolving Credit Loan, a Tranche A Term Loan, a Tranche B
Term Loan or a Swing Line Loan, as the context shall require; collectively, the
"Loans".
"Loan Documents": this Agreement, the Telex Assumption Agreement, any
Notes, the Applications, the Guarantees and the Security Documents, each as
amended, supplemented, waived or otherwise modified from time to time.
"Loan Parties": Holdings, the Borrower and each Subsidiary of the
Borrower which is a party to a Loan Document; individually, a "Loan Party".
"Management Equity Investment": as defined in the recitals hereto.
"Management Investors": as defined in the recitals hereto.
"Material Adverse Effect": a material adverse effect on (a) the
business, assets, operations, property, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole, or (b) the
validity or enforceability as to any Loan Party thereto of
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this Agreement, any of the Notes or any of the other Loan Documents or the
rights and remedies of the Administrative Agent and the Lenders under the Loan
Documents taken as a whole.
"Materials of Environmental Concern": any gasoline or petroleum
(including, without limitation, crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances or materials or wastes defined or
regulated as such in or under or which may give rise to liability under any
applicable Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Merger": as defined in the recitals hereto.
"Mortgaged Properties": the collective reference to the real properties
owned in fee by the Loan Parties and described on Schedule 5.8, including,
without limitation, all buildings, improvements, structures and fixtures now or
subsequently located thereon and owned by any such Loan Party.
"Mortgages": (i) each of the mortgages executed and delivered by the
Borrower and its Subsidiaries encumbering each of the Mortgaged Properties,
substantially in the form of Exhibit D (with such modifications thereto as the
Administrative Agent on or before the Effective Date shall reasonably determine
is necessary in any state to create a valid and enforceable first mortgage Lien
securing the obligations and liabilities of the Borrower or any of its
Subsidiaries, as the case may be, under the Loan Documents) and (ii) each of the
mortgages and deeds of trust, if any, executed and delivered by the Borrower and
its Subsidiaries to the Administrative Agent pursuant to subsection 7.9, as the
same may be amended, supplemented, waived or otherwise modified from time to
time.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": with respect to any Asset Sale (including, without
limitation, any Sale and Leaseback Transaction permitted under subsection 8.11),
any sale or issuance of equity securities of the Borrower or any of its
Subsidiaries, the issuance of any debt securities or any borrowings by the
Borrower or any of its Subsidiaries (other than issuances and borrowings
permitted pursuant to subsection 8.2, except as otherwise specified), an amount
equal to the gross proceeds in cash and Cash Equivalents (including cash
payments received by way of deferred payment of principal pursuant to note,
installment receivable, purchase price adjustment or otherwise, but only when
such cash payments are received) of such Asset Sale, sale, issuance or
borrowing, net of (i) reasonable attorneys' fees, accountants' fees, brokerage,
consultant and other customary fees, underwriting commissions and other
reasonable fees and expenses actually incurred in connection with such Asset
Sale, sale, issuance or borrowing, (ii) taxes paid or reasonably estimated to be
payable as a result thereof, (iii) appropriate amounts provided or to be
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provided by the Borrower or any of its Subsidiaries as a reserve, in accordance
with GAAP, with respect to any liabilities associated with such Asset Sale and
retained by the Borrower or any such Subsidiary after such Asset Sale and other
appropriate amounts to be used by the Borrower or any of its Subsidiaries to
discharge or pay on a current basis any other liabilities associated with such
Asset Sale and (iv) in the case of a sale or Sale and Leaseback Transaction of
or involving an asset subject to a Lien securing any Indebtedness, payments made
and installment payments required to be made to repay such Indebtedness,
including, without limitation, payments in respect of principal, interest and
prepayment premiums and penalties.
"Non-Excluded Taxes": as defined in subsection 4.11.
"Notes": the collective reference to the Revolving Credit Notes and the
Term Notes.
"Obligor": with respect to an Account, the purchaser of the goods or
services giving rise to such Account or any other Person obligated to make
payment in respect of such purchase of such goods or services.
"Other Representatives": CSI, in its capacity as arranger of the
Commitments hereunder and the Issuing Lender, in its capacity as such.
"Participants": as defined in subsection 11.6(b).
"Patent and Trademark Security Agreement": the Patent and Trademark
Security Agreement executed and delivered by the Borrower and each of its
Domestic Subsidiaries, substantially in the form of Exhibit C, as the same may
be amended, supplemented, waived or otherwise modified from time to time.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA (or any successor thereto).
"Permitted Hedging Arrangement": as defined in subsection 8.16.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is an "employer" as defined in Section 3(5) of ERISA.
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"Prime Rate": as defined in the definition of the term "ABR" in this
subsection 1.1.
"Pro Forma Balance Sheet": as defined in subsection 5.1(b).
"Pro Forma Date": as defined in subsection 5.1(b).
"Recapitalization": as defined in the recitals hereto.
"Recapitalization Agreement": as defined in the recitals hereto.
"Recapitalization Documents": the collective reference to the
Recapitalization Agreement, any stock certificates, and any and all other
documents and certificates, necessary or advisable, in the reasonable judgement
of GSCP, to consummate the Recapitalization (including the Merger and the Telex
Assumption).
"Refunded Swing Line Loans": as defined in subsection 2.5(e).
"Register": as defined in subsection 11.6(d).
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Reimbursement Obligations": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to subsection 3.5(a) for amounts drawn
under Letters of Credit.
"Reinvested Amount": with respect to any Asset Sale permitted by
subsection 8.6(g) or (h), that portion of the Net Cash Proceeds thereof as
shall, according to a certificate of a Responsible Officer of the Borrower
delivered to the Administrative Agent within 30 days of such Asset Sale, be
reinvested in the business of the Borrower and its Subsidiaries in a manner
consistent with the requirements of subsection 8.15(a) and the other provisions
hereof within one year of the receipt of such Net Cash Proceeds or, if such
reinvestment is in a project authorized by the board of directors of the
Borrower that will take longer than one year to complete, the period of time
necessary to complete such project; provided that (i) if any such certificate of
a Responsible Officer is not delivered to the Administrative Agent on the date
of such Asset Sale, any Net Cash Proceeds of such Asset Sale shall be
immediately (x) deposited in a cash collateral account established at Chase to
be held as collateral in favor of the Administrative Agent for the benefit of
the Lenders on terms reasonably satisfactory to the Administrative Agent and
shall remain on deposit in such cash collateral account until such certificate
of a Responsible Officer is delivered to the Administrative Agent or (y) used to
make a prepayment of the Revolving Credit Loans in accordance with subsection
4.4(a); provided that, notwithstanding anything in this Agreement to the
contrary, the Borrower may not request any Extension of Credit under the
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Revolving Credit Commitments that would reduce the aggregate amount of the
Available Revolving Credit Commitments to an amount that is less than the amount
of any such prepayment until such certificate of a Responsible Officer is
delivered to the Administrative Agent and (ii) any Net Cash Proceeds not so
reinvested within one year or such later day, as applicable, shall be utilized
at the end of such period or to prepay the Loans pursuant to subsection 4.4(d).
"Rent Adjustment": with respect to any property leased by the Borrower
or any of its Domestic Subsidiaries where any Inventory is located which may
become subject to Liens in favor of the landlord thereof arising by operation of
law, an amount equal to six months' rent at such premises.
"Reorganization": with respect to any Multiemployer Plan, the condition
that such plan is in reorganization within the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. Section
2615 or any successor regulation thereto.
"Required Lenders": at any time, Lenders the Total Credit Percentages
of which aggregate at least 51%.
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, statute, ordinance, code, decree, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
material property or to which such Person or any of its material property is
subject, including, without limitation, laws, ordinances and regulations
pertaining to zoning, occupancy and subdivision of real properties; provided
that the foregoing shall not apply to any non-binding recommendation of any
Governmental Authority.
"Responsible Officer": as to any Person, any of the following officers
of such Person: (i) the chief executive officer or the president of such Person
and, with respect to financial matters, the chief financial officer, the senior
vice president - finance, the treasurer or the controller of such Person, (ii)
any vice president of such Person or, with respect to financial matters, any
assistant treasurer or assistant controller of such Person, who has been
designated in writing to the Administrative Agent as a Responsible Officer by
such chief executive officer or president of such Person or, with respect to
financial matters, such chief financial officer of such Person, (iii) with
respect to subsection 7.7 and without limiting the foregoing, the general
counsel of such Person and (iv) with respect to ERISA matters, the senior vice
president - human resources (or substantial equivalent) of such Person.
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"Restricted Subsidiary": as defined in the Senior Subordinated
Indenture.
"Revolving Credit Commitment": as to any Revolving Credit Lender, its
obligation to make Revolving Credit Loans to, and/or make or participate in
Swing Line Loans made to, and/or issue or participate in Letters of Credit
issued on behalf of, the Borrower in an aggregate amount not to exceed at any
one time outstanding the amount set forth opposite such Revolving Credit
Lender's name in Schedule I under the heading "Revolving Credit Commitment" or,
in the case of any Lender that is an Assignee, the amount of the assigning
Lender's Revolving Credit Commitment assigned to such Assignee pursuant to
subsection 11.6(c) (in each case as such amount may be adjusted from time to
time as provided herein); collectively, as to all the Revolving Credit Lenders,
the "Revolving Credit Commitments".
"Revolving Credit Commitment Percentage": as to any Revolving Credit
Lender, the percentage of the aggregate Revolving Credit Commitments constituted
by its Revolving Credit Commitment (or, if the Revolving Credit Commitments have
terminated or expired, the percentage which (i) the sum of (a) such Lender's
then outstanding Revolving Credit Loans plus (b) such Lender's interests in the
aggregate L/C Obligations and Swing Line Loans then outstanding then constitutes
of (ii) the sum of (a) the aggregate Revolving Credit Loans of all the Revolving
Credit Lenders then outstanding plus (b) the aggregate L/C Obligations and Swing
Line Loans then outstanding).
"Revolving Credit Commitment Period": the period from and including the
Effective Date to but not including the Termination Date, or such earlier date
as the Revolving Credit Commitments shall terminate as provided herein.
"Revolving Credit Lender": any Lender having a Revolving Credit
Commitment hereunder.
"Revolving Credit Loans": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 2.2.
"Sale and Leaseback Transaction": as defined in subsection 8.11.
"Securities Act": the Securities Act of 1933, as amended from time to
time.
"SEC": the Securities and Exchange Commission.
"Security Documents": the collective reference to the Mortgages, the
Guarantee and Collateral Agreement, the Patent and Trademark Security Agreement,
and all other similar security documents hereafter delivered to the
Administrative Agent granting a Lien on any asset
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or assets of any Person to secure the obligations and liabilities of the
Borrower hereunder, under any Notes and/or under any of the other Loan Documents
or to secure any guarantee of any such obligations and liabilities, including,
without limitation, any security documents executed and delivered or caused to
be delivered to the Administrative Agent pursuant to subsection 8.15(b) or
8.15(c).
"Senior Subordinated Indenture": the Indenture, dated as of May 2,
1997, between Acquisition Co. and Manufacturers and Traders Trust Company and
Agency Services, as trustee, as the same may be amended, supplemented or
otherwise modified in accordance with the terms of this Agreement, pursuant to
which the Senior Subordinated Notes are issued.
"Senior Subordinated Notes": as defined in the recitals hereto.
"Senior Subordinated Notes Documents": the collective reference to the
Senior Subordinated Notes and the Senior Subordinated Indenture and each of the
other instruments and documents executed and delivered pursuant to any of the
foregoing, as the same may be amended, supplemented, waived or otherwise
modified from time to time in accordance with subsection 8.12 to the extent
applicable; individually a "Senior Subordinated Note Document."
"Set": the collective reference to Eurodollar Loans, the then current
Interest Periods with respect to all of which begin on the same date and end on
the same later date (whether or not such Loans shall originally have been made
on the same day).
"Single Employer Plan": any Plan which is covered by Title IV of ERISA,
but which is not a Multiemployer Plan.
"Solvent" and "Solvency": with respect to any Person on a particular
date, the condition that, on such date, (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair salable
value of the assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as they
become absolute and matured, (c) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature, and (d) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute an unreasonably
small amount of capital.
"Spot Exchange Rate": on any day, with respect to any Alternative
Currency, the spot rate at which Dollars are offered for such Alternative
Currency on such day by the Administrative Agent in London or in the interbank
market where its foreign currency exchange operations in respect of such
Alternative Currency are then being conducted at approximately
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11:00 a.m. (local time). Notwithstanding the foregoing, if for any reason at the
time of any determination of the Spot Exchange Rate as described above, no such
rate is being quoted, the Administrative Agent may use any reasonable method,
applied consistently, it deems appropriate to determine such rate, and such
determination shall be conclusive absent manifest error.
"Standby Letter of Credit": as defined in subsection 3.1(a).
"Subordinated Debentures With Warrants": as defined in the recitals
hereto.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise qualified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries
of the Borrower.
"Swing Line Commitment": the Swing Line Lender's obligation to make
Swing Line Loans pursuant to subsection 2.5
"Swing Line Lender": Chase, in its capacity as provider of Swing Line
Loans.
"Swing Line Loan Participation Certificate": a certificate evidencing a
Revolving Credit Lender's participation in Swing Line Loans pursuant to
subsection 2.5(d) in form and substance reasonably satisfactory to the Swing
Line Lender.
"Swing Line Loans": as defined in subsection 2.5(a).
"Swing Line Note": as defined in subsection 2.5(b).
"Tax Sharing Agreement": the Tax Sharing Agreement, dated as of May 6,
1997, among Holdings and the Borrower and (and each of their permitted
successors and assigns thereunder) as the same may be amended, supplemented or
otherwise modified from to time.
"TCI Holding": TCI Holdings Corp., a Delaware corporation.
"Telex Assumption": as defined in the recitals hereto.
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"Telex Assumption Agreement": the Assignment and Assumption Agreement,
dated as of the Effective Date, among Holdings, Telex and the Administrative
Agent, in substantially the form of Exhibit M.
"Telex Notes": as defined in the recitals hereto.
"Tender Offer": as defined in the recitals hereto.
"Tender Offer Documents": the collective reference to any and all
documents (each as amended, supplemented or otherwise modified from time to
time), including the Telex Notes, necessary or advisable, in the reasonable
judgement of Telex to consummate the Tender Offer.
"Termination Date": November 6, 2002.
"Term Loan": as defined in subsection 2.6, collectively, the "Term
Loans".
"Term Loan Commitments": the collective reference to the Tranche A Term
Loan Commitments and the Tranche B Term Loan Commitments; collectively, as to
all the Term Loan Lenders, the "Term Commitments."
"Term Loan Lenders": the collective reference to the Tranche A Term
Loan Lenders and the Tranche B Term Loan Lenders.
"Term Note" and "Term Notes": as defined in subsection 2.8(a).
"Three Month Secondary CD Rate": as defined in the definition of the
term "ABR" in this subsection 1.1.
"Total Credit Percentage": as to any Lender, the percentage of the
aggregate Revolving Credit Commitments and Term Loan Commitments constituted by
such Lender's Revolving Credit Commitment and Term Loan Commitments, or
following the Effective Date, the percentage representing a fraction the
numerator of which is the sum of (i) the aggregate principal amount of such
Lender's Term Loans then outstanding plus (ii) the Revolving Credit Commitment
of such Lender (or, following the termination or expiration of the Revolving
Credit Commitments, the sum of (x) the aggregate principal amount of such
Lender's Revolving Credit Loans then outstanding plus (y) such Lender's
Revolving Commitment Percentage of all L/C Obligations then outstanding), and
the denominator of which is the sum of (i) the aggregate principal amount of
Term Loans of all Lenders then outstanding plus (ii) the aggregate Revolving
Credit Commitments of all Lenders (or, following the termination or expiration
of the Revolving Credit Commitments, the sum of (x) the aggregate principal
amount of all Revolving Credit
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Loans then outstanding plus (y) the aggregate principal amount of all L/C
Obligations then outstanding).
"Tranche A Maturity Date": November 6, 2002.
"Tranche A Term Loan Commitment": as to any Tranche A Term Loan Lender,
its obligation to make a Tranche A Term Loan to the Borrower pursuant to
subsection 2.5 in an aggregate amount equal to the amount set forth under such
Tranche A Term Loan Lender's name in Schedule I opposite the heading "Tranche A
Term Loan Commitment", collectively, the "Tranche A Term Loan Commitments".
"Tranche A Term Loan Commitment Percentage": as to any Tranche A Term
Loan Lender, the percentage of the aggregate Tranche A Term Loan Commitments
constituted by its Tranche A Term Loan Commitment or, following the Effective
Date, the percentage of the aggregate outstanding Tranche A Term Loans
constituted by its Tranche A Term Loan.
"Tranche A Term Loan Lender": any Lender having a Tranche A Term Loan
Commitment hereunder or that holds outstanding Tranche A Term Loans.
"Tranche A Term Loan": as defined in subsection 2.6.
"Tranche A Term Note": as defined in subsection 2.7(a).
"Tranche B Maturity Date": November 6, 2004.
"Tranche B Term Loan Commitment": as to any Tranche B Term Loan Lender,
its obligation to make a Tranche B Term Loan to the Borrower pursuant to
subsection 2.5 in an aggregate amount equal to the amount set forth under such
Tranche B Term Loan Lender's name in Schedule I opposite the heading "Tranche B
Term Loan Commitment" collectively, the "Tranche B Term Loan Commitments".
"Tranche B Term Loan Commitment Percentage": as to any Tranche B Term
Loan Lender, the percentage of the aggregate Tranche B Term Loan Commitments
constituted by its Tranche B Term Loan Commitment or, following the Effective
Date, the percentage of the aggregate outstanding Tranche B Term Loans
constituted by its Tranche B Term Loan.
"Tranche B Term Loan Lender": any Lender having a Tranche B Term Loan
Commitment hereunder or that holds outstanding Tranche B Term Loans.
"Tranche B Term Loan": as defined in subsection 2.6.
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"Tranche B Term Note": as defined in subsection 2.8(a).
"Transactions": the collective reference to the Tender Offer, the
Recapitalization, the Merger, the Telex Assumption and the issuance of the
Senior Subordinated Notes.
"Transaction Documents": the collective reference to the
Recapitalization Documents, the Tender Offer Documents and the Senior
Subordinated Note Documents.
"Transferee": as defined in subsection 11.6(f).
"Type": as to any Loan, its nature as an ABR Loan or a Eurodollar Loan.
"Underfunding": the excess of the present value of all accrued benefits
under a Plan (based on those assumptions used to fund such Plan), determined as
of the most recent annual valuation date, over the value of the assets of such
Plan allocable to such accrued benefits.
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No. 500,
as the same may be amended from time to time.
"U.S. Tax Compliance Certificate": as defined in subsection 4.11(b).
"Wholly Owned Subsidiary": as to any Person, any Subsidiary of such
Person of which such Person owns, directly or indirectly through one or more
Wholly Owned Subsidiaries, all of the Capital Stock of such Subsidiary other
than directors qualifying shares or shares held by nominees.
"Working Investment": at any date of determination thereof, (a) the sum
(determined without duplication for the Borrower and its Subsidiaries) of (i)
the unpaid face amount of all accounts receivable of the Borrower and its
Subsidiaries as at such date of determination, plus (ii) the aggregate amount of
prepaid expenses and other current assets (other than cash) of the Borrower and
its Subsidiaries as at such date of determination, minus (b) the sum (determined
without duplication for the Borrower and its Subsidiaries) of (i) the unpaid
amount of all accounts payable of the Borrower and its Subsidiaries as at such
date of determination, plus (ii) the aggregate amount of all accrued expenses of
the Borrower and its Subsidiaries as at such date of determination (but
excluding from accounts payable and accrued expenses, the current portion of
long-term debt and all accrued interest and taxes).
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Note, any other Loan Document or any certificate or other
document made or delivered pursuant hereto.
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(b) As used herein and in any Note and any other Loan Document, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Borrower and its Subsidiaries not defined in
subsection 1.1 and accounting terms partly defined in subsection 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "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, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Revolving Credit Lender severally agrees to make
revolving credit loans ("Revolving Credit Loans") to the Borrower from time to
time during the Revolving Credit Commitment Period in an aggregate principal
amount at any one time outstanding which, when added to such Revolving Credit
Lender's Revolving Credit Commitment Percentage of the then outstanding L/C
Obligations and the then outstanding Swing Line Loans, does not exceed the
amount of such Lender's Revolving Credit Commitment then in effect. During the
Revolving Credit Commitment Period, the Borrower may use the Revolving Credit
Commitments by borrowing, prepaying the Revolving Credit Loans in whole or in
part, and reborrowing, all in accordance with the terms and conditions hereof,
provided that not more than $7,200,000 in Revolving Credit Loans will be
available for borrowing on the Effective Date.
(b) The Revolving Credit Loans may be made from time to time in (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the Borrower and notified to the Administrative Agent in accordance with
subsections 2.3 and 4.2, provided that no Revolving Credit Loan shall be made as
a Eurodollar Loan after the day that is one month prior to the Termination Date.
2.2 Revolving Credit Notes. The Borrower agrees that, upon the request
to the Administrative Agent by any Revolving Credit Lender made on or prior to
the Effective Date or in connection with any assignment pursuant to subsection
11.6(c), in order to evidence such Lender's Revolving Credit Loans the Borrower
will execute and deliver to such Lender a promissory note substantially in the
form of Exhibit A-1, with appropriate insertions as to payee, date and principal
amount (each, as amended, supplemented, replaced or otherwise modified
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from time to time, a "Revolving Credit Note"), payable to the order of such
Lender and in a principal amount equal to the aggregate unpaid principal amount
of all Revolving Credit Loans made by such Lender to the Borrower. Each
Revolving Credit Note shall (x) be dated the Effective Date, (y) be stated to
mature on the Termination Date and (z) provide for the payment of interest in
accordance with subsection 4.1. A Revolving Credit Note may be assigned or
otherwise transferred only by registration of such assignment or transfer in the
Register (and each Revolving Credit Note shall expressly so provide). Any
assignment or transfer of a Revolving Credit Note shall be registered in the
Register only upon surrender for registration of assignment or transfer of the
Revolving Credit Note accompanied by an Assignment and Acceptance duly executed
by the assigning Lender, and thereupon a new Revolving Credit Note shall be
issued to the designated Assignee and the surrendered Revolving Credit Note
shall be returned by the Administrative Agent to the Borrower marked
"cancelled". No assignment of a Revolving Credit Note shall be effective unless
it shall have been recorded in the Register by the Administrative Agent as
provided in this subsection 2.2.
2.3 Procedure for Revolving Credit Borrowing. The Borrower may borrow
under the Revolving Credit Commitments during the Revolving Credit Commitment
Period on any Business Day, provided that the Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 12:30 P.M., New York City time, at least (a) three
Business Days prior to the requested Borrowing Date, if all or any part of the
requested Revolving Credit Loans are to be initially Eurodollar Loans or (b) one
Business Day prior to the requested Borrowing Date, otherwise), specifying (i)
the amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether the
borrowing is to be of Eurodollar Loans, ABR Loans or a combination thereof and
(iv) if the borrowing is to be entirely or partly of Eurodollar Loans, the
respective amounts of each such Type of Loan and the respective lengths of the
initial Interest Periods therefor. Each borrowing under the Revolving Credit
Commitments shall be in an amount equal to (x) in the case of ABR Loans, except
any ABR Loan to be used solely to pay a like amount of outstanding Reimbursement
Obligations or Swing Line Loans, $1,000,000 or a whole multiple of $500,000 in
excess thereof (or, if the then Available Revolving Credit Commitments are less
than $1,000,000, such lesser amount) and (y) in the case of Eurodollar Loans,
$1,000,000 or a whole multiple of $500,000 in excess thereof. Upon receipt of
any such notice from the Borrower, the Administrative Agent shall promptly
notify each Revolving Credit Lender thereof. Subject to the satisfaction of the
conditions precedent specified in subsection 6.2, each Revolving Credit Lender
will make the amount of its pro rata share of each borrowing of Revolving Credit
Loans available to the Administrative Agent for the account of the Borrower
identified in such notice at the office of the Administrative Agent specified in
subsection 11.2 prior to 12:30 P.M. (or 10:00 A.M., in the case of the initial
borrowing hereunder), New York City time, or at such other office of the
Administrative Agent or at such other time as to which the Administrative Agent
shall notify such Revolving Credit Lender and the Borrower reasonably in advance
of the Borrowing Date with respect thereto on the Borrowing Date requested by
the Borrower and in funds immediately available to the Administrative Agent.
Such borrowing will
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then be made available to the Borrower identified in the
notice by the Administrative Agent crediting the account of the Borrower on the
books of such office with the aggregate of the amounts made available to the
Administrative Agent by the Revolving Credit Lenders and in like funds as
received by the Administrative Agent.
2.4 Termination or Reduction of Revolving Credit Commitments. The
Borrower shall have the right, upon not less than three Business Days' notice to
the Administrative Agent (which will promptly notify the Lenders thereof), to
terminate the Revolving Credit Commitments or, from time to time, to reduce the
amount of the Revolving Credit Commitments; provided that no such termination or
reduction shall be permitted if, after giving effect thereto and to any
prepayments of the Revolving Credit Loans and Swing Line Loans made on the
effective date thereof, the aggregate principal amount of the Revolving Credit
Loans then outstanding, when added to the then outstanding L/C Obligations and
the then outstanding Swing Line Loans, would exceed the Revolving Credit
Commitments then in effect. Any such reduction shall be in an amount equal to
$1,000,000 or a whole multiple of $500,000 in excess thereof and shall reduce
permanently the Revolving Credit Commitments then in effect.
2.5 Swing Line Commitment. (a) Subject to the terms and conditions
hereof, the Swing Line Lender agrees to make swing line loans (individually, a
"Swing Line Loan"; collectively, the "Swing Line Loans") to the Borrower from
time to time during the Revolving Credit Commitment Period in an aggregate
principal amount at any one time outstanding not to exceed $1,000,000, provided
that at no time may the sum of the then outstanding Swing Line Loans, Revolving
Credit Loans and L/C Obligations exceed the Revolving Credit Commitments then in
effect. Amounts borrowed by the Borrower under this subsection 2.5 may be repaid
and, through but excluding the Termination Date, reborrowed. All Swing Line
Loans shall be made as ABR Loans and shall not be entitled to be converted into
Eurodollar Loans. The Borrower shall give the Swing Line Lender irrevocable
notice (which notice must be received by the Swing Line Lender prior to 12:00
Noon, New York City time) on the requested Borrowing Date specifying (i) the
amount of the requested Swing Line Loan which shall be in a minimum amount of
$100,000 or whole multiples of $50,000 in excess thereof. The proceeds of the
Swing Line Loan will be made available by the Swing Line Lender to the Borrower
at the office of the Swing Line Lender by crediting the account of the Borrower
at such office with such proceeds in Dollars.
(b) The Borrower agrees that, upon the request to the Administrative
Agent by the Swing Line Lender made on or prior to the Effective Date or in
connection with any assignment pursuant to subsection 11.6(c), in order to
evidence the Swing Line Loans the Borrower will execute and deliver to the Swing
Line Lender a promissory note substantially in the form of Exhibit A-4, with
appropriate insertions (as the same may be amended, supplemented, replaced or
otherwise modified from time to time, the "Swing Line Note"), payable to the
order of the Swing Line Lender and representing the obligation of the Borrower
to
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pay the amount of the Swing Line Commitment or, if less, the unpaid principal
amount of the Swing Line Loans made to the Borrower, with interest thereon as
prescribed in subsection 4.1. The Swing Line Note shall (i) be dated the
Effective Date, (i) be stated to mature on the Termination Date and (iii)
provide for the payment of interest in accordance with subsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute
discretion may, and, at any time as there shall be a Swing Line Loan outstanding
for more than seven Business Days, the Swing Line Lender shall, on behalf of the
Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender
to act on its behalf), request each Revolving Credit Lender, including the Swing
Line Lender, to make a Revolving Credit Loan as an ABR Loan in an amount equal
to such Revolving Credit Lender's Revolving Credit Commitment Percentage of the
principal amount of all of the Swing Line Loans (the "Refunded Swing Line
Loans") outstanding on the date such notice is given; provided that the
provisions of this subsection shall not affect the obligations of the Borrower
to prepay Swing Line Loans in accordance with the provisions of subsection
4.4(g). Unless the Revolving Credit Commitments shall have expired or terminated
(in which event the procedures of paragraph (d) of this subsection 2.5 shall
apply), each Revolving Credit Lender will make the proceeds of its Revolving
Credit Loan available to the Administrative Agent for the account of the Swing
Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New
York City time, in funds immediately available on the Business Day next
succeeding the date such notice is given. The proceeds of such Revolving Credit
Loans shall be immediately applied to repay the Refunded Swing Line Loans.
(d) If the Revolving Credit Commitments shall expire or terminate at
any time while Swing Line Loans are outstanding, each Revolving Credit Lender
shall, at the option of the Swing Line Lender exercised reasonably, either (i)
notwithstanding the expiration ortermination of the Revolving Credit
Commitments, make a Revolving Credit Loan as an ABR Loan (which Revolving Credit
Loan shall be deemed a "Revolving Credit Loan" for all purposes of this
Agreement and the other Loan Documents) or (ii) purchase an undivided
participating interest in such Swing Line Loans, in either case in an amount
equal to such Revolving Credit Lender's Revolving Credit Commitment Percentage
determined on the date of, and immediately prior to, the expiration or
termination of the Revolving Credit Commitments of the aggregate principal
amount of such Swing Line Loans. Each Revolving Credit Lender will make the
proceeds of any Revolving Credit Loan made pursuant to the immediately preceding
sentence available to the Administrative Agent for the account of the Swing Line
Lender at the office of the Administrative Agent prior to 12:00 Noon, New York
City time, in funds immediately available on the Business Day next succeeding
the date on which the Revolving Credit Commitments expire or terminate. The
proceeds of such Revolving Credit Loans shall be immediately applied to repay
the Swing Line Loans outstanding on the date of termination or expiration of the
Revolving Credit Commitments. In the event that the Revolving Credit Lenders
purchase undivided participating interests pursuant to the first sentence of
this paragraph (d), each Revolving Credit Lender shall immediately transfer to
the Swing Line Lender, in immediately
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available funds, the amount of its participation and upon receipt thereof the
Swing Line Lender will deliver to such Revolving Credit Lender a Swing Line Loan
Participation Certificate dated the date of receipt of such funds and in such
amount.
(e) Whenever, at any time after the Swing Line Lender has received from
any Revolving Credit Lender such Revolving Credit Lender's participating
interest in a Swing Line Loan, the Swing Line Lender receives any payment on
account thereof, the Swing Line Lender will distribute to such Revolving Credit
Lender its participating interest in such amount (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such
Revolving Credit Lender's participating interest was outstanding and funded);
provided, however, that in the event that such payment received by the Swing
Line Lender is required to be returned, such Revolving Credit Lender will return
to the Swing Line Lender any portion thereof previously distributed by the Swing
Line Lender to it.
2.6 Term Loans. Subject to the terms and conditions hereof, each Term
Loan Lender severally agrees to make (i) a term loan (a "Tranche A Term Loan")
on the Effective Date in the principal amount set forth under such Lender's name
in Schedule I opposite the heading "Tranche A Term Loan Commitment" and/or (ii)
a term loan (a "Tranche B Term Loan" and together with the Tranche A Term Loans,
the "Term Loans") on the Effective Date in the principal amount set forth under
such Lender's name in Schedule I opposite the heading "Tranche B Term Loan
Commitment". The Term Loans may from time to time be (i) Eurodollar Loans, (ii)
ABR Loans or (iii) a combination thereof, as determined by the Borrower and
notified to the Administrative Agent in accordance with subsection 2.9 and 4.2.
Amounts paid on account of the Term Loans pursuant to subsections 2.7 or 2.8 may
not be reborrowed.
2.7 Tranche A Term Notes. (a) The Borrower agrees that, upon the
request to the Administrative Agent by any Tranche A Term Loan Lender made on or
prior to the Effective Date or in connection with any assignment pursuant to
subsection 11.6(c), to evidence such Lender's Tranche A Term Loan the Borrower
will execute and deliver to such Lender a promissory note substantially in the
form of Exhibit A-2 (each, as amended, supplemented, replaced or otherwise
modified from time to time, a "Tranche A Term Note"), with appropriate
insertions therein as to payee, date and principal amount, payable to the order
of such Tranche A Term Loan Lender and in a principal amount equal to the lesser
of (a) the amount set forth under such Tranche A Term Loan Lender's name on
Schedule I opposite the heading "Tranche A Term Loan Commitment" and (b) the
then unpaid principal amount of the Tranche A Term Loans made by such Tranche A
Term Loan Lender to the Borrower. Each Tranche A Term Note shall (i) be dated
the Effective Date, (ii) be payable as provided in subsection 2.7(b) and (iii)
provide for the payment of interest in accordance with subsection 4.1. A Tranche
A Term Note may be assigned or otherwise transferred only by registration of
such assignment or transfer in the Register (and each Tranche A Term Note shall
expressly so provide). Any assignment or transfer of a Tranche A Term Note shall
be registered in the Register only upon surrender for registration
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of assignment or transfer of the Tranche A Term Note accompanied by an
Assignment and Acceptance duly executed by the assigning Tranche A Term Loan
Lender, and thereupon a new Tranche A Term Loan Note shall be issued to the
designated Assignee and the surrendered Tranche A term Loan Note shall be
returned by the Administrative Agent to the Borrower marked "cancelled". No
assignment of a Tranche A Term Loan Note shall be effective unless it shall have
been recorded in the Register by the Administrative Agent as provided in this
subsection 2.7(a).
(b) The Tranche A Term Loans shall be payable in 20 consecutive
quarterly installments, commencing on February 28, 1998, on the dates and in the
aggregate principal amount set forth below (together with all accrued interest
thereon) opposite the applicable installment date (or, if less, the aggregate
amount of the Tranche A Term Loans then outstanding):
Installment Amount
----------- ------
February 28, 1998 $1,750,000
May 31, 1998 $1,750,000
August 31, 1998 $2,000,000
November 30, 1998 $2,000,000
February 28, 1999 $2,000,000
May 31, 1999 $2,000,000
August 31, 1999 $2,000,000
November 30, 1999 $2,000,000
February 28, 2000 $2,000,000
May 31, 2000 $2,000,000
August 31, 2000 $2,250,000
November 30, 2000 $2,250,000
February 28, 2001 $2,250,000
May 31, 2001 $2,250,000
August 31, 2001 $3,250,000
November 30, 2001 $3,250,000
February 28, 2002 $3,250,000
May 31, 2002 $3,250,000
August 31, 2002 $4,250,000
Tranche A Maturity Date $4,250,000
2.8 Tranche B Term Notes. (a) The Borrower agrees that, upon the
request to the Administrative Agent by any Tranche B Term Loan Lender made on or
prior to the Effective Date or in connection with any assignment pursuant to
subsection 11.6(c), to evidence such Lender's Tranche B Term Loan the Borrower
will execute and deliver to such Lender a promissory note substantially in the
form of Exhibit A-3 (each, as amended, supplemented,
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replaced or otherwise modified from time to time, a "Tranche B Term Note"; the
Tranche A Term Notes together with the Tranche B Term Notes, the "Term Notes"),
with appropriate insertions therein as to payee, date and principal amount,
payable to the order of such Tranche B Term Loan Lender and in a principal
amount equal to the lesser of (a) the amount set forth under such Tranche B Term
Loan Lender's name on Schedule I opposite the heading "Tranche B Term Loan
Commitment" and (b) the then unpaid principal amount of the Tranche B Term Loans
made by such Tranche B Term Loan Lender to the Borrower. Any Tranche B Term Note
shall (i) be dated the Effective Date, (ii) be payable as provided in subsection
2.8(b) and (iii) provide for the payment of interest in accordance with
subsection 4.1. A Tranche B Term Note may be assigned or otherwise transferred
only by registration of such assignment or transfer in the Register (and each
Tranche B Term Note shall expressly so provide). Any assignment or transfer of a
Tranche B Term Note shall be registered in the Register only upon surrender for
registration of assignment or transfer of the Tranche B Term Note accompanied by
an Assignment and Acceptance duly executed by the assigning Tranche B Term Loan
Lender, and thereupon a new Tranche B Term Loan Note shall be issued to the
designated Assignee and the surrendered Tranche B Term Loan Note shall be
returned by the Administrative Agent to the Borrower marked "cancelled". No
assignment of a Tranche B Term Loan Note shall be effective unless it shall have
been recorded in the Register by the Administrative Agent as provided in this
subsection 2.8(a).
(b) The Tranche B Term Loans shall be payable in 28 consecutive
quarterly installments, commencing on February 28, 1998, on the dates and in the
aggregate principal amount set forth below (together with all accrued interest
thereon) opposite the applicable installment date (or, if less, the aggregate
amount of the Tranche B Term Loans then outstanding):
Installment Amount
----------- ------
February 28, 1998 $ 125,000
May 31, 1998 $ 125,000
August 31, 1998 $ 125,000
November 30, 1998 $ 125,000
February 28, 1999 $ 125,000
May 31, 1999 $ 125,000
August 31, 1999 $ 125,000
November 30, 1999 $ 125,000
February 28, 2000 $ 125,000
May 31, 2000 $ 125,000
August 31, 2000 $ 125,000
November 30, 2000 $ 125,000
February 28, 2001 $ 125,000
May 31, 2001 $ 125,000
August 31, 2001 $ 125,000
November 30, 2001 $ 125,000
February 28, 2002 $ 125,000
May 31, 2002 $ 125,000
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August 31, 2001 $ 125,000
November 30, 2001 $ 125,000
February 28, 2002 $ 125,000
May 31, 2002 $ 125,000
August 31, 2002 $ 125,000
November 30, 2002 $ 125,000
February 28, 2003 $6,250,000
May 31, 2003 $6,250,000
August 31, 2003 $6,250,000
November 30, 2003 $6,250,000
February 28, 2004 $9,375,000
May 31, 2004 $9,375,000
August 31, 2004 $9,375,000
Tranche B Maturity Date $9,375,000
2.9 Procedure for Term Loan Borrowing. The Borrower shall give
the Administrative Agent irrevocable notice (which notice must be received by
the Administrative Agent prior to 12:30 P.M., New York City time, at least (a)
three Business Days prior to the Effective Date, if all or any part of the Term
Loans are to be initially Eurodollar Loans or (b) one Business Day prior to the
Effective Date otherwise requesting that the Term Loan Lenders make the Term
Loans on the Effective Date and specifying (i) the amount to be borrowed, (ii)
whether the Term Loans are to be initially Eurodollar Loans, ABR Loans or a
combination thereof, and (iii) if the Term Loans are to be entirely or partly
Eurodollar Loans, the respective amounts of each such Type of Loan and the
respective lengths of the initial Interest Periods therefor. Upon receipt of
such notice the Administrative Agent shall promptly notify each Term Loan Lender
thereof. Each Term Loan Lender will make the amount of its pro rata share of the
Term Loans available to the Administrative Agent for the account of the Borrower
at the office of the Administrative Agent specified in subsection 11.2 prior to
10:00 A.M., New York City time, on the Effective Date in Dollars and in funds
immediately available to the Administrative Agent. The Administrative Agent
shall on such date credit the account of the Borrower on the books of such
office of the Administrative Agent, c/o Loan and Agency Service Group, One Chase
Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, with the aggregate of the
amounts made available to the Administrative Agent by the Term Loan Lenders and
in like funds as received by the Administrative Agent.
2.10 Repayment of Loans. (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of:
(i) each Revolving Credit Lender, the then unpaid principal amount of each
Revolving Credit Loan of such Lender made to the Borrower, on the Termination
Date (or such earlier date on which the Revolving Credit Loans become due and
payable pursuant to Section 9); (ii) the Swing Line Lender, the then unpaid
principal amount of the Swing Line Loans made to Borrower, on the Termination
Date (or such earlier date on
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which the Swing Line Loans become due and payable pursuant to Section 9); (iii)
each Tranche A Term Loan Lender, the amounts specified in subsection 2.7(b) on
the dates specified in subsection 2.7(b) (or such earlier date on which the
Tranche A Term Loans become due and payable pursuant to Section 9) and (iii)
each Tranche B Term Loan Lender, the amounts specified in subsection 2.8(b) on
the dates specified in subsection 2.8(b) (or such earlier date on which the
Tranche B Term Loans become due and payable pursuant to Section 9). The Borrower
hereby further agrees to pay interest on the unpaid principal amount of the
Loans from time to time outstanding from the date of the making of the Loans
until payment in full thereof at the rates per annum, and on the dates, set
forth in subsection 4.1.
(b) Each Lender (including the Swing Line Lender) shall
maintain in accordance with its usual practice an account or accounts evidencing
indebtedness of the Borrower to such Lender resulting from each Loan of such
Lender from time to time, including, without limitation, the amounts of
principal and interest payable and paid to such Lender from time to time under
this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to subsection 11.6(d), and a subaccount therein for each Lender, in
which shall be recorded (i) the amount of each Loan made hereunder, the Type
thereof and each Interest Period, if any, applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) both the amount of any sum received
by the Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 2.10(b) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
the Borrower by such Lender in accordance with the terms of this Agreement.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the other Revolving
Credit Lenders set forth in subsection 3.4(a), agrees to issue letters of credit
("Letters of Credit") for the account of the Borrower on any Business Day during
the Revolving Credit Commitment Period in such form as may be approved from time
to time by the Issuing Lender; provided that the Issuing Lender shall not issue
any Letter of Credit if, after giving effect to such issuance, (i) the L/C
Obligations would exceed $10,000,000, (ii) the Aggregate Outstanding Revolving
Credit of all the Revolving
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Credit Lenders would exceed the lesser of (x) the Revolving Credit Commitments
of all the Revolving Credit Lenders and (y) the Borrowing Base then in effect or
(iii) the Alternate Currency L/C Exposure would exceed $10,000,000. Each Letter
of Credit shall be either (x) a standby letter of credit issued to support
obligations of the Borrower or any of its Subsidiaries, contingent or otherwise,
which finance the working capital and business needs of the Borrower and its
Subsidiaries incurred in the ordinary course of business (a "Standby Letter of
Credit"), or (y) a commercial letter of credit in respect of the purchase of
goods or services by the Borrower or any of its Subsidiaries in the ordinary
course of business (a "Commercial Letter of Credit"), (ii) expire on the earlier
of (i) one-year after the date of issuance and (ii) five Business Days prior to
the Termination Date, provided that a one-year Letter of Credit may be renewed
for additional one-year periods, but may not be extended beyond five days prior
to the Termination Date.
(b) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York.
(c) The Issuing Lender shall not at any time issue any Letter
of Credit hereunder if such issuance would conflict with, or cause the Issuing
Lender or any L/C Participant to exceed any limits imposed by, any applicable
Requirement of Law.
3.2 Procedure for Issuance of Letters of Credit. The Borrower
may from time to time request that the Issuing Lender issue a Letter of Credit
by delivering to the Issuing Lender, at its address for notices specified
herein, an Application therefor, completed to the reasonable satisfaction of the
Issuing Lender, and such other certificates, documents and other papers and
information as the Issuing Lender may reasonably request. Upon receipt of any
Application, the Issuing Lender will process such Application and the
certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall the
Issuing Lender be required to issue any Letter of Credit earlier than three
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed by the Issuing Lender and the Borrower. The Issuing
Lender shall furnish a copy of such Letter of Credit to the Borrower promptly
following the issuance thereof.
3.3 Fees, Commissions and Other Charges. (a) The Borrower
shall pay to the Administrative Agent, for the account of the Issuing Lender and
the L/C Participants, a letter of credit commission with respect to each Letter
of Credit, computed for the period from and including the date of issuance of
such Letter of Credit to the expiration date of such Letter of Credit, computed
at a rate per annum equal to the Applicable Margin then in effect for Eurodollar
Loans that are Revolving Credit Loans calculated on the basis of a 360-day year,
of the aggregate amount available to be drawn under such Letter of Credit,
payable quarterly in arrears on each
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L/C Fee Payment Date with respect to such Letter of Credit and on the
Termination Date or such earlier date as the Revolving Credit Commitments shall
terminate as provided herein. Such commission shall be payable to the
Administrative Agent for the account of the Revolving Credit Lenders to be
shared ratably among them in accordance with their respective Revolving Credit
Commitment Percentages. The Borrower shall also pay to the Administrative Agent,
for the account of the Issuing Lender, a fee equal to 1/4 of 1% per annum of the
aggregate amount available to be drawn under such Letter of Credit, payable
quarterly in arrears on each L/C Fee Payment Date with respect to such Letter of
Credit and on the Termination Date or such other date as the Revolving Credit
Commitments shall terminate. Such commissions and fees shall be nonrefundable.
(b) In addition to the foregoing commissions and fees, the
Borrower shall pay or reimburse the Issuing Lender for such normal and customary
costs and expenses as are incurred or charged by the Issuing Lender in issuing,
effecting payment under, amending or otherwise administering any Letter of
Credit.
(c) The Administrative Agent shall, promptly following its
receipt thereof, distribute to the Issuing Lender and the L/C Participants all
commissions and fees received by the Administrative Agent for their respective
accounts pursuant to this subsection.
3.4 L/C Participations. (a) The Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce the
Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from
the Issuing Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Credit Commitment Percentage (determined on the date of
issuance of the relevant Letter of Credit) in the Issuing Lender's obligations
and rights under each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower in respect of such Letter or Credit in
accordance with subsection 3.5(a), such L/C Participant shall pay to the Issuing
Lender upon demand at the Issuing Lender's address for notices specified herein
an amount equal to such L/C Participant's Revolving Credit Commitment Percentage
of the amount of such draft, or any part thereof, which is not so reimbursed;
provided that nothing in this paragraph shall relieve the Issuing Lender of any
liability resulting from the gross negligence or willful misconduct of the
Issuing Lender, or otherwise affect any defense or other right that any L/C
Participant may have as a result of such gross negligence or willful misconduct.
(b) If any amount required to be paid by any L/C Participant
to the Issuing Lender on demand by the Issuing Lender pursuant to subsection
3.4(a) in respect of any unreimbursed
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portion of any payment made by the Issuing Lender under any Letter of Credit is
paid to the Issuing Lender within three Business Days after the date such demand
is made, such L/C Participant shall pay to the Issuing Lender on demand an
amount equal to the product of (i) such amount, times (ii) the daily average
Federal Funds Effective Rate during the period from and including the date such
payment is required to the date on which such payment is immediately available
to the Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant to
subsection 3.4(a) is not in fact made available to the Issuing Lender by such
L/C Participant within three Business Days after the date such payment is due,
the Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the
rate per annum applicable to ABR Loans hereunder. A certificate of the Issuing
Lender submitted to any L/C Participant with respect to any amounts owing under
this subsection (which shall include calculations of any such amounts in
reasonable detail) shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with subsection 3.4(a), the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower in respect of such Letter of Credit or otherwise, including
proceeds of Collateral applied thereto by the Issuing Lender), or any payment of
interest on account thereof, the Issuing Lender will, if such payment is
received prior to 1:00 P.M., New York City time, on a Business Day, distribute
to such L/C Participant its pro rata share thereof prior to the end of such
Business Day and otherwise the Issuing Lender will distribute such payment on
the next succeeding Business Day; provided, however, that in the event that any
such payment received by the Issuing Lender shall be required to be returned by
the Issuing Lender, such L/C Participant shall return to the Issuing Lender the
portion thereof previously distributed by the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. (a) The Borrower
agrees to reimburse the Issuing Lender, upon receipt by the Borrower of notice
from the Issuing Lender of the date and amount of a draft presented under any
Letter of Credit and paid by the Issuing Lender, for the amount of (i) such
draft so paid and (ii) any taxes, fees, charges or other costs or expenses
reasonably incurred by the Issuing Lender in connection with such payment. Each
such payment shall be made to the Issuing Lender, at its address for notices
specified herein in immediately available funds, on the date on which the
Borrower receives such notice, if received prior to 11:00 A.M., New York City
time, on a Business Day and otherwise on the next succeeding Business Day.
(b) Interest shall be payable on any and all amounts remaining
unpaid by the Borrower under this subsection (i) from the date the draft
presented under the affected Letter of
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Credit is paid to the date on which the Borrower is required to pay such amounts
pursuant to paragraph (a) above at the rate which would then be payable on any
outstanding ABR Loans that are Revolving Credit Loans and (ii) thereafter until
payment in full at the rate which would be payable on any outstanding ABR Loans
that are Tranche B Term Loans which were then overdue.
3.6 Obligations Absolute. (a) The Borrower's obligations under
this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which the Borrower may have or have had against the Issuing Lender, any
L/C Participant or any beneficiary of a Letter of Credit, provided that this
paragraph shall not relieve the Issuing Lender or any L/C Participant of any
liability resulting from the gross negligence or willful misconduct of the
Issuing Lender or such L/C Participant, or otherwise affect any defense or other
right that the Borrower may have as a result of any such gross negligence or
willful misconduct.
(b) The Borrower also agrees with the Issuing Lender that the
Issuing Lender and the L/C Participants shall not be responsible for, and the
Borrower's Reimbursement Obligations under subsection 3.5(a) shall not be
affected by, among other things, (i) the validity or genuineness of documents or
of any endorsements thereon, even though such documents shall in fact prove to
be invalid, fraudulent or forged, or (ii) any dispute between or among such
Borrower and any beneficiary of any Letter of Credit or any other party to which
such Letter of Credit may be transferred or (iii) any claims whatsoever of the
Borrower against any beneficiary of such Letter of Credit or any such
transferee, provided that this paragraph shall not relieve the Issuing Lender or
any L/C Participant of any liability resulting from the gross negligence or
willful misconduct of the Issuing Lender or such L/C Participant, or otherwise
affect any defense or other right that the Borrower may have as a result of any
such gross negligence or willful misconduct.
(c) Neither the Issuing Lender nor any L/C Participant shall
be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit, except for errors or omissions caused by
such Person's gross negligence or willful misconduct.
(d) The Borrower agrees that any action taken or omitted by
the Issuing Lender under or in connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross negligence or
willful misconduct and in accordance with the standards of care specified in the
Uniform Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of the Issuing Lender or any L/C
Participant to the Borrower.
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3.7 Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the Issuing Lender shall promptly notify
the Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in respect of any Letter of Credit in connection with any
draft presented for payment under such Letter of Credit shall, in addition to
any payment obligation expressly provided for in such Letter of Credit, be
limited to determining that the documents (including each draft) delivered under
such Letter of Credit in connection with such presentment are in conformity with
such Letter of Credit, provided that this paragraph shall not relieve the
Issuing Lender of any liability resulting from the gross negligence or willful
misconduct of the Issuing Lender, or otherwise affect any defense or other right
that the Borrower may have as a result of any such gross negligence or willful
misconduct.
3.8 Application. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. GENERAL PROVISIONS APPLICABLE
TO LOANS AND LETTERS OF CREDIT
4.1 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin in effect for such day.
(b) Each ABR Loan shall bear interest for each day that it is
outstanding at a rate per annum equal to the ABR for such day plus the
Applicable Margin in effect for such day.
(c) If all or a portion of (i) the principal amount of any
Loan, (ii) any interest payable thereon or (iii) any commitment fee, letter of
credit commission, letter of credit fee or other amount payable hereunder,
including Reimbursement Obligations, shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum which is (x) in the case of overdue principal, the
rate that would otherwise be applicable thereto pursuant to the relevant
foregoing provisions of this subsection plus 2.00% or (y) in the case of overdue
interest, fees, commissions or other amounts, the rate described in paragraph
(b) of this subsection for Tranche B Term Loans which are ABR Loans plus 2.00%,
in each case from the date of such non-payment until such amount is paid in full
(as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
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(e) It is the intention of the parties hereto to comply
strictly with applicable usury laws; accordingly, it is stipulated and agreed
that the aggregate of all amounts which constitute interest under applicable
usury laws, whether contracted for, charged, taken, reserved, or received, in
connection with the indebtedness evidenced by this Agreement or any Notes, or
any other document relating or referring hereto or thereto, now or hereafter
existing, shall never exceed under any circumstance whatsoever the maximum
amount of interest allowed by applicable usury laws.
4.2 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert outstanding Term Loans and Revolving Credit
Loans from Eurodollar Loans to ABR Loans by giving the Administrative Agent at
least two Business Days' prior irrevocable notice of such election, provided
that any such conversion of Eurodollar Loans may only be made on the last day of
an Interest Period with respect thereto. The Borrower may elect from time to
time to convert outstanding Term Loans and Revolving Credit Loans from ABR Loans
to Eurodollar Loans by giving the Administrative Agent at least three Business
Days' prior irrevocable notice of such election. Any such notice of conversion
to Eurodollar Loans shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice the Administrative
Agent shall promptly notify each affected Lender thereof. All or any part of
outstanding Eurodollar Loans and ABR Loans may be converted as provided herein,
provided that (i) (unless the Required Lenders otherwise consent) no Loan may be
converted into a Eurodollar Loan when any Default or Event of Default has
occurred and is continuing and, in the case of any Default, the Administrative
Agent has given notice to the Borrower that no such conversions may be made and
(ii) no Loan may be converted into a Eurodollar Loan after the date that is one
month prior to the Termination Date.
(b) Any Eurodollar Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Administrative Agent of the length of the next
Interest Period to be applicable to such Loan, determined in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
provided that no Eurodollar Loan may be continued as such (i) (unless the
Required Lenders otherwise consent) when any Default or Event of Default has
occurred and is continuing and, in the case of any Default, the Administrative
Agent has given notice to the Borrower that no such continuations may be made or
(ii) after the date that is one month prior to the Termination Date. Upon
receipt of any such notice of continuation pursuant to this subsection 4.2(b),
the Administrative Agent shall promptly notify each affected Lender thereof.
4.3 Minimum Amounts of Sets. All borrowings, conversions and
continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of the
Eurodollar Loans outstanding comprising each Set shall be equal to $1,000,000 or
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a whole multiple of $500,000 in excess thereof and so that there shall not be
more than 10 Sets at any one time outstanding.
4.4 Optional and Mandatory Prepayments and Commitment
Reductions. (a) The Borrower may at any time and from time to time prepay the
Loans made to it (including the Reimbursement Obligations in respect of Letters
of Credit issued for its account) and permanently reduce the Revolving Credit
Commitments, in whole or in part, without premium or penalty, upon at least
three Business Days' irrevocable notice by the Borrower to the Administrative
Agent (in the case of Eurodollar Loans and Reimbursement Obligations) and at
least one Business Day's irrevocable notice by the Borrower to the
Administrative Agent (in the case of ABR Loans other than Swing Line Loans) or
same day irrevocable notice by the Borrower to the Administrative Agent (in the
case of Swing Line Loans), specifying, in the case of any prepayment of Loans or
reduction of Revolving Credit Commitments, the date and amount of prepayment or
reduction, as the case may be, and whether such prepayment is (i) of Term Loans,
Revolving Credit Loans, Swing Line Loans, or a combination thereof, and (ii) of
Eurodollar Loans, ABR Loans or a combination thereof, and, in each case if a
combination thereof, the principal amount allocable to each and, in the case of
any prepayment of Reimbursement Obligations, the date and amount of prepayment,
the identity of the applicable Letter of Credit or Letters of Credit and the
amount allocable to each of such Reimbursement Obligations. Upon the receipt of
any such notice the Administrative Agent shall promptly notify each affected
Lender thereof. If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein, together with (if a
Eurodollar Loan is prepaid other than at the end of the Interest Period
applicable thereto) any amounts payable pursuant to subsection 4.12 and, in the
case of prepayments of the Term Loans only, accrued interest to such date on the
amount prepaid. Partial prepayments of (i) the Term Loans pursuant to this
subsection shall be applied (x) pro rata (based on outstanding principal amount)
to the Tranche A Term Loans and the Tranche B Term Loans and (y) first, to the
first two installments thereof due on or after the date of such prepayment in
the order of their maturities and second, pro rata to the respective remaining
installments thereof, and (ii) the Revolving Credit Loans and the Reimbursement
Obligations pursuant to this subsection shall (unless the Borrower otherwise
directs) be applied, first, to payment of the Swing Line Loans then outstanding,
second, to payment of the Revolving Credit Loans then outstanding, third, to
payment of any Reimbursement Obligations then outstanding and, last, to cash
collateralize any outstanding L/C Obligation on terms reasonably satisfactory to
the Administrative Agent. Partial prepayments pursuant to this subsection 4.4(a)
shall be in an aggregate principal amount of $1,000,000 or a whole multiple of
$500,000 in excess thereof. Amounts prepaid on account of Term Loans pursuant to
this subsection 4.4(a) may not be reborrowed.
(b) If, subsequent to the Effective Date, the Borrower or any
of its Subsidiaries shall incur any Indebtedness for borrowed money (other than
under the Senior Subordinated Indenture or evidenced by the Senior Subordinated
Notes and other Indebtedness permitted by
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subsection 8.2), then an amount equal to 100% of the Net Cash Proceeds thereof
shall on the first Business Day after receipt thereof be applied toward the
prepayment of the Loans and the permanent reduction of the Revolving Credit
Commitments in accordance with subsection 4.4(h).
(c) Commencing June 30, 1998, and on each June 30 thereafter,
the Borrower shall prepay, in accordance with subsection 4.4(h), the Loans and
cash collateralize the L/C Obligations in an amount equal to 75% of the
Borrower's Excess Cash Flow for the fiscal year ending on the preceding March
31.
(d) If subsequent to the Effective Date, the Borrower or any
of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sales or
dispositions permitted by subsections 8.6(g), 8.6(h) or 8.11 or not otherwise
permitted by subsection 8.6, then an amount equal to 100% of the Net Cash
Proceeds (less the Reinvested Amount applicable thereto) thereof shall on the
first Business Day after receipt thereof be applied toward the prepayment of the
Loans and the permanent reduction of the Revolving Credit Commitments in
accordance with subsection 4.4(h).
(e) If subsequent to the Effective Date, the Borrower shall
issue any Capital Stock (except for shares of Capital Stock of Holdings issued
or sold to directors, officers and employees of, or consultants to, Holdings or
any of its Subsidiaries), then an amount equal to 100% of the Net Cash Proceeds
thereof shall be applied toward the prepayment of the Loans and the permanent
reduction of the Revolving Credit Commitments in accordance with subsection
4.4(h).
(f) If, at any time the aggregate principal amount of the
Revolving Credit Loans, Swing Line Loans and L/C Obligations then outstanding
exceeds an amount equal to the lesser of (i) the Borrowing Base on such date and
(ii) the aggregate Revolving Credit Commitment on such date, the Borrower shall
first repay the Revolving Credit loans then outstanding; second pay any
Reimbursement Obligations then outstanding and, last, cash collateralize any
outstanding L/C Obligation in an amount equal to such excess.
(g) The Borrower shall prepay all Swing Line Loans then
outstanding simultaneously with each borrowing of Revolving Credit Loans.
(h) Prepayments pursuant to subsections 4.4(b), 4.4(c), 4.4(d)
and 4.4(e) shall be applied, first, to prepay Term Loans then outstanding,
second, to prepay Swing Line Loans then outstanding, third, to prepay Revolving
Credit Loans then outstanding, fourth, to pay any Reimbursement Obligations then
outstanding and, last, to cash collateralize any outstanding L/C Obligations on
terms reasonably satisfactory to the Administrative Agent. Prepayments of the
Term Loans pursuant to subsections 4.4(b), 4.4(c), 4.4(d) and 4.4(e) shall be
applied (x) pro rata
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(based on outstanding principal amount) to the Tranche A Term Loans and the
Tranche B Term Loans and (y) first, to the first two installments thereof due on
or after the date of such prepayment in the order of their maturities and
second, pro rata to the respective remaining installments thereof. Prepayments
of the Revolving Credit Loans and the Reimbursement Obligations pursuant to
subsections 4.4(b), 4.4(c), 4.4(d) and 4.4(e) shall (unless the Borrower
otherwise directs) be applied, first, to payment of the Revolving Credit Loans
then outstanding, second, to payment of any Reimbursement Obligations then
outstanding and, last, to cash collateralize any outstanding L/C Obligation on
terms reasonably satisfactory to the Administrative Agent. Amounts prepaid on
account of Term Loans pursuant to subsection 4.4(b), 4.4(c), 4.4(d) and 4.4(e)
may not be reborrowed. The Revolving Credit Commitments shall be permanently
reduced by the amount of all prepayments of Revolving Credit Loans, payments of
Reimbursement Obligations and cash collateral of L/C Obligations made under
subsections 4.4(b), 4.4(c), 4.4(d) and 4.4(e).
(i) Notwithstanding the foregoing provisions of this
subsection 4.4, if at any time any prepayment of the Loans pursuant to
subsection 4.4(b), 4.4(c), 4.4(d), 4.4(e) or 4.4(f) would result, after giving
effect to the procedures set forth in this Agreement, in the Borrower incurring
breakage costs under subsection 4.12 as a result of Eurodollar Loans being
prepaid other than on the last day of an Interest Period with respect thereto,
then, the Borrower may, so long as no Default or Event of Default shall have
occurred and be continuing, in its sole discretion, initially (x) deposit a
portion (up to 100%) of the amounts that otherwise would have been paid in
respect of such Eurodollar Loans with the Administrative Agent (which deposit
must be equal in amount to the amount of such Eurodollar Loans not immediately
prepaid) to be held as security for the obligations of the Borrower to make such
prepayment pursuant to a cash collateral agreement to be entered into on terms
reasonably satisfactory to the Administrative Agent, with such cash collateral
to be directly applied upon the first occurrence thereafter of the last day of
an Interest Period with respect to such Eurodollar Loans (or such earlier date
or dates as shall be requested by the Borrower) or (y) make a prepayment of the
Revolving Credit Loans in accordance with subsection 4.4(a) with an amount equal
to a portion (up to 100%) of the amounts that otherwise would have been paid in
respect of such Eurodollar Loans (which prepayment, together with any deposits
pursuant to clause (x) above, must be equal in amount to the amount of such
Eurodollar Loans not immediately prepaid); provided that, notwithstanding
anything in this Agreement to the contrary, the Borrower may not request any
Extension of Credit under the Revolving Credit Commitments that would reduce the
aggregate amount of the Available Revolving Credit Commitments to an amount that
is less than the amount of such prepayment until the related portion of such
Eurodollar Loans have been prepaid upon the first occurrence thereafter of the
last day of an Interest Period with respect to such Eurodollar Loans; provided
that, in the case of either clause (x) or (y), such unpaid Eurodollar Loans
shall continue to bear interest in accordance with subsection 4.1 until such
unpaid Eurodollar Loans or the related portion of such Eurodollar Loans, as the
case may be, have or has been prepaid.
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4.5 Commitment Fees. The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Credit Lender, a
commitment fee for the period from and including the first day of the Revolving
Credit Commitment Period to the Termination Date, computed, initially, at a the
rate of 1/2 of 1% per annum and, after the first Adjustment Date, at the
applicable rate per annum set forth on Schedule II under the heading "Commitment
Fee" (determined on each Adjustment Date in the same manner as described in the
definition of "Applicable Margin") on the average daily amount of the Available
Revolving Credit Commitment of such Lender during the period for which payment
is made, payable quarterly in arrears on the last day of each February, May,
August and November and on the Termination Date or such earlier date as the
Revolving Credit Commitments shall terminate as provided herein, commencing on
the Effective Date.
4.6 Computation of Interest and Fees. (a) Interest and
commitment fees (other than interest based on the Prime Rate) shall be
calculated on the basis of a 360-day year for the actual days elapsed; and
interest based on the Prime Rate shall be calculated on the basis of a 365- (or
366-, as the case may be) day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and the
affected Lenders of each determination of a Eurodollar Rate. Any change in the
interest rate on a Loan resulting from a change in the ABR, the Eurodollar
Reserve Requirements, the C/D Assessment Rate or the C/D Reserve Percentage
shall become effective as of the opening of business on the day on which such
change becomes effective. The Administrative Agent shall as soon as practicable
notify the Borrower and the affected Lenders of the effective date and the
amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower
or any Lender, deliver to the Borrower or such Lender a statement showing in
reasonable detail the calculations used by the Administrative Agent in
determining any interest rate pursuant to subsection 4.1, excluding any
Eurodollar Base Rate which is based upon the Telerate British Bankers Assoc.
Interest Settlement Rates Page and any ABR which is based upon the Prime Rate.
4.7 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period, the Administrative Agent shall have determined
(which determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate with respect to any
Eurodollar Loan (the "Affected Eurodollar Rate") for such Interest Period, the
Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (x) any Eurodollar Loans the rate of interest applicable to which is based
upon the Affected Eurodollar Rate requested to be
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made on the first day of such Interest Period shall be made as ABR Loans (to the
extent otherwise permitted by subsection 4.2), (y) any outstanding Loans that
were to have been converted on the first day of such Interest Period to or
continued as Eurodollar Loans the rate of interest applicable to which is based
upon the Affected Eurodollar Rate shall be converted to or continued as ABR
Loans (to the extent otherwise permitted by subsection 4.2) and (z) any
outstanding Eurodollar Loans that were to have been converted on the first day
of such Interest Period to or continued as Eurodollar Loans the rate of interest
applicable to which is based upon the Affected Eurodollar Rate and that are not
otherwise permitted to be converted to or continued as ABR Loans by subsection
4.2 shall, upon demand by the Revolving Credit Lenders the Revolving Credit
Commitment Percentage of which aggregate at least 51%, be immediately repaid by
the applicable Borrower on the last day of the then current Interest Period with
respect thereto together with accrued interest thereon or otherwise, at the
option of the Borrower, shall remain outstanding and bear interest at a rate
which reflects, as to each of the Revolving Credit Lenders, such Revolving
Credit Lender's cost of funding such Eurodollar Loans, as reasonably determined
by such Revolving Credit Lender, plus the Applicable Margin hereunder. If any
such repayment occurs on a day which is not the last day of the then current
Interest Period with respect to such affected Eurodollar Loan, the Borrower
shall pay to each of the Revolving Credit Lenders such amounts, if any, as may
be required pursuant to subsection 4.12. Until such notice has been withdrawn by
the Administrative Agent, no further Eurodollar Loans the rate of interest
applicable to which is based upon the Affected Eurodollar Rate shall be made or
continued as such, nor shall the Borrower have the right to convert ABR Loans to
Eurodollar Loans the rate of interest applicable to which is based upon the
Affected Eurodollar Rate.
4.8 Pro Rata Treatment and Payments. (a) Each borrowing of
Revolving Credit Loans (other than Swing Line Loans) by the Borrower from the
Lenders hereunder shall be made, each payment by the Borrower on account of any
commitment fee in respect of the Revolving Credit Commitments hereunder shall be
allocated by the Administrative Agent, and any reduction of the Revolving Credit
Commitments of the Lenders shall be allocated by the Administrative Agent, pro
rata according to the relevant Revolving Credit Commitment Percentages of the
Lenders. Each payment (including each prepayment) by the Borrower on account of
principal of and interest on any Revolving Credit Loans shall be allocated by
the Administrative Agent pro rata according to the respective outstanding
principal amounts of such Revolving Credit Loans then held by the Revolving
Credit Lenders. Each payment (including each prepayment) by the Borrower on
account of principal of and interest on any Tranche A Term Loans or Tranche B
Term Loans shall be allocated by the Administrative Agent pro rata according to
the respective outstanding principal amounts of such Tranche A Term Loans or
Tranche B Term Loans then held by the Term Loan Lenders. All payments (including
prepayments) to be made by the Borrower hereunder and under any Notes, whether
on account of principal, interest, fees, Reimbursement Obligations or otherwise,
shall be made without set-off or counterclaim and shall be made prior to 1:00
P.M., New York City time, on the due date thereof to the Administrative Agent,
for the account of the Lenders holding the relevant Loans or
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the L/C Participants, as the case may be, at the Administrative Agent's office
specified in subsection 11.2 in immediately available funds. Payments received
by the Administrative Agent after such time shall be deemed to have been
received on the next Business Day. The Administrative Agent shall distribute
such payments to such Lenders, if any such payment is received prior to 1:00
P.M., New York City time, on a Business Day, in like funds as received prior to
the end of such Business Day and otherwise the Administrative Agent shall
distribute such payment to such Lenders on the next succeeding Business Day. If
any payment hereunder (other than payments on the Eurodollar Loans) becomes due
and payable on a day other than a Business Day, the maturity of such payment
shall be extended to the next succeeding Business Day, and, with respect to
payments of principal, interest thereon shall be payable at the then applicable
rate during such extension. If any payment on a Eurodollar Loan becomes due and
payable on a day other than a Business Day, the maturity of such payment shall
be extended to the next succeeding Business Day (and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension) unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day.
(b) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its Revolving Credit Commitment Percentage of such
borrowing available to the Administrative Agent, the Administrative Agent may
assume that such Lender is making such amount available to the Administrative
Agent, and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. If such amount is not made
available to the Administrative Agent by the required time on the Borrowing Date
therefor, such Lender shall pay to the Administrative Agent, on demand, such
amount with interest thereon at a rate equal to the daily average Federal Funds
Effective Rate for the period until such Lender makes such amount immediately
available to the Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this subsection
shall be conclusive in the absence of manifest error. If such Lender's Revolving
Credit Commitment Percentage of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of such Borrowing
Date, the Administrative Agent shall notify the Borrower of the failure of such
Lender to make such amount available to the Administrative Agent and the
Administrative Agent shall also be entitled to recover such amount with interest
thereon at the rate per annum applicable to ABR Loans hereunder on demand, from
the Borrower.
4.9 Illegality. Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof occurring after the Effective Date shall make it unlawful
for any Lender to make or maintain any Eurodollar Loans as contemplated by this
Agreement ("Affected Eurodollar Loans"), (a) such Lender shall promptly give
written notice of such circumstances to the Borrower and the
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Administrative Agent (which notice shall be withdrawn whenever such
circumstances no longer exist), (b) the commitment of such Lender hereunder to
make Affected Eurodollar Loans, continue Affected Eurodollar Loans as such and
convert an ABR Loan to an Affected Eurodollar Loan shall forthwith be cancelled
and, until such time as it shall no longer be unlawful for such Lender to make
or maintain such Affected Eurodollar Loans, such Lender shall then have a
commitment only to make an ABR Loan when an Affected Eurodollar Loan is
requested (to the extent otherwise permitted by subsection 4.2), (c) such
Lender's Loans then outstanding as Affected Eurodollar Loans, if any, shall be
converted automatically to ABR Loans on the respective last days of the then
current Interest Periods with respect to such Loans or within such earlier
period as required by law (to the extent otherwise permitted by subsection 4.2)
and (d) such Lender's Loans then outstanding as Affected Eurodollar Loans, if
any, not otherwise permitted to be converted to ABR Loans by subsection 4.2
shall, upon notice to the Borrower, be prepaid with accrued interest thereon on
the last day of the then current Interest Period with respect thereto (or such
earlier date as may be required by any such Requirement of Law). If any such
conversion or prepayment of an Affected Eurodollar Loan occurs on a day which is
not the last day of the then current Interest Period with respect thereto, the
applicable Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to subsection 4.12.
4.10 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof
applicable to any Lender, or compliance by any Lender with any request or
directive (whether or not having the force of law) from any central bank or
other Governmental Authority, in each case made subsequent to the Effective Date
(or, if later, the date on which such Lender becomes a Lender):
(i) shall subject such Lender to any tax of any kind
whatsoever with respect to any Letter of Credit, any Application or any
Eurodollar Loans made by it or its obligation to make Eurodollar Loans,
or change the basis of taxation of payments to such Lender in respect
thereof (except for Non Excluded Taxes covered by subsection 4.11
(including Non-Excluded Taxes imposed solely by reason of any failure
of such Lender to comply with its obligations (if any) under subsection
4.11(b)) and changes in taxes measured by or imposed upon the overall
net income, or franchise taxes, or taxes measured by or imposed upon
overall capital or net worth, or branch taxes (in the case of such
capital, net worth or branch taxes, imposed in lieu of such net income
tax), of such Lender or its applicable lending office, branch, or any
affiliate thereof);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
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(iii) shall impose on such Lender any other condition
(excluding any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, upon notice to the Borrower from such Lender,
through the Administrative Agent, in accordance herewith, the Borrower shall
promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable with
respect to such Eurodollar Loans or Letters of Credit, provided that, in any
such case, the Borrower may elect to convert Eurodollar Loans made by such
Lender hereunder to ABR Loans (to the extent otherwise permitted by subsection
4.2) by giving the Administrative Agent at least one Business Day's notice of
such election, in which case such Borrower shall promptly pay to such Lender,
upon demand, without duplication, amounts theretofore required to be paid to
such Lender pursuant to this subsection 4.10(a) and such amounts, if any, as may
be required pursuant to subsection 4.12. If any Lender becomes entitled to claim
any additional amounts pursuant to this subsection, it shall provide prompt
notice thereof to the Borrower, through the Administrative Agent, certifying (x)
that one of the events described in this paragraph (a) has occurred and
describing in reasonable detail the nature of such event, (y) as to the
increased cost or reduced amount resulting from such event and (z) as to the
additional amount demanded by such Lender and a reasonably detailed explanation
of the calculation thereof. Such a certificate as to any additional amounts
payable pursuant to this subsection submitted by such Lender, through the
Administrative Agent, to the Borrower shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority, in each case, made subsequent to the Effective Date (or, if later,
the date on which such Lender becomes a Lender), does or shall have the effect
of reducing the rate of return on such Lender's or such corporation's capital as
a consequence of such Lender's obligations hereunder or under or in respect of
any Letter of Credit to a level below that which such Lender or such corporation
could have achieved but for such change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time,
within ten Business Days after submission by such Lender to the Borrower (with a
copy to the Administrative Agent) of a written request therefor certifying (x)
that one of the events described in this paragraph (b) has occurred and
describing in reasonable detail the nature of such event, (y) as to the
reduction
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of the rate of return on capital resulting from such event and (z) as to the
additional amount or amounts demanded by such Lender or corporation and a
reasonably detailed explanation of the calculation thereof, the Borrower shall
pay to such Lender such additional amount or amounts as will compensate such
Lender or corporation for such reduction. Such a certificate as to any
additional amounts payable pursuant to this subsection submitted by such Lender,
through the Administrative Agent, to the Borrower shall be conclusive in the
absence of manifest error. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
4.11 Taxes. (a) Except as provided below in this subsection,
all payments made by the Borrower under this Agreement and any Notes shall be
made free and clear of, and without deduction or withholding for or on account
of, any present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, excluding taxes
measured by or imposed upon the overall net income of any Lender or its
applicable lending office, or any branch or affiliate thereof, and all franchise
taxes, branch taxes, taxes on doing business or taxes measured by or imposed
upon the overall capital or net worth of any Lender or its applicable lending
office, or any branch or affiliate thereof, in each case imposed: (i) by the
jurisdiction under the laws of which such Lender, applicable lending office,
branch or affiliate is organized or is located, or in which its principal
executive office is located, or any nation within which such jurisdiction is
located or any political subdivision thereof; or (ii) by reason of any
connection between the jurisdiction imposing such tax and such Lender,
applicable lending office, branch or affiliate other than a connection arising
solely from such Lender having executed, delivered or performed its obligations
under, or received payment under or enforced, this Agreement or any Notes. If
any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions
or withholdings ("Non-Excluded Taxes") are required to be withheld from any
amounts payable to the Administrative Agent or any Lender hereunder or under any
Notes, the amounts so payable to the Administrative Agent or such Lender shall
be increased to the extent necessary to yield to the Administrative Agent or
such Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement and any Notes, provided, however, that the Borrower shall be entitled
to deduct and withhold any Non- Excluded Taxes and shall not be required to
increase any such amounts payable to any Lender that is not organized under the
laws of the United States of America or a state thereof, as the case may be if
such Lender fails to comply with the requirements of paragraph (b) of this
subsection. Whenever any Non-Excluded Taxes are payable by the Borrower, as
promptly as possible thereafter the Borrower shall send to the Administrative
Agent for its own account or for the account of such Lender, as the case may be,
a certified copy of an original official receipt received by the Borrower
showing payment thereof. If the Borrower fails to pay any Non-Excluded Taxes
when due to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent and the Lenders
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for any incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
(b)(1) Each Lender that is not incorporated under the laws of
the United States of America or a state thereof shall:
(X)(i) on or before the date of any payment by the Borrower
under this Agreement or any Notes to such Lender, deliver to the
Borrower and the Administrative Agent (A) two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, certifying that it is entitled to
receive payments under this Agreement and any Notes without deduction
or withholding of any United States federal income taxes and (B) an
Internal Revenue Service Form W-8 or W-9, or successor applicable form,
as the case may be, certifying that it is entitled to an exemption from
United States backup withholding tax;
(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Borrower or the Administrative Agent; or
(Y) in the case of any such Lender that is not a "bank" within
the meaning of Section 881(c)(3)(A) of the Code, (i) represent to the
Borrower (for the benefit of the Borrower and the Administrative Agent)
that it is not a bank within the meaning of Section 881(c)(3)(A) of the
Code, (ii) agree to furnish to the Borrower on or before the date of
any payment by the Borrower, with a copy to the Administrative Agent,
(A) a certificate substantially in the form of Exhibit G (any such
certificate a "U.S. Tax Compliance Certificate") and (B) two accurate
and complete original signed copies of Internal Revenue Service Form
W-8, or successor applicable form certifying to such Lender's legal
entitlement at the date of such certificate to an exemption from U.S.
withholding tax under the provisions of Section 881(c) of the Code with
respect to payments to be made under this Agreement and any Notes (and
to deliver to the Borrower and the Administrative Agent two further
copies of such form on or before the date it expires or becomes
obsolete and after the occurrence of any event requiring a change in
the most recently provided form and, if necessary, obtain any
extensions of time reasonably requested by the Borrower or the
Administrative Agent for filing and
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completing such forms), and (iii) agree, to the extent legally entitled
to do so, upon reasonable request by the Borrower, to provide to the
Borrower (for the benefit of the Borrower and the Administrative Agent)
such other forms as may be reasonably required in order to establish
the legal entitlement of such Lender to an exemption from withholding
with respect to payments under this Agreement and any Notes, provided
that in determining the reasonableness of a request under this clause
(iii) such Lender shall be entitled to consider the cost (to the extent
unreimbursed by the Borrower) which would be imposed on such Lender of
complying with such request;
unless in any such case any change in treaty, law or regulation has occurred
after the date such Person becomes a Lender hereunder which renders all such
forms inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Borrower and the Administrative Agent. Each Person that shall become a Lender or
a Participant pursuant to subsection 11.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms, certifications and
statements required pursuant to this subsection, provided that in the case of a
Participant the obligations of such Participant pursuant to this paragraph (b)
shall be determined as if such Participant were a Lender except that such
Participant shall furnish all such required forms, certifications and statements
to the Lender from which the related participation shall have been purchased.
4.12 Indemnity. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur (other than through such Lender's gross negligence or willful
misconduct) as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment or conversion of Eurodollar Loans after the Borrower has given a
notice thereof in accordance with the provisions of this Agreement or (c) the
making of a payment or prepayment of Eurodollar Loans or the conversion of
Eurodollar Loans on a day which is not the last day of an Interest Period with
respect thereto. Such indemnification may include an amount equal to the excess,
if any, of (i) the amount of interest which would have accrued on the amount so
prepaid, or converted, or not so borrowed, converted or continued, for the
period from the date of such prepayment or conversion or of such failure to
borrow, convert or continue to the last day of the applicable Interest Period
(or, in the case of a failure to borrow, convert or continue, the Interest
Period that would have commenced on the date of such failure) in each case at
the applicable rate of interest for such Eurodollar Loans provided for herein
(excluding, however, the Applicable Margin included therein, if any) over (ii)
the amount of interest (as reasonably determined by such Lender) which would
have accrued to such Lender on such amount by placing such amount on deposit for
a comparable period with leading banks in the interbank eurodollar market. If
any Lender becomes entitled to claim any amounts under the indemnity contained
in this subsection 4.12, it shall provide prompt notice thereof to the Borrower,
through the Xxxxxxxxxxxxxx Xxxxx,
00
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certifying (x) that one of the events described in clause (a), (b) or (c) has
occurred and describing in reasonable detail the nature of such event, (y) as to
the loss or expense sustained or incurred by such Lender as a consequence
thereof and (z) as to the amount for which such Lender seeks indemnification
hereunder and a reasonably detailed explanation of the calculation thereof. Such
a certificate as to any indemnification pursuant to this subsection submitted by
such Lender, through the Administrative Agent, to the Borrower shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
4.13 Certain Rules Relating to the Payment of Additional
Amounts. (a) Upon the request, and at the expense, of the Borrower, each Lender
to which the Borrower is required to pay any additional amount pursuant to
subsection 4.10 or 4.11, and any Participant in respect of whose participation
such payment is required, shall reasonably afford the Borrower the opportunity
to contest, and reasonably cooperate with the Borrower in contesting, the
imposition of any Non-Excluded Tax giving rise to such payment; provided that
(i) such Lender shall not be required to afford the Borrower the opportunity to
so contest unless the Borrower shall have confirmed in writing to such Lender
its obligation to pay such amounts pursuant to this Agreement and (ii) the
Borrower shall reimburse such Lender for its reasonable attorneys' and
accountants' fees and disbursements incurred in so cooperating with the Borrower
in contesting the imposition of such Non-Excluded Tax; provided, however that
notwithstanding the foregoing no Lender shall be required to afford the Borrower
the opportunity to contest, or cooperate with the Borrower in contesting, the
imposition of any Non-Excluded Taxes, if such Lender in its sole discretion in
good faith determines that to do so would have an adverse effect on it.
(b) If a Lender changes its applicable lending office (other
than pursuant to paragraph (c) below) and the effect of such change, as of the
date of such change, would be to cause the Borrower to become obligated to pay
any additional amount under subsection 4.10 or 4.11, the Borrower shall not be
obligated to pay such additional amount.
(c) If a condition or an event occurs which would, or would
upon the passage of time or giving of notice, result in the payment of any
additional amount to any Lender by the Borrower pursuant to subsection 4.10 or
4.11, such Lender shall promptly notify the Borrower and the Administrative
Agent and shall take such steps as may reasonably be available to it to mitigate
the effects of such condition or event (which shall include efforts to rebook
the Loans held by such Lender at another lending office, or through another
branch or an affiliate, of such Lender); provided that such Lender shall not be
required to take any step that, in its reasonable judgment, would be materially
disadvantageous to its business or operations or would require it to incur
additional costs (unless such Borrower agrees to reimburse such Lender for the
reasonable incremental out-of-pocket costs thereof).
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(d) If the Borrower shall become obligated to pay additional
amounts pursuant to subsection 4.10 or 4.11 and any affected Lender shall not
have promptly taken steps necessary to avoid the need for payments under
subsection 4.10 or 4.11, the Borrower shall have the right, for so long as such
obligation remains, (x) with the assistance of the Administrative Agent, to seek
one or more substitute Lenders reasonably satisfactory to the Administrative
Agent and the Borrower to purchase the affected Loan, in whole or in part, at an
aggregate price no less than such Loan's principal amount plus accrued interest,
and assume the affected obligations under this Agreement, or (y) upon at least
four Business Days irrevocable notice to the Administrative Agent, to prepay the
affected Loan, in whole or in part, subject to subsection 4.12, without premium
or penalty. In the case of the substitution of a Lender, the Borrower, the
Administrative Agent, the affected Lender, and any substitute Lender shall
execute and deliver an appropriately completed Assignment and Acceptance
pursuant to subsection 11.6(c) to effect the assignment of rights to, and the
assumption of obligations by, the substitute Lender; provided that any fees
required to be paid by subsection 11.6(e) in connection with such assignment
shall be paid by the Borrower or the substitute Lender. In the case of a
prepayment of an affected Loan, the amount specified in the notice shall be due
and payable on the date specified therein, together with any accrued interest to
such date on the amount prepaid. In the case of each of the substitution of a
Lender and of the prepayment of an affected Loan, the Borrower shall first pay
the affected Lender any additional amounts owing under subsections 4.10, 4.11
and 4.12 (as well as any commitment fees and other amounts then due and owing to
such Lender, including, without limitation, any amounts under subsection 4.13)
prior to such substitution or prepayment.
(e) If the Administrative Agent or any Lender or any
Participant receives a refund directly attributable to taxes for which the
Borrower has made additional payments pursuant to subsection 4.10(a) or 4.11(a),
the Administrative Agent or such Lender, as the case may be, shall promptly pay
such refund (together with any interest with respect thereto received from the
relevant taxing authority) to the Borrower, provided, however, that the Borrower
agrees promptly to return such refund (together with any interest with respect
thereto due to the relevant taxing authority) (free of all Non-Excluded Taxes)
to the Administrative Agent or the applicable Lender, as the case may be, upon
receipt of a notice that such refund is required to be repaid to the relevant
taxing authority.
(f) The obligations of a Lender or Participant under this
subsection 4.13 shall survive the termination of this Agreement and the payment
of the Loans and all amounts payable hereunder.
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SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and each Lender to make the
Extensions of Credit requested to be made by it on the Effective Date and on
each Borrowing Date thereafter, the Borrower hereby represents and warrants, on
the Effective Date (both before and after giving effect to the Transactions),
and on every Borrowing Date thereafter, to the Administrative Agent and each
Lender that:
5.1 Financial Condition. (a) The audited consolidated balance
sheets of Holdings and its consolidated Subsidiaries as of March 31, 1994, March
31, 1995 and March 31, 1996 and the audited consolidated statements of earnings,
statements of shareholders' equity and statements of cash flows for the years
ended March 31, 1994, March 31, 1995 and March 31, 1996 have heretofore been
furnished to each Lender. Such financial statements (including the notes
thereto) (i) have been audited by Ernst & Young LLP, (ii) have been prepared in
accordance with GAAP consistently applied throughout the periods covered thereby
and (iii) present fairly, in all material respects, the consolidated financial
condition, results of operations and cash flows of Holdings and its consolidated
Subsidiaries as of such dates and for such periods. During the period from March
31, 1996 to and including the Effective Date, except as provided in the
Transaction Documents, there has been no sale, transfer or other disposition by
Holdings and its consolidated Subsidiaries of any material part of the business
or property of Holdings and its consolidated Subsidiaries, taken as a whole, and
no purchase or other acquisition by any of them of any business or property
(including any Capital Stock of any other Person) material in relation to the
consolidated financial condition of Holdings and its consolidated Subsidiaries,
taken as a whole, in each case, which is not reflected in the foregoing
financial statements or in the notes thereto and has not otherwise been
disclosed in a writing to the Lenders on or prior to the Effective Date.
(b) The pro forma balance sheet of Holdings and its
consolidated Subsidiaries (the "Pro Forma Balance Sheet"), copies of which have
heretofore been furnished to each Lender, is the balance sheet of Holdings and
its consolidated Subsidiaries as of December 31, 1996 (the "Pro Forma Date"),
adjusted to give effect (as if such events had occurred on such date) to the
matters referred to therein. The Pro Forma Balance Sheet was prepared in
accordance with Article 11 (Pro Forma Financial Information) of Regulation S-X
under the Securities Act.
5.2 No Change; Solvent. (a) Since March 31, 1996, except as
and to the extent disclosed on Schedule 5.2(a) hereto, there has been no
development or event relating to or affecting any Loan Party which has had or
would be reasonably expected to have a Material Adverse Effect (after giving
effect to the Transactions).
(b) As of the Effective Date, after giving effect to the
consummation of the Transactions, the Borrower is Solvent.
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5.3 Corporate Existence; Compliance with Law. Each of the Loan
Parties (a) is duly incorporated, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, (b) has the corporate power
and authority, and the legal right, to own and operate its property, to lease
the property it operates as lessee and to conduct the business in which it is
currently engaged, except to the extent that the failure to have such legal
right would not be reasonably expected to have a Material Adverse Effect, (c) is
duly qualified as a foreign corporation and in good standing under the laws of
each jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification, other than in such
jurisdictions where the failure to be so qualified and in good standing would
not be reasonably expected to have a Material Adverse Effect, and (d), except as
set forth on Schedule 2.2(j) to the Recapitalization Agreement, is in compliance
with all Requirements of Law, except to the extent that the failure to comply
therewith would not, in the aggregate, be reasonably expected to have a Material
Adverse Effect.
5.4 Corporate Power; Authorization; Enforceable Obligations.
Each Loan Party has the corporate power and authority, and the legal right, to
make, deliver and perform the Loan Documents and the Transaction Documents to
which it is a party and, in the case of the Borrower, to obtain Extensions of
Credit hereunder, and each such Loan Party has taken all necessary corporate
action to authorize the execution, delivery and performance of the Loan
Documents and the Transaction Documents to which it is a party and, in the case
of the Borrower, to authorize the Extensions of Credit on the terms and
conditions of this Agreement, any Notes and the Applications. No consent or
authorization of, filing with, notice to or other similar act by or in respect
of, any Governmental Authority or any other Person is required to be obtained or
made by or on behalf of any Loan Party in connection with the execution,
delivery, performance, validity or enforceability of the Loan Documents or
Transaction Documents to which it is a party or, in the case of the Borrower,
with the Extensions of Credit hereunder, except for (i) consents,
authorizations, notices and filings described in Schedule 5.4, all of which have
been obtained or made prior to the Effective Date, (ii) filings to perfect the
Liens created by the Security Documents, (iii) filings pursuant to the
Assignment of Claims Act of 1940, as amended (31 U.S.C. Section 3727 et seq.),
in respect of Accounts Receivable of the Borrower and its Subsidiaries the
obligor in respect of which is the United States of America or any department,
agency or instrumentality thereof and (iv) consents, authorizations, notices and
filings which the failure to obtain or make would not reasonably be expected to
have a Material Adverse Effect. This Agreement has been duly executed and
delivered by the Borrower, and each other Loan Document and Transaction Document
to which any Loan Party is a party, has been, or will be duly executed and
delivered on behalf of such Loan Party. This Agreement constitutes a legal,
valid and binding obligation of the Borrower, and each other Loan Document and
Transaction Document to which any Loan Party is a party as executed and
delivered does constitute, or when executed and delivered, will constitute, a
legal, valid and binding obligation of such Loan Party, enforceable against such
Loan Party in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
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affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
5.5 No Legal Bar. The execution, delivery and performance of
the Loan Documents and the Transaction Documents by any of the Loan Parties, the
Extensions of Credit hereunder and the use of the proceeds thereof (a) will not
violate any Requirement of Law or Contractual Obligation of such Loan Party in
any respect that would reasonably be expected to have a Material Adverse Effect
and (b) will not result in, or require, the creation or imposition of any Lien
(other than the Liens permitted by subsection 8.3) on any of its properties or
revenues pursuant to any such Requirement of Law or Contractual Obligation.
5.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against Holdings or any of
its Subsidiaries or against any of their respective properties or revenues, (a)
except as described on Schedule 5.6 hereto or Schedule 2.2(h) to the
Recapitalization Agreement, which is so pending or threatened at any time on or
prior to the Effective Date and relates to any of the Loan Documents or the
Transaction Documents or any of the transactions contemplated hereby or thereby
or (b) which would be reasonably expected to have a Material Adverse Effect.
5.7 No Default. Neither the Borrower nor Holdings or any of
their respective Subsidiaries is in default under or with respect to any of its
Contractual Obligations including under the Senior Subordinated Notes in any
respect which would be reasonably expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
5.8 Ownership of Property; Liens. Each of the Borrower,
Holdings and their Subsidiaries has good record and marketable title in fee
simple to, or a valid leasehold interest in, all its material real property, and
good title to, or a valid leasehold interest in, all its other material
property, and none of such property is subject to any Lien, except for Liens
permitted by subsection 8.3.
5.9 Intellectual Property. The Borrower and each of its
Subsidiaries owns, or has the legal right to use, all United States patents,
patent applications, trademarks, trademark applications, tradenames, copyrights,
technology, know-how and processes necessary for each of them to conduct its
business as currently conducted (the "Intellectual Property") except for those
the failure to own or have such legal right to use would not be reasonably
expected to have a Material Adverse Effect. Except as provided on Schedule 5.9,
no claim has been asserted and is pending by any Person challenging or
questioning the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does the Borrower know of
any such claim, and, to the knowledge of the Borrower the use of such
Intellectual Property by the Borrower and its Subsidiaries does not infringe on
the rights of any Person, except for such
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claims and infringements which in the aggregate, would not be reasonably
expected to have a Material Adverse Effect.
5.10 No Burdensome Restrictions. No Requirement of Law or
Contractual Obligation of the Borrower, Holdings or any of their Subsidiaries
would be reasonably expected to have a Material Adverse Effect.
5.11 Taxes. To the knowledge of the Borrower, each of Holdings
and its Subsidiaries has filed or caused to be filed all United States federal
income tax returns and all other material tax returns which are required to be
filed and has paid (a) all taxes shown to be due and payable on such returns and
(b) all taxes shown to be due and payable on any assessments of which it has
received notice made against it or any of its property (including, without
limitation, the Mortgaged Properties) and all other taxes, fees or other charges
imposed on it or any of its property by any Governmental Authority and, except
as set forth on Schedule 2.2(j) to the Recapitalization Agreement, no tax Lien
has been filed, and no claim is being asserted, with respect to any such tax,
fee or other charge (other than any (i) taxes, fees or other charges with
respect to which the failure to pay, in the aggregate, would not have a Material
Adverse Effect or (ii) taxes, fees or other charges the amount or validity of
which are currently being contested in good faith by appropriate proceedings
diligently conducted and with respect to which reserves in conformity with GAAP
have been provided on the books of Holdings or its Subsidiaries, as the case may
be).
5.12 Federal Regulations. No part of the proceeds of any
Extensions of Credit will be used for any purpose which violates the provisions
of the Regulations of the Board, including, without limitation, Regulation G,
Regulation U, Regulation T or Regulation X of the Board. If requested by any
Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form X-0, XX Form U-1 or such other
similar form referred to in Regulation G, Regulation U, Regulation T or
Regulation X of the Board, as the case may be.
5.13 ERISA. During the five year period prior to each date as
of which this representation is made, or deemed made, with respect to any Plan
(or, with respect to (vi) or (viii) below, as of the date such representation is
made or deemed made), except as set forth on Schedule 2.2(j) to the
Recapitalization Agreement, none of the following events or conditions, either
individually or in the aggregate, has resulted or is reasonably likely to result
in a Material Adverse Effect: (i) a Reportable Event; (ii) an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA); (iii) any noncompliance with the applicable provisions of ERISA
or the Code; (iv) a termination of a Single Employer Plan (other than a standard
termination pursuant to Section 4041(b) of ERISA); (v) a Lien on the property of
the Borrower or its Subsidiaries in favor of the PBGC or a Plan; (vi) any
Underfunding with respect to any Single Employer Plan; (vii) a complete or
partial withdrawal from any
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Multiemployer Plan by the Borrower or any Commonly Controlled Entity; (viii) any
liability of the Borrower or any Commonly Controlled Entity under ERISA if the
Borrower or any such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the annual valuation date most closely preceding
the date on which this representation is made or deemed made; or (ix) the
Reorganization or Insolvency of any Multiemployer Plan. There have been no
transactions that resulted or could result in any liability to the Borrower or
any Commonly Controlled Entity under Section 4069 of ERISA or Section 4212(c) of
ERISA.
5.14 Collateral. Except with respect to (i) Liens on equipment
constituting fixtures, (ii) any reserved rights of the United States government
as required under law, (iii) Liens upon Patents, Patent Licenses, Trademarks and
Trademark Licenses (as such terms are defined in the Guarantee and Collateral
Agreement) to the extent that (a) such Liens are not otherwise perfected by the
filing of financing statements under the Uniform Commercial Code or by the
filing and acceptance thereof in the United States Patent and Trademark Office
or (b) such Patents, Patent Licenses, Trademarks and Trademark Licenses are not,
individually or in the aggregate, material to the business of the Borrower and
its Subsidiaries taken as a whole, (iv) Liens on uncertificated securities, (v)
Liens on Collateral the perfection of which requires filings in or other actions
under the laws of jurisdictions outside of the United States of America, any
State, territory or dependency thereof or the District of Columbia (except to
the extent that such filings or other actions have been made or taken), (vi)
Liens on contracts or Accounts Receivable on which the United States of America
or any department, agency, or instrumentality thereof is the obligor, (vii)
Liens on Proceeds of Accounts Receivable and Inventory, until transferred to or
deposited in the Collateral Proceeds Account (if any), and (viii) claims of
creditors of Persons receiving goods included as Collateral for "sale or return"
within the meaning of Section 2-326 of the Uniform Commercial Code of the
applicable jurisdiction, upon filing of the financing statements delivered to
the Administrative Agent by the Borrower and its Subsidiaries on the Effective
Date in the jurisdictions listed on Part II of Schedule 5.14 (which financing
statements are in proper form for filing in such jurisdictions) and the
recording of the Mortgages (and the recording of the Patent and Trademark
Security Agreement, and the making of filings after the Effective Date in any
other jurisdiction as may be necessary under any Requirement of Law) and the
delivery to, and continuing possession by, the Administrative Agent of all
Instruments, Chattel Paper and Documents a security interest in which is
perfected by possession, the Liens created pursuant to each Security Document,
when executed and delivered, will constitute valid Liens on and, to the extent
provided therein, perfected security interests in the collateral referred to in
such Security Document (but as to the Copyrights and the Copyright Licenses (as
defined in the Guarantee and Collateral Agreement) and accounts arising
therefrom, only to the extent the Uniform Commercial Code of the relevant
jurisdiction, from time to time in effect, is applicable) in favor of the
Administrative Agent for the benefit of the Lenders, which Liens will be prior
to all other Liens of all other Persons, except for Liens permitted pursuant to
the Loan Documents (including, without limitation, those permitted to exist
pursuant to subsection 8.3), and which Liens are enforceable as such as against
all other Persons (except, with respect to goods only,
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buyers in the ordinary course of business to the extent provided in Section 9-
307(1) of the Uniform Commercial Code as from time to time in effect in the
applicable jurisdiction and except to the extent that recording of an assignment
or other transfer of title to the Administrative Agent in the United States
Patent and Trademark Office may be necessary for such enforceability), except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law). Notwithstanding any
other provision of this Agreement, capitalized terms which are used in this
subsection 5.14 and not defined in this Agreement are so used as defined in the
applicable Security Document.
5.15 Investment Company Act; Other Regulations. Neither
Holdings nor the Borrower is an "investment company", or a company "controlled"
by an entity required to be registered as an "investment company", within the
meaning of the Investment Company Act. Neither Holdings nor the Borrower is
subject to regulation under any Federal or State statute or regulation which
limits its ability to incur Indebtedness as contemplated hereby.
5.16 Subsidiaries. Schedule 5.16 sets forth all the
Subsidiaries of the Borrower at the Effective Date, the jurisdiction of their
incorporation and the direct or indirect ownership interest of the Borrower
therein.
5.17 Purpose of Loans. The proceeds of the Term Loans shall be
used to finance a portion of the Recapitalization and to pay related fees and
expenses. The proceeds of the Revolving Credit Loans shall be used to provide
for the working capital requirements of the Borrower and its operating
subsidiaries and for their general corporate purposes (including the financing
of a portion of the Recapitalization and the fees and expenses relating
thereto).
5.18 Environmental Matters. Other than exceptions to any of
the following that are set forth on Schedule 2.2(j) to the Recapitalization
Agreement or that are described in the Offering Memorandum for the Senior
Subordinated Notes or that would not, individually or in the aggregate,
reasonably be expected to give rise to a Material Adverse Effect:
(i) The Borrower and its Subsidiaries: (A) are, and within the
period of all applicable statutes of limitation have been, in
compliance with all applicable Environmental Laws; (B) hold all
Environmental Permits (each of which is in full force and effect)
required for any of their current operations or for any property owned,
leased, or otherwise operated by any of them and reasonably expect to
timely obtain without material expense all such Environmental Permits
required for planned operations; (C) are, and within the period of all
applicable statutes of limitation have been, in compliance with all of
their Environmental Permits; and (D) have no reason to believe that any
of their Environmental Permits will not be, or will not entail material
expense to be, timely
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renewed or complied with; any additional Environmental Permits that may
be required of any of them will not be, or will not entail material
expense to be, timely granted or complied with; or that compliance with
any Environmental Law that is applicable to any of them will not be, or
will not entail material expense to be, timely attained and maintained.
(ii) Materials of Environmental Concern have not been
transported, disposed of, emitted, discharged, or otherwise released or
threatened to be released, to or at any real property presently or
formerly owned, leased or operated by the Borrower or any of its
Subsidiaries or at any other location, which could reasonably be
expected to (A) give rise to liability of the Borrower or any of its
Subsidiaries under any applicable Environmental Law, or (B) interfere
with the Borrower's planned or continued operations, or (C) impair the
fair saleable value of any real property owned or leased by the
Borrower or any of its Subsidiaries.
(iii) There is no judicial, administrative, or arbitral
proceeding (including any notice of violation or alleged violation)
under any Environmental Law to which the Borrower or any of its
Subsidiaries is, or to the knowledge of the Borrower or any of its
Subsidiaries will be, named as a party that is pending or, to the
knowledge of the Borrower or any of its Subsidiaries, threatened.
(iv) Neither the Borrower nor any of its Subsidiaries has
received any written request for information, or been notified that it
is a potentially responsible party, under the federal Comprehensive
Environmental Response, Compensation, and Liability Act or any similar
Environmental Law, or received any other written request for
information with respect to any Materials of Environmental Concern.
(v) Neither the Borrower nor any of its Subsidiaries has
entered into or agreed to any consent decree, order, or settlement or
other agreement, nor is subject to any judgment, decree, or order or
other agreement, in any judicial, administrative, arbitral, or other
forum, relating to compliance with or liability under any Environmental
Law.
5.19 No Material Misstatements. The written information,
reports, financial statements, exhibits and schedules furnished by or on behalf
of Holdings, Acquisition Co., Telex or the Borrower to the Administrative Agent,
and the Lenders in connection with the negotiation of any Loan Document or
included therein or delivered pursuant thereto, taken as a whole, did not
contain as of the Effective Date any material misstatement of fact. It is
understood that (x) no representation or warranty is made concerning the
forecasts, estimates, pro forma information, projections and statements as to
anticipated future performance or conditions, and the assumptions on which they
were based, contained in any such information, reports, financial statements,
exhibits or schedules, except that as of the date such forecasts, estimates, pro
forma
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information, projections and statements were generated, (i) such forecasts,
estimates, pro forma information, projections and statements were based on the
good faith assumptions of the management of the Borrower and (ii) such
assumptions were believed by such management to be reasonable and (y) such
forecasts, estimates, pro forma information and statements, and the assumptions
on which they were based, may or may not prove to be correct.
5.20 Delivery of the Transaction Documents. The Administrative
Agent has received for itself and for each Lender a complete photocopy of each
of the Transaction Documents (including all exhibits, schedules and disclosure
letters referred to therein or delivered pursuant thereto, if any) and all
amendments thereto, waivers relating thereto and other side letters or
agreements affecting the terms thereof in any material respect.
5.21 Representations and Warranties Contained in the
Transaction Documents. Each of the Transaction Documents will have been duly
executed and delivered, by each of the Loan Parties which is a party thereto
prior to the Effective Date and, to the knowledge of the Borrower, all other
parties thereto, and is in full force and effect on the Effective Date. As of
the Effective Date, the representations and warranties of Holdings, the
Borrower, Acquisition Co., Greenwich II and GSCP and, to the knowledge of the
Borrower, and any of the other parties thereto contained in any of the
Transaction Documents (after giving effect to any amendments, supplements,
waivers or other modifications of any of the Transaction Documents prior to the
Effective Date in accordance with this Agreement) are true and correct in all
material respects except as otherwise disclosed to the Administrative Agent in
writing prior to the Effective Date.
5.22 Labor Matters. There are no strikes pending or, to the
knowledge of the Borrower, reasonably expected to be commenced against the
Borrower or any of its Subsidiaries which, individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect. The hours worked
and payments made to employees of the Borrower and each of its Subsidiaries have
not been in violation of any applicable laws, rules or regulations, except where
such violations would not reasonably be expected to have a Material Adverse
Effect. The consummation of the Transactions will not give rise to a right of
termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which the Borrower or any of its Subsidiaries
(or any predecessor) is a party or by which the Borrower or any of its
Subsidiaries (or any predecessor) is bound.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Initial Extension of Credit. This Agreement,
including, without limitation, the agreement of each Lender to make the initial
Extension of Credit requested to be made by it, shall become effective on the
date on which the following conditions precedent shall have been satisfied or
waived:
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(a) Loan Documents. The Administrative Agent shall have
received the following Loan Documents, executed and delivered as required below,
with a copy for each applicable Lender:
(i) this Agreement, executed and delivered by a duly
authorized officer of the Borrower;
(ii) the Telex Assumption Agreement, executed and delivered by
a duly authorized officer of Holdings and Telex;
(iii) the Guarantee and Collateral Agreement, executed and
delivered by a duly authorized officer of each of Holdings, the
Borrower and each of the Domestic Subsidiaries of the Borrower;
(iv) The Patent and Trademark Security Agreement, executed and
delivered by a duly authorized officer of each of the Borrower and each
of the Domestic Subsidiaries of the Borrower;
(v) each of the Mortgages, executed and delivered by a duly
authorized officer of the Loan Party thereto; and
(vi) any Notes requested by the Lenders in accordance with
subsections 2.2, 2.7 and 2.8, executed by a duly authorized officer of
the Borrower.
(b) Subordinated Debt. The Borrower shall have received gross
proceeds of at least $125,000,000 in cash from the issuance of Senior
Subordinated Notes pursuant to the Senior Subordinated Indenture and each of the
Senior Subordinated Notes Documents have been executed and delivered on terms
and conditions reasonably satisfactory to the Administrative Agent.
(c) Corporate Structure. The corporate and capital structure
of each Loan Party after the Recapitalization, the Merger and the Telex
Assumption (including as to the ownership of the voting stock thereof and the
voting arrangements with respect to such stock) shall be reasonably satisfactory
in all respects to the Administrative Agent. The GSCP Equity Investment and the
Management Equity Investment shall have occurred. Holdings shall own all of the
Capital Stock of Telex.
(d) Transactions. The Recapitalization, the Merger and the
Telex Assumption shall have been consummated simultaneously with the closing
hereof and pursuant to the Recapitalization Documents. Each of the
Recapitalization Documents shall have been executed and delivered on terms and
conditions reasonably satisfactory to the Administrative Agent and no
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material provision thereof shall have been waived by Greenwich II or Acquisition
Co., amended, supplemented or otherwise modified (except as may be so reasonably
satisfactory to the Administrative Agent). The sources and uses of funds for the
Recapitalization shall be substantially as set forth in the Confidential
Information Memorandum dated April 1997. Telex shall have repurchased at least
90% of the Telex Notes under the Tender Offer and pursuant to the Tender Offer
Documents. The Borrower and its Subsidiaries have no (i) Indebtedness other than
as permitted pursuant to Section 8.2 or (ii) outstanding preferred stock other
than the preferred stock of the Borrower held by Telex Investments, Inc., a
wholly owned Subsidiary of the Borrower.
(e) Fees. The Administrative Agent and the Arranger shall have
received, simultaneously with the consummation of the Transactions, all fees and
expenses required, and as agreed to in writing, to be paid on the Effective
Date.
(f) Governmental Approvals. All governmental and third party
approvals (including landlords' and other consents) necessary or reasonably
advisable in connection with the Recapitalization, the Merger, the Telex
Assumption, the financing contemplated hereby and the continuing operations of
the Borrower and its subsidiaries shall have been obtained and be in full force
and effect, and all applicable waiting periods under applicable law shall have
expired without any action being taken or threatened by any competent authority
which would restrain, prevent or otherwise impose material adverse conditions on
the Recapitalization, the Merger, the Telex Assumption or the financing thereof.
(g) Financial Statements. The Lenders shall have received (i)
reasonably satisfactory audited consolidated financial statements of the
Borrower for the three most recent fiscal years ended prior to the Effective
Date accompanied by an audit report from Ernst & Young LLP or another accounting
firm reasonably satisfactory to the Lenders, (ii) reasonably satisfactory
unaudited interim consolidated financial statements of the Borrower for each
fiscal quarterly period ended subsequent to the date of the latest financial
statements delivered pursuant to clause (i) of this paragraph for which such
unaudited financial statements are available and (iii) reasonably satisfactory
unaudited monthly financial statements for the Borrower for each fiscal month
ended subsequent to the date of the date of quarterly financial statements
delivered pursuant to clause (ii) of this paragraph for which such unaudited
financial statements are available.
(h) Pro forma Balance Sheet. The Lenders shall have received a
reasonably satisfactory unaudited pro forma consolidated balance sheet of the
Borrower as of the most recent fiscal quarter-end prior to the Effective Date
for which quarterly financial statements of the Borrower are available, and
after giving effect to the consummation on the Effective Date of the
Recapitalization, the Merger, the Telex Assumption and the financings
contemplated hereby (including any related schedules required by the SEC). The
Lenders shall be reasonably satisfied
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with respect to all material and direct contingent liabilities of the Borrower
after the Recapitalization, the Merger and the Telex Assumption, including any
indebtedness or guarantees thereof and any tax and similar governmental
liabilities.
(i) EBITDA Report. The Lenders shall have received a report
from the Borrower, in a form consistent with the projections previously provided
to Chase, confirming that the Consolidated EBITDA of the Borrower for the twelve
months ended December 31, 1996 was at least $38,000,000 and the Lenders shall be
reasonably satisfied, based on the financial information then available and
projections provided by the Borrower, that the EBITDA of the Borrower for the
twelve months ending March 31, 1997 is estimated to be at least $40,000,000.
(j) Fees and Expenses. The Administrative Agent shall have
received reasonably satisfactory evidence that the fees and expenses, including
accrued interest on the Telex Notes, to be incurred by the Borrower in
connection with the Recapitalization and the financing thereof (including this
Agreement and the Senior Subordinated Notes) shall not exceed $38,200,000 in the
aggregate.
(k) Solvency. The Lenders shall have received a reasonably
satisfactory opinion as to the solvency of the Borrower after the consummation
of the Recapitalization, the Merger and the Telex Assumption and the other
transactions contemplated hereby, from Valuation Research Corp. or another firm
reasonably satisfactory to the Administrative Agent.
(l) No Material Change. Since the date of the most recent
financial statements provided to the Lenders prior to the date hereof, there
shall not have occurred or become known to any Lender any material adverse
condition or material adverse change in or affecting the business, operations,
property, condition (financial or otherwise) or prospects of the Borrower and
its subsidiaries taken as a whole.
(m) Lien Searches. The Administrative Agent shall have
received the results of a recent search by a Person reasonably satisfactory to
the Administrative Agent, of the Uniform Commercial Code, judgment and tax lien
filings which may have been filed with respect to personal property of the
Borrower and its Subsidiaries in any of the jurisdictions set forth in Part I of
Schedule 5.14, and the results of such search shall not reveal any liens other
than liens permitted by subsection 8.3.
(n) Legal Opinions. The Administrative Agent shall have
received, with a photocopy for each Lender, the following executed legal
opinions:
(i) the executed legal opinion of Debevoise & Xxxxxxxx,
special counsel to each of Acquisition Co., the Borrower and the other
Loan Parties, substantially in the form of Exhibit F;
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(ii) the executed legal opinions of special local counsel in
the jurisdictions set forth in Schedule 6.1(o) with respect to
collateral security matters, each in form and substance reasonably
satisfactory to the Administrative Agent; and
(iii) the executed legal opinion of Xxxxxx, Xxxxxxxxx &
Xxxxxxxxx, special intellectual property counsel to the Lenders, in
form and substance reasonably satisfactory to the Administrative Agent.
(o) Actions to Perfect Liens. The Administrative Agent shall
have received evidence in form and substance reasonably satisfactory to it that
all filings, recordings, registrations and other actions, including, without
limitation, the filing of duly executed financing statements on Form UCC-1 in
each jurisdiction set forth on Schedule 5.14, necessary or, in the reasonable
opinion of the Administrative Agent, advisable to perfect the Liens created by
the Security Documents (other than the recording of the Mortgages with respect
to the Borrower's owned real property located in XxXxxxx, Minnesota and
Burnsville, Minnesota) shall have been completed or shall be ready to be
completed promptly following the Effective Date, and all agreements, statements
and other documents relating thereto shall be in form and substance reasonably
satisfactory to the Administrative Agent.
(p) Pledged Stock; Stock Powers; Pledged Notes; Endorsements.
The Administrative Agent shall have received:
(i) the certificates representing the Pledged Stock under (and
as defined in) the Guarantee and Collateral Agreement, together with an
undated stock power for each such certificate executed in blank by a
duly authorized officer of the pledgor thereof; and
(ii) the promissory notes representing each of the Pledged
Notes (if any) under (and as defined in) the Guarantee and Collateral
Agreement, duly endorsed as required by the Guarantee and Collateral
Agreement.
The Loan Parties shall have taken such other action as is reasonably
satisfactory to the Administrative Agent to perfect the security interests
created by the Guarantee and Collateral Agreement.
(q) Surveys. The Administrative Agent shall have received, and
the title insurance company issuing the policy referred to in subsection 6.1(s)
(the "Title Insurance Company") shall have received, maps or plats of an
as-built survey of the sites of each of the Mortgaged Properties (other than the
real properties owned by the Borrower located in XxXxxxx, Minnesota and
Burnsville, Minnesota) certified to the Administrative Agent and the Title
Insurance Company in a manner reasonably satisfactory to them, dated a date
reasonably satisfactory to the Administrative Agent and the Title Insurance
Company by an independent
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professional licensed land surveyor reasonably satisfactory to the
Administrative Agent and the Title Insurance Company, which maps or plats and
the surveys on which they are based shall be made in accordance with the Minimum
Standard Detail Requirements for Land Title Surveys jointly established and
adopted by the American Land Title Association and the American Congress on
Surveying and Mapping in 1992, and, without limiting the generality of the
foregoing, there shall be surveyed and shown on such maps, plats or surveys the
following: (i) the locations on such sites of all the buildings, structures and
other improvements and the established building setback lines; (ii) the lines of
streets abutting the sites and width thereof; (iii) all access and other
easements appurtenant to the sites necessary to use the sites; (iv) all
roadways, paths, driveways, easements, encroachments and overhanging projections
and similar encumbrances affecting the sites, whether recorded, apparent from a
physical inspection of the sites or otherwise known to the surveyor; (v) any
encroachments on any adjoining property by the building structures and
improvements on the sites; and (vi) if the site is described as being on a filed
map, a legend relating the survey to said map.
(r) Title Insurance Policy. The Administrative Agent shall
have received in respect of each of the Mortgaged Properties (other than the
real properties owned by the Borrower located in XxXxxxx, Minnesota and
Burnsville, Minnesota) a mortgagee's title policy (or policies) or marked up
unconditional binder for such insurance dated the Effective Date. Each such
policy shall (i) be in an amount reasonably satisfactory to the Administrative
Agent; (ii) insure that the Mortgage insured thereby creates a valid first Lien
on the Mortgaged Property encumbered thereby free and clear of all defects and
encumbrances, except those permitted by subsection 8.3 and such as may be
approved by the Administrative Agent; (iii) name the Administrative Agent for
the benefit of the Lenders as the insured thereunder; (iv) be in the form of an
ALTA Loan Policy; (v) contain such endorsements and affirmative coverage as the
Administrative Agent may reasonably request; provided that, in the case of
zoning endorsements, if any, no additional premiums will be required in excess
of $2,000 per property, (vi) be issued by title companies reasonably
satisfactory to the Administrative Agent (including any such title companies
acting as reinsurers, at the option of the Administrative Agent) and (vii) be
issued at ordinary rates (other than with respect to affirmative insurance). The
Administrative Agent shall have received evidence reasonably satisfactory to it
that all premiums in respect of each such policy, and all charges for mortgage
recording tax, if any, have been paid. The Administrative Agent shall have also
received a copy of all recorded documents referred to, or listed as exceptions
to title in, the title policy or policies referred to in this subsection and a
copy, certified by such parties as the Administrative Agent may deem reasonably
appropriate, of all other documents affecting the property covered by each
Mortgage as shall have been reasonably requested by the Administrative Agent.
(s) Borrowing Certificate. The Administrative Agent shall have
received, with a photocopy for each Lender, (a)(i) a certificate of the
Borrower, dated the Effective Date, substantially in the
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form of Exhibit I and (ii) a Borrowing Base Certificate, substantially in the
form of Exhibit J, with appropriate insertions and attachments, reasonably
satisfactory in form and substance to the Administrative Agent, executed by a
Responsible Officer and the Secretary or any Assistant Secretary of the Borrower
and (b) a report on the accounts receivable and inventory of the Borrower from
the Administrative Agent's collateral review group (or an independent auditor
reasonably satisfactory to it) to be included within the Borrowing Base,
reasonably satisfactory in form and substance to the Administrative Agent (or,
if such a field audit cannot be completed prior to the Effective Date by reason
of the availability of such collateral review group, arrangements for the
completion thereof on or prior to the date that is one month thereafter shall
have been made).
(t) Corporate Proceedings of the Loan Parties. The
Administrative Agent shall have received, with a photocopy for each Lender, a
copy of the resolutions, in form and substance reasonably satisfactory to the
Administrative Agent, of the board of directors of each Loan Party authorizing,
as applicable, (i) the execution, delivery and performance of this Agreement,
any Notes and the other Loan Documents and the Transaction Documents to which it
is or will be a party as of the Effective Date, (ii), in the case of the
Borrower, the Extensions of Credit to the Borrower and (iii) the granting by it
of the Liens to be created pursuant to the Security Documents to which it is or
will be a party as of the Effective Date, certified by the Secretary or an
Assistant Secretary of such Loan Party as of the Effective Date, which
certificate shall be in form and substance reasonably satisfactory to the
Administrative Agent and shall state that the resolutions thereby certified have
not been amended, modified (except as any later resolution may modify any such
earlier resolution), revoked or rescinded and are in full force and effect.
(u) Incumbency Certificates of the Loan Parties. The
Administrative Agent shall have received, with a photocopy for each Lender, a
certificate of each Loan Party, dated the Effective Date, as to the incumbency
and signature of the officers of such Loan Party executing any Loan Document,
reasonably satisfactory in form and substance to the Administrative Agent,
executed by a Responsible Officer and the Secretary or any Assistant Secretary
of such Loan Party.
(v) Governing Documents. The Administrative Agent shall have
received, with a photocopy for each Lender, copies of the certificate or
articles of incorporation and by-laws (or other similar governing documents
serving the same purpose) of each Loan Party, certified as of the Effective Date
as complete and correct copies thereof by the Secretary or an Assistant
Secretary of such Loan Party.
(w) Insurance. The Administrative Agent shall have received
evidence in form and substance reasonably satisfactory to it that all of the
requirements of subsection 7.5 of this Agreement and Section 5 of each Mortgage
shall have been satisfied.
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(x) Flood Insurance. With respect to any of the Mortgaged
Properties which is located in an area identified by the Secretary of Housing
and Urban Development as having special flood hazards, the Administrative Agent
shall have delivered notice(s) to, and received acknowledgement from, the
relevant Loan Party as required pursuant to Section 208.8(e)(3) of Regulation H
of the Board.
(y) Management Contracts. The Administrative Agent shall be
reasonably satisfied in all respects with the employment contracts with the
senior management of the Borrower.
The making of the initial Extensions of Credit by the Lenders
hereunder shall conclusively be deemed to constitute an acknowledgement by the
Administrative Agent and each Lender that each of the conditions precedent set
forth in this subsection 6.1 shall have been satisfied in accordance with its
respective terms or shall have been irrevocably waived by such Person.
6.2 Conditions to Each Other Extension of Credit. The
agreement of each Lender to make any Extension of Credit requested to be made by
it on any date (including, without limitation, the initial Extension of Credit
and each Swing Line Loan) is subject to the satisfaction or waiver of the
following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by any Loan Party pursuant to this Agreement
or any other Loan Document (or in any amendment, modification or supplement
hereto or thereto) to which it is a party, and each of the representations and
warranties contained in any certificate furnished at any time by or on behalf of
any Loan Party pursuant to this Agreement or any other Loan Document, shall,
except to the extent that they relate to a particular date, be true and correct
in all material respects on and as of such date as if made on and as of such
date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the Extensions
of Credit requested to be made on such date.
(c) Letter of Credit Application. With respect to the issuance
of any Letter of Credit, the Issuing Lender shall have received an Application,
completed to its satisfaction, and such other certificates, documents and other
papers and information as the Issuing Lender may reasonably request.
Each borrowing by and Letter of Credit issued on behalf of any
Borrower hereunder shall constitute a representation and warranty by the
Borrower as of the date of such
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borrowing or such issuance that the conditions contained in this subsection 6.2
have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, from and after the Effective
Date and so long as the Revolving Credit Commitments remain in effect, and
thereafter until payment in full of the Loans, all Reimbursement Obligations and
any other amount then due and owing to any Lender or the Administrative Agent
hereunder and under any Note and termination or expiration of all Letters of
Credit, the Borrower shall and (except in the case of delivery of financial
information, reports and notices) shall cause each of its Subsidiaries to:
7.1 Financial Statements. Furnish to the Administrative Agent
for delivery to each Lender (and the Administrative Agent agrees to make and so
deliver such copies):
(a) as soon as available, but in any event not later than the
90th day following the end of each fiscal year of the Borrower ending on or
after the Effective Date, a copy of the consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such year and the
related consolidated statements of operations, changes in common stockholders'
equity and cash flows for such year, setting forth in each case, in comparative
form the figures for and as of the end of the previous year, reported on without
a "going concern" or like qualification or exception, or qualification arising
out of the scope of the audit, by Ernst & Young LLP or other independent
certified public accountants of nationally recognized standing not unacceptable
to the Administrative Agent in its reasonable judgment;
(b) as soon as available, but in any event not later than the
45th day following the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter and the
related unaudited consolidated statements of operations and cash flows of the
Borrower and its consolidated Subsidiaries for such quarter and the portion of
the fiscal year through the end of such quarter, setting forth, in comparative
form the budgeted figures (as adjusted consistent with past practice) for the
relevant period and the figures for the corresponding period of the previous
fiscal year, certified by a Responsible Officer of the Borrower as being fairly
stated in all material respects (subject to normal year-end audit and other
adjustments); and
(c) as soon as available, but in any event not later than the
30th day following the end of each fiscal month of each fiscal year of the
Borrower (or the 45th day in the case of any such month ending on the last day
of a fiscal quarter), an unaudited consolidated balance sheet for Borrower and
its consolidated Subsidiaries as at the end of such month and a related
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unaudited consolidated income statement, setting forth in comparative form the
figures as at the end of the corresponding fiscal month of the previous fiscal
year and, in the case of such income statement, in comparative form the figures
for the corresponding fiscal month of the previous fiscal year; all such
financial statements delivered pursuant to subsection 7.1(a) or (b) to be (and,
in the case of any financial statements delivered pursuant to subsection 7.1(b)
shall be certified by a Responsible Officer of the Borrower as being) complete
and correct in all material respects in conformity with GAAP and to be (and, in
the case of any financial statements delivered pursuant to subsection 7.1(b)
shall be certified by a Responsible Officer of the Borrower as being) prepared
in reasonable detail in accordance with GAAP applied consistently throughout the
periods reflected therein and with prior periods that began on or after the
Effective Date (except as approved by such accountants or officer, as the case
may be, and disclosed therein, and except, in the case of any financial
statements delivered pursuant to subsection 7.1(b), for the absence of certain
notes).
7.2 Certificates; Other Information. Furnish to the
Administrative Agent for delivery to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in making
the audit necessary therefor no knowledge was obtained of any Default or Event
of Default insofar as the same relates to any financial accounting matters
covered by their audit, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
and reports referred to in subsections 7.1(a) and (b), a certificate signed by a
Responsible Officer of the Borrower (i) stating that, to the best of such
Responsible Officer's knowledge, the Borrower and its Subsidiaries during such
period has observed or performed all of its covenants and other agreements, and
satisfied every condition, contained in this Agreement, any Notes or the other
Loan Documents to which it is a party to be observed, performed or satisfied by
it, and that such Responsible Officer has obtained no knowledge of any Default
or Event of Default, except, in each case, as specified in such certificate, and
(ii) setting forth the calculations required to determine (A) compliance with
all covenants set forth in subsection 8.1 (in the case of a certificate
furnished with the financial statements referred to in subsections 7.1(a) and
(b)), and (B) compliance with the covenant set forth in subsection 8.8 (in the
case of a certificate furnished with the financial statements referred to in
subsection 7.1(a));
(c) as soon as available, but in any event not later than the
90th day after the beginning of each fiscal year of the Borrower, a copy of the
projections by the Borrower of the operating budget and cash flow budget of the
Borrower and its Subsidiaries for such fiscal year, such projections to be
accompanied by a certificate of a Responsible Officer of the Borrower to
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the effect that such Responsible Officer believes such projections to have been
prepared on the basis of reasonable assumptions;
(d) within five Business Days after the same are sent, copies
of all financial statements and reports which the Borrower sends to its public
security holders, and within five Business Days after the same are filed, copies
of all financial statements and periodic reports which the Borrower may file
with the SEC or any successor or analogous Governmental Authority;
(e) on the 25th day of each calendar month (and at such other
times as the Administrative Agent reasonably may request), a Borrowing Base
Certificate, certified by a Responsible Officer of the Borrower as being true
and accurate in all material respects, setting forth the Borrower's calculation
of the Borrowing Base as of the date specified in such certificate (which, with
respect to the Borrowing Base Certificate delivered on the 25th day of a
calendar month, shall be as of the last Business Day of the prior calendar
month); and
(f) promptly, such additional financial and other information
as any Lender may from time to time reasonably request, including certificates
setting forth calculations showing that the Borrower is in compliance with
subsections 8.2(l), 8.3(j), 8.3(k), 8.4(j), 8.6(g), 8.7(a) and 8.11 of this
Agreement.
7.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings diligently conducted and reserves in conformity with GAAP with
respect thereto have been provided on the books of the Borrower or any of its
Subsidiaries, as the case may be.
7.4 Conduct of Business and Maintenance of Existence. Continue
to engage in business of the same general type as conducted by the Borrower and
its Subsidiaries on the Effective Date, taken as a whole, and preserve, renew
and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of the business of the Borrower and its
Subsidiaries, taken as a whole, except as otherwise expressly permitted pursuant
to subsection 8.5, provided that the Borrower and its Subsidiaries shall not be
required to maintain any such rights, privileges or franchises, if the failure
to do so would not reasonably be expected to have a Material Adverse Effect; and
comply with all Contractual Obligations and Requirements of Law except to the
extent that failure to comply therewith, in the aggregate, would not reasonably
be expected to have a Material Adverse Effect.
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7.5 Maintenance of Property; Insurance. Keep all property
useful and necessary in the business of the Borrower and its Subsidiaries, taken
as a whole, in good working order and condition; maintain with financially sound
and reputable insurance companies insurance on all property material to the
business of the Borrower and its Subsidiaries, taken as a whole, in at least
such amounts and against at least such risks (but including in any event public
liability, product liability and business interruption) as are usually insured
against in the same general area by companies engaged in the same or a similar
business; and furnish to the Administrative Agent, upon written request,
information in reasonable detail as to the insurance carried.
7.6 Inspection of Property; Books and Records; Discussions.
(a) Keep proper books, records and accounts in which full, complete and correct
entries in conformity with GAAP and all material Requirements of Law shall be
made of all dealings and transactions in relation to its business and
activities; and permit representatives of any Lender to visit and inspect any of
its properties and examine and, to the extent reasonable, make abstracts from
any of its books and records and to discuss the business, operations, properties
and financial and other condition of the Borrower and its Subsidiaries with
officers and employees of the Borrower and its Subsidiaries and with its
independent certified public accountants, in each case at any reasonable time,
upon reasonable notice, and as often as may reasonably be desired.
(b) At any time upon the reasonable request of the
Administrative Agent, permit the Administrative Agent or its professionals
(including consultants, accountants and appraisers) retained by the
Administrative Agent to conduct evaluations and appraisals of (i) the Borrower's
practices in the computation of the Borrowing Base, (ii) the assets included in
the Borrowing Base, (iii) systems and procedures relating to the Borrowing Base
items, and (iv) other related procedures deemed necessary by the Administrative
Agent and pay the reasonable fees and expenses thereof in connection therewith
(including, without limitation, the fees and expenses associated with services
performed by the Administrative Agent's Specialized Due Diligence Department);
provided, however, that the Administrative Agent shall not be entitled to
conduct such evaluations and appraisals more frequently than once per year
unless (x) an Event of Default has occurred and is continuing or (y) the
Administrative Agent reasonably determines in consultation with the Borrower
that any material event or material change has occurred with respect to the Loan
Parties, their inventory practices or the performance of the Collateral and that
as a result of such event or change more frequent evaluations or appraisals are
required to effectively monitor the Borrowing Base, in which case the Borrower
will permit the Administrative Agent to conduct such evaluations and appraisals
at such reasonable times and as often as may be reasonably requested, in each
case so long as any Revolving Credit Loans, Swing Line Loans or Letters of
Credit shall be outstanding or shall have been requested by the Borrower
hereunder.
(c) In connection with any evaluation and appraisal relating
to the computation of the Borrowing Base, agree to make such adjustments to its
parameters for including Eligible
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Inventory and Eligible Accounts Receivable in the Borrowing Base as the
Administrative Agent shall reasonably require based upon the results of such
evaluation and appraisal, provided that the Administrative Agent shall specify
to the Borrower in writing the reasons for any such additional adjustments.
7.7 Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) as soon as possible after a Responsible Officer of the
Borrower knows or reasonably should know thereof, the occurrence of any Default
or Event of Default;
(b) as soon as possible after a Responsible Officer of the
Borrower knows or reasonably should know thereof, any (i) default or event of
default under any Contractual Obligation of the Borrower or any of its
Subsidiaries, other than as previously disclosed in writing to the Lenders, or
(ii) litigation, investigation or proceeding which may exist at any time between
the Borrower or any of its Subsidiaries and any Governmental Authority, which in
either case, if not cured or if adversely determined, as the case may be, would
reasonably be expected to have a Material Adverse Effect;
(c) as soon as possible after a Responsible Officer of the
Borrower knows or reasonably should know thereof, the occurrence of any default
or event of default under the Senior Subordinated Notes Documents;
(d) as soon as possible after a Responsible Officer of the
Borrower knows or reasonably should know thereof, any litigation or proceeding
affecting the Borrower or any of its Subsidiaries in which the amount involved
(not covered by insurance) is $1,000,000 or more or in which injunctive or
similar relief is sought that would reasonably be expected to have a Material
Adverse Effect;
(e) the following events, as soon as possible and in any event
within 30 days after a Responsible Officer of the Borrower or any of its
Subsidiaries knows or reasonably should know thereof: (i) the occurrence or
expected occurrence of any Reportable Event with respect to any Single Employer
Plan, a failure to make any required contribution to a Single Employer Plan or
Multiemployer Plan, the creation of any Lien on the property of the Borrower or
its Subsidiaries in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan; (ii) the
institution of proceedings or the taking of any other formal action by the PBGC
or the Borrower or any of its Subsidiaries or any Commonly Controlled Entity or
any Multiemployer Plan which could reasonably be expected to result in the
withdrawal from, or the termination, Reorganization or Insolvency of, any Single
Employer Plan or Multiemployer Plan; provided, however, that no such notice will
be required under clause (i) or (ii) above unless the event giving rise to such
notice, when
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aggregated with all other such events under clause (i) or (ii) above, could be
reasonably expected to result in liability to the Borrower or its Subsidiaries
in an amount that would exceed $5,000,000; or (iii) the existence of an
Underfunding under a Single Employer Plan that exceeds 10% of the value of the
assets of such Single Employer Plan, in each case, determined as of the most
recent annual valuation date of such Single Employer Plan on the basis of the
actuarial assumptions used to determine the funding requirements of such Single
Employer Plan as of such date;
(f) as soon as possible after a Responsible Officer of the
Borrower knows or reasonably should know thereof, any material adverse change in
the business, operations, property, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole;
(g) as soon as possible after a Responsible Officer of the
Borrower knows or reasonably should know thereof, (i) any release or discharge
by the Borrower or any of its Subsidiaries of any Materials of Environmental
Concern required to be reported under applicable Environmental Laws to any
Governmental Authority, unless the Borrower reasonably determines that the total
Environmental Costs arising out of such release or discharge are unlikely to
exceed $2,000,000 or to have a Material Adverse Effect; (ii) any condition,
circumstance, occurrence or event not previously disclosed in writing to the
Administrative Agent that could result in liability under applicable
Environmental Laws unless the Borrower reasonably determines that the total
Environmental Costs arising out of such condition, circumstance, occurrence or
event are unlikely to exceed $2,000,000 or to have a Material Adverse Effect, or
could result in the imposition of any lien or other restriction on the title,
ownership or transferability of any facilities and properties owned, leased or
operated by the Borrower or any of its Subsidiaries; and (iii) any proposed
action to be taken by the Borrower or any of its Subsidiaries that would
reasonably be expected to subject the Borrower or any of its Subsidiaries to any
material additional or different requirements or liabilities under Environmental
Laws, unless the Borrower reasonably determines that the total Environmental
Costs arising out of such proposed action are unlikely to exceed $1,000,000 or
to have a Material Adverse Effect; and
(h) as soon as possible after a Responsible Officer of the
Borrower knows or reasonably should know thereof, the failure to make any rental
payment when due and payable with respect to any property leased by the Borrower
or any of its Domestic Subsidiaries at which Inventory of the Borrower or any of
its Domestic Subsidiaries is located.
Each notice pursuant to this subsection shall be accompanied
by a statement of a Responsible Officer of the Borrower (and, if applicable, the
relevant Commonly Controlled Entity or Subsidiary) setting forth details of the
occurrence referred to therein and stating what action the Borrower (or, if
applicable, the relevant Commonly Controlled Entity or Subsidiary) proposes to
take with respect thereto.
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7.8 Environmental Laws. (a) (i) Comply substantially with, and
require substantial compliance by all tenants, subtenants, contractors, and
invitees with, all applicable Environmental Laws; (ii) obtain, comply
substantially with and maintain any and all Environmental Permits necessary for
its operations as conducted and as planned; and (iii) require that all tenants,
subtenants, contractors, and invitees obtain, comply substantially with and
maintain any and all Environmental Permits necessary for their operations as
conducted and as planned, with respect to any property leased or subleased from,
or operated by the Borrower or its Subsidiaries.
(b) Conduct and complete or cause to be conducted and
completed all investigations, studies, sampling and testing, and all remedial,
removal, and other actions required under applicable Environmental Laws; and
promptly comply with all orders and directives of all Governmental Authorities
regarding Environmental Laws, (i) except where non-compliance with any such
order or directive would not reasonably be expected to have a Material Adverse
Effect or (ii) other than any such order or directive as to which an appeal or
other appropriate contest is or has been timely and properly taken, is being
diligently pursued in good faith, and as to which appropriate reserves have been
established in accordance with GAAP, and, if the effectiveness of such order or
directive has not been stayed, the pendency of such appeal or other appropriate
contest does not give rise to a Material Adverse Effect.
(c) Maintain, update as appropriate, and implement in all
material respects an ongoing program to ensure that all the properties and
operations of the Borrower and its Subsidiaries are regularly and reasonably
reviewed by competent professionals to identify and promote compliance with and
to reasonably and prudently manage any liabilities or potential liabilities
under any Environmental Law that may affect the Borrower or any of its
Subsidiaries, including, without limitation, compliance and liabilities relating
to: discharges to air and water; acquisition, transportation, storage and use of
hazardous materials; waste disposal; repair, maintenance and improvement of
properties; employee health and safety; species protection; and recordkeeping
(the "Environmental Program").
7.9 After-Acquired Real Property and Fixtures. (a) With
respect to any owned real property or fixtures, in each case with a purchase
price or a fair market value of at least $500,000, in which the Borrower or any
of its Subsidiaries acquires ownership rights at any time after the Effective
Date, promptly grant to the Administrative Agent, for the benefit of the
Lenders, a Lien of record on all such owned real property and fixtures, upon
terms reasonably satisfactory in form and substance to the Administrative Agent
and in accordance with any applicable requirements of any Governmental Authority
(including, without limitation, any required appraisals of such property under
FIRREA); provided that (i) nothing in this subsection 7.9 shall defer or impair
the attachment or perfection of any security interest in any Collateral covered
by any of the Security Documents which would attach or be perfected pursuant to
the terms thereof without action by the Borrower, any of its Subsidiaries or any
other Person and (ii)
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no such Lien shall be required to be granted as contemplated by this subsection
7.9 on any owned real property or fixtures the acquisition of which is financed,
or is to be financed within any time period permitted by subsection 8.2(d) or
(e), in whole or in part through the incurrence of Indebtedness permitted by
subsection 8.2(d) or (e), until such Indebtedness is repaid in full (and not
refinanced as permitted by subsection 8.2(d) or (e)) or, as the case may be, the
Borrower determines not to proceed with such financing or refinancing. In
connection with any such grant to the Administrative Agent, for the benefit of
the Lenders, of a Lien of record on any such real property in accordance with
this subsection, the Borrower or such Subsidiary shall deliver or cause to be
delivered to the Administrative Agent any surveys, title insurance policies,
environmental reports and other documents in connection with such grant of such
Lien obtained by it in connection with the acquisition of such ownership rights
in such real property or as the Administrative Agent shall reasonably request
(in light of the value of such real property and the cost and availability of
such surveys, title insurance policies, environmental reports and other
documents and whether the delivery of such surveys, title insurance policies,
environmental reports and other documents would be customary in connection with
such grant of such Lien in similar circumstances).
(b) At its own expense, execute, acknowledge and deliver, or
cause the execution, acknowledgement and delivery of, and thereafter register,
file or record in an appropriate governmental office, any document or instrument
reasonably deemed by the Administrative Agent to be necessary or desirable for
the creation, perfection and priority and the continuation of the validity,
perfection and priority of the foregoing Liens or any other Liens created
pursuant to the Security Documents.
(c) At its own expense, request, and use reasonable efforts to
obtain, prior to entering into a lease of a facility located in the United
States in which Inventory will be located on or after the Effective Date (other
than any such facility for which there is not a lease of more than one year and
which the Borrower and its Subsidiaries intends to use as a seasonal storage
facility), a consent, substantially in the form of Exhibit K or such other form
as may be reasonably satisfactory to the Administrative Agent, from each
landlord of any such facility, in which such landlord acknowledges the
Administrative Agent's first priority security interest in the Inventory pledged
by each Loan Party to the Administrative Agent for the benefit of the Lenders.
7.10 Certain Post-Closing Matters. (a) If the Borrower has not
sold its real properties located in either XxXxxxx, Minnesota or Burnsville,
Minnesota within six months after the Effective Date or a Default or an Event of
Default shall occur and be continuing, the Borrower shall deliver to the
Administrative Agent:
(i) and the title insurance company issuing the policy
referred to in clause (ii) below (the "Title Insurance Company") maps
or plats of an as-built survey of each such
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unsold property or properties certified to the Administrative Agent and
the Title Insurance Company in a manner reasonably satisfactory to
them, dated a date reasonably satisfactory to the Administrative Agent
and the Title Insurance Company by an independent professional licensed
land surveyor reasonably satisfactory to the Administrative Agent and
the Title Insurance Company, which maps or plats and the surveys on
which they are based shall be made in accordance with the Minimum
Standard Detail Requirements for Land Title Surveys jointly established
and adopted by the American Land Title Association and the American
Congress on Surveying and Mapping in 1992, and, without limiting the
generality of the foregoing, there shall be surveyed and shown on such
maps, plats or surveys the following: (a) the locations on such sites
of all the buildings, structures and other improvements and the
established building setback lines; (b) the lines of streets abutting
the sites and width thereof; (c) all access and other easements
appurtenant to the sites necessary to use the sites; (d) all roadways,
paths, driveways, easements, encroachments and overhanging projections
and similar encumbrances affecting the sites, whether recorded,
apparent from a physical inspection of the sites or otherwise known to
the surveyor; (e) any encroachments on any adjoining property by the
building structures and improvements on the sites; and (f) if the site
is described as being on a filed map, a legend relating the survey to
said map; and
(ii) a mortgagee's title policy (or policies) or marked up
unconditional binder for such insurance dated the Effective Date.
Each such policy shall (a) be in an amount reasonably satisfactory to the
Administrative Agent; (b) insure that the Mortgage insured thereby creates a
valid first Lien on the Mortgaged Property encumbered thereby free and clear of
all defects and encumbrances, except those permitted by subsection 8.3 and such
as may be approved by the Administrative Agent; (c) name the Administrative
Agent for the benefit of the Lenders as the insured thereunder; (d) be in the
form of an ALTA Loan Policy; (e) contain such endorsements and affirmative
coverage as the Administrative Agent may reasonably request; provided that, in
the case of zoning endorsements, if any, no additional premiums will be required
in excess of $2,000 per property, (f) be issued by title companies reasonably
satisfactory to the Administrative Agent (including any such title companies
acting as reinsurers, at the option of the Administrative Agent) and (g) be
issued at ordinary rates (other than with respect to affirmative insurance). The
Administrative Agent shall have received evidence reasonably satisfactory to it
that all premiums in respect of each such policy, and all charges for mortgage
recording tax, if any, have been paid. The Administrative Agent shall have also
received a copy of all recorded documents referred to, or listed as exceptions
to title in, the title policy or policies referred to in this subsection and a
copy, certified by such parties as the Administrative Agent may deem reasonably
appropriate, of all other documents affecting the property covered by such
Mortgage as shall have been reasonably requested by the Administrative Agent.
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(b) Within 60 days after the Effective Date, the Borrower
shall either:
(i) contribute or otherwise transfer all of the Capital Stock
of Foreign Subsidiaries held by the Borrower and its Subsidiaries to
either (a) TCI Holding or (b) a newly-formed domestic Wholly Owned
Subsidiary of the Borrower (the "Foreign Subsidiary Holding Company"),
and pledge 65% of the issued and outstanding Capital Stock of the
Foreign Subsidiary Holding Company to the Administrative Agent pursuant
to the Guarantee and Collateral Agreement; or
(ii) deliver to the Administrative Agent an opinion of counsel
in the jurisdictions of formation of each Foreign Subsidiary reasonably
satisfactory to the Administrative Agent stating that the
Administrative Agent has a perfected first priority security interest
in the Capital Stock of such Foreign Subsidiary pursuant to the laws of
such jurisdiction and the Borrower shall deliver to such counsel all
documents required by such counsel in order to deliver such opinion.
The Borrower shall not permit the Foreign Subsidiary Holding Company to engage
in any business other than the owning of the Capital Stock of the Foreign
Subsidiaries and any business or other activities reasonably related to the
foregoing, or to incur any material liabilities other than liabilities
reasonably related to the foregoing or arising by operation of law. The Foreign
Subsidiary Holding Company shall be a "Foreign Subsidiary" under this Agreement
for all purposes hereof.
(c) Within 30 days after the Effective Date, the Borrower
shall deliver to the Administrative Agent the certificates representing 65% of
the Capital Stock of TCI Exports, Ltd., a corporation formed under the laws of
Barbados, together with an undated stock power for each such certificate
executed in blank by a duly authorized officer of the Borrower.
SECTION 8. NEGATIVE COVENANTS
The Borrower hereby agrees that, from and after the Effective
Date and so long as the Revolving Credit Commitments remain in effect, and
thereafter until payment in full of the Loans, all Reimbursement Obligations and
any other amount then due and owing to any Lender or the Administrative Agent
hereunder and under any Note and termination or expiration of all Letters of
Credit, the Borrower shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly:
8.1 Financial Condition Covenants. (a) Minimum Consolidated
EBITDA. Permit the Consolidated EBITDA of the Borrower for any period of four
consecutive fiscal
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quarters of the Borrower ending on the dates set forth below to be less than the
amount set forth opposite such date below:
Date Amount
---- ------
June 30, 1997 $38,000,000
September 30, 1997 $38,000,000
December 31, 1997 $38,000,000
March 31, 1998 $38,000,000
June 30, 1998 $38,000,000
September 30, 1998 $39,000,000
December 31, 1998 $39,000,000
March 31, 1999 $42,000,000
June 30, 1999 $42,000,000
September 30, 1999 $44,000,000
December 31, 1999 $44,000,000
March 31, 2000 $48,000,000
June 30, 2000 $48,000,000
September 30, 2000 $50,000,000
December 31, 2000 $50,000,000
March 31, 2001 $53,000,000
June 30, 2001 $53,000,000
September 30, 2001 $55,000,000
December 31, 2001 $55,000,000
March 31, 2002 $57,000,000
June 30, 2002 $57,000,000
September 30, 2002 $60,000,000
December 31, 2002 $60,000,000
March 31, 2003 $63,000,000
June 30, 2003 $63,000,000
September 30, 2003 $66,000,000
December 31, 2003 $66,000,000
March 31, 2004 $70,000,000
June 30, 2004 $70,000,000
September 30, 2004 $70,000,000
December 31, 2004 $70,000,000
(b) Maintenance of Consolidated Fixed Charges Ratio. Permit,
for any period of four consecutive fiscal quarters of the Borrower ending on the
dates set forth below, the Consolidated Fixed Charges Ratio of the Borrower on
such date to be less than the ratio set forth opposite such date below:
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Date Ratio
---- -----
December 31, 1997 1.00 to 1
March 31, 1998 1.00 to 1
June 30, 1998 1.00 to 1
September 30, 1998 1.00 to 1
December 31, 1998 1.00 to 1
March 31, 1999 1.00 to 1
June 30, 1999 1.05 to 1
September 30, 1999 1.05 to 1
December 31, 1999 1.05 to 1
March 31, 2000 1.05 to 1
June 30, 2000 1.05 to 1
September 30, 2000 1.05 to 1
December 31, 2000 1.05 to 1
March 31, 2001 1.05 to 1
June 30, 2001 1.10 to 1
September 30, 2001 1.10 to 1
December 31, 2001 1.10 to 1
March 31, 2002 1.10 to 1
June 30, 2002 1.10 to 1
September 30, 2002 1.10 to 1
December 31, 2002 1.10 to 1
March 31, 2003 1.10 to 1
June 30, 2003 1.10 to 1
September 30, 2003 1.10 to 1
December 31, 2003 1.10 to 1
March 31, 2004 1.10 to 1
June 30, 2004 1.10 to 1
September 30, 2004 1.10 to 1
December 31, 2004 1.10 to 1
(c) Maintenance of Leverage Ratio. Permit, for any period of
four consecutive fiscal quarters of the Borrower ending on the dates set forth
below, the Leverage Ratio of the Borrower on such date to be greater than the
ratio set forth opposite such date below:
Date Ratio
---- -----
December 31, 1997 6.50 to 1
March 31, 1998 6.50 to 1
June 30, 1998 6.00 to 1
September 30, 1998 6.00 to 1
December 31, 1998 6.00 to 1
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March 31, 1999 6.00 to 1
June 30, 1999 5.50 to 1
September 30, 1999 5.50 to 1
December 31, 1999 5.50 to 1
March 31, 2000 5.50 to 1
June 30, 2000 5.25 to 1
September 30, 2000 5.25 to 1
December 31, 2000 5.25 to 1
March 31, 2001 5.25 to 1
June 30, 2001 5.00 to 1
September 30, 2001 5.00 to 1
December 31, 2001 5.00 to 1
March 31, 2002 5.00 to 1
June 30, 2002 4.50 to 1
September 30, 2002 4.50 to 1
December 31, 2002 4.50 to 1
March 31, 2003 4.50 to 1
June 30, 2003 4.00 to 1
September 30, 2003 4.00 to 1
December 31, 2003 4.00 to 1
March 31, 2004 4.00 to 1
June 30, 2004 4.00 to 1
September 30, 2004 4.00 to 1
December 31, 2004 4.00 to 1
8.2 Limitation on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness (including any Indebtedness of any of its
Subsidiaries), except:
(a) Indebtedness of the Borrower under this Agreement and
under any Notes;
(b) Indebtedness under the Senior Subordinated Indenture or
evidenced by the Senior Subordinated Notes; provided that such Indebtedness
shall not be extended, renewed, replaced, refinanced or otherwise amended,
except as otherwise permitted by subsection 8.12(c);
(c) Indebtedness of the Borrower to any of its Subsidiaries
and of any Subsidiary to the Borrower or any other Subsidiary;
(d) Indebtedness of the Borrower and any of its Subsidiaries
incurred to finance or refinance the acquisition of fixed or capital assets
(whether pursuant to a loan, a Financing Lease or otherwise) otherwise permitted
pursuant to this Agreement, and any other Financing Leases, in an aggregate
principal amount not exceeding in the aggregate as to the Borrower and
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its Subsidiaries $3,000,000 at any one time outstanding, provided that such
Indebtedness is incurred substantially simultaneously with such acquisition or
within six months after such acquisition or in connection with a refinancing
thereof;
(e) Indebtedness of the Borrower and any of its Subsidiaries
incurred to finance or refinance the purchase price of, or Indebtedness of the
Borrower and any of its Subsidiaries assumed in connection with any acquisition
otherwise permitted pursuant to this Agreement provided that (i) such
Indebtedness is incurred prior to, substantially simultaneously with or within
six months after such acquisition or in connection with a refinancing thereof,
(ii) if such Indebtedness is owed to a Person, other than the Person from whom
such acquisition is made or any Affiliate thereof, such Indebtedness shall have
terms and conditions reasonably satisfactory to the Administrative Agent and
shall not exceed 65% of the purchase price of such acquisition (including any
Indebtedness assumed in connection with such acquisition) and (iii) immediately
after giving effect to such acquisition no Default or Event of Default shall
have occurred and be continuing;
(f) to the extent that any Indebtedness may be incurred or
arise thereunder, Indebtedness of the Borrower and its Subsidiaries under
Permitted Hedging Arrangements;
(g) other Indebtedness outstanding or incurred under
facilities in existence on the Effective Date and listed on Schedule 8.2(g)
hereto, and any refinancings, refundings, renewals or extensions thereof on
financial and other terms, in the reasonable judgment of the Borrower, no more
onerous to the Borrower or any of its Subsidiaries in the aggregate than the
financial and other terms of such Indebtedness, 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 amounts
paid, and fees and expenses incurred, in connection with such refinancing,
refunding, renewal or extension;
(h) Indebtedness of Foreign Subsidiaries for working capital
purposes or pursuant to Section 8.6(c) (including in respect of overdrafts) in
aggregate principal amount at any one time outstanding not exceeding, as to all
such Foreign Subsidiaries, the Foreign Subsidiary Indebtedness Amount, provided
that such Indebtedness may exceed the Foreign Subsidiary Indebtedness Amount but
the Available Revolving Credit Commitments shall be reduced by the amount by
which such Indebtedness exceeds the Foreign Subsidiary Indebtedness Amount;
(i) to the extent that any Guarantee Obligation permitted
under subsection 8.4 constitutes Indebtedness, such Indebtedness;
(j) Indebtedness of the Borrower or any of its Subsidiaries in
respect of Sale and Leaseback Transactions permitted under subsection 8.11;
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(k) Indebtedness of the Borrower or any of its Subsidiaries
incurred to finance insurance premiums in the ordinary course of business;
(l) Indebtedness arising from the honoring of a check, draft
or similar instrument against insufficient funds; provided that such
Indebtedness is extinguished within two Business Days of its incurrence;
(m) Indebtedness not otherwise permitted by the preceding
clauses of this subsection 8.2 not exceeding $3,000,000 in aggregate principal
amount at any one time outstanding; and
(n) Indebtedness of the Borrower and any of its Subsidiaries
not otherwise permitted by the preceding clauses of this subsection 8.2 which is
secured solely by a lien on Excluded Foreign Accounts of the Borrower and its
Subsidiaries and which does not exceed $5,000,000 in aggregate principal amount
at any one time outstanding, provided that the Available Revolving Credit
Commitments shall be reduced by the amount of such Indebtedness.
With respect to any Indebtedness denominated in a foreign
currency, for purposes of determining compliance with any Dollar-denominated
restriction on the Incurrence of such Indebtedness under this Section 8.2, the
amount of such Indebtedness shall be calculated monthly based on the currency
exchange rate in effect at such time.
8.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes, assessments and similar charges not yet
delinquent or the nonpayment of which in the aggregate would not reasonably be
expected to have a Material Adverse Effect, or which are being contested in good
faith by appropriate proceedings diligently conducted and adequate reserves with
respect thereto are maintained on the books of the Borrower or its Subsidiaries,
as the case may be, in conformity with GAAP;
(b) 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 60 days or which are being contested
in good faith by appropriate proceedings diligently conducted;
(c) Liens of landlords or of mortgagees of landlords arising
by operation of law or pursuant to the terms of real property leases, provided
that the rental payments secured thereby are not yet due and payable;
(d) pledges, deposits or other Liens in connection with
workers' compensation, unemployment insurance, other social security benefits or
other insurance related obligations
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(including, without limitation, pledges or deposits securing liability to
insurance carriers under insurance or self-insurance arrangements);
(e) Liens arising by reason of any judgment, decree or order
of any court or other Governmental Authority, if appropriate legal proceedings
which may have been duly initiated for the review of such judgment, decree or
order, are being diligently prosecuted and shall not have been finally
terminated or the period within which such proceedings may be initiated shall
not have expired;
(f) Liens to secure the performance of bids, trade contracts
(other than for borrowed money), obligations for utilities, leases, statutory
obligations, surety and appeal bonds, performance bonds, judgment and like
bonds, replevin and similar bonds and other obligations of a like nature
incurred in the ordinary course of business;
(g) zoning restrictions, easements, rights-of-way,
restrictions on the use of property, other similar encumbrances incurred in the
ordinary course of business and minor irregularities of title which do not
materially interfere with the ordinary conduct of the business of the Borrower
and its Subsidiaries taken as a whole;
(h) Liens securing or consisting of Indebtedness of the
Borrower and its Subsidiaries permitted by subsection 8.2(d) incurred to finance
the acquisition of fixed or capital assets or Indebtedness of the Borrower and
its Subsidiaries permitted by subsection 8.2(e) incurred to finance the purchase
price of, or assumed in connection with any acquisition otherwise permitted
pursuant to this Agreement, provided that (i) such Liens shall be created no
later than the later of the date of such acquisition or the date of the
incurrence or assumption of such Indebtedness, and (ii) such Liens do not at any
time encumber any property other than the property financed by such Indebtedness
and, in the case of Indebtedness assumed in connection with any such
acquisition, the property subject thereto immediately prior to such acquisition;
(i) Liens existing on assets or properties at the time of the
acquisition thereof by the Borrower or any of its Subsidiaries which do not
materially interfere with the use, occupancy, operation and maintenance of
structures existing on the property subject thereto or extend to or cover any
assets or properties of the Borrower or such Subsidiary other than the assets or
property being acquired;
(j) Liens (i) in existence on the Effective Date and listed in
Schedule 8.3(j) hereto and other Liens securing Indebtedness of the Borrower and
its Subsidiaries permitted by subsection 8.2(g), provided that no such Lien is
spread to cover any additional property after the Effective Date and that the
amount of Indebtedness secured thereby is not increased except as permitted by
subsection 8.2(g), or (ii) not otherwise permitted hereunder, all of which Liens
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permitted pursuant to this subsection 8.3(j)(ii) secure obligations not
exceeding (as to the Borrower and all its Subsidiaries) $3,000,000 in aggregate
amount at any time outstanding;
(k) Liens securing Guarantee Obligations permitted under
subsection 8.4(d) not exceeding (as to the Borrower and all its Subsidiaries)
$1,000,000 in aggregate amount at any time outstanding;
(l) Liens created pursuant to the Security Documents or
otherwise securing Indebtedness permitted by subsection 8.2(a);
(m) any encumbrance or restriction (including, without
limitation, put and call agreements) with respect to the Capital Stock of any
joint venture or similar arrangement pursuant to the joint venture or similar
agreement with respect to such joint venture or similar arrangement, provided
that no such encumbrance or restriction affects in any way the ability of the
Borrower or any of its Subsidiaries to comply with subsection 8.15(b);
(n) Liens on property subject to Sale and Leaseback
Transactions permitted under subsection 8.11 and general intangibles related
thereto;
(o) Liens on property of any Foreign Subsidiary of the
Borrower securing Indebtedness of such Foreign Subsidiary permitted by
subsection 8.2(h) or otherwise permitted under this Agreement;
(p) Liens on Intellectual Property (as defined in subsection
5.9) and foreign patents, patent applications, trademarks, trademark
applications, tradenames, copyrights, technology, know-how and processes to the
extent such Liens arise from the granting of licenses to use such Intellectual
Property and foreign patents, patent applications, trademarks, trademark
applications, tradenames, copyrights, technology, know-how and processes to any
Person in the ordinary course of business of the Borrower or any of its
Subsidiaries; and
(q) Liens on Excluded Foreign Accounts of the Borrower and its
Subsidiaries securing Indebtedness permitted by subsection 8.2(n).
8.4 Limitation on Guarantee Obligations. Create, incur, assume
or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the Effective Date
and listed in Schedule 8.4(a) hereto, and any refinancings, refundings,
extensions or renewals thereof, provided that the amount of such Guarantee
Obligation shall not be increased at the time of such refinancing, refunding,
extension or renewal except to the extent that the amount of Indebtedness in
respect of such Guarantee Obligations is permitted to be increased by subsection
8.2(h);
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(b) Guarantee Obligations for performance, appeal, judgment,
replevin and similar bonds and suretyship arrangements, all in the ordinary
course of business;
(c) Reimbursement Obligations in respect of the Letters of
Credit;
(d) Guarantee Obligations in respect of third-party loans and
advances to officers or employees of the Borrower or any of its Subsidiaries (i)
for travel and entertainment expenses incurred in the ordinary course of
business, (ii) for relocation expenses incurred in the ordinary course of
business, or (iii) for other purposes in an aggregate amount (as to the Borrower
and all its Subsidiaries), together with the aggregate amount of all Investments
permitted under subsection 8.9(e)(iv), of up to $4,000,000 outstanding at any
time;
(e) obligations to insurers required in connection with
worker's compensation and other insurance coverage incurred in the ordinary
course of business;
(f) obligations of the Borrower and its Subsidiaries under
Permitted Hedging Arrangements;
(g) Guarantee Obligations incurred in connection with
acquisitions otherwise permitted pursuant to this Agreement, provided that if
any such Guarantee Obligation inures to the benefit of any Person other than the
Person from whom such acquisition is made or any Affiliate thereof, such
Guarantee Obligation shall not exceed, with respect to any such acquisition, 65%
of the purchase price of such acquisition (including any Indebtedness assumed in
connection with any such acquisition) or such greater percentage as shall be
reasonably satisfactory to the Administrative Agent;
(h) guarantees made in the ordinary course of its business by
the Borrower or any of its Subsidiaries of obligations of the Borrower or any of
its Subsidiaries, which obligations are otherwise permitted under this
Agreement;
(i) Guarantee Obligations in connection with sales or other
dispositions permitted under subsection 8.6, including indemnification
obligations with respect to leases, and guarantees of collectability in respect
of accounts receivable or notes receivable for up to face value;
(j) Guarantee Obligations in respect of Indebtedness of a
Person in connection with a joint venture or similar arrangement in respect to
which no other coinvestor or other Person has a greater legal or beneficial
ownership interest than the Borrower or any of its Subsidiaries, and as to all
of such Persons does not at any time exceed $10,000,000 in aggregate principal
amount;
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(k) Guarantee Obligations incurred pursuant to the Guarantees
or otherwise in respect of Indebtedness permitted by subsection 8.2(a);
(l) guarantees by Subsidiaries of the Borrower set forth in
the Senior Subordinated Notes Documents, which guarantees are subordinated as
provided in each such document;
(m) guarantees of Indebtedness of Foreign Subsidiaries
permitted by subsection 8.2(h); and
(n) Guarantee Obligations in respect of letters of credit
issued for the account of Foreign Subsidiaries, and guarantees thereof, provided
that the aggregate amount of such Guarantee Obligations, taken together with the
aggregate amount of other Indebtedness of Foreign Subsidiaries outstanding
pursuant to subsection 8.2(h), shall not exceed the aggregate amount of such
Indebtedness permitted pursuant to such subsection.
8.5 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, except:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with or into any one or more Wholly
Owned Subsidiaries of the Borrower (provided that the Wholly Owned Subsidiary or
Subsidiaries of the Borrower shall be the continuing or surviving entity);
(b) any Subsidiary of the Borrower may sell, lease, transfer
or otherwise dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the Borrower or any Wholly Owned Subsidiary of the Borrower; and
(c) as expressly permitted by subsections 8.6 and 8.15.
8.6 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Subsidiary of the
Borrower, issue or sell any shares of such Subsidiary's Capital Stock, to any
Person other than the Borrower or any Wholly Owned Subsidiary of the Borrower,
except:
(a) the sale or other Disposition of obsolete, worn out or
surplus property, whether now owned or hereafter acquired, in the ordinary
course of business;
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(b) the sale or other Disposition of any property (including
Inventory) in the ordinary course of business;
(c) the sale or discount without recourse of accounts
receivable or notes receivable arising in the ordinary course of business, or
the conversion or exchange of accounts receivable into or for notes receivable,
in connection with the compromise or collection thereof provided that, in the
case of any Foreign Subsidiary of the Borrower, any such sale or discount may be
with recourse if such sale or discount is consistent with customary practice in
such Foreign Subsidiary's country of business and the aggregate amount of any
such recourse shall be included in the determination of such Foreign
Subsidiary's Indebtedness for purposes of subsection 8.2(h);
(d) as permitted by subsection 8.5(b) and pursuant to Sale and
Leaseback Transactions permitted by subsection 8.11;
(e) Dispositions of any assets or property by the Borrower or
any of its Subsidiaries to the Borrower or any Wholly Owned Subsidiary of the
Borrower;
(f) the abandonment or other Disposition of patents,
trademarks or other intellectual property that are, in the reasonable judgment
of the Borrower, no longer economically practicable to maintain or useful in the
conduct of the business of the Borrower and its Subsidiaries taken as a whole;
(g) Asset Sales by the Borrower or any of its Subsidiaries the
Net Cash Proceeds of which do not exceed $5,000,000 in the aggregate after the
Effective Date, provided that an amount equal to 100% of the Net Cash Proceeds
of any such Asset Sale less the Reinvested Amount is applied in accordance with
subsection 4.4(d); and
(h) (i) the sale of the Borrower's XxXxxxx, Minnesota
facility, (ii) the sale of all or any part of the assets or Capital Stock of the
Subsidiary or Subsidiaries comprising the Borrower's military antennae business
and/or (iii) the sale of the vacant land owned by the Borrower in Burnsville,
Minnesota, provided that an amount equal to 100% of the Net Cash Proceeds of any
such Asset Sale (less the Reinvested Amount with respect thereto) is applied in
accordance with subsection 4.4(d).
8.7 Limitation on Restricted Payments. Declare or pay any
dividend (other than dividends payable solely in common stock of the Borrower or
options, warrants or other rights to purchase common stock of the Borrower) on,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of Capital Stock of the Borrower or any
warrants or options to purchase any such Capital Stock, whether now or hereafter
outstanding, or make
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any other distribution (other than distributions payable solely in common stock
of the Borrower or options, warrants or other rights to purchase common stock of
the Borrower) in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of the Borrower, except that:
(a) the Borrower may pay cash dividends in an amount
sufficient to allow Holdings to pay expenses incurred in the ordinary course of
business in an aggregate amount not to exceed $750,000 in any fiscal year;
(b) the Borrower may pay cash dividends in an amount
sufficient to allow Holdings to pay all fees and expenses incurred in connection
with the Recapitalization, the issuance of the Senior Subordinated Notes and the
transactions expressly contemplated by this Agreement and the other Loan
Documents in an aggregate amount which, together with all other such fees and
expenses of the Borrower shall not exceed $38,200,000;
(c) the Borrower may pay cash dividends in an amount
sufficient to cover reasonable and necessary expenses (including professional
fees and expenses) incurred by Holding in connection with indemnification and
reimbursement of directors, officers and employees in respect of liabilities
relating to their serving in any such capacity;
(d) the Borrower may pay cash dividends in amount sufficient
to pay tax liabilities of Holdings which are paid in cash by Holdings to any
taxing authority; and
(e) the Borrower may pay cash dividends in amount sufficient
to allow Holdings to repurchase shares of its common stock or rights, option or
units in respect thereof from directors, officers or employees of Holdings and
its Subsidiaries (but not from Greenwich II or any member of the GSCP Group) for
an aggregate purchase price not to exceed $750,000.
8.8 Limitation on Capital Expenditures. Make or commit to make
any Capital Expenditures (excluding any expenses incurred in connection with
normal replacement and maintenance programs properly charged to current
operations and excluding any Reinvested Amounts); provided that the Borrower and
its Subsidiaries may make Capital Expenditures in an amount not to exceed, for
any test period set forth below, the amount set forth opposite such test period
below:
Effective Date - March 31, 1998 $6,000,000
April 1, 1998 - March 31, 1999 $6,000,000
April 1, 1999 - March 31, 2000 $8,000,000
April 1, 2000 - March 31, 2001 $8,000,000
April 1, 2001 - March 31, 2002 $9,000,000
April 1, 2002 - March 31, 2003 $10,000,000
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April 1, 2003 - March 31, 2004 $10,000,000
April 1, 2004 - March 31, 2005 $10,000,000
provided that any Capital Expenditures permitted to be made during any test
period and not made during such test period may be carried over and expended
during the next succeeding test period only.
8.9 Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment, in cash or by
transfer of assets or property, in (each an "Investment"), any Person, except:
(a) extensions of trade credit in the ordinary course of
business;
(b) Investments in cash and Cash Equivalents;
(c) Investments existing on the Effective Date and described
in Schedule 8.9(c), setting forth the respective amounts of such
Investments as of a recent date;
(d) Investments in notes receivable and other instruments and
securities obtained in connection with transactions permitted by
subsection 8.6(c);
(e) loans and advances to officers, directors or employees of
Holdings, the Borrower or any of their respective Subsidiaries (i) in
the ordinary course of business for travel and entertainment expenses,
(ii) existing on the Effective Date and described in Schedule 8.9(c),
(iii) made after the Effective Date for relocation expenses in the
ordinary course of business, (iv) made for other purposes in an
aggregate amount (as to Holdings and all its Subsidiaries), together
with the aggregate amount of all Guarantee Obligations permitted
pursuant to subsection 8.4(d), of up to $4,000,000 outstanding at any
time or (v) relating to indemnification or reimbursement of any
officers, directors or employees in respect of liabilities relating to
their serving in any such capacity or as otherwise specified in
subsection 8.10;
(f) Investments by the Borrower in its Wholly Owned
Subsidiaries and by such Wholly Owned Subsidiaries in the Borrower and
in Wholly Owned Subsidiaries of the Borrower;
(g) Investments of the Borrower and its subsidiaries under
Permitted Hedging Arrangements;
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(h) Investments in the nature of pledges or deposits with
respect to leases or utilities provided to third parties in the
ordinary course of business or otherwise described in subsection
8.3(c), (d) or (f);
(i) Investments representing non-cash consideration received
by the Borrower or any of its Subsidiaries in connection with any Asset
Sale, provided that in the case of any Asset Sale permitted under
subsection 8.6(g), such non-cash consideration constitutes not more
than 25% of the aggregate consideration received in connection with
such Asset Sale and any such non-cash consideration received by the
Borrower or any of its Domestic Subsidiaries is pledged to the
Administrative Agent for the benefit of the Lenders pursuant to the
Security Documents;
(j) Investments representing evidences of Indebtedness,
securities or other property received from another Person by the
Borrower or any of its Subsidiaries in connection with any bankruptcy
proceeding or other reorganization of such other Person or as a result
of foreclosure, perfection or enforcement of any Lien or exchange for
evidences of Indebtedness, securities or other property of such other
Person held by the Borrower or any of its Subsidiaries; provided that
any such securities or other property received by the Borrower or any
of its Domestic Subsidiaries is pledged to the Administrative Agent for
the benefit of the Lenders pursuant to the Security Documents;
(k) Investments by the Borrower or any of its Subsidiaries in
a Person in connection with a joint venture or similar arrangement in
respect of which no other co investor or other Person has a greater
legal or beneficial ownership interest than the Borrower or such
Subsidiary in an aggregate amount not to exceed at any time an amount
equal to $5,000,000; and
(l) so long as (x) no Default or Event of Default has occurred
and is continuing at the time of such acquisition or would occur after
giving effect to such acquisition and (y) the Borrower would be in pro
forma compliance with the financial covenants set forth in subsections
8.1(a), (b) and (c), as of the date such acquisition is consummated
after giving effect to such acquisition, acquisitions of the business
or assets of, or stock or other evidences of beneficial ownership of,
any Person engaged in a business of the same general type as those in
which the Borrower and its Subsidiaries are engaged on the Effective
Date or which are substantially related thereto, so long as (i) such
acquisition is expressly permitted by subsection 8.5 or (ii) the
aggregate consideration paid by the Borrower and its Subsidiaries in
connection with all such acquisitions made pursuant to this clause (ii)
since the Effective Date does not exceed at any time an amount equal to
$10,000,000.
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8.10 Limitation on Transactions with Affiliates. Enter into
any transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) otherwise permitted under this Agreement, and (b) upon
terms no less favorable to the Borrower or such Subsidiary, as the case may be,
than it would obtain in a comparable arm's length transaction with a Person
which is not an Affiliate; provided that nothing contained in this subsection
8.10 shall be deemed to prohibit:
(i) the payment of transaction expenses in connection with
this Agreement and the Transactions, including, but not limited to, the
payment by the Borrower of a deal fee to GSCP in an amount not to
exceed $2,500,000;
(ii) the Borrower or any of its Subsidiaries from entering
into or performing an agreement with GSCP for the rendering of
management consulting or financial advisory services for compensation
not to exceed in the aggregate $1,720,000 per year plus reasonable
out-of-pocket expenses, provided that at any time when a Default or an
Event of Default has occurred and is continuing, the Borrower and its
Subsidiaries may not make any payments to GSCP under any such agreement
and such payments may accrue to GSCP and may be paid in full after such
Default or Event or Default has been cured or waived, provided further
that at any time when the Borrower and its Subsidiaries are not
permitted to make payments to GSCP under any such agreements, GSCP may
elect to receive Capital Stock of Holdings in lieu of such payments;
(iii) the Borrower or any of its Subsidiaries from entering
into, making payments pursuant to and otherwise performing an
indemnification and contribution agreement in favor of any person who
is or becomes a director, officer, agent or employee of the Borrower or
any of its Subsidiaries, in respect of liabilities (A) arising under
the Securities Act, the Exchange Act and any other applicable
securities laws or otherwise, in connection with any offering of
securities by the Borrower or any of its Subsidiaries, (B) incurred to
third parties for any action or failure to act of the Borrower or any
of its Subsidiaries, predecessors or successors, (C) arising out of the
performance by GSCP of management consulting or financial advisory
services provided to the Borrower or any of its Subsidiaries, (D)
arising out of the fact that any indemnitee was or is a director,
officer, agent or employee of the Borrower or any of its Subsidiaries,
or is or was serving at the request of any such corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or enterprise or (E) to the fullest
extent permitted by Delaware or other applicable state law, arising out
of any breach or alleged breach by such indemnitee of his or her
fiduciary duty as a director or officer of the Borrower or any of its
Subsidiaries;
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(iv) the Borrower or any of its Subsidiaries from performing
any agreements or commitments with or to any Affiliate existing on the
Effective Date and described on Schedule 8.10;
(v) any transaction permitted under subsection 8.3(k), 8.4(d),
8.4(j), 8.4(k), 8.5, 8.7, 8.9(e) or 8.9(k), or any transaction with a
Wholly Owned Subsidiary of the Borrower; or
(vi) the Borrower or any of its Subsidiaries from performing
its obligations under the Tax Sharing Agreement to the extent permitted
by subsection 8.7(d) (including interest and penalties).
For purposes of this subsection 8.10, (A) any transaction with
any Affiliate shall be deemed to have satisfied the standard set forth in clause
(b) of the first sentence hereof if (i) such transaction is approved by a
majority of the Disinterested Directors of the board of directors of the
Borrower or such Subsidiary, or (ii) in the event that at the time of any such
transaction, there are no Disinterested Directors serving on the board of
directors of the Borrower or such Subsidiary, such transaction shall be approved
by a nationally recognized expert with expertise in appraising the terms and
conditions of the type of transaction for which approval is required, and (B)
"Disinterested Director" shall mean, with respect to any Person and transaction,
a member of the board of directors of such Person who does not have any material
direct or indirect financial interest in or with respect to such transaction.
8.11 Limitation on Sale and Leaseback Transactions. Enter into
any arrangement with any Person providing for the leasing by the Borrower or any
of its Subsidiaries of real or personal property which has been or is to be sold
or transferred by the Borrower or any such Subsidiary to such Person or to any
other Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Borrower or such
Subsidiary (any of such arrangements, a "Sale and Leaseback Transaction"), other
than in connection with any Disposition permitted under subsection 8.6 and
except for Sale and Leaseback Transactions entered into by the Borrower or any
such Subsidiary with respect to real or personal property with an aggregate book
value not to exceed $1,000,000 at any one time.
8.12 Limitation on Optional Payments and Modifications of Debt
Instruments and Other Documents. (a) Make any repurchase or redemption of any of
the Senior Subordinated Notes, including, without limitation, any payments on
account of, or for a sinking or other analogous fund for, the repurchase,
redemption, defeasance or other acquisition thereof, except mandatory payments
of principal, interest, fees and expenses required by the terms of the Senior
Subordinated Notes and the Senior Subordinated Note Indenture, as the case may
be, only to the extent permitted under the subordination provisions, if any,
applicable thereto.
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(b) In the event of the occurrence of a Change of Control,
repurchase the Senior Subordinated Notes or any portion thereof, unless the
Borrower shall have (i) made payment in full of the Loans, all Reimbursement
Obligations and any other amounts then due and owing to any Lender or the
Administrative Agent hereunder and under any Note and cash collateralized the
L/C Obligations on terms reasonably satisfactory to the Administrative Agent or
(ii) made an offer to pay the Loans, all Reimbursement Obligations and any
amounts then due and owing to each Lender and the Administrative Agent hereunder
and under any Note and to cash collateralize the L/C Obligations in respect of
each Lender and shall have made payment in full thereof to each such Lender or
the Administrative Agent which has accepted such offer and cash collateralized
the L/C Obligations in respect of each such Lender which has accepted such
offer.
(c) Amend, supplement, waive or otherwise modify any of the
provisions of any of the Senior Subordinated Notes or the Senior Subordinated
Notes Documents:
(i) which amends or modifies the subordination provisions, if
any, contained therein;
(ii) which shortens the fixed maturity or increases the
principal amount of, or increases the rate or shortens the time of
payment of interest on, or increases the amount or shortens the time of
payment of any principal or premium payable whether at maturity, at a
date fixed for prepayment or by acceleration or otherwise of the
Indebtedness evidenced by the Senior Subordinated Notes, or increases
the amount of, or accelerates the time of payment of, any fees or other
amounts payable in connection therewith;
(iii) which relates to any material affirmative or negative
covenants or any events of default or remedies thereunder and the
effect of which is to subject the Borrower or any of its Subsidiaries,
to any more onerous or more restrictive provisions; or
(iv) which otherwise adversely affects the interests of the
Lenders as senior creditors with respect to the Senior Subordinated
Notes or the interests of the Lenders under this Agreement or any other
Loan Document in any material respect.
8.13 Limitation on Changes in Fiscal Year. Permit the fiscal
year of the Borrower to end on a day other than March 31.
8.14 Limitation on Negative Pledge Clauses. Enter into with
any Person any agreement, other than (a) this Agreement, the other Loan
Documents and any related documents and (b) any purchase money mortgages,
acquisition agreements, Financing Leases or operating leases of real property
entered into in the ordinary course of business, which prohibits or limits the
ability of the Borrower or any of its Subsidiaries to create, incur, assume or
suffer to exist any Lien in favor of the Lenders in respect of obligations and
liabilities under this Agreement, any
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Notes or any other Loan Documents upon any of its property, assets or revenues,
whether now owned or hereafter acquired except for any such agreement relating
to Indebtedness of a Foreign Subsidiary permitted by subsection 8.2(h) or
otherwise permitted under this Agreement.
8.15 Limitation on Lines of Business; Creation of
Subsidiaries. (a) Enter into any business, either directly or through any
Subsidiary or joint venture, except for those businesses of the same general
type as those in which the Borrower and its Subsidiaries are engaged on the
Effective Date or which are directly related thereto.
(b) Create any new Subsidiaries of the Borrower other than any
new Subsidiary that (i) (in the case of a new Domestic Subsidiary) shall execute
and deliver to the Administrative Agent, as applicable, the Guarantee and
Collateral Agreement and appropriate Mortgages and other security documents and
take any necessary steps to perfect the security interests to be created thereby
and (ii) for which the relevant parent corporation (if such parent corporation
is the Borrower or a Domestic Subsidiary) shall execute and deliver to the
Administrative Agent a stock pledge agreement and take any necessary steps to
perfect the security interest to be created thereby (which security interest
shall not apply to more than 65% of such parent corporation's ownership interest
in any Foreign Subsidiary).
(c) To the extent not prohibited by this Agreement, convey,
sell or otherwise transfer shares of Capital Stock of a Foreign Subsidiary to
the Borrower or any Domestic Subsidiary of the Borrower unless at the time of
such conveyance, sale or transfer (or promptly thereafter) the Borrower or such
Domestic Subsidiary shall execute and deliver to the Administrative Agent the
Guarantee and Collateral Agreement and take any necessary steps to perfect the
security interest to be created thereby (which security interest shall not apply
to (i) more than 65% of the Borrower's or such Domestic Subsidiary's ownership
interest in any Foreign Subsidiary or (ii) any ownership interest in a
non-Wholly Owned Foreign Subsidiary to the extent that the grant of such
security interest would violate the terms of any agreements under which the
Investment by the Borrower or any or its Subsidiaries was made therein).
8.16 Limitations on Currency and Commodity Hedging
Transactions. Enter into, purchase or otherwise acquire agreements or
arrangements relating to currency, commodity or other hedging except, to the
extent and only to the extent that, such agreements or arrangements are entered
into, purchased or otherwise acquired in the ordinary course of business of the
Borrower or any of its Subsidiaries with reputable financial institutions and
not for purposes of speculation (any such agreement or arrangement permitted by
this subsection, a "Permitted Hedging Arrangement").
8.17 Holding Company Status of TCI Holding. In the case of TCI
Holding, permit TCI Holding to engage in any business other than (i) the owning
of the Capital Stock of Saguaro Electronica, S.A. de C.V., a corporation
incorporated in Mexico, and the other Foreign
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Subsidiaries and (ii) any business or other activities reasonably related to the
foregoing, or to incur any material liabilities other than any liabilities (x)
reasonably related to the foregoing or (y) arising by operation of law.
8.18 Payment of Special Bonuses to Management. At any time
when a Default or an Event of Default has occurred and is continuing, make any
cash payments to its management in respect of special bonuses, provided that
such payments may accrue to such persons otherwise entitled to such payments and
may be paid in full after such Default or Event or Default has been cured or
waived, and provided further that at any time when the Borrower and its
Subsidiaries are not permitted to make such payments to management, any of such
persons otherwise entitled to such payments may elect to receive Capital Stock
of Holdings in lieu of such payments.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan
or any Reimbursement Obligation when due in accordance with the terms hereof
(whether at stated maturity, by mandatory prepayment or otherwise); or the
Borrower shall fail to pay any interest or fees on any Loan, or any other amount
payable hereunder, within five days after any such interest, fees or other
amount becomes due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by any
Loan Party herein or in any other Loan Document (or in any amendment,
modification or supplement hereto or thereto) or which is contained in any
certificate furnished at any time by or on behalf of any Loan Party pursuant to
this Agreement or any such other Loan Document shall prove to have been
incorrect in any material respect on or as of the date made or deemed made; or
(c) Any Loan Party shall default in the observance or
performance of any agreement contained in (i) subsection 7.7(a) or Section 8 of
this Agreement or (ii) Section 5.11 of the Guarantee and Collateral Agreement,
and, in the case of a default in the observance or performance of its
obligations under subsection 7.7(a) hereof, such default shall have continued
unremedied for a period of two days after a Responsible Officer of the Borrower
shall have discovered or should have discovered such default; or
(d) Any Loan Party shall default in the observance or
performance of any other agreement contained in this Agreement or any other Loan
Document (other than as provided in paragraphs (a) through (c) of this Section
9), and such default shall continue unremedied for a period ending on the
earlier of (i) the date 30 days after a Responsible Officer of the Borrower
shall have discovered or should have discovered such default and (ii) the date
15 days after
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written notice has been given to the Borrower by the Administrative Agent or the
Required Lenders; or
(e) Holdings or any of its Subsidiaries shall (i) default in
(x) any payment of principal of or interest on any Indebtedness (other than the
Loans and the Reimbursement Obligations) in excess of $1,000,000 or (y) in the
payment of any Guarantee Obligation in excess of $1,000,000, beyond the period
of grace (not to exceed 30 days), if any, provided in the instrument or
agreement under which such Indebtedness or Guarantee Obligation was created; or
(ii) default in the observance or performance of any other agreement or
condition relating to any Indebtedness or Guarantee Obligation referred to in
clause (i) above or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or agent on behalf of
such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice or lapse of time if required, such Indebtedness to become due
prior to its stated maturity or such Guarantee Obligation to become payable (an
"Acceleration"), and such time shall have lapsed and, if any notice (a "Default
Notice") shall be required to commence a grace period or declare the occurrence
of an event of default before notice of Acceleration may be delivered, such
Default Notice shall have been given; or
(f) (i) Any Loan Party shall commence any case, proceeding or
other action (A) under any existing or future law of any jurisdiction, domestic
or foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for it or
for all or any substantial part of its assets, or any Loan Party shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against any Loan Party any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged, unstayed or unbonded for a period of 60 days; or
(iii) there shall be commenced against any Loan Party any case, proceeding or
other action seeking issuance of a warrant of attachment, execution, distraint
or similar process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not have been
vacated, discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) any Loan Party shall take any corporate action in
furtherance of, or indicating its consent to, approval of, or acquiescence in,
any of the acts set forth in clause (i), (ii), or (iii) above; or (v) any Loan
Party shall be generally unable to, or shall admit in writing its general
inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any non-exempt "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any
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"accumulated funding deficiency" (as defined in Section 302 of ERISA), whether
or not waived, shall exist with respect to any Plan or any Lien in favor of the
PBGC or a Plan shall arise on the assets of either of the Borrower or any
Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect
to, or proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer Plan,
which Reportable Event or commencement of proceedings or appointment of a
trustee is in the reasonable opinion of the Administrative Agent likely to
result in the termination of such Plan for purposes of Title IV of ERISA, (iv)
any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v)
either of the Borrower or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Administrative Agent is likely to, incur any liability
in connection with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan, or (vi) any other event or condition shall occur or exist
with respect to a Plan; and in each case in clauses (i) through (vi) above, such
event or condition, together with all other such events or conditions, if any,
could be reasonably expected to result in a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate at any time a
liability (net of any insurance or indemnity payments actually received in
respect thereof prior to or within 90 days from the entry thereof, or to be
received in respect thereof in the event any appeal thereof shall be
unsuccessful) of $2,000,000 or more, and all such judgments or decrees shall not
have been vacated, discharged, stayed or bonded pending appeal within 90 days
from the entry thereof; or
(i) The Senior Subordinated Notes, for any reason, shall not
be or shall cease to be validly subordinated as provided therein and in the
Senior Subordinated Notes Documents to the obligations of the Borrower under
this Agreement, any Notes and the other Loan Documents, or the obligations of
any other Loan Party under a guarantee of the Senior Subordinated Notes, for any
reason, shall not be or shall cease to be validly subordinated as provided
therein and in the Senior Subordinated Notes Documents to the obligations of
such Loan Party under the Guarantee to which it is a party; or
(j) (i) Any of the Security Documents shall cease for any
reason to be in full force and effect (other than pursuant to the terms hereof
or thereof), or any Loan Party which is a party to any of the Security Documents
shall so assert in writing, or (ii) the Lien created by any of the Security
Documents shall cease to be perfected and enforceable in accordance with its
terms or of the same effect as to perfection and priority purported to be
created thereby with respect to any significant portion of the Collateral (other
than in connection with any termination of such Lien in respect of any
Collateral as permitted hereby or by any Security Document), and such failure of
such Lien to be perfected and enforceable with such priority shall have
continued unremedied for a period of 20 days; or
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(k) Any Guarantee shall cease for any reason to be in full
force and effect (other than pursuant to the terms hereof or thereof) or any
Guarantor shall so assert in writing; or
(l) Any Loan Document (other than this Agreement, any of the
Security Documents or any Guarantee) shall cease for any reason to be in full
force and effect (other than pursuant to the terms hereof or thereof) or any
Loan Party shall so assert in writing; or
(m) A Change of Control shall have occurred;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph 9(f) above with respect to the Borrower,
automatically the Revolving Credit Commitments and the Term Loan Commitments, if
any, shall immediately terminate and the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement (including, without
limitation, all amounts of L/C Obligations, whether or not the beneficiaries of
the then outstanding Letters of Credit shall have presented the documents
required thereunder) and any Notes shall immediately become due and payable, and
(B) if such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders the
Administrative Agent shall, by notice to the Borrower, declare the Revolving
Credit Commitments and the Term Loan Commitments to be terminated forthwith,
whereupon the Revolving Credit Commitments and the Term Loan Commitments, if
any, shall immediately terminate; and (ii) with the consent of the Required
Lenders, the Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to the Borrower, declare the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) and any Notes to
be due and payable forthwith, whereupon the same shall immediately become due
and payable.
With respect to any Letter of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph, the Borrower in respect of such Letter of
Credit shall at such time deposit in a cash collateral account opened by the
Administrative Agent an amount equal to the aggregate then undrawn and unexpired
amount of such Letter of Credit. Such Borrower hereby grants to the
Administrative Agent, for the benefit of the Issuing Lender and the L/C
Participants, a security interest in such cash collateral to secure all
obligations of such Borrower in respect of such Letter of Credit under this
Agreement and the other Loan Documents. Such Borrower shall execute and deliver
to the Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, such further documents and instruments as the Administrative Agent
may request to evidence the creation and perfection of such security interest in
such cash collateral account. Amounts held in such cash collateral account shall
be applied by the Administrative Agent to the payment of
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drafts drawn under such Letter of Credit, and the unused portion thereof after
all such Letters of Credit shall have expired or been fully drawn upon, if any,
shall be applied to repay other obligations of the Borrower hereunder and under
any Notes. After all Letters of Credit shall have expired or been fully drawn
upon, all Reimbursement Obligations shall have been satisfied and all other
obligations of the Borrower hereunder and under any Notes shall have been paid
in full, the balance, if any, in such cash collateral account shall be returned
to the Borrower.
Except as expressly provided above in this Section 9,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
SECTION 10. THE ADMINISTRATIVE AGENT AND THE OTHER REPRESENTATIVES
10.1 Appointment. Each Lender hereby irrevocably designates
and appoints Chase as the Administrative Agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes Chase, as the Administrative Agent for such Lender, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent and the Other Representatives shall not
have any duties or responsibilities, except, in the case of the Administrative
Agent and the Issuing Lender, those expressly set forth herein, or 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 the
Administrative Agent or the Other Representatives.
10.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact, and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact or counsel selected by it with reasonable care.
10.3 Exculpatory Provisions. None of the Administrative Agent
or any Other Representative nor any of their officers, directors, employees,
agents, attorneys-in-fact or Affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by such Person under or in connection with
this Agreement or any other Loan Document (except for the gross negligence or
willful misconduct of such Person or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates) or (ii) responsible in any manner to
any of the Lenders for any recitals, statements, representations or warranties
made by the Borrower or any other Loan Party or any officer thereof contained in
this Agreement or any other Loan Document or in any
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certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any Notes or any
other Loan Document or for any failure of the Borrower or any other Loan Party
to perform its obligations hereunder or thereunder. Neither the Administrative
Agent nor any Other Representative 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 or any other Loan
Document, or to inspect the properties, books or records of the Borrower or any
other Loan Party. Each Lender agrees that, except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder or given to the Administrative Agent for the
account of or with copies for the Lenders, the Administrative Agent and the
Other Representatives shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
the Borrower or any other Loan Party which may come into the possession of the
Administrative Agent and the Other Representatives or any of their officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
10.4 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order 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, without limitation, counsel to the Borrower),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified as between itself and the Lenders
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 and/or such other requisite percentage of the Lenders as is
required pursuant to subsection 11.1 as it deems appropriate or it shall first
be indemnified to its satisfaction by the 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. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and any
Notes and the other Loan Documents in accordance with a request of the Required
Lenders and/or such other requisite percentage of the Lenders as is required
pursuant to subsection 11.1, and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Loans.
10.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the
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Administrative Agent has received notice from a Lender or the Borrower referring
to this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to
the Lenders. The Administrative Agent shall take such action reasonably promptly
with respect to such Default or Event of Default as shall be directed by the
Required Lenders and/or such other requisite percentage of the Lenders as is
required pursuant to subsection 11.1; provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
10.6 Acknowledgements and Representations by Lenders. Each
Lender expressly acknowledges that none of the Administrative Agent or the Other
Representatives nor any of their officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to it
and that no act by the Administrative Agent or any Other Representative
hereafter taken, including any review of the affairs of the Borrower or any
other Loan Party, shall be deemed to constitute any representation or warranty
by the Administrative Agent or such Other Representative to any Lender. Each
Lender represents to the Administrative Agent, the Other Representatives and
each of the Loan Parties that, independently and without reliance upon the
Administrative Agent, the Other Representatives or any other Lender, and based
on such documents and information as it has deemed appropriate, it has made and
will make its own appraisal of and investigation into the business, operations,
property, financial and other condition and creditworthiness of each of the
Borrower and the other Loan Parties, it has made its own decision to make its
Loans hereunder and enter into this Agreement and it will make its own decisions
in taking or not taking action under this Agreement and the other Loan
Documents. Each Lender represents to each other party hereto that it is a bank,
savings and loan association or other similar savings institution, insurance
company, investment fund or company or other financial institution which makes
or acquires commercial loans in the ordinary course of its business, that it is
participating hereunder as a Lender for its account and for such commercial
purposes, and that it has the knowledge and experience to be and is capable of
evaluating the merits and risks of being a Lender hereunder. Each Lender
acknowledges and agrees to comply with the provisions of subsection 11.6
applicable to the Lenders hereunder.
10.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent and the Other Representatives in their capacities as such
(to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower or any of the other Loan Parties to do so), ratably
according to their respective Total Credit Percentages in effect on the date on
which indemnification is sought under this subsection (or, if indemnification is
sought after the date upon which the Revolving Credit Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with their Total Credit Percentages immediately prior to such date), from and
against any and all liabilities, obligations, losses, damages,
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penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Loans) be imposed on, incurred by or asserted
against the Administrative Agent or any Other Representative in any way relating
to or arising out of this Agreement, any of the other Loan Documents or the
transactions contemplated hereby or thereby or any action taken or omitted by
the Administrative Agent or any Other Representative under or in connection with
any of the foregoing; provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements to the extent
arising from (i) the Administrative Agent's or any Other Representative's gross
negligence or willful misconduct or (ii) claims made or legal proceedings
commenced against the Administrative Agent or any Other Representative by any
securityholder or creditor thereof arising out of and based upon rights afforded
any such securityholder or creditor solely in its capacity as such. The
obligations to indemnify the Issuing Lender and Swing Line Lender shall be
ratable among the Revolving Credit Lenders in accordance with their respective
Revolving Credit Commitments (or, if the Revolving Credit Commitments have been
terminated, the outstanding principal amount of their respective Revolving
Credit Loans and L/C Obligations and their respective participating interests in
the outstanding Letters of Credit and shall be payable only by the Revolving
Credit Lenders). The agreements in this subsection shall survive the payment of
the Loans and all other amounts payable hereunder.
10.8 Administrative Agent and Other Representatives in Their
Individual Capacity. The Administrative Agent, the Other Representatives and
their Affiliates may make loans to, accept deposits from and generally engage in
any kind of business with the Borrower or any other Loan Party as though the
Administrative Agent and the Other Representatives were not the Administrative
Agent and the Other Representatives hereunder and under the other Loan
Documents. With respect to Loans made or renewed by them and any Note issued to
them and with respect to any Letter of Credit issued or participated in by them,
the Administrative Agent and the Other Representatives shall have the same
rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though they were not the Administrative
Agent or an Other Representative, and the terms "Lender" and "Lenders" shall
include the Administrative Agent in its individual capacity.
10.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 10 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from among
the Lenders a successor agent (which shall be a bank) for the Lenders, which
successor agent shall be approved by the Borrower (such approval not to be
unreasonably withheld), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated,
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without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement or any holders of
the Loans. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this subsection 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 and the other Loan Documents.
10.10 Swing Line Lender. The provisions of this Section 10
shall apply to the Swing Line Lender in its capacity as such to the same extent
that such provisions apply to the Administrative Agent.
10.11 Assumption Agreement. Each of the Lenders hereby
consents to the provisions of the Telex Assumption Agreement and irrevocably
constitutes and appoints the Administrative Agent as its attorney-in-fact for
the purpose of executing the Telex Assumption Agreement on such Lender's behalf.
10.12 Release of Liens on Excluded Foreign Accounts. In
connection with the incurrence by the Borrower or any of its Subsidiaries of
Indebtedness permitted by subsection 8.2(n), the Borrower may deliver to the
Administrative Agent, a written request for release identifying the relevant
Excluded Foreign Accounts and the terms of such Indebtedness in reasonable
detail together with a certification by the Borrower stating that such
transaction is in compliance with this Agreement. The Administrative Agent shall
execute and deliver to the Borrower (at the sole cost and expense of the
Borrower) all releases or other documents (including without limitation UCC
termination statements) necessary or reasonably desirable for the release or (to
the extent acceptable to the holder of such Indebtedness) subordination of the
Liens created by the Guarantee and Collateral Agreement on such Excluded Foreign
Accounts as the Borrower may reasonably request. Each of the Lenders hereby
authorizes the Administrative Agent to deliver such releases or other documents.
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. Neither this Agreement nor any
other Loan Document, nor any terms hereof or thereof, may be amended,
supplemented or modified except in accordance with the provisions of this
subsection. The Required Lenders may, or, with the written consent of the
Required Lenders, the Administrative Agent may, from time to time, (x) enter
into with the Loan Parties hereto or thereto, as the case may be, written
amendments, supplements or modifications hereto and to the other Loan Documents
for the purpose of adding any provisions to this Agreement or to the other Loan
Documents or changing in any manner the rights or obligations of the Lenders or
the Loan Parties hereunder or thereunder or (y) waive at any Loan Party's
request, on such terms and conditions as the Required Lenders or the
Administrative Agent, as the case may be, may specify in such instrument, any of
the
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requirements of this Agreement or the other Loan Documents or any Default or
Event of Default and its consequences; provided, however, that no such waiver
and no such amendment, supplement or modification shall:
(i) reduce the amount or extend the scheduled date of maturity
of any Loan or any Reimbursement Obligation or of any scheduled
installment thereof or reduce the stated rate of any interest or fee
payable hereunder or extend the scheduled date of any payment thereof
or increase the amount or extend the expiration date of any Lender's
Revolving Credit Commitment or change the method or procedure for
determining the Borrowing Base, in each case without the consent of
each Lender directly affected thereby;
(ii) amend, modify or waive any provision of this subsection
11.1 or reduce the percentage specified in the definition of Required
Lenders, in each case without the written consent of all the Lenders;
(iii) release any Guarantee or, in the aggregate (in a single
transaction or a series of related transactions), substantially all of
the Collateral without the consent of all the Lenders, except as
expressly permitted hereby or by any Guarantee or Security Document (as
such documents are in effect on the date hereof or, if later, the date
of execution and delivery thereof in accordance with the terms hereof);
(iv) amend or modify the definition of "Borrowing Base",
"Eligible Inventory" or "Eligible Accounts Receivable", in each case
without the consent of each Revolving Credit Lender;
(v) amend, modify or waive any provision of Section 10 without
the written consent of the then Administrative Agent and of any Other
Representative affected thereby;
(vi) amend, modify or waive the provisions of any Letter of
Credit or any L/C Obligation without the written consent of the Issuing
Lender and each affected L/C Participant; or
(vii) amend, modify or waive any provision of this Agreement
regarding the allocation of prepayment amounts among the Term Loans or
the application of such prepayment amounts to the respective
installments of principal under the respective Term Loans without the
written consent of (x) the Tranche A Term Loan Lenders the Tranche A
Term Loan Commitment Percentages of which aggregate more than 50% and
(y) the Tranche B Term Loan Lenders the Tranche B Term Loan Commitment
Percentages of which aggregate more than 50%; or
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(viii) subject to clause (i) of this subsection 11.1 as it
relates to reducing the amount or extending the scheduled date of
maturity of any Loan or any installment thereof, amend, modify or waive
any provision of (x) subsection 2.6 (to the extent subsection 2.6
relates to the Tranche A Term Loans) or subsection 2.7 without the
written consent of Tranche A Term Loan Lenders the Tranche A Term Loan
Commitment Percentages of which aggregate more than 50% or (y)
subsection 2.6 (to the extent subsection 2.7 relates to the Tranche B
Term Loans) or subsection 2.8 without the written consent of Tranche B
Term Loan Lenders the Tranche B Term Loan Percentages of which
aggregate more than 50%; or
(ix) amend, modify or waive any provision of subsection 2.1,
2.2, 2.3 or 2.4 or, subject to paragraph (i) of this subsection 11.1 as
it relates to reducing the amount or extending the scheduled date of
maturity of any Reimbursement Obligation, Section 3 without the written
consent of the Revolving Credit Lenders the Revolving Credit Commitment
Percentages of which aggregate more than 50%; or
(x) amend, modify or waive any provision of the Swing Line
Note (if any) or subsection 2.5 without the written consent of the
Swing Line Lender and each other Lender, if any, which holds, or is
required to purchase, a participation in any Swing Line Loan pursuant
to subsection 2.5(d).
Any waiver and any amendment, supplement or modification pursuant to this
subsection 11.1 shall apply to each of the Lenders and shall be binding upon the
Loan Parties, the Lenders, the Administrative Agent and all future holders of
the Loans. In the case of any waiver, each of the Loan Parties, the Lenders and
the Administrative Agent shall be restored to their former position and rights
hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
11.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, or, in the case of delivery by a nationally recognized overnight
courier, when received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth in Schedule I in the case of the other
parties hereto, or to such other address as may be hereafter notified by the
respective parties hereto and any future holders of the Loans:
The Borrower: Telex Communications, Inc.
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
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Attention: Xxxx X. Xxxxxxxxx
Telecopy: (000) 000-0000
with a copy to: Greenwich Street Capital Partners
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Telecopy: (000) 000-0000
with a copy to: Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Telecopy: (000) 000-0000
The Administrative Chase Securities Inc.
Agent, Swing Line 00 Xxxxx XxXxxxx Xxxxxx
Lender and Issuing Suite 2300
Lender Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxx
Telecopy: (000) 000-0000
with a copy to: Loan & Agency Services Group
One Chase Xxxxxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxx
Telecopy: (000) 000-0000
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.3, 2.4, 2.9, 3.2, 4.2, 4.4 or 4.8 shall
not be effective until received.
11.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
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11.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in the other Loan Documents
(or in any amendment, modification or supplement hereto or thereto) and in any
certificate delivered pursuant hereto or such other Loan Documents shall survive
the execution and delivery of this Agreement and the making of the Loans
hereunder.
11.5 Payment of Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse the Administrative Agent and the Other Representatives for all
their reasonable out-of-pocket costs and expenses incurred in connection with
the preparation, execution, delivery and administration of, and any amendment,
supplement, waiver or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions (including the
syndication of the Revolving Credit Commitments and Term Loans (including the
reasonable expenses of the Administrative Agent's due diligence investigation)
and the monitoring of the Collateral) contemplated hereby and thereby,
including, without limitation, the reasonable fees and disbursements of one firm
of counsel to the Administrative Agent and the Other Representatives, (b) to pay
or reimburse each Lender, each Other Representative and the Administrative Agent
for all its reasonable costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the other Loan
Documents and any such other documents, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent, the
Other Representatives and the several Lenders, and any reasonable Environmental
Costs incurred by any of them arising out of or in any way relating to any Loan
Party or any property in which any Loan Party has had any interest at any time,
(c) to pay, and indemnify and hold harmless each Lender, the Administrative
Agent and the Other Representatives from and against, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other similar taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the other Loan Documents and
any such other documents, and (d) to pay, and indemnify and hold harmless each
Lender, the Administrative Agent and the Other Representatives (and their
respective directors, trustees, officers, employees, agents, successors and
assigns) from and against, any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever (whether or not caused by any such Person's own
negligence (other than gross negligence) and including, without limitation, the
reasonable fees and disbursements of counsel) with respect to the execution,
delivery, enforcement, performance and administration of this Agreement, the
other Loan Documents and any such other documents (regardless of whether the
Administrative Agent, any such Other Representative or any Lender is a party to
the litigation or other proceeding giving rise thereto and regardless of whether
any such litigation or other proceeding is brought by the Borrower or any other
Person), including, without limitation, any of
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the foregoing relating to the violation of, noncompliance with, or liability
under, any Environmental Laws or any orders, requirements or demands of
Governmental Authorities related thereto applicable to the operations of the
Borrower, any of its Subsidiaries or any of the facilities and properties owned,
leased or operated by the Borrower or any of its Subsidiaries (all the foregoing
in this clause (d), collectively, the "indemnified liabilities"), provided that
the Borrower shall not have any obligation hereunder to the Administrative
Agent, any such Other Representative or any Lender with respect to Environmental
Costs or indemnified liabilities arising from (i) the gross negligence or
willful misconduct of the Administrative Agent, any Other Representative or any
such Lender (or any of their respective directors, trustees, officers,
employees, agents, successors and assigns) or (ii) claims made or legal
proceedings commenced against the Administrative Agent, any Other Representative
or any such Lender by any securityholder or creditor thereof arising out of and
based upon rights afforded any such securityholder or creditor solely in its
capacity as such. Notwithstanding the foregoing, except as provided in clauses
(b) and (c) above, the Borrower shall have no obligation under this subsection
11.5 to the Administrative Agent, any Other Representative or any Lender with
respect to any tax, levy, impost, duty, charge, fee, deduction or withholding
imposed, levied, collected, withheld or assessed by any Governmental Authority.
The agreements in this subsection shall survive repayment of the Loans and all
other amounts payable hereunder.
11.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of each of the
Loan Parties party hereto, the Lenders, the Administrative Agent, the Other
Representatives, all future holders of the Loans and their respective successors
and assigns, except that none of the Loan Parties may, other than in accordance
with subsection 8.5, assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its business and
in accordance with applicable law, at any time sell to one or more banks or
other entities ("Participants") participating interests in any Loan owing to
such Lender, any Note held by such Lender, any Revolving Credit Commitment of
such Lender or any other interest of such Lender hereunder and under the other
Loan Documents. In the event of any such sale by a Lender of a participating
interest to a Participant, such Lender's obligations under this Agreement to the
other parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Loan (and any Note evidencing such Loan) for all purposes
under this Agreement and the other Loan Documents and the Loan Parties and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents. Any agreement pursuant to which any Lender shall sell
any such participating interest shall provide that such Lender shall retain the
sole right and responsibility to exercise such Lender's rights and enforce each
of the Loan Parties' obligations hereunder, including the right to consent to
any amendment, supplement, modification or waiver of any
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provision of this Agreement or any of the other Loan Documents, provided that
such participation agreement may provide that such Lender would be required to
obtain the consent of the Participant prior to consenting to any amendment,
supplement, modification or waiver described in clauses (i) through (x) to which
the affirmative vote of the Lender would be required. The Borrower agrees that
each Lender shall be entitled to the benefits of subsections 4.9, 4.10, 4.11,
4.12 and 11.5 without regard to whether it has granted any participating
interests, and that all amounts payable to a Lender under subsections 4.9, 4.10,
4.11 and 4.12 shall be determined as if such Lender had not granted any such
participating interests.
(c) Any Lender may, in the ordinary course of its business and
in accordance with applicable law, at any time and from time to time assign to
any other Lender or any Affiliate of such assigning Lender or, with the prior
written consent of the Administrative Agent and, if no Default or Event of
Default has occurred and is continuing, the Borrower (which consent in each case
shall not be unreasonably withheld), to an additional bank or financial
institution (an "Assignee") all or any part of its rights and obligations under
this Agreement and any Notes, including, without limitation, its Revolving
Credit Commitment and Loans, pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit H, executed by such Assignee, such
assigning Lender (and, in the case of an Assignee that is not then a Lender or
an Affiliate thereof, by the Borrower and the Administrative Agent) and
delivered to the Administrative Agent for its acceptance and recording in the
Register; provided that (unless the Administrative Agent, and if no Default or
Event of Default has occurred and is continuing, the Borrower, otherwise consent
in writing) no such transfer to an Assignee (other than a Lender or any
Affiliate or to an Approved Fund of the assigning Lender) shall be (i) in an
aggregate principal amount not less than $5,000,000 in the aggregate (or, if
less, the full amount of such assigning Lender's Term Loans, Revolving Credit
Loans and Revolving Credit Commitment) and (ii) if a partial assignment, after
giving effect to such partial assignment, the assigning Lender shall have
remaining Loans and Commitments aggregating at least $5,000,000. Upon such
execution, delivery, acceptance and recording, from and after the effective date
determined pursuant to such Assignment and Acceptance, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
with a Revolving Credit Commitment and the Term Loans, as set forth therein, and
(y) the assigning Lender thereunder shall be released from its obligations under
this Agreement to the extent that such obligations shall have been expressly
assumed by the Assignee pursuant to such Assignment and Acceptance (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such assigning
Lender shall cease to be a party hereto but shall nevertheless continue to be
entitled to the benefits of subsections 4.10, 4.11, 4.12 and 11.5).
Notwithstanding the foregoing, no Assignee, which as of the date of any
assignment to it pursuant to this subsection 11.6(c) would be entitled to
receive any greater payment under subsection 4.10 or 4.11 than the assigning
Lender would have been entitled to receive as of such date under such
subsections with respect to the rights assigned, shall be entitled to receive
such payments unless the Borrower has expressly
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consented in writing to waive the benefit of this provision at the time of the
assignment. For the purposes of this Section, "Approved Fund" means, with
respect to any Lender that is a fund that invests in bank loans, any other fund
that invests in bank loans and is managed by the same investment advisor as such
Lender or by an Affiliate of such investment advisor.
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at its address referred to in subsection 11.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Revolving Credit
Commitment of, and the principal amount of the Loans owing to, and any Notes
evidencing such Loans owned by, each Lender from time to time. Notwithstanding
anything in this Agreement to the contrary, each of the Borrower, the
Administrative Agent and the Lenders shall treat each Person whose name is
recorded in the Register as the owner of any Loan, any Notes and the Revolving
Credit Commitments recorded therein for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower at any reasonable
time and from time to time upon reasonable prior notice.
(e) Notwithstanding anything in this Agreement to the
contrary, no assignment under subsection 11.6(c) of any rights or obligations
under or in respect of the Loans or the Notes evidencing such Loans shall be
effective unless and until the Administrative Agent shall have recorded the
assignment pursuant to subsection 11.6(d). Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an Assignee (and, in the case of
an Assignee that is not then a Lender or an Affiliate of the assigning Lender,
by the Administrative Agent and if no Default or Event of Default has occurred
and is continuing, the Borrower), together with payment to the Administrative
Agent of a registration and processing fee of $3,500 (which fee need not be paid
in the case of any assignment to an Affiliate of the assigning Lender), the
Administrative Agent shall (i) promptly accept such Assignment and Acceptance
and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give prompt notice of such
acceptance and recordation to the Borrower. On or prior to such effective date,
the assigning Lender shall surrender any outstanding Notes held by it all or a
portion of which are being assigned, and the Borrower, at its own expense,
shall, upon the request to the Administrative Agent by the assigning Lender or
the Assignee, as applicable, execute and deliver to the Administrative Agent (in
exchange for the outstanding Notes of the assigning Lender) a new Revolving
Credit Note and/or Term Note and/or Swing Line Note, as the case may be, to the
order of such Assignee in an amount equal to (i) in the case of a Revolving
Credit Note, the lesser of (A) the amount of such Assignee's Revolving Credit
Commitment and (B) the aggregate principal amount of all Revolving Credit Loans
made by such Assignee and (ii) in the case of a Term Note, the amount of such
Assignee's Term Loans, in each case with respect to the relevant Loan or
Revolving Credit Commitment after giving effect to such Assignment and
Acceptance and, if the assigning Lender has retained a Revolving Credit
Commitment or Term Loan hereunder, a new Revolving Credit Note and/or Term Note
and/or Swing Line Note, as the case may be, to the order of the assigning Lender
in an amount equal to
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(i) in the case of a Revolving Credit Note, the lesser of (A) the amount of such
Lender's Revolving Credit Commitment and (B) the aggregate principal amount of
all Revolving Credit Loans made by such Lender and (ii) in the case of a Term
Note the amount of such Lender's Term Loans and (iii) in the case of a Swing
Line Note, the lesser of (A) the Swing Line Commitment and (B) the aggregate
principal amount of all Swing Line Loans made by such Lender, in each case with
respect to the relevant Loan, Swing Line Commitment, Revolving Credit Commitment
or Term Loan Commitment after giving effect to such Assignment and Acceptance.
Any such new Notes shall be dated the Effective Date and shall otherwise be in
the form of the Note replaced thereby. Any Notes surrendered by the assigning
Lender shall be returned by the Administrative Agent to the Borrower marked
"cancelled".
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee,
subject to the provisions of subsection 11.15, any and all information in such
Lender's possession concerning the Borrower and their Affiliates which has been
delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of each of the
Borrower and its Affiliates prior to becoming a party to this Agreement. No
assignment or participation made or purported to be made to any Transferee shall
be effective without the prior written consent of the Borrower if it would
require the Borrower to make any filing with any Governmental Authority or
qualify any Loan or Note under the laws of any jurisdiction, and the Borrower
shall be entitled to request and receive such information and assurances as it
may reasonably request from any Lender or any Transferee to determine whether
any such filing or qualification is required or whether any assignment or
participation is otherwise in accordance with applicable law.
(g) Nothing herein shall prohibit any Lender from pledging or
assigning any Loan or any Note to any Federal Reserve Bank in accordance with
applicable law.
11.7 Adjustments; Set-off. (a) If any Lender (a "benefitted
Lender") shall at any time receive any payment of all or part of its Revolving
Credit Loans, Term Loans or the Reimbursement Obligations owing to it, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 9(f), or otherwise (except pursuant to
subsection 4.4, 4.13(d) or 11.6)), in a greater proportion than any such payment
to or collateral received by any other Lender, if any, in respect of such other
Lender's Revolving Credit Loans, Term Loans or the Reimbursement Obligations, as
the case may be, owing to it, or interest thereon, such benefitted Lender shall
purchase for cash from the other Lenders an interest (by participation,
assignment or otherwise) in such portion of each such other Lender's Revolving
Credit Loans, Term Loans or the Reimbursement Obligations, as the case may be,
owing to it, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Lender to share the excess payment or benefits of such collateral or
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proceeds ratably with each of the Lenders; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by such Borrower to the extent
permitted by applicable law, upon the occurrence of an Event of Default under
Section 9(a) to set-off and appropriate and apply against any amount then due
and payable under Section 9(a) any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or the
account of the Borrower. Each Lender agrees promptly to notify such Borrower and
the Administrative Agent after any such set-off and application made by such
Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application.
11.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of such counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be delivered to the Borrower and the
Administrative Agent.
11.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.10 Integration. This Agreement and the other Loan Documents
represent the entire agreement of each of the Loan Parties party hereto, the
Administrative Agent and the Lenders with respect to the subject matter hereof,
and there are no promises, undertakings, representations or warranties by any of
the Loan Parties party hereto, the Administrative Agent or any Lender relative
to the subject matter hereof not expressly set forth or referred to herein or in
the other Loan Documents.
11.11 GOVERNING LAW. THIS AGREEMENT AND ANY NOTES AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND ANY NOTES SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW
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YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
11.12 Submission To Jurisdiction; Waivers. Each party hereto
hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts
from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient forum and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower, the applicable Lender or the Administrative
Agent, as the case may be, at the address specified in subsection 11.2
or at such other address of which the Administrative Agent, any such
Lender and any Borrower shall have been notified pursuant thereto;
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction; and
(v) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any punitive damages.
11.13 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Other
Representative or Lender has any fiduciary relationship with or duty to the
Borrower arising out of or in connection with this Agreement or any of the other
Loan Documents, and the relationship between the Administrative
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Agent and Lenders, on the one hand, and the Borrower, on the other hand, in
connection herewith or therewith is solely that of creditor and debtor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
and thereby among the Lenders or among the Borrower and the Lenders.
11.14 WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY NOTES OR ANY
OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
11.15 Confidentiality. The Administrative Agent and each
Lender agrees to keep confidential any information (a) provided to it by or on
behalf of the Borrower or any of its Subsidiaries pursuant to or in connection
with this Agreement or (b) obtained by such Lender based on a review of the
books and records of the Borrower or any of its Subsidiaries; provided that
nothing herein shall prevent any Lender from disclosing any such information (i)
to the Administrative Agent or any other Lender, (ii) to any Transferee or
prospective Transferee or to any direct or indirect contractual counterparties
in swap agreements or such contractual counterparties' professional advisors
which agrees to comply with the provisions of this subsection, (iii) to its
affiliates and the employees, directors, agents, attorneys, accountants and
other professional advisors of it and its affiliates, provided that such Lender
shall inform each such Person of the agreement under this subsection 11.15 and
take reasonable actions to cause compliance by any such Person referred to in
this clause (iii) with this agreement (including, where appropriate, to cause
any such Person to acknowledge its agreement to be bound by the agreement under
this subsection 11.15), (iv) upon the request or demand of any Governmental
Authority having jurisdiction over such Lender or to the extent required in
response to any order of any court or other Governmental Authority or as shall
otherwise be required pursuant to any Requirement of Law, provided that such
Lender shall, unless prohibited by any Requirement of Law, notify the Borrower
of any disclosure pursuant to this clause (iv) as far in advance as is
reasonably practicable under such circumstances, (v) which has been publicly
disclosed other than in breach of this Agreement, (vi) in connection with the
exercise of any remedy hereunder, (vii) in connection with periodic regulatory
examinations and reviews conducted by the National Association of Insurance
Commissioners (to the extent applicable), (viii) in connection with any
litigation to which such Lender may be a party, subject to the proviso in clause
(iv), and (ix) if, prior to such information having been so provided or
obtained, such information was already in the Administrative Agent's or a
Lender's possession on a nonconfidential basis without a duty of confidentiality
to the Borrower being violated.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
GST ACQUISITION CORP.
By: _________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent, Swing Line Lender,
Issuing Lender and a Lender
By: _________________________
Name:
Title:
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Documentation Agent and a Lender
By: _________________________
Name:
Title:
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Schedule I
Commitments and Addresses
133
Schedule II
Applicable Margin and Commitment Fee Step-Downs
Step-Downs for Revolving Credit Loans, Tranche A Term Loans and Commitment Fees
Leverage Eurodollar ABR
Ratio Applicable Margin Applicable Margin Commitment Fee
----- ----------------- ----------------- --------------
Greater Than 5.00 to 1 2.50% 1.50% 0.500%
Greater Than 4.50 to 1 2.25% 1.25% 0.500%
Greater Than 4.00 to 1 2.00% 1.00% 0.375%
Greater Than 3.50 to 1 1.75% .75% 0.375%
Less Than 3.50 to 1 1.50% .50% 0.375%
Step-Down for Tranche B Term Loans
Eurodollar Applicable
Leverage Ratio Margin ABR Applicable Margin
-------------- ------ ---------------------
Less Than 4.00 to 1 2.75% 1.75%
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EXHIBIT A-1 TO
CREDIT AGREEMENT
FORM OF REVOLVING CREDIT NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE
TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT
AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS
REPRESENTED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE
ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.
$_____________ New York, New York
May __, 1997
FOR VALUE RECEIVED, the undersigned, GST ACQUISITION CORP., a
Delaware corporation (the "Borrower"), hereby unconditionally promises to pay to
the order of _____________ (the "Lender") and its successors and assigns, at the
office of The Chase Manhattan Bank, located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, in lawful money of the United States of America and in immediately
available funds, the aggregate unpaid principal amount of the Revolving Credit
Loans made by the Lender to the undersigned pursuant to subsection 2.1 of the
Credit Agreement, as defined below, which sum shall be payable on the
Termination Date.
The Borrower further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time at the
applicable rates per annum and on the dates set forth in subsection 4.1 of the
Credit Agreement until such principal amount is paid in full (both before and
after judgment).
This Revolving Credit Note is one of the Revolving Credit
Notes referred to in, and is subject in all respects to, the Credit Agreement,
dated as of May __, 1997 (as amended, supplemented, waived or otherwise modified
from time to time, the "Credit Agreement"), among the Borrower, the several
banks and other financial institutions from time to time parties thereto
(including the Lender), The Chase Manhattan Bank, as administrative agent for
such banks and financial institutions, and Xxxxxx Xxxxxxx Senior Funding, Inc.
as documentation agent for such banks and financial institutions, and is
entitled to the benefits thereof, is secured and guaranteed as provided therein
and is subject to optional and mandatory prepayment in whole or in part as
provided therein. Each holder hereof, by its acceptance of this Revolving Credit
Note, agrees to the terms of, and to be bound by and to observe the provisions
applicable to the Lenders contained in, the Credit Agreement. Terms used herein
which are defined in the Credit Agreement shall have such defined meanings
unless otherwise defined herein or unless the context otherwise requires.
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Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this Revolving Credit Note shall become, or may be declared to be, immediately
due and payable, all as provided therein.
THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
GST ACQUISITION CORP.
By:_______________________________
Title:
2
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EXHIBIT A-2 TO
CREDIT AGREEMENT
FORM OF TRANCHE A TERM NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE
TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT
AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS
REPRESENTED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE
ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.
$____________ New York, New York
May __, 1997
FOR VALUE RECEIVED, the undersigned, GST ACQUISITION CORP., a
Delaware corporation (the "Borrower"), hereby unconditionally promises to pay to
the order of _____________ (the "Lender") and its successors and assigns, at the
office of The Chase Manhattan Bank, located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, in lawful money of the United States of America and in immediately
available funds, the principal amount of the lesser of (a)_____________________
DOLLARS ($____________) and (b) the aggregate unpaid principal amount of the
Term Loan made by the Lender to the undersigned pursuant to subsection 2.6 of
the Credit Agreement, as defined below, which sum shall be payable in accordance
with subsection 2.7(b) of the Credit Agreement in __ consecutive __________
installments, commencing on _________ __, 199_, each such installment to be in
an amount equal to the Lender's Tranche A Term Loan Commitment Percentage of the
amount set forth next to the applicable installment date in such subsection
2.7(b).
The Borrower further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time at the
applicable rates per annum and on the dates set forth in subsection 4.1 of the
Credit Agreement until such principal amount is paid in full (both before and
after judgment).
This Term Note is one of the Term Notes referred to in, and is
subject in all respects to, the Credit Agreement, dated as of May __, 1997 (as
amended, supplemented, waived or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, the several banks and other financial
institutions from time to time parties thereto (including the Lender), The Chase
Manhattan Bank, as administrative agent for such banks and
137
financial institutions, and Xxxxxx Xxxxxxx Senior Funding, as documentation
agent for such banks and financial institutions, and is entitled to the benefits
thereof, is secured and guaranteed as provided therein and is subject to
optional and mandatory prepayment in whole or in part as provided therein. Each
holder hereof, by its acceptance of this Term Note, agrees to the terms of, and
to be bound by and to observe the provisions applicable to the Lenders contained
in, the Credit Agreement. Terms used herein which are defined in the Credit
Agreement shall have such defined meanings unless otherwise defined herein or
unless the context otherwise requires.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this Term Note shall become, or may be declared to be, immediately due and
payable, all as provided therein.
THIS TERM NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
GST ACQUISITION CORP.
By:___________________________________
Title:
2
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EXHIBIT A-3 TO
CREDIT AGREEMENT
FORM OF TRANCHE B TERM NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE
TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT
AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS
REPRESENTED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE
ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.
$____________ New York, New York
May __, 1997
FOR VALUE RECEIVED, the undersigned, GST ACQUISITION CORP., a
Delaware corporation (the "Borrower"), hereby unconditionally promises to pay to
the order of _____________ (the "Lender") and its successors and assigns, at the
office of The Chase Manhattan Bank, located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, in lawful money of the United States of America and in immediately
available funds, the principal amount of the lesser of (a)_____________________
DOLLARS ($____________) and (b) the aggregate unpaid principal amount of the
Term Loan made by the Lender to the undersigned pursuant to subsection 2.6 of
the Credit Agreement, as defined below, which sum shall be payable in accordance
with subsection 2.7(b) of the Credit Agreement in __ consecutive __________
installments, commencing on _________ __, 199_, each such installment to be in
an amount equal to the Lender's Tranche B Term Loan Commitment Percentage of the
amount set forth next to the applicable installment date in such subsection
2.7(b).
The Borrower further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time at the
applicable rates per annum and on the dates set forth in subsection 4.1 of the
Credit Agreement until such principal amount is paid in full (both before and
after judgment).
This Term Note is one of the Term Notes referred to in, and is
subject in all respects to, the Credit Agreement, dated as of May __, 1997 (as
amended, supplemented, waived or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, the several banks and other financial
institutions from time to time parties thereto (including the Lender), The Chase
Manhattan Bank, as administrative agent for such banks and financial
institutions, and Xxxxxx Xxxxxxx Senior Funding, Inc., as documentation agent
for such banks and financial institutions, and is entitled to the benefits
thereof, is secured and guaranteed as
139
provided therein and is subject to optional and mandatory prepayment in whole or
in part as provided therein. Each holder hereof, by its acceptance of this Term
Note, agrees to the terms of, and to be bound by and to observe the provisions
applicable to the Lenders contained in, the Credit Agreement. Terms used herein
which are defined in the Credit Agreement shall have such defined meanings
unless otherwise defined herein or unless the context otherwise requires.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this Term Note shall become, or may be declared to be, immediately due and
payable, all as provided therein.
THIS TERM NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
GST ACQUISITION CORP.
By:_________________________________
Title:
2
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EXHIBIT A-4 TO
CREDIT AGREEMENT
FORM OF SWING LINE NOTE
$____________ New York, New York
May __, 1997
FOR VALUE RECEIVED, the undersigned, GST ACQUISITION CORP., a
Delaware corporation (the "Borrower"), hereby unconditionally promises to pay to
the order of THE CHASE MANHATTAN BANK (the "Swing Line Lender") and its
successors and assigns, at the office of Chemical Bank, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, in lawful money of the United States of America and in
immediately available funds, the principal amount of the lesser of (a)
__________________________ DOLLARS ($____________) and (b) the aggregate unpaid
principal amount of all Swing Line Loans made by the Swing Line Lender to the
undersigned pursuant to subsection 2.5 of the Senior Secured Credit Agreement,
as defined below, which sum shall be payable on the Termination Date.
The Borrower further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time at the
applicable rates per annum and on the dates set forth in subsection 4.1 of the
Credit Agreement until paid in full (both before and after judgment).
This Swing Line Note is the Swing Line Note referred to in,
and is subject in all respects to, the Credit Agreement, dated as of May 6, 1997
(as amended, supplemented, waived or otherwise modified from time to time, the
"Senior Secured Credit Agreement"), among the Borrower, the several banks and
other financial institutions from time to time parties thereto (including the
Swing Line Lender), The Chase Manhattan Bank, as administrative agent for such
banks and financial institutions, and Xxxxxx Xxxxxxx Senior Funding, Inc. as
documentation agent for such banks and financial institutions, and is entitled
to the benefits thereof, is secured and guaranteed as provided therein and is
subject to optional and mandatory prepayment in whole or in part as provided
therein. Each holder hereof, by its acceptance of this Swing Line Note, agrees
to the terms of, and to be bound by and to observe the provisions applicable to
the Lenders contained in, the Senior Secured Credit Agreement. Terms used herein
which are defined in the Credit Agreement shall have such defined meanings
unless otherwise defined herein or unless the context otherwise requires.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts remaining unpaid on this
Swing Line Note shall become, or may be declared to be, immediately due and
payable all as provided therein.
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THIS SWING LINE NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
GST ACQUISITION CORP.
By:___________________________
Title:
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EXHIBIT B TO
CREDIT AGREEMENT
================================================================================
GUARANTEE AND COLLATERAL AGREEMENT
made by
TELEX COMMUNICATIONS, INC.
(as successor to GST ACQUISITION CORP.)
TELEX COMMUNICATIONS GROUP, INC.
and
TCI HOLDINGS CORP.
in favor of
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of May 6, 1997
================================================================================
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EXHIBIT B TO
CREDIT AGREEMENT
FORM OF GUARANTEE AND COLLATERAL AGREEMENT
GUARANTEE AND COLLATERAL AGREEMENT, dated as of May 6, 1997,
made by TELEX COMMUNICATIONS, INC., a Delaware corporation ("Telex" or the
"Borrower") as successor by assumption to GST Acquisition Corp. upon the
effectiveness of the Telex Assumption Agreement (as defined herein), TELEX
COMMUNICATIONS GROUP, INC., a Delaware Corporation ("Holdings"), and TCI
HOLDINGS CORP., together with any other Subsidiary of the Borrower that becomes
a party hereto from time to time after the date hereof, the ("Granting
Parties"), in favor of THE CHASE MANHATTAN BANK, as administrative agent (in
such capacity, the "Administrative Agent") for the banks and other financial
institutions (collectively, the "Lenders"; individually, a "Lender") from time
to time parties to the Credit Agreement, dated as of May 6, 1997 (as amended,
waived, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, the Lenders, the Administrative Agent and
Xxxxxx Xxxxxxx Senior Funding, Inc., as Documentation Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make extensions of credit to the Borrower upon the terms and
subject to the conditions set forth therein;
WHEREAS, it is a condition to the obligation of the Lenders to
make their respective extensions of credit to the Borrower under the Credit
Agreement that the Granting Parties shall execute and deliver this Agreement to
the Administrative Agent for the benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent and the Lenders to enter into the Credit Agreement and
to induce the Lenders to make their respective extensions of credit to the
Borrower thereunder, each Granting Party hereby agrees with the Administrative
Agent, for the ratable benefit of the Secured Parties, as follows:
SECTION 12.. DEFINED TERMS
12.1. Definitions. (i) Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement, and the following terms which are defined in the
Code (as defined below) are used herein as so defined: Chattel Paper, Documents,
Equipment, Farm Products, Fixtures, Instruments and Inventory.
(ii) The following terms shall have the following meanings:
"Accounts": all accounts (as defined in the Code) of the
Borrower, including, without limitation all Accounts (as defined in the
Credit Agreement) of the Borrower.
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"Agreement": this Guarantee and Collateral Agreement, as the
same may be amended, supplemented or otherwise modified from time to
time.
"Borrower Obligations": the collective reference to the unpaid
principal of and interest on the Loans and Reimbursement Obligations
and all other obligations and liabilities of the Borrower (including,
without limitation, interest accruing at the then applicable rate
provided in the Credit Agreement after the maturity of the Loans and
Reimbursement Obligations and interest accruing at the then applicable
rate provided in the Credit Agreement after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) to
the Administrative Agent or any Lender (or, in the case of any Hedge
Agreement referred to below, any Affiliate of any Lender), whether
direct or indirect, absolute or contingent, due or to become due, or
now existing or hereafter incurred, which may arise under, out of, or
in connection with, the Credit Agreement, this Agreement, the other
Loan Documents and any Letter of Credit or any Hedge Agreement entered
into by the Borrower with any Lender (or, in the case of any Hedge
Agreement, any Affiliate of any Lender) or any other document made,
delivered or given in connection therewith, in each case whether on
account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Administrative
Agent or to the Lenders that are required to be paid by the Borrower
pursuant to the terms of any of the foregoing agreements).
"Code": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Collateral": as defined in Section 3.
"Collateral Account Bank": The Chase Manhattan Bank or another
bank which at all times is a Lender as selected by the Borrower and
notified to the Administrative Agent in writing promptly following such
selection.
"Collateral Proceeds Account": the cash collateral account
established by the relevant Grantor at an office of the Collateral
Account Bank in the name of the Administrative Agent.
"Commitments": the collective reference to the Revolving
Credit Commitments, the Swing Line Commitments, the Term Loan
Commitments and the L/C Commitment; individually, a "Commitment".
"Contracts" with respect to any Grantor, all contracts,
agreements, instruments and indentures in any form, and portions
thereof (except for the contracts listed on Schedule 8), to which such
Grantor is a party or under which such Grantor has any right, title or
interest or to
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145
which such Grantor or any property of such Grantor is subject, as the
same may from time to time be amended, supplemented or otherwise
modified, including, without limitation, (i) all rights of such Grantor
to receive moneys due and to become due to it thereunder or in
connection therewith, (ii) all rights of such Grantor to damages
arising thereunder and (iii) all rights of such Grantor to perform and
to exercise all remedies thereunder.
"Copyright Licenses": with respect to any Grantor, all United
States written license agreements of such Grantor providing for the
grant by or to such Grantor of any right to use any Copyright of such
Grantor, other than intercompany agreements, including, without
limitation, any license agreements listed on Schedule 5 hereto subject,
in each case, to the terms of such license agreements, and the right to
prepare for sale, sell and advertise for sale, all Inventory now or
hereafter covered by such licenses.
"Copyrights": with respect to any Grantor, all of such
Grantor's right, title and interest in and to all United States
copyrights, whether or not the underlying works of authorship have been
published or registered, United States copyright registrations and
copyright applications, and (a) all renewals thereof, (b) all income,
royalties, damages and payments now and hereafter due and/or payable
with respect thereto, including, without limitation, payments under all
licenses entered into in connection therewith, and damages and payments
for past or future infringement thereof and (c) the right to xxx or
otherwise recover for past, present and future infringement and
misappropriation thereof.
"Default": a "Default" as defined in the Credit Agreement.
"Event of Default": an "Event of Default" as defined in the
Credit Agreement.
"General Fund Account": the general fund account of the
relevant Grantor established at the same office of the Collateral
Account Bank as the Collateral Proceeds Account.
"General Intangibles": all "general intangibles" as such term
is defined in Section 9-106 of the Uniform Commercial Code in effect in
the State of New York on the date hereof.
"Granting Parties": as defined in the initial paragraph
hereof.
"Grantor": the Borrower and each Domestic Subsidiary of the
Borrower that from time to time becomes a party hereto.
"Guarantor Obligations": with respect to any Guarantor, the
collective reference to (i) the Borrower Obligations and (ii) all
obligations and liabilities of such Guarantor which may arise under or
in connection with this Agreement or any other Loan Document to which
such Guarantor is a party, in each case whether on account of guarantee
obligations, reimbursement
3
146
obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel
to the Administrative Agent or to the Lenders that are required to be
paid by such Guarantor pursuant to the terms of this Agreement or any
other Loan Document).
"Guarantors": the collective reference to each Granting Party
other than the Borrower.
"Hedge Agreements": as to any Grantor, all interest rate
swaps, caps or collar agreements or similar arrangements entered into
by such Person providing for protection against fluctuations in
interest rates or currency exchange rates or the exchange of nominal
interest obligations, either generally or under specific contingencies,
including, without limitation, all Interest Rate Protection Agreements
and Permitted Hedging Arrangements with respect to currency exchange
rates.
"Intellectual Property": with respect to any Grantor, the
collective reference to such Grantor's Copyrights, Copyright Licenses,
Patents, Patent Licenses, Trade Secrets, Trademarks and Trademark
Licenses.
"Intercompany Note": with respect to any Grantor, any
promissory note evidencing loans made by such Grantor to the Borrower
or any of its Subsidiaries.
"Issuers": the collective reference to the Persons identified
on Schedule 2 as the issuers of the Pledged Stock.
"Inventory": with respect to any Grantor, all inventory (as
defined in the Code) of such Grantor, including, without limitation,
all Inventory (as defined in the Credit Agreement) of the Borrower.
"Loan Documents": the collective reference to the "Loan
Documents" as defined in the Credit Agreement.
"Loans": the collective reference to the "Loans" as defined in
the Credit Agreement.
"Notes": the collective reference to the "Notes" as defined in
the Credit Agreement.
"Obligations": (i) in the case of the Borrower, the Borrower
Obligations, and (ii) in the case of each Guarantor, its Guarantor
Obligations.
"Patent Licenses": with respect to any Grantor, all United
States written license agreements of such Grantor with any Person who
is not an Affiliate or a Subsidiary in connection with any of the
Patents of such Grantor or such other Person's patents, whether such
Grantor is a licensor or a licensee under any such agreement,
including, without limitation, the license
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agreements listed on Schedule 5, subject, in each case, to the terms of
such license agreements, and the right to prepare for sale, sell and
advertise for sale, all Inventory now or hereafter covered by such
licenses.
"Patents": with respect to any Grantor, all of such Grantor's
right, title and interest in and to all United States patents, patent
applications and patentable inventions and all reissues and extensions
thereof, including, without limitation, all patents and patent
applications identified in Schedule 5, and including, without
limitation, (a) all inventions and improvements described and claimed
therein, and patentable inventions, (b) the right to xxx or otherwise
recover for any and all past, present and future infringement and
misappropriation thereof, (c) all income, royalties, damages and other
payments now and hereafter due and/or payable with respect thereto
(including, without limitation, payments under all licenses entered
into in connection therewith, and damages and payments for past or
future infringements thereof), and (d) all other rights corresponding
thereto in the United States and all reissues, divisions,
continuations, continuations-in-part, substitutes, renewals, and
extensions thereof, all improvements thereon, and all other rights of
any kind whatsoever of such Grantor accruing thereunder or pertaining
thereto.
"Pledged Collateral": as defined in Section 3.
"Pledged Notes": with respect to any Pledgor, all Intercompany
Notes at any time issued to such Pledgor and all other promissory notes
issued to or held by such Pledgor (other than promissory notes issued
in connection with extensions of trade credit by any Pledgor in the
ordinary course of business).
"Pledged Securities": the collective reference to the Pledged
Notes and the Pledged Stock.
"Pledged Stock": with respect to any Pledgor, the shares of
Capital Stock listed on Schedule 2 as held by such Pledgor, together
with any other shares, stock certificates, options or rights of any
nature whatsoever in respect of the Capital Stock of any Issuer that
may be issued or granted to, or held by, such Pledgor while this
Agreement is in effect (provided that in no event shall there be
pledged, nor shall any Pledgor be required to pledge, directly or
indirectly, more than 65% of any series of the outstanding Capital
Stock of any Foreign Subsidiary pursuant to this Agreement).
"Pledgor": Holdings (with respect to Pledged Stock of the
Borrower), the Borrower (with respect to Pledged Stock of the
corporations listed on Schedule 2 hereto under the name of the Borrower
and any other Subsidiary of the Borrower and any other Pledged
Securities held by the Borrower) and any other Granting Party (with
respect to Pledged Securities held by such Granting Party).
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"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code in effect in the State of New
York on the date hereof and, in any event, Proceeds of Pledged
Securities shall include, without limitation, all dividends or other
income from the Pledged Securities, collections thereon or
distributions or payments with respect thereto.
"Revolving Credit Commitments": the collective reference to
the "Revolving Credit Commitments" as defined in the Credit Agreement.
"Secured Parties": the collective reference to the
Administrative Agent, the Lenders (including, without limitation the
Issuing Lender) and any Affiliate of any Lender which has entered into
any Interest Rate Protection Agreement or Permitted Hedging Arrangement
with the Borrower or any of its Subsidiaries, and their respective
successors and assigns.
"Securities Act": the Securities Act of 1933, as amended from
time to time.
"Security Collateral": as defined in Section 3.
"Trade Secrets": with respect to any Grantor, all of such
Grantor's right, title and interest in and to all United States trade
secrets, including, without limitation, know-how, processes, formulae,
compositions, designs, and confidential business and technical
information, and all rights of any kind whatsoever accruing thereunder
or pertaining thereto, including, without limitation, (a) all income,
royalties, damages and payments now and hereafter due and/or payable
with respect thereto, including, without limitation, payments under all
licenses, non-disclosure agreements and memoranda of understanding
entered into in connection therewith, and damages and payments for past
or future misappropriation thereof, and (b) the right to xxx or
otherwise recover for past, present or future misappropriation thereof.
"Trademark Licenses": with respect to any Grantor, all United
States written license agreements of such Grantor with any Person who
is not an Affiliate or a Subsidiary in connection with any of the
Trademarks of such Grantor or such other Person's names or trademarks,
whether such Grantor is a licensor or a licensee under any such
agreement, including, without limitation, the license agreements listed
on Schedule 5, subject, in each case, to the terms of such license
agreements, and the right to prepare for sale, sell and advertise for
sale, all Inventory now or hereafter covered by such licenses.
"Trademarks": with respect to any Grantor, all of such
Grantor's right, title and interest in and to all United States
trademarks, service marks, trade names, trade dress or other indicia of
trade origin or business identifiers, trademark and service xxxx
registrations, and applications for trademark or service xxxx
registrations (except for "intent to use" applications for trademark or
service xxxx registrations filed pursuant to Section 1(b) of the Xxxxxx
Act, 15 U.S.C. Section 1051, unless and until an Amendment to Allege
Use or a Statement of Use under Sections 1(c) and 1(d)
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of said Act has been filed), and any renewals thereof, including,
without limitation, each registration and application identified in
Schedule 5, and including, without limitation, (a) the right to xxx or
otherwise recover for any and all past, present and future
infringements and misappropriation thereof, (b) all income, royalties,
damages and other payments now and hereafter due and/or payable with
respect thereto (including, without limitation, payments under all
licenses entered into in connection therewith, and damages and payments
for past or future infringements thereof), and (c) all other rights
corresponding thereto in the United States and all other rights of any
kind whatsoever of such Grantor accruing thereunder or pertaining
thereto, together in each case with the goodwill of the business
connected with the use of, and symbolized by, each such trademark,
service xxxx, trade name, trade dress or other indicia of trade origin
or business identifiers.
"Vehicles": all cars, trucks, trailers, construction and earth
moving equipment and other vehicles covered by a certificate of title
law of any state and all tires and other appurtenances to any of the
foregoing.
12.2 Other Definitional Provisions. (i) The words "hereof,"
"herein", "hereto" 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, and Section, Schedule and Annex references are to
this Agreement unless otherwise specified.
(ii) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(iii) Where the context requires, terms relating to the
Collateral, Pledged Collateral or Security Collateral, or any part thereof, when
used in relation to a Granting Party shall refer to such Granting Party's
Collateral, Pledged Collateral or Security Collateral or the relevant part
thereof.
SECTION 13.. GUARANTEE
13.1 Guarantee. (i) Each of the Guarantors hereby, jointly and
severally, unconditionally and irrevocably, guarantees to the Administrative
Agent, for the ratable benefit of the Secured Parties and their respective
successors, indorsees, transferees and assigns, the prompt and complete payment
and performance by the Borrower when due and payable (whether at the stated
maturity, by acceleration or otherwise) of the Borrower Obligations.
(ii) Anything herein or in any other Loan Document to
the contrary notwithstanding, the maximum liability of each Guarantor hereunder
and under the other Loan Documents shall in no event exceed the amount which can
be guaranteed by such Guarantor under applicable law, including applicable
federal and state laws relating to the insolvency of debtors.
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(iii) Each Guarantor agrees that the Borrower Obligations may
at any time and from time to time exceed the amount of the liability of such
Guarantor hereunder without impairing the guarantee contained in this Section 2
or affecting the rights and remedies of the Administrative Agent or any other
Secured Party hereunder.
(iv) The guarantee contained in this Section 2 shall remain in
full force and effect until the earlier to occur of (i) the first date on which
all the Loans, any Reimbursement Obligations, all other Borrower Obligations
then due and owing, and the obligations of each Guarantor under the guarantee
contained in this Section 2 then due and owing shall have been satisfied by
payment in full, no Letter of Credit shall be outstanding and the Commitments
shall be terminated, notwithstanding that from time to time during the term of
the Credit Agreement the Borrower may be free from any Borrower Obligations or
(ii) as to any Guarantor, the sale or other disposition of all of the Capital
Stock of such Guarantor permitted under the Credit Agreement.
(v) No payment made by the Borrower, any of the Guarantors,
any other guarantor or any other Person or received or collected by the
Administrative Agent or any other Secured Party from the Borrower, any of the
Guarantors, any other guarantor or any other Person by virtue of any action or
proceeding or any set-off or appropriation or application at any time or from
time to time in reduction of or in payment of the Borrower Obligations shall be
deemed to modify, reduce, release or otherwise affect the liability of any
Guarantor hereunder which shall, notwithstanding any such payment (other than
any payment made by such Guarantor in respect of the Borrower Obligations or any
payment received or collected from such Guarantor in respect of the Borrower
Obligations), remain liable for the Borrower Obligations up to the maximum
liability of such Guarantor hereunder until the earlier to occur of (i) the
first date on which the Loans, any Reimbursement Obligations, and all other
Borrower Obligations then due and owing, are paid in full, no Letter of Credit
shall be outstanding and the Commitments are terminated or (ii) the sale or
other disposition of all of the Capital Stock of such Guarantor permitted under
the Credit Agreement.
13.2. Right of Contribution. Each Guarantor hereby agrees
that to the extent that a Guarantor shall have paid more than its proportionate
share of any payment made hereunder, such Guarantor shall be entitled to seek
and receive contribution from and against any other Guarantor hereunder which
has not paid its proportionate share of such payment. Each Guarantor's right of
contribution shall be subject to the terms and conditions of Section 2.3. The
provisions of this Section 2.2 shall in no respect limit the obligations and
liabilities of any Guarantor to the Administrative Agent and the other Secured
Parties, and each Guarantor shall remain liable to the Administrative Agent and
the Lenders for the full amount guaranteed by such Guarantor hereunder.
13.3. No Subrogation. Notwithstanding any payment made by any
Guarantor hereunder or any set-off or application of funds of any Guarantor by
the Administrative Agent or any other Secured Party, no Guarantor shall be
entitled to be subrogated to any of the rights of the Administrative Agent or
any other Secured Party against the Borrower or any other Guarantor or any
collateral security or
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guarantee or right of offset held by the Administrative Agent or any other
Secured Party for the payment of the Borrower Obligations, nor shall any
Guarantor seek or be entitled to seek any contribution or reimbursement from the
Borrower or any other Guarantor in respect of payments made by such Guarantor
hereunder, until all amounts owing to the Administrative Agent and the other
Secured Parties by the Borrower on account of the Borrower Obligations are paid
in full, no Letter of Credit shall be outstanding and the Commitments are
terminated. If any amount shall be paid to any Guarantor on account of such
subrogation rights at any time when all of the Borrower Obligations shall not
have been paid in full, such amount shall be held by such Guarantor in trust for
the Administrative Agent and the other Secured Parties, segregated from other
funds of such Guarantor, and shall, forthwith upon receipt by such Guarantor, be
turned over to the Administrative Agent in the exact form received by such
Guarantor (duly indorsed by such Guarantor to the Administrative Agent, if
required), to be applied against the Borrower Obligations, whether matured or
unmatured, in such order as the Administrative Agent may determine.
13.4. Amendments, etc. with respect to the Borrower
Obligations. To the maximum extent permitted by law, each Guarantor shall
remain obligated hereunder notwithstanding that, without any reservation of
rights against any Guarantor and without notice to or further assent by any
Guarantor, any demand for payment of any of the Borrower Obligations made by the
Administrative Agent or any other Secured Party may be rescinded by the
Administrative Agent or such other Secured Party and any of the Borrower
Obligations continued, and the Borrower Obligations, or the liability of any
other Person upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Administrative Agent or any
other Secured Party, and the Credit Agreement and the other Loan Documents and
any other documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, as the
Administrative Agent (or the Required Lenders, as the case may be) may deem
advisable from time to time, and any collateral security, guarantee or right of
offset at any time held by the Administrative Agent or any other Secured Party
for the payment of the Borrower Obligations may be sold, exchanged, waived,
surrendered or released. Neither the Administrative Agent nor any other Secured
Party shall have any obligation to protect, secure, perfect or insure any Lien
at any time held by it as security for the Borrower Obligations or for the
guarantee contained in this Section 2 or any property subject thereto, except to
the extent required by applicable law.
13.5. Guarantee Absolute and Unconditional. Each Guarantor
waives, to the maximum extent permitted by applicable law, any and all notice of
the creation, renewal, extension or accrual of any of the Borrower Obligations
and notice of or proof of reliance by the Administrative Agent or any other
Secured Party upon the guarantee contained in this Section 2 or acceptance of
the guarantee contained in this Section 2; the Borrower Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred,
or renewed, extended, amended or waived, in reliance upon the guarantee
contained in this Section 2; and all dealings between the Borrower and any of
the Guarantors, on the one hand, and the Administrative Agent and the other
Secured Parties, on the other
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hand, likewise shall be conclusively presumed to have been had or consummated in
reliance upon the guarantee contained in this Section 2. Each Guarantor waives,
to the maximum extent permitted by applicable law, diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon the
Borrower or any of the other Guarantors with respect to the Borrower
Obligations. Each Guarantor understands and agrees, to the extent permitted by
law, that the guarantee contained in this Section 2 shall be construed as a
continuing, absolute and unconditional guarantee of payment. Each Guarantor
hereby waives, to the maximum extent permitted by applicable law, any and all
defenses that it may have arising out of or in connection with any and all of
the following: (a) the validity or enforceability of the Credit Agreement or any
other Loan Document, any of the Borrower Obligations or any other collateral
security therefor or guarantee or right of offset with respect thereto at any
time or from time to time held by the Administrative Agent or any other Secured
Party, (b) any defense, set-off or counterclaim (other than a defense of payment
or performance) which may at any time be available to or be asserted by the
Borrower against the Administrative Agent or any other Secured Party, (c) any
change in the time, place, manner or place of payment, amendment, or waiver or
increase in the Obligations, (d) any exchange, taking, or release of Collateral,
(e) any change in the corporate structure or existence of the Borrower, (f) any
application of Collateral to Obligations or (g) any other circumstance
whatsoever (with or without notice to or knowledge of the Borrower or such
Guarantor) which constitutes, or might be construed to constitute, an equitable
or legal discharge of the Borrower for the Borrower Obligations, or of such
Guarantor under the guarantee contained in this Section 2, in bankruptcy or in
any other instance. When making any demand hereunder or otherwise pursuing its
rights and remedies hereunder against any Guarantor, the Administrative Agent or
any other Secured Party may, but shall be under no obligation to, make a similar
demand on or otherwise pursue such rights and remedies as it may have against
the Borrower, any other Guarantor or any other Person or against any collateral
security or guarantee for the Borrower Obligations or any right of offset with
respect thereto, and any failure by the Administrative Agent or any other
Secured Party to make any such demand, to pursue such other rights or remedies
or to collect any payments from the Borrower, any other Guarantor or any other
Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of the Borrower, any other
Guarantor or any other Person or any such collateral security, guarantee or
right of offset, shall not relieve any Guarantor of any obligation or liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Administrative Agent or
any other Secured Party against any Guarantor. For the purposes hereof "demand"
shall include the commencement and continuance of any legal proceedings.
13.6. Reinstatement. The guarantee contained in this Section
2 shall continue to be effective, or be reinstated, as the case may be, if at
any time payment, or any part thereof, of any of the Borrower Obligations is
rescinded or must otherwise be restored or returned by the Administrative Agent
or any other Secured Party upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Borrower or any Guarantor, or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Borrower or any Guarantor or any substantial
part of its property, or otherwise, all as though such payments had not been
made.
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13.7 Payments. Each Guarantor hereby guarantees that payments
hereunder will be paid to the Administrative Agent without set-off or
counterclaim in Dollars at the office of the Administrative Agent located at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 14. GRANT OF SECURITY INTEREST
Each Granting Party (1) that is a Grantor hereby grants to the
Administrative Agent, for the ratable benefit of the Secured Parties, a security
interest in all of the following property now owned or at any time hereafter
acquired by such Grantor or in which such Grantor now has or at any time in the
future may acquire any right, title or interest (collectively, the
"Collateral"), as collateral security for the prompt and complete payment and
performance when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations of such Grantor:
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Contracts;
(iv) all Documents;
(v) all Equipment (other than Vehicles);
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Intellectual Property;
(ix) all Inventory;
(x) all books and records pertaining to any of the
foregoing;
(xi) the Collateral Proceeds Account; and
(xii) to the extent not otherwise included, all Proceeds
and products of any and all of the foregoing and all collateral
security and guarantees given by any Person with respect to any of the
foregoing;
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and (2) that is a Pledgor hereby grants to the Administrative Agent, for the
ratable benefit of the Secured Parties, a security interest in all of the
Pledged Securities now owned or at any time hereafter acquired by such Pledgor,
and any Proceeds thereof (the "Pledged Collateral"), as collateral
security for the prompt and complete performance when due (whether at the stated
maturity by acceleration or otherwise) of the obligations of the Pledgor; (the
Collateral (if any) and the Pledged Collateral (if any) of any Granting Party
being collectively referred to herein as such Granting Party's "Security
Collateral");
provided however, that (x) Collateral shall not include any Pledged Collateral,
or any property or assets specifically excluded from Pledged Collateral
(including any Capital Stock of any Foreign Subsidiary in excess of 65% of any
series of such stock); and (y) in the case of any Instruments, Contracts,
Chattel Paper, General Intangibles, Copyright Licenses, Patent Licenses,
Trademark Licenses or other contracts or agreements with or issued by Persons
(other than a Subsidiary of the Borrower) that would otherwise be included in
the Security Collateral, no security interest in the right, title and interest
of any Granting Party thereunder or therein will be granted pursuant to this
Section 2 (and such Instruments, Contracts, Chattel Paper, General Intangibles,
Copyright Licenses, Patent Licenses, Trademark Licenses or other contracts or
agreements shall not be deemed to constitute a part of the Security Collateral)
for so long as, and to the extent that, the granting of a security interest in
the right, title and interest of such Grantor thereunder or therein pursuant to
the terms hereof would result in a breach, default or termination of such
Instruments, Contracts, Chattel Paper, General Intangibles, Copyright Licenses,
Patent Licenses, Trademark Licenses or other contracts or agreements and (z) in
the case of the Equipment that would otherwise be included in the foregoing
Collateral, the foregoing will not be deemed to grant a security interest
therein under this Agreement (and such Equipment shall not be deemed to
constitute a part of the Collateral) if such Equipment is subject to a Lien
permitted by subsection 8.3(h) of the Credit Agreement.
SECTION 15. REPRESENTATIONS AND WARRANTIES
15.1 Representations and Warranties of Each Guarantor.
To induce the Administrative Agent and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective extensions of
credit to the Borrower thereunder, each Guarantor hereby represents and warrants
to the Administrative Agent and each other Secured Party that the
representations and warranties set forth in Section 5 of the Credit Agreement as
they relate to such Guarantor or to the Loan Documents to which such Guarantor
is a party or to the Transaction Documents to which such Guarantor is a party,
each of which representations and warranties is hereby incorporated herein by
reference, are true and correct in all material respects, and the Administrative
Agent and each other Secured Party shall be entitled to rely on each of such
representations and warranties as if fully set forth herein; provided
that each reference in each such representation and warranty to the Borrower's
knowledge shall, for the purposes of this Section 4.1, be deemed to be a
reference to such Guarantor's knowledge.
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15.2 Representations and Warranties of Each Grantor. To induce
the Administrative Agent and the Lenders to enter into the Credit Agreement and
to induce the Lenders to make their respective extensions of credit to the
Borrower thereunder, each Grantor hereby represents and warrants to the
Administrative Agent and each other Secured Party that:
(a) Title; No Other Liens. Except for the security interest
granted to the Administrative Agent, for the ratable benefit of the Secured
Parties, pursuant to this Agreement and the other Liens permitted to exist on
such Grantor's Collateral by the Credit Agreement (including without limitation
subsection 8.3 thereof), such Grantor owns each item of such Grantor's
Collateral free and clear of any and all Liens. Except as set forth on Schedule
6, no financing statement or other similar public notice with respect to all or
any part of such Grantor's Collateral is on file or of record in any public
office, except such as have been filed in favor of the Administrative Agent, for
the ratable benefit of the Secured Parties, pursuant to this Agreement or as are
permitted by the Credit Agreement (including without limitation subsection 8.3
thereof) or any other Loan Document or for which termination statements will be
delivered on the Closing Date.
(b) Perfected First Priority Liens. (i) This Agreement is
effective to create, as collateral security for the Obligations of such Grantor,
valid and enforceable Liens on such Grantor's Collateral in favor of the
Administrative Agent, for the benefit of the Secured Parties, except as
enforceability may be affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditor's rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
(ii) Except with respect to (A) Liens on Equipment
constituting Fixtures, (B) any rights reserved in favor of the United States
government as required under law, (C) Liens upon Patents, Patent Licenses,
Trademarks and Trademark Licenses to the extent that (I) such Liens cannot be
perfected by the filing of financing statements under the Uniform Commercial
Code or by the filing and acceptance thereof in the United States Patent and
Trademark Office or (II) such Patents, Patent Licenses, Trademarks and Trademark
Licenses are not, individually or in the aggregate, material to the business of
the Borrower and its Subsidiaries taken as a whole, (D) Liens on uncertificated
securities, (E) Liens on Collateral the perfection of which requires filings in
or other actions under the laws of jurisdictions outside of the United States of
America, any State, territory or dependency thereof or the District of Columbia
(except to the extent that such filings or other actions have been made or
taken), (F) Liens on contracts or receivables on which the United States of
America or any department, agency, or instrumentality thereof is the obligor,
(G) Liens on Proceeds of receivables and Inventory, until transferred to or
deposited in the Collateral Proceeds Account (if any), and (H) claims of
creditors of Persons receiving goods included as Collateral for "sale or return"
within the meaning of Section 2-326 of the Uniform Commercial Code of the
applicable jurisdiction, upon filing of the financing statements delivered to
the Administrative Agent by such Grantor on the Effective Date in the
jurisdictions listed on Schedule 5.14 to the Credit Agreement (which financing
statements are in proper form for filing in such jurisdictions) and the
recording of the Mortgages (and the recording of any Patent and Trademark
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Security Agreement, as set forth therein, and the making of filings after the
Effective Date in any other jurisdiction as may be necessary under any
Requirement of Law) and the delivery to, and continuing possession by, the
Administrative Agent of all Instruments, Chattel Paper and Documents a security
interest in which is perfected by possession, the Liens created pursuant to this
Agreement will constitute valid Liens on and, to the extent provided herein,
perfected security interests in such Grantor's Collateral (but as to the
Copyrights and Copyright Licenses and accounts arising therefrom, only to the
extent the Uniform Commercial Code of the relevant jurisdiction, from time to
time in effect, is applicable) in favor of the Administrative Agent for the
benefit of the Secured Parties, which Liens will be prior to all other Liens of
all other Persons, except for Liens permitted pursuant to the Loan Documents
(including, without limitation, those permitted to exist pursuant to subsection
8.3 of the Credit Agreement), and which Liens are enforceable as such as against
all other Persons (except to the extent that the recording of an assignment or
other transfer of title to the Administrative Agent in the United States Patent
and Trademark Office may be necessary for enforceability, and except, with
respect to goods only, buyers in the ordinary course of business to the extent
provided in Section 9-307(1) of the Code), except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law) or by an implied covenant of good faith and fair dealing.
(c) Chief Executive Office. On the date hereof, such Grantor's
jurisdiction of organization and the location of such Grantor's chief executive
office or sole place of business are specified on Schedule 3.
(d) Inventory and Equipment. On the date hereof, such
Grantor's Inventory and Equipment (other than mobile goods) are kept at the
locations listed on Schedule 4.
(e) Farm Products. None of such Grantor's Collateral
constitutes, or is the Proceeds of, Farm Products.
(f) Accounts. The amount represented by such Grantor to the
Administrative Agent or the other Secured Parties from time to time as owing by
each account debtor or by all account debtors in respect of such Grantor's
Accounts will at such time be the correct amount, in all material respects,
actually owing by such account debtor or debtors thereunder, except to the
extent that appropriate reserves therefor have been established on the books of
such Grantor in accordance with GAAP. The places where such Grantor keeps its
records concerning such Grantor's Accounts are listed on Schedule 7 or such
other location or locations of which such Grantor shall have provided prior
written notice to the Administrative Agent pursuant to Section 5.2.5 hereof.
Unless otherwise indicated in writing to the Administrative Agent, each Account
of such Grantor arises out of a bona fide sale and delivery of goods or
rendition of services by such Grantor. Such Grantor has not given any account
debtor any deduction in respect of the amount due under any such Account, except
as such Grantor may otherwise advise the Administrative Agent in writing.
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(g) Intellectual Property. Schedule 5 lists all material
Trademarks and material Patents (including, without limitation, Trademarks and
Patents registered in the United States Patent and Trademark Office) owned by
such Grantor in its own name as of the date hereof and all material Trademark
Licenses and all material Patent Licenses (including, without limitation,
material Trademark Licenses for registered Trademarks and material Patent
Licenses for registered Patents) owned by such Grantor in its own name as of the
date hereof.
15.3 Representations and Warranties of Each Pledgor. To induce
the Administrative Agent and the Lenders to enter into the Credit Agreement and
to induce the Lenders to make their respective extensions of credit to the
Borrower thereunder, each Pledgor hereby represents and warrants to the
Administrative Agent and each other Secured party that:
(a) The shares of Pledged Stock pledged by such Pledgor
hereunder constitute (i) in the case of each Domestic Subsidiary, all the issued
and outstanding shares of all classes of the Capital Stock of each such Domestic
Subsidiary owned by such Pledgor and (ii) in the case of each Foreign Subsidiary
such percentage (not more than 65%) as is specified on Schedule 2 of all the
issued and outstanding shares of all classes of the Capital Stock of each such
Foreign Subsidiary.
(b) All the shares of the Pledged Stock pledged by such
Pledgor hereunder have been duly and validly issued and are fully paid and
nonassessable.
(c) Such Pledgor is the record and beneficial owner of, and
has good and valid title to, the Pledged Securities pledged by it hereunder,
free of any and all Liens or options in favor of, or claims of, any other
Person, except the security interest created by this Agreement and Liens imposed
by operation of law.
(d) Upon delivery to the Administrative Agent of the
certificates evidencing the Pledged Securities held by such Pledgor, the
security interest created by this Agreement in such Pledged Collateral, assuming
the continuing possession of such Pledged Securities by the Administrative
Agent, will constitute a valid, perfected first priority security interest in
such Pledged Collateral to the extent provided in the Code, enforceable in
accordance with its terms against all creditors of such Pledgor and any persons
purporting to purchase such Pledged Collateral from such Pledgor, except as
enforceability may be affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
SECTION 16. COVENANTS
16.1 Covenants of Each Guarantor. Each Guarantor covenants and
agrees with the Administrative Agent and the other Secured Parties that, from
and after the date of this Agreement until the Loans, any Reimbursement
Obligations, and all other Obligations then due and owing, shall have
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been paid in full, no Letter of Credit shall be outstanding and the
Commitments shall have terminated, such Guarantor shall take, or shall refrain
from taking, as the case may be, each action that is necessary to be taken or
not taken, as the case may be, so that no Default or Event of Default is caused
by the failure to take such action or to refrain from taking such action by such
Guarantor or any of its Subsidiaries.
16.2 Covenants of Each Grantor. Each Grantor covenants and
agrees with the Administrative Agent and the other Secured Parties that, from
and after the date of this Agreement until the Loans, any Reimbursement
Obligations, and all other Obligations then due and owing, shall have been paid
in full, no Letter of Credit shall be outstanding and the Commitments shall have
terminated:
(a) Delivery of Instruments and Chattel Paper. If any amount
payable under or in connection with any of such Grantor's Collateral shall be or
become evidenced by any Instrument or Chattel Paper, such Instrument or Chattel
Paper shall be promptly delivered to the Administrative Agent, duly indorsed in
a manner satisfactory to the Administrative Agent, to be held as Collateral
pursuant to this Agreement.
(b) Maintenance of Insurance. (i) Such Grantor will maintain,
with financially sound and reputable companies, insurance policies (i) insuring
such Grantor's Inventory and Equipment against loss by fire, explosion, theft
and such other casualties as may be reasonably satisfactory to the
Administrative Agent and (ii) insuring such Grantor, the Administrative Agent
and the other Secured Parties against liability for personal injury and property
damage relating to such Inventory and Equipment, such policies to be in such
form and amounts and having such coverage as may be reasonably satisfactory to
the Administrative Agent.
(ii) All such insurance shall (i) provide that no
cancellation, material reduction in amount or material change in coverage
thereof shall be effective until at least 30 days after receipt by the
Administrative Agent of written notice thereof, (ii) name the Administrative
Agent as an additional insured party or loss payee, (iii) include deductibles
consistent with past practice or otherwise reasonably satisfactory to the
Administrative Agent and (iv) be reasonably satisfactory in all other respects
to the Administrative Agent.
(iii) Such Grantor (if the Borrower) shall deliver to the
Administrative Agent and the other Secured Parties reports of one or more
reputable insurance brokers of the individual insurance companies with respect
to such insurance as the Administrative Agent may from time to time reasonably
request.
(c) Payment of Obligations. Such Grantor will pay and
discharge or otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, all taxes, assessments and governmental charges
or levies imposed upon such Grantor's Collateral or in respect of income or
profits therefrom, as well as all claims of any kind (including, without
limitation, claims for labor, materials and
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supplies) against or with respect to such Grantor's Collateral, except that no
such tax, assessment, charge or levy need be paid or satisfied if the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings, reserves in conformity with GAAP with respect thereto have been
provided on the books of such Grantor and such proceedings would not reasonably
be expected to result in the sale, forfeiture or loss of any material portion of
the Collateral or any interest therein.
(d) Maintenance of Perfected Security Interest; Further
Documentation. (i) Such Grantor shall maintain the security interest created by
this Agreement in such Grantor's Collateral as a perfected security interest
having at least the priority described in Section 4.2.2 and shall defend such
security interest against the claims and demands of all Persons whomsoever.
(ii) Such Grantor will furnish to the Administrative Agent
from time to time statements and schedules further identifying and describing
such Grantor's Collateral and such other reports in connection with such
Grantor's Collateral as the Administrative Agent may reasonably request in
writing, all in reasonable detail.
(iii) At any time and from time to time, upon the written
request of the Administrative Agent, and at the sole expense of such Grantor,
such Grantor will promptly and duly execute and deliver such further instruments
and documents and take such further actions as the Administrative Agent may
reasonably request for the purpose of obtaining or preserving the full benefits
of this Agreement and of the rights and powers herein granted by such Grantor,
including, without limitation, the filing of any financing or continuation
statements under the Uniform Commercial Code (or other similar laws) in effect
in any jurisdiction with respect to the security interests created hereby.
(e) Changes in Locations, Name, etc. Such Grantor will not,
except upon not less than 30 days' prior written notice to the Administrative
Agent and delivery to the Administrative Agent, if applicable, of a written
supplement to Schedule 4 showing any additional location at which such Grantor's
Inventory or Equipment shall be kept:
(i) permit any of such Grantor's Inventory or Equipment to be
kept at a location other than the location(s) applicable to such
Grantor listed on Schedule 4 (other than Inventory or Equipment being
conveyed, sold, leased, assigned, transferred or otherwise disposed of
as permitted by the Credit Agreement);
(ii) change the location of its chief executive office or sole
place of business from that referred to in Section 4.2.3; or
(iii) change its name, identity or corporate structure to such
an extent that any financing statement filed by the Administrative
Agent in connection with this Agreement would become misleading;
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provided that, prior to taking any such action, or promptly after
receiving a written request therefor from the Administrative Agent, such Grantor
shall deliver to the Administrative Agent all additional executed financing
statements and other documents reasonably requested by the Administrative Agent
to maintain the validity, perfection and priority of the security interests
provided for herein.
(f) Notices. Such Grantor will advise the Administrative Agent
promptly, in reasonable detail, of:
(i) any Lien (other than security interests created hereby or
Liens permitted under the Credit Agreement) on any of such Grantor's Collateral
which would adversely affect the ability of the Administrative Agent to exercise
any of its remedies hereunder; and
(ii) of the occurrence of any other event which could
reasonably be expected to have a material adverse effect on the aggregate value
of such Grantor's Collateral or on the security interests created hereby.
(g) Pledged Securities. In the case of each Grantor which is
an Issuer, such Issuer agrees that (i) it will be bound by the terms of this
Agreement relating to the Pledged Stock issued by it and will comply with such
terms insofar as such terms are applicable to it, (ii) it will notify the
Administrative Agent promptly in writing of the occurrence of any of the events
described in Section 5.3.1 with respect to the Pledged Stock issued by it and
(iii) the terms of Sections 6.3(c) and 6.7 shall apply to it, mutatis mutandis,
with respect to all actions that may be required of it pursuant to Section
6.3(c) or 6.7 with respect to the Pledged Stock issued by it.
(h) Accounts. (i) Other than in the ordinary course of
business, such Grantor will not (i) grant any extension of the time of payment
of any of such Grantor's Accounts, (ii) compromise or settle any such Account
for less than the full amount thereof, (iii) release, wholly or partially, any
Person liable for the payment of any Account, (iv) allow any credit or discount
whatsoever on any such Account or (v) amend, supplement or modify any Account in
any manner that could adversely affect the value thereof.
(ii) Such Grantor will deliver to the Administrative Agent a
copy of each material demand, notice or document received by it that questions
or calls into doubt the validity or enforceability of more than 10% of the
aggregate amount of the then outstanding Accounts.
(i) Maintenance of Records. Such Grantor will keep and
maintain at its own cost and expense reasonably satisfactory and complete
records of its Collateral, including, without limitation, a record of all
payments received and all credits granted with respect to such Collateral, and
shall xxxx such records to evidence this Agreement and the Liens and the
security interests created hereby. For the Administrative Agent's and the other
Secured Parties' further security, the Administrative Agent, for the benefit of
the Secured Parties, shall have a security interest in all of such Grantor's
books and records pertaining to such Grantor's Collateral.
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(j) Acquisition of Intellectual Property. Within 45 days after
the end of each calendar quarter, such Grantor will notify the Administrative
Agent of any acquisition by such Grantor of (i) any material registration of
Copyright, Patent or Trademark or (ii) any exclusive rights under a material
Copyright License, Patent License or Trademark License, and shall take such
actions as may be reasonably requested by the Administrative Agent (but only to
the extent such actions are within such Grantor's control) to perfect the
security interest granted to the Administrative Agent and the other Secured
Parties therein (including, without limitation, (x) the execution and delivery
of a Patent and Trademark Security Agreement (or amendments to any such
agreement previously executed or delivered by such Grantor) or other comparable
agreements with respect to Copyrights or Copyright Licenses and (y) the making
of appropriate filings (I) of financing statements under the Uniform Commercial
Code of any applicable jurisdiction and/or (II) in the United States Patent and
Trademark Office, or with respect to Copyrights and Copyright Licenses, other
applicable office).
(k) Protection of Trade Secrets. Such Grantor shall take all
steps which it deems commercially reasonable to preserve and protect the secrecy
of all material Trade Secrets of such Grantor.
16.3 Covenants of Each Pledgor. Each Pledgor covenants and
agrees with the Administrative Agent and the other Secured Parties that, from
and after the date of this Agreement until the Loans, any Reimbursement
Obligations, and all other Obligations then due and owing shall have been paid
in full, no Letter of Credit shall be outstanding and the Commitments shall have
terminated:
(a) If such Pledgor shall become entitled to receive or shall
receive any stock certificate (including, without limitation, any certificate
representing a stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate issued in
connection with any reorganization), option or rights in respect of the Capital
Stock of any Issuer, whether in addition to, in substitution of, as a conversion
of, or in exchange for, any shares of the Pledged Stock, or otherwise in respect
thereof, such Pledgor shall accept the same as the agent of the Administrative
Agent and the other Secured Parties, hold the same in trust for the
Administrative Agent and deliver the same forthwith to the Administrative Agent
in the exact form received, duly indorsed by such Pledgor to the Administrative
Agent, if required, together with an undated stock power covering such
certificate duly executed in blank by such Grantor and with, if the
Administrative Agent so requests, signature guaranteed, to be held by the
Administrative Agent, subject to the terms hereof, as additional collateral
security for the Obligations (provided that in no event shall there be pledged,
nor shall any Pledgor be required to pledge, more than 65% of any series of the
outstanding Capital Stock of any Foreign Subsidiary pursuant to this Agreement).
Any sums paid upon or in respect of the Pledged Securities upon the liquidation
or dissolution of any Issuer or Maker (except any liquidation or dissolution of
any Subsidiary of the Borrower in accordance with the Credit Agreement) shall be
paid over to the Administrative Agent to be held by it hereunder as additional
collateral security for the Obligations, and in case any distribution of capital
shall be made on or in respect of the Pledged Stock or any property shall be
distributed upon or with respect to the Pledged Stock pursuant to the
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recapitalization or reclassification of the capital of any Issuer or pursuant to
the reorganization thereof, the property so distributed shall, unless otherwise
subject to a perfected security interest in favor of the Administrative Agent,
be delivered to the Administrative Agent to be held by it hereunder as
additional collateral security for the Obligations. If any sums of money or
property so paid or distributed in respect of the Pledged Securities shall be
received by such Pledgor, such Pledgor shall, until such money or property is
paid or delivered to the Administrative Agent, hold such money or property in
trust for the Secured Parties, segregated from other funds of such Pledgor, as
additional collateral security for the Obligations.
(b) Without the prior written consent of the Administrative
Agent, such Pledgor will not (except pursuant to a transaction permitted by the
Credit Agreement) (i) vote to enable, or take any other action to permit, any
Issuer to issue any stock or other equity securities of any nature or to issue
any other securities convertible into or granting the right to purchase or
exchange for any stock or other equity securities of any nature of any Issuer,
(ii) sell, assign, transfer, exchange, or otherwise dispose of, or grant any
option with respect to, the Pledged Securities or Proceeds thereof or (iii)
create, incur or permit to exist any Lien or option in favor of, or any claim of
any Person with respect to, any of the Pledged Securities or Proceeds thereof,
or any interest therein, except for the security interests created by this
Agreement or Liens arising by operation of law.
(c) Such Pledgor shall maintain the security interest created
by this Agreement in such Pledgor's Pledged Collateral as a perfected security
interest having at least the priority described in Section 4.3.4 and shall
defend such security interest against the claims and demands of all Persons
whomsoever. At any time and from time to time, upon the written request of the
Administrative Agent, and at the sole expense of such Pledgor, such Pledgor will
promptly and duly execute and deliver such further instruments and documents and
take such further actions as the Administrative Agent may reasonably request for
the purpose of obtaining or preserving the full benefits of this Agreement and
of the rights and powers herein granted by such Pledgor.
16.4 Covenants of Holdings. Holdings covenants and agrees with
the Administrative Agent and the other Secured Parties that, from and after the
date of this Agreement until the Loans, any Reimbursement Obligations, and all
other Obligations then due and owing have been paid in full, no Letter of Credit
shall be outstanding and the Commitments shall have terminated:
(a) Holdings shall not conduct or otherwise engage, in any
business or operations other than (i) transactions contemplated by the Loan
Documents or the provision of administrative, legal, accounting and management
services to or on behalf of the Borrower or any of its Subsidiaries, (ii) the
ownership of the Capital Stock of the Borrower (or any successor thereto), and
the exercise of rights and performance of obligations in connection therewith,
(iii) the entry into, and exercise of rights and performance of obligations in
respect of, (A) the Transaction Documents and Senior Subordinated Notes
Documents to which Holdings is a party, this Guarantee and Collateral Agreement
and the other Loan Documents to which Holdings is a party, and any other
agreement to which Holdings is a party on the
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date hereof, in each case as amended, supplemented, waived or otherwise modified
from time to time, and any refinancings, refundings, renewals or extensions
thereof, (B) contracts and agreements with officers, directors and employees of
the Holdings or a Subsidiary thereof relating to their employment or
directorships, (C) insurance policies and related contracts and agreements, and
(D) equity subscription agreements, registration rights agreements, voting and
other stockholder agreements, engagement letters, underwriting agreements and
other agreements in respect of its equity securities or any offering, issuance
or sale thereof, (iv) the offering, issuance and sale of its equity securities,
(v) the filing of registration statements, and compliance with applicable
reporting and other obligations, under federal, state or other securities laws,
(vi) the listing of its equity securities and compliance with applicable
reporting and other obligations in connection therewith, (vii) the retention of
transfer agents, private placement agents, underwriters, counsel, accountants
and other advisors and consultants, (viii) the performance of obligations under
and compliance with its certificate of incorporation and by-laws, or any
applicable law, ordinance, regulation, rule, order, judgment, decree or permit,
including, without limitation, as a result of or in connection with the
activities of the Borrower and its Subsidiaries, (ix) the incurrence and payment
of its operating and business expenses and any taxes for which it may be liable,
and (x) other activities incidental or related to the foregoing. Holdings shall
not make any interest payment on the Subordinated Debentures With Warrants in
cash that may be made in kind.
(b) Holdings shall not own, lease, manage or otherwise operate
any properties or assets (other than in connection with the activities described
in Section 5.4.1 above), or incur, create, assume or suffer to exist any
Indebtedness or Guarantee Obligations of Holdings (other than such as may be
incurred, created or assumed or exist in connection with the activities
described in Section 5.4.1 above.
SECTION 17. REMEDIAL PROVISIONS
17.1 Certain Matters Relating to Accounts. (i) At any time and
from time to time after the occurrence and during the continuance of an Event of
Default, the Administrative Agent shall have the right to make test
verifications of the Accounts in any manner and through any medium that it
reasonably considers advisable, and the relevant Grantor shall furnish all such
assistance and information as the Administrative Agent may require in connection
with such test verifications. At any time and from time to time after the
occurrence and during the continuance of an Event of Default, upon the
Administrative Agent's reasonable request and at the expense of the relevant
Grantor, such Grantor shall cause independent public accountants or others
reasonably satisfactory to the Administrative Agent to furnish to the
Administrative Agent reports showing reconciliations, aging and test
verifications of, and trial balances for, the Accounts.
(ii) The Administrative Agent hereby authorizes each Grantor
to collect such Grantor's Accounts and the Administrative Agent may curtail or
terminate said authority at any time after the occurrence and during the
continuance of an Event of Default. If required by the Administrative Agent at
any time after the occurrence and during the continuance of an Event of Default,
any Proceeds constituting collections of such Accounts, when collected by such
Grantor, (i) shall be forthwith (and, in
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any event, within two Business Days) deposited by such Grantor in the exact form
received, duly indorsed by such Grantor to the Administrative Agent if required,
in the Collateral Proceeds Account established by such Grantor maintained under
the sole dominion and control of the Administrative Agent, subject to withdrawal
by the Administrative Agent for the account of the Secured Parties only as
provided in Section 6.5, and (ii) until so turned over, shall be held by such
Grantor in trust for the Administrative Agent and the other Secured Parties,
segregated from other funds of such Grantor. Each such deposit of Proceeds of
Accounts shall be accompanied by a report identifying in reasonable detail the
nature and source of the payments included in the deposit. All Proceeds
constituting collections of Accounts while held by the Collateral Account Bank
(or by any Guarantor in trust for the benefit of the Administrative Agent and
the other Secured Parties) shall continue to be collateral security for all of
the Obligations and shall not constitute payment thereof until applied as
hereinafter provided. At any time when an Event of Default has occurred and is
continuing, at the Administrative Agent's election, the Administrative Agent may
apply all or any part of the funds on deposit in the Collateral Proceeds Account
established by the relevant Grantor to the payment of the Obligations of such
Grantor then due and owing, such application to be made as set forth in Section
6.5 hereof. So long as no Event of Default has occurred and is continuing, the
funds on deposit in the Collateral Proceeds Account shall be remitted as
provided in Section 6.9 hereof. At any time when an Event of Default has
occurred and is continuing, at the Administrative Agent's request, each Grantor
shall deliver to the Administrative Agent all original and other documents
evidencing, and relating to, the agreements and transactions which gave rise to
such Grantor's Accounts, including, without limitation, all statements relating
to such Grantor's Accounts.
(iii) At any time and from time to time after the occurrence
and during the continuance of an Event of Default, at the Administrative Agent's
request, each Grantor shall deliver to the Administrative Agent all original and
other documents evidencing, and relating to, the agreements and transactions
which gave rise to such Grantor's Accounts, including, without limitation, all
original orders, invoices and shipping receipts.
(iv) General Fund Account. So long as no Event of Default has
occurred and is continuing, the Administrative Agent shall instruct the
Collateral Account Bank to promptly remit any funds on deposit in each Grantor's
Collateral Proceeds Account to such Grantor's General Fund Account. In the event
that an Event of Default has occurred and is continuing, the Administrative
Agent and the Grantors agree that the Administrative Agent, at its option, may
require that each Collateral Proceeds Account be established at The Chase
Manhattan Bank. Each Grantor shall have the right, at any time and from time to
time, to withdraw such of its own funds from its own General Fund Account, and
to maintain such balances in its General Fund Account, as it shall deem to be
necessary or desirable.
(v) Restructuring of Deposit Accounts. If (a) any Collateral
Proceeds Account is maintained at a Collateral Account Bank located in a state
within the United States in which Article 9 of the Uniform Commercial Code in
effect in such state has been expressly made applicable to (and only for so long
as it is applicable to) demand deposit accounts and all filings have been made
in such state
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which are necessary to perfect the Secured Parties' security interest in such
Collateral Proceeds Account or (b) after the Effective Date the relevant Grantor
demonstrates to the Administrative Agent, and the Administrative Agent in its
sole discretion agrees, that the costs associated with maintaining both a
Collateral Proceeds Account and a General Fund Account outweigh any benefits to
the Secured Parties in terms of any additional protection to their rights in
such Grantor's Collateral that could not be achieved with the use of a single
account, then upon the request of such Grantor, the Administrative Agent may
amend this Agreement to delete the requirement that a separate General Fund
Account be maintained and provide that such Grantor be entitled to withdraw
funds on deposit in such Collateral Proceeds Account at any time so long as no
Event of Default has occurred and is continuing.
17.2 Communications with Obligors; Grantors Remain Liable. (i)
The Administrative Agent in its own name or in the name of others may at any
time and from time to time after the occurrence and during the continuance of an
Event of Default communicate with obligors under the Accounts and parties to the
Contracts (in each case, to the extent constituting Collateral) to verify with
them to the Administrative Agent's satisfaction the existence, amount and terms
of any Receivables or Contracts.
(ii) Upon the request of the Administrative Agent at any time
after the occurrence and during the continuance of an Event of Default, each
Grantor shall notify obligors on such Grantor's Accounts and parties to such
Grantor's Contracts (in each case, to the extent constituting Collateral) that
such Accounts and such Contracts have been assigned to the Administrative Agent,
for the ratable benefit of the Secured Parties, and that payments in respect
thereof shall be made directly to the Administrative Agent.
(iii) Anything herein to the contrary notwithstanding, each
Grantor shall remain liable under each of such Grantor's Accounts to observe and
perform all the conditions and obligations to be observed and performed by it
thereunder, all in accordance with the terms of any agreement giving rise
thereto. Neither the Administrative Agent nor any Lender shall have any
obligation or liability under any Account (or any agreement giving rise thereto)
by reason of or arising out of this Agreement or the receipt by the
Administrative Agent or any other Secured Party of any payment relating thereto,
nor shall the Administrative Agent or any other Secured Party be obligated in
any manner to perform any of the obligations of any Grantor under or pursuant to
any Account (or any agreement giving rise thereto) to make any payment, to make
any inquiry as to the nature or the sufficiency of any payment received by it or
as to the sufficiency of any performance by any party thereunder, to present or
file any claim, to take any action to enforce any performance or to collect the
payment of any amounts which may have been assigned to it or to which it may be
entitled at any time or times.
17.3 Pledged Stock. (i) Unless an Event of Default
shall have occurred and be continuing and the Administrative Agent shall have
given notice to the relevant Pledgor of the Administrative Agent's intent to
exercise its corresponding rights pursuant to Section 6.3(b), each Pledgor shall
be permitted to receive all cash dividends paid in respect of the Pledged Stock
and all
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payments made in respect of the Pledged Notes, to the extent permitted in the
Credit Agreement, and to exercise all voting and corporate rights with respect
to the Pledged Stock; provided, however, that no vote shall be cast or corporate
right exercised or such other action taken (other than in connection with a
transaction expressly permitted by the Credit Agreement) which, in the
Administrative Agent's reasonable judgment, would materially impair the Pledged
Collateral or the related rights or remedies of the Secured Parties or which
would be inconsistent with or result in any violation of any provision of the
Credit Agreement, this Agreement or any other Loan Document.
(ii) If an Event of Default shall occur and be continuing and
the Administrative Agent shall give notice of its intent to exercise such rights
to the relevant Pledgor or Pledgors, (i) the Administrative Agent shall have the
right to receive any and all cash dividends, payments or other Proceeds paid in
respect of the Pledged Stock and make application thereof to the Obligations in
such order as the Administrative Agent may determine, and (ii) any or all of the
Pledged Stock shall be registered in the name of the Administrative Agent or its
nominee, and the Administrative Agent or its nominee may thereafter exercise (x)
all voting, corporate and other rights pertaining to such Pledged Stock at any
meeting of shareholders of the relevant Issuer or Issuers or otherwise and (y)
any and all rights of conversion, exchange, subscription and any other rights,
privileges or options pertaining to such Pledged Stock as if it were the
absolute owner thereof (including, without limitation, the right to exchange at
its discretion any and all of the Pledged Stock upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the corporate
structure of any Issuer, or upon the exercise by the relevant Pledgor or the
Administrative Agent of any right, privilege or option pertaining to such
Pledged Stock, and in connection therewith, the right to deposit and deliver any
and all of the Pledged Stock with any committee, depositary, transfer agent,
registrar or other designated agency upon such terms and conditions as the
Administrative Agent may reasonably determine), all without liability (other
than for its gross negligence or willful misconduct) except to account for
property actually received by it, but the Administrative Agent shall have no
duty to any Pledgor to exercise any such right, privilege or option and shall
not be responsible for any failure to do so or delay in so doing, provided that
the Administrative Agent shall not exercise any voting or other consensual
rights pertaining to the Pledged Stock in any way that would constitute an
exercise of the remedies described in Section 7 other than in accordance with
Section 7.
(iii) Each Pledgor hereby authorizes and instructs each Issuer
or Maker of any Pledged Securities pledged by such Pledgor hereunder to (i)
comply with any instruction received by it from the Administrative Agent in
writing that (x) states that an Event of Default has occurred and (y) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from such Pledgor, and each Pledgor agrees that each Issuer
or Maker shall be fully protected in so complying, and (ii) unless otherwise
expressly permitted hereby, pay any dividends or other payments with respect to
the Pledged Securities directly to the Administrative Agent.
17.4 Proceeds to be Turned Over To Administrative
Agent. In addition to the rights of the Administrative Agent and the other
Secured Parties specified in Section 6.1 with respect to payments
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of Accounts, if an Event of Default shall occur and be continuing, and the
Administrative Agent shall have instructed any Grantor to do so, all Proceeds
received by such Grantor consisting of cash, checks and other Cash Equivalent
items shall be held by such Grantor in trust for the Administrative Agent and
the other Secured Parties, segregated from other funds of such Grantor, and
shall, forthwith upon receipt by such Grantor, be turned over to the
Administrative Agent in the exact form received by such Grantor (duly indorsed
by such Grantor to the Administrative Agent, if required). All Proceeds received
by the Administrative Agent hereunder shall be held by the Administrative Agent
in the relevant Collateral Proceeds Account maintained under its sole dominion
and control. All Proceeds while held by the Administrative Agent in such
Collateral Proceeds Account (or by such Grantor in trust for the Administrative
Agent and the other Secured Parties) shall continue to be held as collateral
security for all the Obligations and shall not constitute payment thereof until
applied as provided in Section 6.5.
17.5 Application of Proceeds. It is agreed that if an Event of
Default shall occur and be continuing, any and all Proceeds of the relevant
Granting Party's Security Collateral received by the Administrative Agent
(whether from the relevant Granting Party or otherwise) shall be held by the
Administrative Agent for the benefit of the Secured Parties as collateral
security for the Obligations of the relevant Granting Party (whether matured or
unmatured), and/or then or at any time thereafter may, in the sole discretion of
the Administrative Agent, be applied by the Administrative Agent against the
Obligations of the relevant Granting Party then due and owing in the following
order of priority:
FIRST, to the payment of all reasonable costs and expenses
incurred by the Administrative Agent in connection with this Agreement,
the Credit Agreement, any other Loan Document or any of the Obligations
of the relevant Granting Party, including, without limitation, all
court costs and the reasonable fees and expenses of its agents and
legal counsel, and any other reasonable costs or expenses incurred in
connection with the exercise by the Administrative Agent of any right
or remedy under this Agreement, the Credit Agreement, or any other Loan
Document;
SECOND, to the ratable satisfaction of all other Obligations
of the relevant Granting Party; and
THIRD, to the relevant Granting Party or its successors or
assigns, or to whomsoever may be lawfully entitled to receive the same.
17.6 Code and Other Remedies. If an Event of Default shall
occur and be continuing, the Administrative Agent, on behalf of the Secured
Parties, may exercise, in addition to all other rights and remedies granted to
them in this Agreement and in any other instrument or agreement securing,
evidencing or relating to the Obligations, all rights and remedies of a secured
party under the Code or any other applicable law. Without limiting the
generality of the foregoing, to the extent permitted by applicable law, the
Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to
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below) to or upon any Granting Party or any other Person (all and each of which
demands, defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the
Security Collateral, or any part thereof, and/or may forthwith sell, lease,
assign, give option or options to purchase, or otherwise dispose of and deliver
the Security Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of the Administrative Agent or any other
Secured Party or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit or for
future delivery without assumption of any credit risk. The Administrative Agent
or any other Secured Party shall have the right upon any such public sale or
sales, and, to the extent permitted by law, upon any such private sale or sales,
to purchase the whole or any part of the Security Collateral so sold, free of
any right or equity of redemption in any Granting Party, which right or equity
is hereby waived or released. Each Granting Party further agrees, at the
Administrative Agent's request, to assemble the Security Collateral and make it
available to the Administrative Agent at places which the Administrative Agent
shall reasonably select, whether at such Granting Party's premises or elsewhere.
The Administrative Agent shall apply the net proceeds of any action taken by it
pursuant to this Section 6.6, after deducting all reasonable costs and expenses
of every kind incurred in connection therewith or incidental to the care or
safekeeping of any of the Security Collateral or in any way relating to the
Security Collateral or the rights of the Administrative Agent and the other
Secured Parties hereunder, including, without limitation, reasonable attorneys'
fees and disbursements, to the payment in whole or in part of the Obligations of
the relevant Granting Party, in the order of priority specified in Section 6.5
above, and only after such application and after the payment by the
Administrative Agent of any other amount required by any provision of law,
including, without limitation, Section 9-504(1)(c) of the Code, need the
Administrative Agent account for the surplus, if any, to any Granting Party. To
the extent permitted by applicable law, each Granting Party waives all claims,
damages and demands it may acquire against the Administrative Agent or any other
Secured Party arising out of the exercise by them of any rights hereunder,
except to the extent arising as a result of the gross negligence or willful
misconduct of the Administrative Agent or such other Secured Party. If any
notice of a proposed sale or other disposition of Collateral shall be required
by law, such notice shall be deemed reasonable and proper if given at least 10
days before such sale or other disposition.
17.7 Registration Rights. (i) If the Administrative
Agent shall determine to exercise its right to sell any or all of the Pledged
Stock pursuant to Section 6.6, and if in the reasonable opinion of the
Administrative Agent it is necessary or reasonably advisable to have the Pledged
Stock, or that portion thereof to be sold, registered under the provisions of
the Securities Act, the relevant Pledgor will use its reasonable best efforts to
cause the Issuer thereof to (i) execute and deliver, and use its best efforts to
cause the directors and officers of such Issuer to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts as may
be, in the opinion of the Administrative Agent, necessary or advisable to
register such Pledged Stock, or that portion thereof to be sold, under the
provisions of the Securities Act, (ii) use its best efforts to cause the
registration statement relating thereto to become effective and to remain
effective for a period of one year from the date of the first public offering of
such Pledged Stock, or that portion thereof to be sold, and (iii) make all
amendments thereto
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and/or to the related prospectus which, in the reasonable opinion of the
Administrative Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. Such Pledgor agrees to
cause such Issuer to comply with the provisions of the securities or "Blue Sky"
laws of any and all jurisdictions which the Administrative Agent shall
reasonably designate and to make available to its security holders, as soon as
practicable, an earnings statement (which need not be audited) which will
satisfy the provisions of Section 11(a) of the Securities Act.
(ii) Such Pledgor recognizes that the Administrative Agent may
be unable to effect a public sale of any or all such Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. Such
Pledgor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Administrative
Agent shall be under no obligation to delay a sale of any of the Pledged Stock
for the period of time necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so.
(iii) Such Pledgor agrees to use its best efforts to do or
cause to be done all such other acts as may be necessary to make such sale or
sales of all or any portion of such Pledged Stock pursuant to this Section 6.7
valid and binding and in compliance with any and all other applicable
Requirements of Law. Such Pledgor further agrees that a breach of any of the
covenants contained in this Section 6.7 will cause irreparable injury to the
Administrative Agent and the Lenders, that the Administrative Agent and the
Lenders have no adequate remedy at law in respect of such breach and, as a
consequence, that each and every covenant contained in this Section 6.7 shall be
specifically enforceable against such Pledgor, and to the extent permitted by
applicable law, such Pledgor hereby waives and agrees not to assert any defenses
against an action for specific performance of such covenants except for a
defense that no Event of Default has occurred under the Credit Agreement.
17.8 Waiver; Deficiency. Each Granting Party (other than the
Borrower) waives and agrees not to assert any rights or privileges which it may
acquire under Section 9-112 of the Code, to the extent permitted by applicable
law. Each Granting Party shall remain liable for any deficiency if the proceeds
of any sale or other disposition of the Security Collateral are insufficient to
pay its Obligations and the fees and disbursements of any attorneys employed by
the Administrative Agent or any other Secured Party to collect such deficiency.
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SECTION 18. THE ADMINISTRATIVE AGENT
18.1 Administrative Agent's Appointment as Attorney-in-Fact,
etc. (i) Each Granting Party hereby irrevocably constitutes and appoints the
Administrative Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of such Granting Party and in the
name of such Granting Party or in its own name, for the purpose of carrying out
the terms of this Agreement, to take any and all appropriate action and to
execute any and all documents and instruments which may be reasonably necessary
or desirable to accomplish the purposes of this Agreement to the extent
permitted by applicable law. Without limiting the generality of the foregoing,
at any time when an Event of Default has occurred and is continuing (in each
case to the extent permitted by applicable law), (x) each Pledgor hereby gives
the Administrative Agent the power and right, on behalf of such Pledgor, without
notice or assent by such Pledgor, to execute, in connection with any sale
provided for in Section 6.6 or 6.7, any indorsements, assessments or other
instruments of conveyance or transfer with respect to such Pledgor's Pledged
Collateral, and (y) each Grantor hereby gives the Administrative Agent the power
and right, on behalf of such Grantor, without notice to or assent by such
Grantor, to do any or all of the following:
(i) in the name of such Grantor or its own name, or otherwise,
take possession of and indorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under
any Account of such Grantor or with respect to any other Collateral of
such Grantor and file any claim or take any other action or proceeding
in any court of law or equity or otherwise deemed appropriate by the
Administrative Agent for the purpose of collecting any and all such
moneys due under any Account of such Grantor or with respect to any
other Collateral of such Grantor whenever payable;
(ii) in the case of any Copyright, Patent or Trademark
constituting Collateral of such Grantor, execute and deliver any and
all agreements, instruments, documents and papers as the Administrative
Agent may reasonably request to evidence the Administrative Agent's and
the Lenders' security interest in such Copyright, Patent or Trademark
and the goodwill and general intangibles of such Grantor relating
thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral of such Grantor, effect any repairs
or any insurance called for by the terms of this Agreement and pay all
or any part of the premiums therefor and the costs thereof; and
(iv) (i) direct any party liable for any payment under any of
the Collateral of such Grantor to make payment of any and all moneys
due or to become due thereunder directly to the Administrative Agent or
as the Administrative Agent shall direct; (ii) ask or demand for,
collect, receive payment of and receipt for, any and all moneys, claims
and other amounts due or to become due at any time in respect of or
arising out of any Collateral of such Grantor; (iii) sign and indorse
any invoices, freight or express bills, bills of lading, storage or
warehouse receipts,
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drafts against debtors, assignments, verifications, notices and other
documents in connection with any of the Collateral of such Grantor;
(iv) commence and prosecute any suits, actions or proceedings at law or
in equity in any court of competent jurisdiction to collect the
Collateral of such Grantor or any portion thereof and to enforce any
other right in respect of any Collateral of such Grantor; (v) defend
any suit, action or proceeding brought against such Grantor with
respect to any Collateral of such Grantor; (vi) settle, compromise or
adjust any such suit, action or proceeding and, in connection
therewith, to give such discharges or releases as the Administrative
Agent may deem appropriate; (vii) subject to any existing reserved
rights or licenses, assign any Copyright, Patent or Trademark
constituting Collateral of such Grantor (along with the goodwill of the
business to which any such Copyright, Patent or Trademark pertains),
for such term or terms, on such conditions, and in such manner, as the
Administrative Agent shall in its sole discretion determine; and (viii)
generally, sell, transfer, pledge and make any agreement with respect
to or otherwise deal with any of the Collateral of such Grantor as
fully and completely as though the Administrative Agent were the
absolute owner thereof for all purposes, and do, at the Administrative
Agent's option and such Grantor's expense, at any time, or from time to
time, all acts and things which the Administrative Agent deems
necessary to protect, preserve or realize upon the Collateral of such
Grantor and the Administrative Agent's and the other Secured Parties'
security interests therein and to effect the intent of this Agreement,
all as fully and effectively as such Grantor might do.
Anything in this Section 7.1(a) to the contrary notwithstanding, the
Administrative Agent agrees that it will not exercise any rights under the power
of attorney provided for in this Section 7.1(a) unless an Event of Default shall
have occurred and be continuing.
(ii) If any Granting Party fails to perform or comply with any
of its agreements contained herein, the Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
(iii) The reasonable expenses of the Administrative Agent
incurred in connection with actions undertaken as provided in this Section 7.1,
together with interest thereon at a rate per annum equal to the rate per annum
at which interest would then be payable on past due ABR Loans which are Term
Loans under the Credit Agreement, from the date of payment by the Administrative
Agent to the date reimbursed by the relevant Granting Party, shall be payable by
such Granting Party to the Administrative Agent on demand.
(iv) Each Granting Party hereby ratifies all that said
attorneys shall lawfully do or cause to be done by virtue hereof. All powers,
authorizations and agencies contained in this Agreement are coupled with an
interest and are irrevocable as to the relevant Granting Party until this
Agreement is terminated as to such Granting Party, and the security interests in
the Security Collateral of such Granting Party created hereby are released.
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18.2 Duty of Administrative Agent. The Administrative Agent's
sole duty with respect to the custody, safekeeping and physical preservation of
the Security Collateral in its possession, under Section 9-207 of the Code or
otherwise, shall be to deal with it in the same manner as the Administrative
Agent deals with similar property for its own account. Neither the
Administrative Agent, any other Secured Party nor any of their respective
officers, directors, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Security Collateral or for any delay in doing
so or shall be under any obligation to sell or otherwise dispose of any Security
Collateral upon the request of any Granting Party or any other Person or to take
any other action whatsoever with regard to the Security Collateral or any part
thereof. The powers conferred on the Administrative Agent and the other Secured
Parties hereunder are solely to protect the Administrative Agent's and the other
Secured Parties' interests in the Security Collateral and shall not impose any
duty upon the Administrative Agent or any other Secured Party to exercise any
such powers. The Administrative Agent and the other Secured Parties shall be
accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers, directors,
employees or agents shall be responsible to any Granting Party for any act or
failure to act hereunder, except for their own gross negligence or willful
misconduct.
18.3 Execution of Financing Statements. Pursuant to Section
9-402 of the Code and any other applicable law, each Granting Party authorizes
the Administrative Agent to file or record financing statements and other filing
or recording documents or instruments with respect to such Granting Party's
Security Collateral without the signature of such Granting Party in such form
and in such offices as the Administrative Agent reasonably determines
appropriate to perfect the security interests of the Administrative Agent under
this Agreement. A photographic or other reproduction of this Agreement shall be
sufficient as a financing statement or other filing or recording document or
instrument for filing or recording in any jurisdiction.
18.4 Authority of Administrative Agent. Each Granting Party
acknowledges that the rights and responsibilities of the Administrative Agent
under this Agreement with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any option,
voting right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement or any amendment, supplement or other
modification of this Agreement shall, as between the Administrative Agent and
the Secured Parties, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Administrative Agent and the Granting Parties the Administrative
Agent shall be conclusively presumed to be acting as agent for the Secured
Parties with full and valid authority so to act or refrain from acting, and no
Granting Party shall be under any obligation, or entitlement, to make any
inquiry respecting such authority.
18.5 Right Of Inspection. Upon reasonable written advance
notice to any Grantor and at reasonable intervals, or at any time and from time
to time after the occurrence and during the continuation of an Event of Default,
the Administrative Agent shall have reasonable access during
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normal business hours to all the books, correspondence and records of such
Granting Party, and the Administrative Agent and its representatives may examine
the same, and to the extent reasonable take extracts therefrom and make
photocopies thereof, and such Granting Party agrees to render to the
Administrative Agent, at such Granting Party's reasonable cost and expense, such
clerical and other assistance as may be reasonably requested with regard
thereto. The Administrative Agent and its representatives shall also have the
right, upon reasonable advance written notice to such Granting Party, to enter
during normal business hours into and upon any premises owned, leased or
operated by such Granting Party where any of such Granting Party's Inventory or
Equipment is located for the purpose of inspecting the same, observing its use
or otherwise protecting its interests therein.
SECTION 19. MISCELLANEOUS
19.1 Amendments in Writing. None of the terms or provisions of
this Agreement may be waived, amended, supplemented or otherwise modified except
by a written instrument executed by each affected Granting Party and the
Administrative Agent, provided that any provision of this Agreement imposing
obligations on any Granting Party may be waived by the Administrative Agent in a
written instrument executed by the Administrative Agent.
19.2 Notices. All notices, requests and demands to or upon the
Administrative Agent or any Granting Party hereunder shall be effected in the
manner provided for in subsection 11.2 of the Credit Agreement; provided that
any such notice, request or demand to or upon any Guarantor shall be addressed
to such Guarantor at its notice address set forth on Schedule 1, unless and
until such Guarantor shall change such address by notice to the Administrative
Agent given in accordance with subsection 11.2 of the Credit Agreement.
19.3 No Waiver by Course of Conduct; Cumulative Remedies.
Neither the Administrative Agent nor any other Secured Party shall by any act
(except by a written instrument pursuant to Section 8.1), delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Default or Event of Default. No failure to exercise,
nor any delay in exercising, on the part of the Administrative Agent or any
other Secured Party, any right, power or privilege hereunder shall operate as a
waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Administrative Agent or
any other Secured Party of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the Administrative
Agent or such other Secured Party would otherwise have on any future occasion.
The rights and remedies herein provided are cumulative, may be exercised singly
or concurrently and are not exclusive of any other rights or remedies provided
by law.
19.4 Enforcement Expenses; Indemnification. (i) Each
Guarantor agrees to pay or reimburse each Secured Party and the Administrative
Agent for all their respective reasonable costs and
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expenses incurred in collecting against such Guarantor under the guarantee
contained in Section 2 or otherwise enforcing or preserving any rights under
this Agreement against such Guarantor and the other Loan Documents to which such
Guarantor is a party, including, without limitation, the reasonable fees and
disbursements of one firm of counsel to the Secured Parties and the
Administrative Agent.
(ii) Each Guarantor agrees to pay, and to save the
Administrative Agent and the Secured Parties harmless from, (x) any and all
liabilities with respect to, or resulting from any delay in paying, any and all
stamp, excise, sales or other similar taxes which may be payable or determined
to be payable with respect to any of the Security Collateral or in connection
with any of the transactions contemplated by this Agreement and (y) any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement (collectively, the "indemnified liabilities"), in each case to the
extent the Borrower would be required to do so pursuant to Section 11.5 of the
Credit Agreement, and in any event excluding any taxes or other indemnified
liabilities arising from gross negligence or willful misconduct of the
Administrative Agent or any Secured Party.
(iii) The agreements in this Section 8.4 shall survive
repayment of the Obligations and all other amounts payable under the Credit
Agreement and the other Loan Documents.
19.5 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the Granting Parties, the Administrative
Agent and the Secured Parties and their respective successors and assigns;
provided that no Granting Party may assign, transfer or delegate any of its
rights or obligations under this Agreement without the prior written consent of
the Administrative Agent.
19.6 Set-Off. Each Guarantor hereby irrevocably authorizes the
Administrative Agent and each other Secured Party at any time and from time to
time without notice to such Guarantor, any other Guarantor or the Borrower, any
such notice being expressly waived by each Guarantor and by the Borrower, to the
extent permitted by applicable law, upon the occurrence and during the
continuance of an Event of Default under Section 9(a) of the Credit Agreement
and any amount remaining unpaid after it becomes due and payable by such
Guarantor hereunder, to set-off and appropriate and apply against any such
amount any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by the Administrative Agent or
such other Secured Party to or for the credit or the account of such Guarantor,
or any part thereof in such amounts as the Administrative Agent or such other
Secured Party may elect. The Administrative Agent and each other Secured Party
shall notify such Guarantor promptly of any such set-off and the application
made by the Administrative Agent or such other Secured Party of the proceeds
thereof; provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of the Administrative Agent
and each other Secured Party under this Section
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8.6 are in addition to other rights and remedies (including, without limitation,
other rights of set-off) which the Administrative Agent or such other Secured
Party may have.
19.7 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument.
19.8 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
19.9 Section Headings. The Section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
19.10 Integration. This Agreement and the other Loan Documents
represent the entire agreement of the Granting Parties, the Administrative Agent
and the other Secured Parties with respect to the subject matter hereof, and
there are no promises, undertakings, representations or warranties by the
Granting Parties, the Administrative Agent or any other Secured Party relative
to subject matter hereof not expressly set forth or referred to herein or in the
other Loan Documents.
19.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
19.12 Submission To Jurisdiction; Waivers. Each party hereto
hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any
judgement in respect thereof, to the non-exclusive general jurisdiction
of the courts of the State of New York, the courts of the United States
of America for the Southern District of New York, and appellate courts
from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
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(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such party at its address referred to in Section 8.2 or at
such other address of which the Administrative Agent (in the case of
any other party hereto) or the Borrower (in the case of the
Administrative Agent) shall have been notified pursuant thereto;
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction; and
(v) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section any punitive damages.
19.13 Acknowledgements. Each Guarantor hereby acknowledges
that:
(i) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents
to which it is a party;
(ii) neither the Administrative Agent nor any other Secured
Party has any fiduciary relationship with or duty to any Guarantor
arising out of or in connection with this Agreement or any of the other
Loan Documents, and the relationship between the Guarantors, on the one
hand, and the Administrative Agent and the Secured Parties, on the
other hand, in connection herewith or therewith is solely that of
debtor and creditor; and
(iii) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Secured Parties or among the Guarantors
and the Secured Parties.
19.14 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
19.15 Additional Granting Parties. Each new Domestic
Subsidiary of the Borrower that is required to become a party to this Agreement
pursuant to Section 8.15 of the Credit Agreement shall become a Granting Party
for all purposes of this Agreement upon execution and delivery by such
Subsidiary of an Assumption Agreement in the form of Annex 1 hereto.
19.16 Releases. (i) At such time as the Loans, the
Reimbursement Obligations and the other Obligations then due and owing shall
have been paid in full, the Commitments have been terminated and no Letters of
Credit shall be outstanding, all Security Collateral shall be released from the
Liens created hereby, and this Agreement and all obligations (other than those
expressly stated to
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survive such termination) of the Administrative Agent and each Granting Party
hereunder shall terminate, all without delivery of any instrument or performance
of any act by any party, and all rights to the Security Collateral shall revert
to the Granting Parties. At the request and sole expense of any Granting Party
following any such termination, the Administrative Agent shall deliver to such
Granting Party any Security Collateral held by the Administrative Agent
hereunder, and execute and deliver to such Granting Party such documents
(including without limitation UCC termination statements) as such Granting Party
shall reasonably request to evidence such termination.
(ii) In connection with the sale or other disposition of all
of the Capital Stock of any Guarantor or the sale or other disposition of
Security Collateral permitted under the Credit Agreement and the release of such
Guarantor from its Guarantee or the release of the Security Collateral subject
to such sale or other disposition, the Borrower shall deliver to the
Administrative Agent, a written request for release identifying such Guarantor
or the relevant Security Collateral and the terms of the sale or other
disposition in reasonable detail, including the price thereof and any expenses
in connection therewith, together with a certification by the Borrower stating
that such transaction is in compliance with the Credit Agreement and the other
Loan Documents. The Administrative Agent shall execute and deliver to the
relevant Granting Party (at the sole cost and expense of such Granting Party)
all releases or other documents (including without limitation UCC termination
statements) necessary or reasonably desirable for the release of the Liens
created hereby on such Security Collateral as such Granting Party may reasonably
request.
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IN WITNESS WHEREOF, each of the undersigned has caused this
Guarantee and Collateral Agreement to be duly executed and delivered as of the
date first above written.
TELEX COMMUNICATIONS, INC.
By: ____________________________
Name:
Title
TELEX COMMUNICATIONS GROUP, INC.
By: ____________________________
Name:
Title
TCI HOLDINGS CORP.
By: ____________________________
Name:
Title
Acknowledged and Agreed to as
of the date hereof by:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By: _______________________________
Name:
Title:
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Schedule 1
NOTICE ADDRESSES OF GUARANTORS
Telex Communications Group, Inc.
c/o Telex Communications, Inc.
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
TCI Holdings Corp.
c/o Telex Communications, Inc.
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with Copies to:
Greenwich Street Capital Partners, Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
re: Telex Communications Group, Inc.
Attention: Xxxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
180
Schedule 2
DESCRIPTION OF PLEDGED SECURITIES
PLEDGED STOCK:
Stock Certificate
Issuer Class of Stock No. No. of Shares
------------------------------------- -------------- ----------------- -------------
Telex Communications, Inc. Common 2 500
Telex Communications (SEA) PTE, Ltd. Common 5 130,000(1)
Telex Communications (U.K.) Ltd. Common 4 3,250
Telex Communications, Ltd. Common C-2 6,500
TCI Holdings Corp. Common 2 325
----------
1. Notwithstanding the delivery of a stock certificate representing all of
the outstanding shares of common stock of Telex Communications (SEA)
PTE, Ltd., Telex has not pledged more than 65% of the common stock of
Telex Communications (SEA) PTE, Ltd. hereunder.
181
Schedule 3
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE
OFFICE OR SOLE PLACE OF BUSINESS
Granting Party Location
-------------- --------
Telex Communications Group, Inc. Jurisdiction of Organization:
Delaware
Chief Executive Office:
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telex Communications, Inc. As above.
TCI Holdings Corp. As above.
182
Schedule 4
LOCATION OF INVENTORY AND EQUIPMENT
Granting Party Locations
-------------- ---------
Telex Communications Group, Inc. None
Telex Communications, Inc.
XXX Xxxxxxxx Xxxx. Xxxx
000
Schedule 5
PATENTS AND PATENT LICENSES
TRADEMARKS AND TRADEMARK LICENSES
184
Schedule 6
EXISTING PRIOR LIENS
I. Real Property Liens
A. 0000 Xxxxxxx Xxx. S., Bloomington, Hennepin County, MN
1. Subject to utility and drainage easements as shown on the
recorded plat at Document No. 1093227 (per recital on Certificate of Title).
2. Subject to an easement over the south 12 feet for driveway
purposes as shown in Deed Document No. 226740, Files of Registrar of Titles, and
together with an easement for driveway purposes as shown in Deed Document No.
28103, Files of Registrar of Titles (per recital on Certificate of Title).
3. Easement for storm sewer purposes in favor of the Village
of Bloomington created in Quit Claim Deeds dated February 27, 1957, filed May
15, 1957 as Document No. 529463, and dated February 14, 1957, filed August 2,
1957 as Document No. 535893.
4. Final Certificates dated September 15, 1958, filed October
30, 1958 as Document No. 574454, and dated February 14, 1962, filed April 3,
1962 as Document No. 687375.
5. Matters shown on the survey prepared by Westwood
Professional Service, Inc. on or about April 25, 1997.
6. Unrecorded Lease Agreement, dated July 5, 1988, between
Telex Communications, Inc. as lessor and Xxxxxxx Outdoor Advertising, Inc. as
Lessee.
7. Unrecorded Building Option and Lease Agreement, dated June
19, 1992, between Telex Communications, Inc. as lessor and SMSA Limited
Partnership as tenant.
X. Xxxx First St., Blue Earth, Faribault County, MN
1. Right to construct and maintain temporary snow fences in
favor of the State of Minnesota pursuant to Final Certificate dated September 9,
1932, filed September 12, 1932 in Book 88 of Deeds, Page 604.
2. Matters shown on the survey prepared by Westwood
Professional Service, Inc. on or about April 22, 1997.
000
X. Xxxxxx Xxxx, Xxx Xxxxx Xxxxx and Southcross Drive, Burnsville,
Dakota County, MN
1. Easement for public utility and roadway purposes in favor of
the City of Burnsville dated March 7, 1985, filed March 19, 1985 as Document No.
145169.
2. Rights of the public in that portion of the subject property
embraced within County State Aid Highway No. 42.
3. Matters shown on the survey prepared by Westwood
Professional Service, Inc. on or about April 23, 1997.
D. 0000 Xxxx 00xx Xxxxxx, Xxxxxxx, XxXxxx Xxxxxx, XX
1. Reservation of utility easements in vacated streets and
avenues in favor of the City of Glencoe as contained in Resolutions filed
December 7, 1961, in Book 48 of Misc. Page 53, December 7, 1961 in Book 48 of
Misc., Page 54, and filed June 8, 1967 in Book 55 of Misc., Page 550.
2. Terms and conditions of Easement Agreement dated September
21, 1979, filed September 24, 1979 in Book 85 of Misc., page 79.
3. Matters shown on the survey prepared by Westwood
Professional Service, Inc. on or about April 25, 1997.
E. 000 Xxxxxxxxxxx Xxxxxx, LeSueur, XxXxxxx County, MN
1. Terms and conditions of Grant of Easement dated October 22,
1984, filed October 29, 1984 in Book 209 of Deeds, Page 134.
2. Matters shown on the survey prepared by Westwood
Professional Service, Inc. on or about April 16, 1997.
3. Unrecorded Lease, dated August 26, 1996, between Telex
Communications, Inc. as landlord and Xxxxxx Corporation d/b/a Great Papers, a
Minnesota corporation, as tenant.
F. 0000 Xxxxxxxxxx Xxxxx XX, Xxxxxxxxx, Xxxxxxx Xxxxxx, XX
1. Utility easement as shown on the recorded plat of Xxxx
Xxxxxxxx Industrial Park.
2. Terms and conditions of and easements created in instrument
dated October 4, 1982, filed October 4, 1982 in Book N-4 of Misc. Records, Page
716 as Document No. 447119, as
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186
modified by the provisions contained in Warranty Deed dated October 4, 1982,
filed October 4, 1982 in Book 382 of Deeds, Page 949 as Document No. 447163.
3. Matters shown on the survey prepared by Westwood
Professional Service, Inc. on or about April 25, 1997.
G. 0000 Xxxxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxx Xxxxxx, XX
1. Easement for Right-of-Way to Lincoln Telephone & Telegraph
Company dated September 3, 1948, recorded September 23, 1948 in Book 35, Page
498, records of Lancaster County, Nebraska.
2. Easement to City of Lincoln, Nebraska dated February 23,
1954 recorded March 13, 1954 in Book 51, Page 69, records of Lancaster County,
Nebraska.
3. Right-of-Way Easement to River Public Power District dated
March 5, 1956 recorded April 24, 1956 in Book 59, Page 504; conveyed to Nebraska
Public Power District by Corporate Quitclaim Deed dated November 25, 1970,
recorded December 21, 1970 as Instrument number 70-14031, records of Lancaster
County, Nebraska.
4. Pipe Line Easement to Western Power & Gas Company dated
March 8, 1962 recorded April 23, 1962 in Book 87, Page 248, records of Lancaster
County, Nebraska.
5. Terms and conditions of Agreement by and between City of
Lincoln, Lancaster County, Nebraska, and Western Power & Gas Company, with
reference to Easements filed at Book 51, Page 69, and Book 87, Page 248; dated
June 18, 1962, recorded June 22, 1962 in Book 88, Page 91, records of Lancaster
County, Nebraska.
6. Easement for Electric Lines to Consumers Public Power
District dated October 5, 1962 recorded November 19, 1962 in Book 90, Page 85,
records of Lancaster County, Nebraska.
7. Easement for Electric Lines of Underground Electric to
Lincoln Electric System, Lincoln Telephone & Telegraph Company, dated April 21,
1983 recorded June 29, 1983 as Instrument Number 83-12246, records of Lancaster
County, Nebraska.
8. Ingress and Egress Restrictions shown in Quitclaim Deed from
the County of Lancaster to the State of Nebraska, dated August 19, 1980 recorded
December 3, 1980 as Instrument Number 80-25116, records of Lancaster County,
Nebraska.
9. Any adverse claim based upon the assertion that: (a) some
portion of the land has been created by artificial means, or has accreted to
such portion so created, or (b) some portion of the
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187
land has been brought within the boundaries thereof by any avulsive movement of
the adjacent river, or has been formed by any accretion to any such portion.
Any decrease in area, if any, of the land by erosion and the
consequences of any future change in the location of the adjacent river.
10. Terms and conditions of Notation pursuant to 40 C.F.R.
Subpart G executed by Telex Communications, Inc. dated January 9, 1990, recorded
January 11, 1990 as Instrument Number 90-1098, records of Lancaster County,
Nebraska.
11. Matters shown on the survey prepared by Xxxx Engineering,
Inc. on or about April 29, 1997.
II. UCC Liens
See attached chart.
4
188
Schedule 7
ACCOUNTS
[To come]
189
Schedule 8
CONTRACTS
None.
190
EXHIBIT C TO
CREDIT AGREEMENT
FORM OF PATENT AND TRADEMARK SECURITY AGREEMENT
PATENT AND TRADEMARK SECURITY AGREEMENT, dated as of May __,
1997, made by [Telex Communications, Inc., a Delaware corporation ] [name of
Domestic Subsidiary of the Borrower] (the "Grantor"), in favor of The
Chase Manhattan Bank, a New York banking corporation ("Chase"), as
administrative agent (in such capacity, the "Administrative Agent") and
Xxxxxx Xxxxxxx Senior Funding, Inc. ("Xxxxxx Xxxxxxx"), as Documentation
Agent (in such capacity, the "Documentation Agent") for the banks and
other financial institutions (the "Lenders") from time to time parties
to the Credit Agreement, dated as of May __, 1997 (as amended, waived,
supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Grantor (as successor by assumption to GST
Acquisition Corp. upon the effectiveness of the Telex Assumption Agreement (as
defined herein) the Lenders and the Administrative Agent and Xxxxxx Xxxxxxx.
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make extensions of credit to the Borrower (as defined
therein) upon the terms and subject to the conditions set forth therein; and
WHEREAS, it is a condition to the obligation of the Lenders to
make their respective extensions of credit to the Borrower under the Credit
Agreement that the Grantor shall execute and deliver this Agreement to the
Administrative Agent for the ratable benefit of the Secured Parties (as defined
below);
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent and the Lenders to enter into the Credit Agreement and
to induce the Lenders to make their respective extensions of credit to the
Borrower thereunder, the Grantor hereby agrees with the Administrative Agent,
for the ratable benefit of the Secured Parties, as follows:
3. Defined Terms. 3.1 Unless otherwise defined herein,
capitalized terms which are defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
3.2 The following terms shall have the following meanings:
"Agreement": this Patent and Trademark Security Agreement, as
the same may be amended, supplemented, waived or otherwise modified
from time to time.
191
"Code": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Collateral": as defined in Section 2 of this Agreement.
"Default": a "Default" as defined in the Credit Agreement.
"Event of Default": an "Event of Default" as defined in the
Credit Agreement.
"General Intangibles": as defined in Section 9-106 of the
Code, including, without limitation, all Patents and Trademarks now or
hereafter owned by the Grantor to the extent such Patents and
Trademarks would be included in General Intangibles under the Code.
"Loan Documents": the collective reference to the "Loan
Documents" as defined in the Credit Agreement.
"Loans": the collective reference to the "Loans" as defined in
the Credit Agreement.
"Obligations": the Obligations (as defined in the Guarantee
and Collateral Agreement) of the Grantor.
"Patent Licenses": all United States written license
agreements of the Grantor with any Person who is not an Affiliate or
Subsidiary of the Grantor in connection with any of the Patents or such
other Person's patents, whether the Grantor is a licensor or a licensee
under any such agreement, including, without limitation, the license
agreements listed on Schedule II hereto, subject, in each case, to the
terms of such license agreements, and the right to prepare for sale,
sell and advertise for sale, all Inventory (as defined in the Guarantee
and Collateral Agreement) now or hereafter covered by such licenses.
"Patents": all of the Grantor's right, title and interest in
and to all United States patents, patent applications and patentable
inventions and all reissues and extensions thereof, including, without
limitation, all patents and patent applications identified in Schedule
II hereto, and including, without limitation, (a) all inventions and
improvements described and claimed therein, and patentable inventions,
(b) the right to xxx or otherwise recover for any and all past, present
and future infringements and misappropriations thereof, (c) all income,
royalties, damages and other payments now and hereafter due and/or
payable with respect thereto (including, without limitation, payments
under all licenses entered into in connection therewith, and damages
and payments for past or future infringements thereof), and (d) all
other rights corresponding thereto in the United States and all
reissues, divisions, continuations, continuations-in-part, substitutes,
renewals, and extensions thereof, all improvements thereon, and all
other rights of any kind
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192
whatsoever of the Grantor accruing thereunder or pertaining thereto
(Patents and Patent Licenses being, collectively, the "Patent
Collateral").
"Proceeds": as defined in Section 9-306(1) of the Code.
"Revolving Credit Commitments": the collective reference to
the "Revolving Credit Commitments" as defined in the Credit Agreement.
"Secured Parties": the collective reference to the
Administrative Agent, the Lenders (including, without limitation, the
Issuing Lender and the Swing Line Lender), any Affiliate of any Lender
which has entered into any Interest Rate Protection Agreement or
Permitted Hedging Arrangement with the Borrower or any of its
Subsidiaries, and their respective successors and assigns.
"Trademark Licenses": all United States written license
agreements of the Grantor with any Person who is not an Affiliate or
Subsidiary of the Grantor in connection with any of the Trademarks or
such other Person's names or trademarks, whether the Grantor is a
licensor or a licensee under any such agreement, including, without
limitation, the license agreements listed on Schedule I hereto,
subject, in each case, to the terms of such license agreements, and the
right to prepare for sale, sell and advertise for sale, all Inventory
(as defined in the Guarantee and Collateral Agreement) now or hereafter
covered by such licenses.
"Trademarks": all of the Grantor's right, title and interest
in and to all United States trademarks, service marks, trade names,
trade dress or other indicia of trade origin or business identifiers,
trademark and service xxxx registrations, and applications for
trademark or service xxxx registrations (except for "intent to use"
applications for trademark or service xxxx registrations filed pursuant
to Section 1(b) of the Xxxxxx Act, 15 U.S.C. Section 1051, unless and
until an Amendment to Allege Use or a Statement of Use under Sections
1(c) and 1(d) of said Act has been filed), and any renewals thereof,
including, without limitation, each registration and application
identified in Schedule I hereto, and including, without limitation, (a)
the right to xxx or otherwise recover for any and all past, present and
future infringements and misappropriations thereof, (b) all income,
royalties, damages and other payments now and hereafter due and/or
payable with respect thereto (including, without limitation, payments
under all licenses entered into in connection therewith, and damages
and payments for past or future infringements thereof), and (c) all
other rights corresponding thereto in the United States and all other
rights of any kind whatsoever of the Grantor accruing thereunder or
pertaining thereto, together in each case with the goodwill of the
business connected with the use of, and symbolized by, each such
trademark, service xxxx, trade name, trade dress or other indicia of
trade origin or business identifiers (Trademarks and Trademark Licenses
being, collectively, the "Trademark Collateral").
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193
(b) The words "hereof," "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, and section and
paragraph references are to this Agreement unless otherwise specified.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(d) Where the context requires, terms relating to the
Collateral or any part thereof, when used in relation to the Grantor, shall
refer to the Grantor's Collateral or the relevant part thereof.
4. Grant of Security Interest. The Grantor hereby grants,
subject to existing licenses granted by the Grantor in the ordinary course of
business with respect to the Collateral (as hereinafter defined), to the
Administrative Agent for the ratable benefit of the Secured Parties a security
interest in all of the following property now owned or at any time hereafter
acquired by the Grantor or in which the Grantor now has or at any time in the
future may acquire any right, title or interest (collectively, the
"Collateral"), as collateral security for the prompt and complete payment and
performance when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations of the Grantor:
(a) all Patents;
(b) all Patent Licenses;
(c) all Trademarks;
(d) all Trademark Licenses;
(e) all General Intangibles connected with the use of or
symbolized by the Trademarks and Patents; and
(f) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing and all collateral security
and guarantees given by any Person with respect to any of the
foregoing;
provided, that the foregoing grant of a security interest with respect
to General Intangibles, Patent Licenses and Trademark Licenses shall not include
a security interest in, and the Collateral shall not include, any Patent License
or Trademark License with or issued by Persons other than a Subsidiary of the
Grantor that would otherwise be included in the Collateral to the extent that
the grant by such Grantor of such security interest is prohibited by the terms
and provisions of the written agreement or document or instrument creating or
evidencing such license or permit or Patent License or Trademark License, or
gives the other party thereto the right to terminate such Patent License or
Trademark License in the event of the grant of a security interest with respect
thereto. All references in this Agreement to
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194
any of the property described in clauses (i) through (vi) of the preceding
sentence, or to any Proceeds thereof, shall be deemed to be references to such
property or Proceeds to the extent such property or Proceeds constitutes
Collateral.
5. Representations and Warranties. The Grantor hereby
represents and warrants to the Administrative Agent on behalf of the Secured
Parties that:
5.1 Power and Authority. As of the date hereof, the Grantor
has the corporate power and authority, and the legal right, to make,
deliver and perform its obligations under, and to grant the security
interest in the Trademark Collateral and the Patent Collateral to the
extent provided in, and pursuant to, this Agreement and has taken all
necessary corporate action to authorize the execution, delivery and
performance of, and grant of the security interest in the Trademark
Collateral and the Patent Collateral to the extent provided in, and
pursuant to, this Agreement.
5.2 Title; No Other Liens. As of the date hereof, except for
the Liens granted to the Administrative Agent, for the benefit of the
Secured Parties, pursuant to this Agreement and the other Liens
permitted to exist on the Collateral pursuant to the Loan Documents
(including, without limitation, any Liens permitted to exist on the
Collateral pursuant to subsection 8.3 of the Credit Agreement), the
Grantor is (or, in the case of after-acquired Collateral, will be) the
sole, legal and beneficial owner of the entire right, title and
interest in and to the material Trademarks set forth on Schedule I
hereto and the material Patents set forth in Schedule II hereto free
and clear of any and all Liens. As of the date hereof, except as set
forth on Schedule III hereto, no security agreement, financing
statement or other public notice similar in effect with respect to all
or any part of the Collateral is on file or of record in any public
office (including, without limitation, the United States Patent and
Trademark Office), except such as may have been filed in favor of the
Administrative Agent, for the benefit of the Secured Parties, pursuant
to this Agreement or in respect of such Liens as may be permitted
pursuant to the Loan Documents (including, without limitation, any
Liens permitted to exist on the Collateral pursuant to subsection 8.3
of the Credit Agreement).
5.3 Perfected First Priority Liens. (a) As of the date hereof,
this Agreement is effective to create, as collateral security for the
Obligations, valid and enforceable Liens on the Collateral in favor of
the Administrative Agent, for the benefit of the Secured Parties,
except as enforceability may be affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.
(b) As of the date hereof, except with respect to Liens upon
Patents and Trademarks and Patent Licenses and Trademark Licenses,
which Liens, to the extent not otherwise perfected by the filing of
financing statements under the Code in accordance herewith, would in
the case of
5
195
Patents and Trademarks listed in Schedules I and II hereto, or in the
case of Patent Licenses and Trademark Licenses listed in Schedules I
and II hereto may be perfected upon the filing, acceptance and
recordation thereof in the United States Patent and Trademark Office,
upon filing of the financing statements delivered to the Administrative
Agent by the Grantor on the Effective Date in the jurisdictions listed
on Schedule 5.14 to the Credit Agreement (which financing statements
are in proper form for filing in such jurisdictions) (and the recording
of this Agreement in the United States Patent and Trademark Office, and
the making of filings after the Effective Date in any other
jurisdiction in the United States as may be necessary under any
Requirement of Law) the Liens created pursuant to this Agreement will
constitute valid and perfected Liens on the Collateral in the United
States in favor of the Administrative Agent for the benefit of the
Secured Parties, which Liens will be prior to all other Liens of all
other Persons with respect to the Collateral, except for Liens
permitted pursuant to the Loan Documents (including, without
limitation, those permitted to exist pursuant to subsection 8.3 of the
Credit Agreement), and which Liens are enforceable as such against all
creditors of and purchasers (except to the extent that the recording of
an assignment or other transfer of title to the Administrative Agent in
the United States Patent and Trademark Office may be necessary for such
enforceability) from the Grantor, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law) or by an implied covenant of good
faith and fair dealing.
5.4 Consents. No consent of any party (other than the
Grantor) to any material Patent License or material Trademark License
constituting Collateral is required, or purports to be required, to be
obtained by or on behalf of the Grantor in connection with the
execution, delivery and performance of this Agreement that has not been
obtained. Each Patent License and Trademark License constituting
Collateral is in full force and effect and constitutes a valid and
legally enforceable obligation of the Grantor and (to the knowledge of
the Grantor) each other party thereto except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditor's rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law) or by an implied covenant of good
faith and fair dealing and except to the extent the failure of any such
Patent License or Trademark License constituting Collateral to be in
full force and effect or valid or legally enforceable would not be
reasonably expected, in the aggregate, to have a material adverse
effect on the value of the Collateral (as such term is defined in the
Credit Agreement). No consent or authorization of, filing with or other
act by or in respect of any Governmental Authority is required in
connection with the execution, delivery, performance, validity or
enforceability of any of the Patent Licenses or Trademark Licenses
constituting Collateral by any party thereto other than those which
have been duly obtained, made or performed and are in full force and
effect and those the failure of which to make or obtain would not be
reasonably expected, in the aggregate, to have a material adverse
effect on the value of the Collateral (as such term is defined in the
Credit Agreement). Neither such Grantor nor (to the knowledge of
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196
such Grantor) any other party to any Patent License or Trademark
License constituting Collateral is in default in the performance or
observance of any of the terms thereof, except for such defaults as
would not reasonably be expected, in the aggregate, to have a material
adverse effect on the value of the Collateral (as such term is defined
in the Credit Agreement). Except for rights reserved in favor of the
United States government, as required under law, the right, title and
interest of the Grantor in, to and under each Patent License and
Trademark License constituting Collateral are not subject to any
defense, offset, counterclaim or claim which would be reasonably
expected, either individually or in the aggregate, to have a material
adverse effect on the value of the Collateral (as such term is defined
in the Credit Agreement).
5.5 Schedules I and II are Complete; All Filings Have Been
Made. Set forth in Schedules I and II is a complete and accurate list
of all material Trademarks and material Patents owned by the Grantor as
of the date hereof. As of the date hereof, the Grantor will have made
all necessary filings to protect and maintain its interest in the
Trademarks and Patents set forth in Schedules I and II, including,
without limitation, all necessary filings and payments of all
maintenance fees, in the United States Patent and Trademark Office to
the extent such Trademarks and Patents are material to the Grantor's
business. Set forth in Schedules I and II is a complete and accurate
list of all of the material Trademark Licenses and material Patent
Licenses owned by the Grantor as of the date hereof.
5.6 The Trademarks and Trademark Licenses are Subsisting and
Not Adjudged Invalid. As of the date hereof, each trademark
registration and trademark application of the Grantor set forth in
Schedule I is subsisting as of the date hereof, and has not been
adjudged invalid, unregisterable or unenforceable, in whole or in part,
and, to the best of such Grantor's knowledge, is valid, registrable and
enforceable. As of the date hereof, each of the Trademark Licenses set
forth in Schedule I is validly subsisting and has not been adjudged
invalid or unenforceable, in whole or in part, and, to the best of such
Grantor's knowledge, is valid and enforceable. As of the date hereof,
each Grantor has notified the Administrative Agent in writing of all
uses of any item of Trademark Collateral material to such Grantor's
business of which such Grantor is aware which could reasonably be
expected to lead to such item becoming invalid or unenforceable,
including unauthorized uses by third parties and uses which were not
supported by the goodwill of the business connected with such
Collateral.
5.7 The Patent and Patent Licenses are Subsisting and Not
Adjudged Invalid. As of the date hereof, each Patent and patent
application of the Grantor set forth in Schedule II is subsisting and
has not been adjudged invalid, unpatentable or unenforceable, in whole
or in part, and, to the best of such Grantor's knowledge, is valid,
patentable and enforceable. As of the date hereof, each of the Patent
Licenses set forth in Schedule II is validly subsisting and has not
been adjudged invalid or unenforceable, in whole or in part, and, to
the best of such Grantor's knowledge, is valid and enforceable. As of
the date hereof, the Grantor has notified the Administrative Agent in
writing of all uses of any item of Patent Collateral material to such
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197
Grantor's business of which such Grantor is aware which could
reasonably be expected to lead to such item becoming invalid or
unenforceable.
5.8 No Previous Assignments or Releases. As of the date
hereof, the Grantor has not made an agreement constituting a present or
future assignment, sale, transfer or encumbrance of any of the
Collateral (except for any such assignment, sale, transfer or
encumbrance permitted under the Loan Documents). Except as permitted by
the Loan Documents or as required by law, the Grantor has not granted
any license, shop right, release, covenant not to xxx, or non-assertion
assurance to any Person with respect to any material part of the
Collateral which would have a Material Adverse Effect.
5.9 Proper Statutory Notice. The Grantor has marked its
products with the trademark registration symbol (R), the numbers of all
appropriate patents, the common law trademark symbol (TM), or the
designation "patent pending," as the case may be, to the extent that it
is reasonably and commercially practicable.
5.10 No Knowledge of Claims Likely to Arise. Except for the
Trademark Licenses and Patent Licenses listed in Schedules I and II
hereto, the Grantor has no knowledge of the existence of any right or
any claim (other than as permitted by this Agreement or the Loan
Documents) that is likely to be made under or against any item of
Collateral contained on Schedules I and II which would have a Material
Adverse Effect.
5.11 No Knowledge of Existing or Threatened Claims. No claim
has been made and is continuing or, to the Grantor's knowledge,
threatened that the use by such Grantor of any item of Collateral is
invalid or unenforceable or that the use by such Grantor of any
Collateral does or may violate the rights of any Person, which would
have a Material Adverse Effect. To the Grantor's knowledge, there is
currently no infringement or unauthorized use of any item of Collateral
contained on Schedules I and II hereto which would have a Material
Adverse Effect.
The Grantor agrees that the foregoing representations and
warranties shall be deemed to have been made by the Grantor on and as of each
date on which an extension of credit is made by the Lenders to the Borrower
under the Credit Agreement, in each case as though made on and as of each such
date (or, if any such representation or warranty is expressly stated to have
been made as of a specific date, as of such specific date).
6. Covenants. The Grantor covenants and agrees with the
Administrative Agent and the other Secured Parties that, from and after the date
of this Agreement until the payment in full of the Loans, the Reimbursement
Obligations and to the extent then due and owing, all other Obligations, the
termination of the Revolving Credit Commitments and the expiration, termination
or return to the Issuing Lender of any Letters of Credit:
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6.1 Further Documentation; Pledge of Instruments and Chattel
Paper. At any time and from time to time, upon the written request of
the Administrative Agent or the Grantor, as the case may be, and at the
sole expense of such Grantor, such Grantor or the Administrative Agent,
as the case may be, will promptly and duly execute and deliver such
further instruments and documents and take such further action as the
Administrative Agent or the Grantor, as the case may be, may reasonably
request for the purpose of obtaining or preserving the full benefits of
this Agreement and of the rights and powers herein granted, including,
without limitation, the filing of any financing or continuation
statements under the Uniform Commercial Code in effect in any
jurisdiction with respect to the Liens created hereby. The Grantor also
hereby authorizes the Administrative Agent to file any such financing
or continuation statement without the signature of the Grantor to the
extent permitted by applicable law. A carbon, photographic or other
reproduction of this Agreement shall be sufficient as a financing
statement for filing in any jurisdiction. The Administrative Agent
agrees to notify the Grantor and the Grantor agrees to notify the
Administrative Agent of any financing or continuation statement filed
by it pursuant to this Section 4(a), provided that any failure to give
any the notice shall not affect the validity or effectiveness of any
the filing.
6.2 Indemnification and Expenses. The Grantor agrees to pay,
and to save the Administrative Agent, the other Secured Parties and
their respective agents, officers, directors and successors harmless
from, any and all liabilities and reasonable costs and expenses
(including, without limitation, reasonable legal fees and expenses) (i)
with respect to, or resulting from, any delay by the Grantor in
complying with any material Requirement of Law applicable to any of the
Collateral, or (ii) in connection with any of the transactions
contemplated by this Agreement, provided that such indemnity shall not,
as to the Administrative Agent, any of the other Secured Parties or any
of their respective agents, officers, directors and successors, be
available to the extent that such liabilities, costs and expenses
resulted from the gross negligence or willful misconduct of any of the
same. In any suit, proceeding or action brought by the Administrative
Agent or any other Secured Party under any of the Collateral for any
sum owing thereunder, or to enforce any of the Collateral, the Grantor
will save, indemnify and keep the Administrative Agent, such Secured
Party and their respective agents, officers, directors and successors
harmless from and against all expense, loss or damage suffered by
reason of any defense or counterclaim raised in any such suit,
proceeding or action, except to the extent such expense, loss or damage
resulted from the gross negligence or willful misconduct of any of the
same.
6.3 Maintenance of Records. The Grantor will keep and maintain
at its own cost and expense reasonably satisfactory and complete
records of the Collateral, and shall xxxx such records to evidence this
Agreement and the Liens and the security interests created hereby. For
the Administrative Agent's and the other Secured Parties' further
security, the Administrative Agent, for the benefit of the Secured
Parties, shall have a security interest in all of the Grantor's books
and records pertaining to the Collateral.
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6.4 Right of Inspection. Upon reasonable written advance
notice to the Grantor and at reasonable intervals, or at any time and
from time to time after the occurrence and during the continuation of
an Event of Default, the Administrative Agent shall have reasonable
access during normal business hours to all the books, correspondence
and records of the Grantor, and the Administrative Agent and its
representatives may examine the same, and to the extent reasonable take
extracts therefrom and make photocopies thereof, and the Grantor agrees
to render to the Administrative Agent, at the Grantor's reasonable cost
and expense, such clerical and other assistance as may be reasonably
requested with regard thereto.
6.5 Compliance with Laws, etc. The Grantor will comply in all
material respects with all material Requirements of Law applicable to
the Collateral or any part thereof, except to the extent that the
failure to so comply would not be reasonably expected to materially
adversely affect in the aggregate the Administrative Agent's or the
other Secured Parties' rights hereunder, the priority of their Liens on
the Collateral or the value of the Collateral.
6.6 Further Identification of Collateral. The Grantor will
furnish to the Administrative Agent from time to time such statements
and schedules further identifying and describing the Collateral, and
such other reports in connection with the Collateral, as the
Administrative Agent may reasonably request, all in reasonable detail.
6.7 Security Interest in Any Newly Acquired Collateral. The
Grantor agrees that, should it obtain an ownership interest in any
material Trademark, Patent, Trademark License or Patent License, which
is not now a part of the Collateral, (i) the provisions of Section 2
shall automatically apply thereto, (ii) any such Trademark, Patent,
Trademark License and Patent License shall automatically become part of
the Collateral, and (iii) with respect to any ownership interest in any
such Trademark, Patent, Trademark License or Patent License that such
Grantor should obtain, it shall give notice thereof to the
Administrative Agent in writing, in reasonable detail, at its address
set forth in each of the Credit Agreements within 45 days after the end
of the calendar quarter in which it obtains such ownership interest.
The Grantor authorizes the Administrative Agent to modify this
Agreement by amending Schedules I and II (and will cooperate reasonably
with the Administrative Agent in effecting any such amendment) to
include on Schedule I any Trademark and Trademark License and on
Schedule II any Patent or Patent License of which it receives notice
under this Section, or to prepare and file with the United States
Patent and Trademark Office a supplement to this Agreement to include
any Patent or Trademark of which it receives notice to under this
Section.
6.8 Maintenance of the Trademark Collateral. Except as
permitted in the Loan Documents the Grantor agrees to take all
reasonably necessary steps, including, without limitation, in the
United States Patent and Trademark Office or in any court, to (i)
maintain each trademark registration and each Trademark License
identified on Schedule I hereto, and (ii) pursue each trademark
application now or hereafter identified in Schedule I hereto,
including,
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without limitation, the filing of responses to office actions issued by
the United States Patent and Trademark Office, the filing of
applications for renewal, the filing of affidavits under Sections 8 and
15 of the United States Trademark Act, and the participation in
opposition, cancellation, infringement and misappropriation
proceedings, except, in each case in which such Grantor has reasonably
determined that any of the foregoing is not of material economic value
to it. The Grantor agrees to take corresponding steps with respect to
each new or acquired trademark or service xxxx registration, or
application for trademark or service xxxx registration, or any rights
obtained under any Trademark License, in each case, which it is now or
later becomes entitled, except in each case in which the Grantor has
reasonably determined that any of the foregoing is not of material
economic value to it. Any expenses incurred in connection with such
activities shall be borne by such Grantor.
6.9 Maintenance of the Patent Collateral. The Grantor agrees
to take all necessary steps, including, without limitation, in the
United States Patent and Trademark Office or in any court, to (i)
maintain each patent and each Patent License identified on Schedule II
hereto, and (ii) pursue each patent application, now or hereafter
identified in Schedule II hereto, including, without limitation, the
filing of divisional, continuation, continuation-in-part and substitute
applications, the filing of applications for reissue, renewal or
extensions, the payment of maintenance fees, and the participation in
interference, reexamination, opposition, infringement and
misappropriation proceedings, except, in each case in which the Grantor
has reasonably determined that any of the foregoing is not of material
economic value to it. The Grantor agrees to take corresponding steps
with respect to each new or acquired patent, patent application, or any
rights obtained under any Patent License, in each case, which it is now
or later becomes entitled, except in each case in which the Grantor has
reasonably determined that any of the foregoing is not of material
economic value to it. Any expenses incurred in connection with such
activities shall be borne by the Grantor.
6.10 Preservation and Protection of the Trademark Collateral
and Patent Collateral. Except as provided in Section 4(k) hereof, the
Grantor shall take all steps which it or the Administrative Agent deems
reasonably appropriate under the circumstances to preserve and protect
its material Trademark Collateral and Patent Collateral.
6.11 Grantor Shall Not Abandon any Collateral. The Grantor
shall not abandon any trademark registration, patent or any pending
trademark or patent application, in each case listed on Schedule I or
Schedule II, without the written consent of the Administrative Agent,
unless such Grantor shall have previously determined that such use or
the pursuit or maintenance of such trademark registration, patent or
pending trademark or patent application is not of material economic
value to it, in which case, such Grantor will, at least annually, give
notice of any such abandonment to the Administrative Agent in writing,
in reasonable detail, at its address set forth in the Credit Agreement.
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6.12 Infringement of Any Collateral. In the event that any
Grantor becomes aware that any item of the Collateral which such
Grantor has reasonably determined to be material to its business is
infringed or misappropriated by a third party, which infringement or
misappropriation would reasonably be expected to have a Material
Adverse Effect, the Grantor shall notify the Administrative Agent
promptly and in writing, in reasonable detail, at its address set forth
in the Credit Agreement, and shall take such actions as the Grantor or
the Administrative Agent deems reasonably appropriate under the
circumstances to protect such Collateral, including, without
limitation, suing for infringement or misappropriation and for an
injunction against such infringement or misappropriation. Any expense
incurred in connection with such activities shall be borne by such
Grantor. The Grantor will advise the Administrative Agent promptly and
in writing, in reasonable detail, at its address set forth in the
Credit Agreement, of any adverse determination or the institution of
any proceeding (including, without limitation, the institution of any
proceeding in the United States Patent and Trademark Office or any
court) regarding any item of the Collateral which has a Material
Adverse Effect.
6.13 Use of Statutory Notice. The Grantor shall xxxx its
products with the trademark registration symbol (R), the numbers of all
appropriate patents, the common law trademark symbol (TM), or the
designation "patent pending," as the case may be, to the extent that it
is reasonably and commercially practicable.
6.14 Limitation on Liens on Collateral. The Grantor will not
create, incur or permit to exist, will defend the Collateral against,
and will take such other action as is reasonably necessary to remove,
any material Lien or material adverse claim on or to any of the
Collateral, other than Liens created hereby and other than as permitted
pursuant to the Loan Documents (including, without limitation, any
Liens permitted to exist on the Collateral pursuant to subsection 8.3
of the Credit Agreement), and will defend the right, title and interest
of the Administrative Agent and the other Secured Parties in and to any
of the Collateral against the claims and demands of all Persons
whomsoever, except where failure to defend would not have a Material
Adverse Effect.
6.15 Limitations on Dispositions of Collateral. Without the
prior written consent of the Administrative Agent, the Grantor will not
sell, assign, transfer, exchange or otherwise dispose of, or grant any
option with respect to, the Collateral, or attempt, offer or contract
to do so, except with respect to licenses in the ordinary course of
business or as permitted by this Agreement or the Loan Documents.
6.16 Notices. The Grantor will advise the Administrative Agent
promptly and in writing, in reasonable detail, at its address set forth
in the Credit Agreement, (i) of any Lien (other than Liens created
hereby or permitted under the Loan Documents, including, without
limitation, any Liens permitted to exist on the Collateral pursuant to
subsection 8.3 of the Credit Agreement) on any Patents or Trademarks
and (ii) of the occurrence of any other event which
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would reasonably be expected in the aggregate to have a material
adverse effect on the aggregate value of the Collateral taken as a
whole or the Liens created hereunder.
7. Administrative Agent's Appointment as Attorney-in-Fact. 7.1
Powers. The Grantor hereby irrevocably constitutes and appoints the
Administrative Agent and any officer or agent of the Administrative Agent, with
full power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the Grantor and in the
name of the Grantor or in its own name, for the purpose of carrying out the
terms of this Agreement, to take any and all appropriate action and to execute
any and all documents and instruments which may be reasonably necessary or
desirable to accomplish the purposes of this Agreement to the extent permitted
by law, and, without limiting the generality of the foregoing, to the extent
permitted by law, the Grantor hereby gives the Administrative Agent the power
and right, on behalf of the Grantor, without notice to or assent by the Grantor,
to do, at any time when an Event of Default has occurred and is continuing, the
following:
(a) to execute and deliver any and all agreements,
instruments, documents, and papers as the Administrative Agent may
reasonably request to evidence the Administrative Agent's and the other
Secured Parties' security interest in any of the Collateral and the
goodwill of the Grantor relating thereto or represented thereby;
(b) in the name of the Grantor or its own name, or otherwise,
to take possession of and indorse and collect any checks, drafts,
notes, acceptances or other instruments for the payment of moneys due
under any General Intangible (to the extent that the foregoing
constitute Collateral) or with respect to any other Collateral and to
file any claim or to take any other action or institute any proceeding
in any court of law or equity or otherwise deemed appropriate by the
Administrative Agent for the purpose of collecting any and all such
moneys due under such General Intangible or with respect to any other
Collateral whenever payable;
(c) to pay or discharge Liens placed on the Collateral, other
than Liens permitted under this Agreement or the other Loan Documents,
including, without limitation, any Liens permitted to exist on the
Collateral pursuant to subsection 8.3 of the Credit Agreement; and
(d) (A) to direct any party liable for any payment under any
of the Collateral to make payment of any and all moneys due or to
become due thereunder directly to the Administrative Agent or as the
Administrative Agent shall direct; (B) to ask for, or demand, collect,
receive payment of and receipt for, any and all moneys, claims and
other amounts due or to become due at any time in respect of or arising
out of any Collateral; (C) to sign and indorse any invoices, freight or
express bills, bills of lading, storage or warehouse receipts, drafts
against debtors, assignments, verifications, notices and other
documents in connection with any of the Collateral; (D) to commence and
prosecute any suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect the Collateral or any
thereof and to enforce any other right in respect of any Collateral;
(E) to defend any suit, action or proceeding brought against the
Grantor
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with respect to any of the Collateral; (F) to settle, compromise or
adjust any suit, action or proceeding described in clause (E) above
and, in connection therewith, to give such discharges or releases as
the Administrative Agent may deem appropriate; (G) subject to any
pre-existing reserved rights or licenses, to assign any Patent or
Trademark constituting Collateral (along with the goodwill of the
business to which any such Patent or Trademark pertains), for such term
or terms, on such conditions, and in such manner, as the Administrative
Agent shall in its sole discretion determine; and (H) generally, to
sell, transfer, pledge and make any agreement with respect to or
otherwise deal with any of the Collateral as fully and completely as
though the Administrative Agent were the absolute owner thereof for all
purposes, and to do, at the Administrative Agent's option and the
Grantor's expense, at any time, or from time to time, all acts and
things which the Administrative Agent deems reasonably necessary to
protect, preserve or realize upon the Collateral and the Administrative
Agent's and the other Secured Parties' Liens thereon and to effect the
intent of this Agreement, all as fully and effectively as the Grantor
might do.
The Grantor hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with an
interest and shall be irrevocable until the payment in full of the Loans, the
Reimbursement Obligations and the other Obligations then due and owing, the
termination of the Revolving Credit Commitments and the expiration, termination
or return to the Issuing Lender of any Letters of Credit.
7.2 Other Powers. The Grantor also authorizes the
Administrative Agent, from time to time if an Event of Default shall have
occurred and be continuing, to execute, in connection with any sale provided for
in Section 8 hereof, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral.
7.3 No Duty on the Part of Administrative Agent or Secured
Parties. The powers conferred on the Administrative Agent and the other Secured
Parties hereunder are solely to protect the Administrative Agent's and the other
Secured Parties' interests in the Collateral and shall not impose any duty upon
the Administrative Agent or any other Secured Party to exercise any such powers.
The Administrative Agent and the other Secured Parties shall be accountable only
for amounts that they actually receive as a result of the exercise of such
powers, and neither they nor any of their officers, directors, employees,
affiliates, agents or successors shall be responsible to the Grantor for any act
or failure to act hereunder, except for gross negligence or willful misconduct
of any of the same.
8. Performance by Administrative Agent of Grantor's
Obligations. If the Grantor fails to perform or comply with any of its
agreements contained herein and the Administrative Agent, as provided for by the
terms of this Agreement, shall perform or comply, or otherwise cause performance
or compliance, with such agreements, the reasonable expenses of the
Administrative Agent incurred in connection with such performance or compliance,
together with interest thereon at a rate per annum equal to 1.75% above the rate
applicable to ABR Loans that are Term Loans, shall be payable by the
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Grantor to the Administrative Agent on demand, and the Grantor's obligations to
make such payments shall constitute Obligations secured hereby.
9. Proceeds. It is agreed that if an Event of Default shall
occur and be continuing, (a) all Proceeds of any Collateral received by the
Grantor consisting of cash, checks and other near-cash items shall be held by
the Grantor in trust for the Administrative Agent and the other Secured Parties,
segregated from other funds of the Grantor, and shall, forthwith upon receipt by
the Grantor, be turned over to the Administrative Agent in the exact form
received by the Grantor (duly indorsed by the Grantor to the Administrative
Agent, if required), and (b) any and all such Proceeds received by the
Administrative Agent (whether from the Grantor or otherwise) shall be held by
the Administrative Agent for the benefit of the Secured Parties as collateral
security for the Obligations (whether matured or unmatured), and/or then or at
any time thereafter may, in the sole discretion of the Administrative Agent, be
applied by the Administrative Agent against the Obligations then due and owing
in the following order of priority:
FIRST, to the payment of all reasonable costs and expenses
incurred by the Administrative Agent (including, without limitation, in
its capacity as Credit Agreement Administrative Agent) in connection
with this Agreement, the Guarantee and Collateral Agreement, the Credit
Agreement, any other Loan Document or any of the Obligations,
including, without limitation, all court costs and the reasonable fees
and expenses of its agents and legal counsel, and any other reasonable
costs or expenses incurred in connection with the exercise by the
Administrative Agent (including, without limitation, in its capacity as
Credit Agreement Administrative Agent) of any right or remedy under
this Agreement, the Credit Agreement, or any other Loan Document;
SECOND, to the ratable satisfaction of all other Obligations;
and
THIRD, to the Grantor or its successors or assigns, or to
whomsoever may be lawfully entitled to receive the same.
10. Remedies. If an Event of Default shall occur and be
continuing, the Administrative Agent, on behalf of the Secured Parties, may
exercise all rights and remedies of a secured party under the Code, and, to the
extent permitted by law, all other rights and remedies granted to the
Administrative Agent or any Secured Party in this Agreement and the other Loan
Documents and in any other instrument or agreement securing, evidencing or
relating to the Obligations. Without limiting the generality of the foregoing,
the Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon the Grantor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances, to the extent permitted by law, forthwith
collect, receive, appropriate and realize upon the Collateral, or any part
thereof, and/or may forthwith sell, lease, assign, give option or options to
purchase, or otherwise dispose of and deliver
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the Collateral or any part thereof (or contract to do any of the foregoing), in
one or more parcels at public or private sale or sales, at any exchange,
broker's board or office of the Administrative Agent or any other Secured Party
or elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Administrative Agent or any other Secured
Party shall have the right, to the extent permitted by law, upon any such sale
or sales, to purchase the whole or any part of the Collateral so sold, free of
any right or equity of redemption in the Grantor, which right or equity is
hereby waived and released. The Grantor further agrees, at the Administrative
Agent's request, to assemble the Collateral and make it available to the
Administrative Agent at places which the Administrative Agent shall reasonably
select, whether at the Grantor's premises or elsewhere. In the event of any
sale, assignment, or other disposition of any of the Collateral, the goodwill of
the business connected with and symbolized by any Trademark Collateral subject
to such disposition shall be included, and the Grantor shall supply to the
Administrative Agent or its designee the Grantor's know-how and expertise
relating to the Collateral subject to such disposition, and the Grantor's
notebooks, studies, reports, records, documents and things embodying the same or
relating to the inventions, processes or ideas covered by, and to the
manufacture of any products under or in connection with, the Collateral subject
to such disposition, and the Grantor's customer's lists, studies and surveys and
other records and documents relating to the distribution, marketing, advertising
and sale of products relating to the Collateral subject to such disposition. The
Administrative Agent shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale, after deducting all
reasonable costs and expenses of every kind incurred therein or incidental to
the care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Administrative Agent and the other Secured
Parties hereunder, including, without limitation, reasonable attorneys' fees and
disbursements, to the payment and performance in whole or in part of the
Obligations then due and owing, in the order of priority specified in Section 7
hereof, and only after such application and after the payment by the
Administrative Agent of any other amount required by any provision of law,
including, without limitation, Section 9-504(1)(c) of the Code, need the
Administrative Agent account for the surplus, if any, to the Grantor. To the
extent permitted by applicable law, (a) the Grantor waives all claims, damages
and demands it may acquire against the Administrative Agent or any other Secured
Party arising out of the repossession, retention or sale of the Collateral,
other than any such claims, damages and demands that may arise from the gross
negligence or willful misconduct of any of them, and (b) any notice of a
proposed sale or other disposition of Collateral shall be required by law, such
notice shall be deemed reasonable and proper if given at least 10 days before
such sale or other disposition. The Grantor shall remain liable for any
deficiency if the proceeds of any sale or other disposition of the Collateral
are insufficient to pay in full the Loans, the Reimbursement Obligations, and,
to the extent then due and owing, all other Obligations, including, without
limitation, the reasonable fees and disbursements of any attorneys employed by
the Administrative Agent or any other Secured Party to collect such deficiency,
as provided in the Credit Agreement.
11. Limitation on Duties Regarding Preservation of Collateral.
The Administrative Agent's sole duty with respect to the custody, safekeeping
and physical preservation of the Collateral in
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its possession, under Section 9-207 of the Code or otherwise, shall be to deal
with it in the same manner as the Administrative Agent deals with similar
property for its own account. Neither the Administrative Agent, any other
Secured Party, nor any of their respective directors, officers, employees,
affiliates or agents shall be liable for failure to demand, collect or realize
upon all or any part of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of the Grantor or any other Person.
12. Powers Coupled with an Interest. All authorizations and
agencies herein contained with respect to the Collateral are powers coupled with
an interest and are irrevocable until the payment in full of the Loans, the
Reimbursement Obligations and, to the extent then due and owing, all other
Obligations, the termination of the Revolving Credit Commitments and the
expiration, termination or return to the Issuing Lender of any Letters of
Credit.
13. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
14. Section Headings. The Section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
15. No Waiver; Cumulative Remedies. Neither the Administrative
Agent nor any other Secured Party nor the Grantor shall by any act (except by a
written instrument pursuant to Section 14 hereof), delay, indulgence, omission
or otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent, any other Secured Party or
the Grantor, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Administrative Agent,
any other Secured Party or the Grantor of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which the
Administrative Agent, such other Secured Party or the Grantor would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
rights or remedies provided by law.
16. Waivers and Amendments; Successors and Assigns. None of the
terms or provisions of this Agreement may be amended, supplemented, waived or
otherwise modified except by a written instrument executed by the Grantor and
the Administrative Agent, provided that, if requested by the Grantor, any
provision of this Agreement for the benefit of the Administrative Agent and/or
the other
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Secured Parties may be waived by the Administrative Agent in a written letter or
agreement executed by the Administrative Agent or by telex or facsimile
transmission from the Administrative Agent. This Agreement shall be binding upon
and shall inure to the benefit of the Grantor and its successors and assigns,
and the Administrative Agent and the other Secured Parties and their respective
successors, indorsees, transferees and assigns, except that (other than in
accordance with subsection 8.5 of the Credit Agreement) the Grantor shall not
assign, transfer or delegate any of its rights or obligations under this
Agreement without the prior written consent of the Administrative Agent.
17. Notices. All notices, requests and demands to or upon the
respective parties hereto shall be made in accordance with subsection 11.2 of
the Credit Agreement. The Administrative Agent, the Secured Parties and the
Grantor may change their respective addresses and transmission numbers for
notices by notice in the manner provided in this Section 15.
18. Authority of Administrative Agent. The Grantor acknowledges
that the rights and responsibilities of the Administrative Agent under this
Agreement with respect to any action taken by the Administrative Agent or the
exercise or non-exercise by the Administrative Agent of any option, voting
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between the Administrative
Agent and the other Secured Parties, be governed by the Credit Agreement and by
such other agreements with respect thereto as may exist from time to time among
them, but, as between the Administrative Agent and the Grantor, the
Administrative Agent shall be conclusively presumed to be acting as agent for
the Secured Parties with full and valid authority so to act or refrain from
acting, and the Grantor shall not be under any obligation to make any inquiry
respecting such authority.
19. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
20. Release of Collateral and Termination. 20.1 This Agreement
shall remain in full force and effect and be binding in accordance with and to
the extent of its terms and the security interest created by this Agreement
shall not be released until the payment in full of the Loans, the Reimbursement
Obligations and the other Obligations then due and owing shall have occurred,
the Revolving Credit Commitments shall have been terminated and any Letters of
Credit shall have expired or been terminated or returned to the Issuing Lender,
at which time the Collateral shall be released from the Liens created hereby,
and this Agreement and all obligations (other than those expressly stated to
survive such termination) of the Administrative Agent and the Grantor hereunder
shall terminate, all without delivery of any instrument or performance of any
act by any party, and all rights to the Collateral shall revert to the Grantor,
provided that if any payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the Administrative Agent
or any other Secured Party upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Grantor or any
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other Loan Party, or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or a trustee or similar officer for, the Grantor
or any other Loan Party or any substantial part of its property, or otherwise,
this Agreement, all rights hereunder and the Liens created hereby shall continue
to be effective, or be reinstated, as though such payments had not been made.
Upon request of the Grantor following any such termination, the Administrative
Agent shall reassign (at the sole cost and expense of the Grantor) to the
Grantor any Collateral held by the Administrative Agent hereunder, and execute
and deliver (at the sole cost and expense of the Grantor) to the Grantor such
documents as the Grantor shall reasonably request to evidence such termination
and reassignment.
20.2 If any of the Collateral shall be sold, transferred or
otherwise disposed of by the Grantor in a transaction permitted by the Credit
Agreement, then the Administrative Agent shall execute and deliver to the
Grantor (at the sole cost and expense of the Grantor) all releases or other
documents reasonably necessary or desirable for the release of the Liens created
hereby on such Collateral.
21. Incorporation of Provisions of Guarantee and Collateral
Agreement. The Grantor hereby acknowledges and affirms that the rights and
remedies of the Administrative Agent with respect to the security interest in
the Collateral made and granted hereby are more fully set forth in the Guarantee
and Collateral Agreement, the terms, conditions and other provisions of which,
in so far as they relate to the Collateral, such security interest and such
rights and remedies, are incorporated by reference herein as if fully set forth
herein. Nothing in this Agreement shall defer or impair the attachment or
perfection of any security interest in any collateral described in the Guarantee
and Collateral Agreement which would attach or be perfected pursuant to the
terms of the Guarantee and Collateral Agreement without action by the Grantor or
any other Person.
22. Interpretation. In the event of a conflict between any term
of this Agreement and the terms of the Credit Agreement, the terms of the Credit
Agreement shall control.
23. Integration. This Agreement and the other Loan Documents
represent the entire agreement of the Grantor and the Administrative Agent with
respect to the subject matter hereof and there are no promises or
representations by the Grantor, the Administrative Agent or any other Secured
Party relative to the subject matter hereof not reflected or referred to herein
or therein.
24. Submission To Jurisdiction; Waivers. Each party hereto
hereby irrevocably and unconditionally:
24.1 submits for itself and its property in any legal action
or proceeding relating to this Agreement and the other Loan Documents
to which it is a party, or for recognition and enforcement of any
judgement in respect thereof, to the non-exclusive general jurisdiction
of the courts of the State of New York, the courts of the United States
of America for the Southern District of New York, and appellate courts
from any thereof;
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209
24.2 consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient forum and agrees not to plead or claim the same;
24.3 agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Grantor or the applicable Secured Party, as the case
may be, at the address referred to in Section 15 or at such other
address of which the Administrative Agent and the Grantor shall have
been notified pursuant thereto;
24.4 agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction; and
24.5 waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section 22 any punitive damages.
25. WAIVER OF JURY TRIAL. THE GRANTOR AND THE ADMINISTRATIVE
AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY
COUNTERCLAIM THEREIN.
24. Counterparts. This Agreement may be executed and
acknowledged by one or more of the parties to this Agreement on any
number of separate counterparts, and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned has caused this Agreement
to be duly executed and delivered as of the date first above written.
TELEX COMMUNICATIONS, INC.
By: __________________________
Title:
ACKNOWLEDGED AND AGREED AS OF
THE DATE HEREOF BY:
THE CHASE MANHATTAN BANK, as Administrative Agent
By:_____________________________________
Title:
21
000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of _________, 1997, before me personally came
_______________________ to me known, who, being by me duly sworn, did depose and
say he resides at ____________________________________ and that he is the
_______________ of Telex Communications, Inc., the corporation described in and
which executed the above instrument; that he has been authorized to execute said
instrument on behalf of said corporation; and that he signed said instrument on
behalf of said corporation pursuant to said authority.
___________________________
Notary Public
[Notarial Seal]
000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of _________, 1997, before me personally came
_____________________ to me known, who, being by me duly sworn, did depose and
say he resides at ___________________________________ and that he is the
__________________ of THE CHASE MANHATTAN BANK, the national banking association
described in and which executed the above instrument; that he has been
authorized to execute said instrument on behalf of said association; and that he
has signed said instrument on behalf of said association pursuant to said
authority.
______________________________
Notary Public
______________________________________
[Notarial Seal]
213
Schedule I
TRADEMARKS AND TRADEMARK LICENSES
214
Schedule II
PATENTS AND PATENT LICENSES
215
Schedule III
EXISTING SECURITY INTERESTS
216
EXHIBIT G TO
CREDIT AGREEMENT
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
Reference is made to the Loan(s) held by the undersigned
pursuant to the Credit Agreement (as amended, supplemented, waived or otherwise
modified from time to time, the "Credit Agreement"), dated as of May __, 1997
among Telex Communications, Inc., a Delaware corporation, the several banks and
other financial institutions from time to time parties thereto (the "Lenders"),
Xxxxxx Xxxxxxx Senior Funding, Inc., as documentation agent for the Lenders and
The Chase Manhattan Bank, a New York banking corporation, as administrative
agent for the Lenders. The undersigned hereby certifies under penalty of perjury
that:
(1) The undersigned is the beneficial owner of the Loan(s) (as
well as any Note(s) evidencing such Loan(s)) registered in its name;
(2) The undersigned is not a bank (as such term is used in
Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended
(the " Code")), is not subject to regulatory or other legal
requirements as a bank in any jurisdiction, and has not been treated as
a bank for purposes of any tax, securities law or other filing or
submission made to any governmental authority, any application made to
a rating agency or any qualification for any exemption from any tax,
securities law or other legal requirements;
(3) The undersigned is not a 10-percent shareholder within the
meaning of Section 881(c)(3)(B) of the Code; and
(4) The undersigned is not a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(C) of the Code.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
[NAME OF LENDER]
By:________________________________
[Address]
Dated: ____________, 199_
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EXHIBIT H TO
CREDIT AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of May __,
1997 (as amended, supplemented, waived or otherwise modified from time to time,
the "Credit Agreement"), among GST Acquisition Corp., a Delaware corporation
(the "Borrower"), the several banks and other financial institutions from time
to time parties thereto (the "Lenders"), The Chase Manhattan Bank, as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent") and Xxxxxx Xxxxxxx Senior Funding, Inc. ("Xxxxxx Xxxxxxx"), as
documentation agent for the Lenders (in such capacity, the "Documentation
Agent"). Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
____________ (the "Assignor") and ____ (the "Assignee") agree as follows:
26. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby
irrevocably purchases and assumes from the Assignor without recourse to
the Assignor, as of the Transfer Effective Date (as defined below), a
percentage interest (the " Assigned Interest") as set forth in Schedule
1 hereto in and to the Assignor's rights and obligations under the
Credit Agreement and the other Loan Documents with respect to those
credit facilities provided for in the Credit Agreement as are set forth
on Schedule 1 hereto (individually, an "Assigned Facility";
collectively, the "Assigned Facilities"), in a principal amount for
each Assigned Facility as set forth on Schedule 1 hereto.
27. The Assignor makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement, any
other Loan Document or any other instrument or document furnished
pursuant thereto or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, any other
Loan Document or any other instrument or document furnished pursuant
thereto, other than that it has not created any adverse claim upon the
interest being assigned by it hereunder and that such interest is free
and clear of any such adverse claim; makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of the Borrower, any of its Subsidiaries or any other obligor
or the performance or observance by the Borrower, any of its
Subsidiaries or any other obligor of any of their respective
obligations under the Credit Agreement, any other Loan Document or any
other instrument or document furnished pursuant hereto or thereto; and
attaches the Note(s), if any, held by it evidencing the Assigned
Facilities and requests that the Administrative Agent exchange such
Note(s) for a new Note or Notes payable to the Assignee and (if the
Assignor has retained any interest in the Assigned Facilities) a new
Note or Notes payable to the
218
Assignor in the respective amounts which reflect the assignment being
made hereby (and after giving effect to any other assignments which
have become effective on the Transfer Effective Date) and (d)
represents and warrants that it is legally authorized to enter into
this Assignment and Acceptance.
28. The Assignee represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; confirms that
it has received a copy of the Credit Agreement, together with copies of
the financial statements referred to in subsection 5.1 thereof and such
other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Acceptance; agrees that it will, independently and without reliance
upon the Assignor, the Administrative Agent or any other Lender and
based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not
taking action under the Credit Agreement, the other Loan Documents or
any other instrument or document furnished pursuant hereto or thereto;
appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers and discretion under
the Credit Agreement, the other Loan Documents or any other instrument
or document furnished pursuant hereto or thereto as are delegated to
the Administrative Agent by the terms thereof, together with such
powers as are incidental thereto; hereby affirms the acknowledgments
and representations of such Assignee as a Lender contained in
subsection 10.6 of the Credit Agreement; and agrees that it will be
bound by the provisions of the Credit Agreement and will perform in
accordance with the terms of the Credit Agreement all the obligations
which by the terms of the Credit Agreement are required to be performed
by it as a Lender, including its obligations pursuant to subsection
11.15 of the Credit Agreement, and, if it is organized under the laws
of a jurisdiction outside the United States, its obligations pursuant
to subsection 4.11(b) of the Credit Agreement.
29. The effective date of this Assignment and Acceptance shall
be ________, 19__ (the "Transfer Effective Date"). Following the
execution of this Assignment and Acceptance, it will be delivered to
the Administrative Agent for acceptance by it and recording by the
Administrative Agent pursuant to subsection 11.6 of the Credit
Agreement, effective as of the Transfer Effective Date (which shall
not, unless otherwise agreed to by the Administrative Agent, be earlier
than five Business Days after the date of such acceptance and recording
by the Administrative Agent).
30. Upon such acceptance and recording, from and after the
Transfer Effective Date, the Administrative Agent shall make all
payments in respect of the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignee whether
such amounts have accrued prior to the Transfer Effective Date or
accrued subsequent to the Transfer Effective Date. The Assignor and the
Assignee shall
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219
make all appropriate adjustments in payments by the Administrative
Agent for periods prior to the Transfer Effective Date or with respect
to the making of this assignment directly between themselves.
31. From and after the Transfer Effective Date, the Assignee
shall be a party to the Credit Agreement and, to the extent provided in
this Assignment and Acceptance, have the rights and obligations of a
Lender thereunder and under the other Loan Documents and shall be bound
by the provisions thereof and the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and
be released from its obligations under the Credit Agreement, but shall
nevertheless continue to be entitled to the benefits of subsections
4.10, 4.11, 4.12 and 11.5 thereof.
32. Notwithstanding any other provision hereof, if the
consents of the Borrower and the Administrative Agent hereto are
required under subsection 11.6 of the Credit Agreement, this Assignment
and Acceptance shall not be effective unless such consents shall have
been obtained.
33. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York without
regard to the principles of conflict of laws thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date indicated by their
respective duly authorized officers on Schedule 1 hereto.
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220
SCHEDULE 1 TO THE
ASSIGNMENT AND ACCEPTANCE
Re: Credit Agreement, dated as of May __, 1997 (as
amended, supplemented, waived or otherwise modified from time
to time, the "Credit Agreement"), among GST Acquisition
Corp., a Delaware corporation (the "Borrower"), the
several banks and other financial institutions from time to
time parties thereto (the "Lenders"), The Chase
Manhattan Bank, as administrative agent for the Lenders (in
such capacity, the "Administrative Agent") and Xxxxxx
Xxxxxxx Senior Funding, Inc., as documentation agent for the
Lenders (in such capacity, the "Documentation Agent").
Name of Assignor:
Name of Assignee:
Transfer Effective Date of Assignment:
Percentage of
Credit Assignor's Interest in Principal Commitment
Facility Credit Facility Amount Percentage
Assigned Assigned Assigned Assigned
-------- -------- -------- --------
. % $ . %
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By: ______________________ By: ______________________
Title: Title:
Accepted for recording in the Register: Consented To:
THE CHASE MANHATTAN BANK, as TELEX COMMUNICATIONS, INC.,
Administrative Agent (as successor to GST ACQUISITION CORP.)
221
By: ______________________ By: ______________________
Title: Title:
DATED: __________________ THE CHASE MANHATTAN BANK, as
Administrative Agent
By: ______________________
Title:
2
222
EXHIBIT I TO
CREDIT AGREEMENT
FORM OF BORROWING CERTIFICATE
TELEX COMMUNICATIONS, INC.
Pursuant to subsection 6.1(t) of the Credit Agreement, dated as
of May __, 1997 (the "Credit Agreement"; terms defined therein being
used herein as therein defined), among GST Acquisition Corp., a Delaware
corporation (the "Borrower"), the several banks and other financial
institutions from time to time parties thereto (the "Lenders"), The
Chase Manhattan Bank, as administrative agent for the Lenders (in such capacity,
the "Administrative Agent"), and Xxxxxx Xxxxxxx Senior Funding, Inc., as
documentation agent for the Lenders (in such capacity, the "Documentation
Agent") the Borrower hereby certifies that:
34. The representations and warranties of the Borrower set
forth in the Credit Agreement and each of the other Loan Documents to
which the Borrower is a party or which are contained in any certificate
furnished by or on behalf of the Borrower pursuant to or in connection
with the Credit Agreement or any of the other Loan Documents are true
and correct in all material respects on and as of the date hereof with
the same effect as if made on the date hereof except for
representations and warranties expressly stated to relate to a specific
earlier date, in which case such representations and warranties are
true and correct as of such earlier date; and
35. No Default or Event of Default has occurred and is
continuing as of the date hereof or after giving effect to the Loans to
be made on the date hereof and/or the issuance of any Letters of Credit
to be issued on the date hereof.
IN WITNESS WHEREOF, the Borrower has caused this certificate to
be duly executed and delivered on its behalf as of the date set forth below.
TELEX COMMUNICATIONS, INC.
By: ______________________________
Title:
Date: May __, 1997
223
EXHIBIT J TO
CREDIT AGREEMENT
FORM OF
BORROWING BASE CERTIFICATE
Reference is made to the Credit Agreement, dated as of May 6,
1997 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among GST Acquisition Corp., a Delaware corporation, the
several banks and other financial institutions from time to time parties thereto
(the "Lenders"), The Chase Manhattan Bank, as administrative agent for the
Lenders (in such capacity, the "Administrative Agent"), and Xxxxxx Xxxxxxx
Senior Funding, Inc., as documentation agent for the Lenders (in such capacity,
the "Documentation Agent"). Unless otherwise defined herein, capitalized terms
which are used herein shall have the meanings assigned thereto in the Credit
Agreement.
The undersigned, _________________, a ___________________ (a
Responsible Officer of the Borrower) does hereby certify that, as of the date
hereof, the Borrowing Base, as set forth on Schedule A hereto, is
$___________________ and no Default or Event of Default has occurred and is
continuing.
Pursuant to subsection 7.2(e) of the Credit Agreement, the
Borrower hereby certifies, and represents and warrants, that this Borrowing Base
Certificate and the attached Schedule A are true, correct and complete in all
material respects and that the amounts set forth in such Schedule are in
compliance in all material respects with the provisions of the Credit Agreement.
The Borrower acknowledges that the Administrative Agent and Lenders are relying
upon the information contained herein and therein in making the Loans.
IN WITNESS WHEREOF, the undersigned has caused this Borrowing
Base Certificate to be executed and delivered as of this ____ day of
________________, 199__.
TELEX COMMUNICATIONS, INC.
By: ________________________________
Name:
Title:
224
SCHEDULE
TELEX COMMUNICATIONS, INC.
SUMMARY OF BORROWING BASE RECEIVABLES
as of _____________ ____, 199__
ADVANCE BASE
DESCRIPTION RECEIVABLE RATE RECEIVABLE TOTALS
-------------------------------------------------------------------------------------
Domestic
[Debtor Name] $ % $
$ % $ $
Foreign Syndication
[Debtor Name] $ % $
$ % $ $
Other
Domestic Syndication:
[Debtor Name] $ % $
$ % $ $
Foreign Syndication:
[Debtor Name] $ % $
$ % $ $
TOTAL BORROWING BASE $
225
EXHIBIT M TO
CREDIT AGREEMENT
FORM OF TELEX ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT, dated as of May 6, 1997 (this
"Agreement"), between TELEX COMMUNICATIONS GROUP, INC., a Delaware
corporation ("Holdings"), and TELEX COMMUNICATIONS, INC., a Delaware
corporation ("Telex"), and consented to by THE CHASE MANHATTAN BANK, a
New York banking corporation, as administrative agent (in such capacity, the
"Administrative Agent") for the banks and other financial institutions
(the "Lenders") from time to time parties to the Credit Agreement (as
hereinafter defined).
W I T N E S S E T H:
WHEREAS, GST Acquisition Corp., a Delaware corporation ("Acquisition
Co."), the Lenders and the Administrative Agent are parties to the Credit
Agreement, dated as of May 6, 1997 (as amended, supplemented, waived or
otherwise modified from time to time, the "Credit Agreement"); and
WHEREAS, in connection with the recapitalization of Holdings,
Acquisition Co. will be merged (the "Merger") with and into Holdings
with Holdings continuing as the surviving corporation; and
WHEREAS, immediately upon consummation of the Merger, Holdings, as
successor in interest to Acquisition Co., wishes to assign, transfer and convey
to Telex all of Holdings' rights as "Borrower" under, and Telex, in
consideration of a capital contribution being made on the date hereof by
Holdings to Telex and the access to the revolving credit facility under the
Credit Agreement that will inure to Telex as a result of such assignment, wishes
to assume from Holdings all of Holdings' obligations and liabilities as
"Borrower" under, the Credit Agreement, any Notes, any Letters of Credit and the
other Loan Documents (as each of such terms is defined in the Credit Agreement);
and
WHEREAS, pursuant to subsection 10.11 of the Credit Agreement, the
Administrative Agent is authorized to consent to this Agreement on behalf of the
Lenders;
NOW, THEREFORE, the parties hereto hereby agree as follows:
36. Defined Terms. Terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.
37. Assignment of Rights and Obligations. Effective as of
immediately after the Effective Time (as defined in the Recapitalization
Agreement), Holdings hereby irrevocably
226
assigns, transfers and conveys to Telex all of Holdings', as successor in
interest to Acquisition Co., rights, obligations, covenants, agreements, duties
and liabilities as "Borrower" under or with respect to the Credit Agreement, any
Notes, any Letters of Credit, any of the other Loan Documents and any and all
certificates and other documents executed by Holdings or Acquisition Co. in
connection therewith; provided, however, that Holdings understands and agrees
that such assignment, transfer and conveyance shall not be effective with
respect to, or in any way release Holdings from any of its obligations,
covenants, agreements, duties and liabilities under or with respect to this
Agreement or the Guarantee and Collateral Agreement.
38. Assumption of Agreements and Obligations. Effective as of
immediately after the Effective Time, Telex, in consideration of a capital
contribution being made on the date hereof by Holdings to Telex and the access
to the revolving credit facility under the Credit Agreement that will inure to
Telex as a result of such assignment, hereby expressly assumes, confirms and
agrees to perform and observe all of the indebtedness, obligations (including,
without limitation, all obligations in respect of the Loans and the Letters of
Credit), covenants, agreements, terms, conditions, duties and liabilities of
Holdings, as successor in interest to Acquisition Co., as "Borrower" under and
with respect to the Credit Agreement, any Notes, any Letters of Credit, any of
the other Loan Documents and any and all certificates and other documents
executed by Holdings or Acquisition Co. in connection therewith as fully as if
Telex were originally the obligor in respect thereof and the signatory thereto;
provided, however, that Holdings understands and agrees that such assumption
shall not be effective with respect to, or in any way obligate Telex to perform
and observe any obligations, covenants, agreements, terms, conditions, duties or
liabilities of Holdings under or with respect to this Agreement or the Guarantee
and Collateral Agreement. At all times after the effectiveness of such
assumption, with respect to all Extensions of Credit made to or for the account
of Acquisition Co. or Holdings prior to the effectiveness of such assumption,
Telex shall have the obligations of, and Holdings shall no longer be or have the
obligations of, the "Borrower" within the meaning of and for all purposes of the
Credit Agreement. In addition, at all times after the effectiveness of such
assumption, all references to the "Borrower" in the Credit Agreement, any Notes,
any Letter of Credit, any of the other Loan Documents and any and all
certificates and other documents executed by Acquisition Co. or Holdings in
connection therewith shall be deemed to be references to Telex.
39. Amendment to the Credit Agreement. The Credit Agreement is hereby
deemed to be amended to the extent, but only to the extent, necessary to effect
the assignment and assumption provided for hereby. Except as expressly amended,
modified and supplemented hereby, the provisions of the Credit Agreement and the
other Loan Documents are and shall remain in full force and effect.
40. Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of such counterparts taken together shall be deemed to
constitute one and the same instrument. A set of
2
227
the copies of this Agreement signed by all the parties shall be delivered to
Holdings, Telex and the Administrative Agent.
41. Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
42. Integration. This Agreement and the other Loan Documents represent
the entire agreement of each of the Loan Parties party hereto, the
Administrative Agent and the Lenders with respect to the subject matter hereof,
and there are no promises, undertakings, representations or warranties by any of
the Loan Parties party hereto, the Administrative Agent or any Lender relative
to the subject matter hereof not expressly set forth or referred to herein or in
the other Loan Documents.
43. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
44. Section Headings. The section headings used in this Agreement are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
45. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of Holdings and Telex and their respective successors and
assigns, and the Administrative Agent and the Lenders and their respective
successors, indorsees, transferees and assigns.
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228
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
TELEX COMMUNICATIONS GROUP, INC.
By: _________________________
Name:
Title:
TELEX COMMUNICATIONS, INC.
By: _________________________
Name:
Title:
Consented to:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By: _______________________________
Name:
Title:
4
