EXHIBIT 4.2
AS REVISED AND RESTATED THROUGH THE FIFTH AMENDMENT
XXXX GRAPHIC SYSTEMS, INC.,
XXXX GRAPHIC SYSTEMS LIMITED,
XXXX GRAPHIC SYSTEMS JAPAN K. K.
AND
ROCKWELL GRAPHIC SYSTEMS-JAPAN CORPORATION
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of October 15, 1996 and entered into
by and among XXXX GRAPHIC SYSTEMS, INC., a corporation organized under the laws
of the State of Delaware, XXXX GRAPHIC SYSTEMS LIMITED, a corporation organized
under the laws of England, XXXX GRAPHIC SYSTEMS JAPAN K. K. and ROCKWELL GRAPHIC
SYSTEMS-JAPAN CORPORATION, each a corporation organized under the laws of Japan,
THE FINANCIAL INSTITUTIONS ACTING AS LENDERS AND LISTED ON THE SIGNATURE PAGES
HEREOF, THE FINANCIAL INSTITUTIONS ACTING AS INDEMNIFYING LENDERS AND LISTED ON
THE SIGNATURE PAGES HEREOF, BANKERS TRUST COMPANY ("BTCo"), as administrative
agent for Lenders (in such capacity, "ADMINISTRATIVE AGENT"), CREDIT SUISSE, as
syndication agent for Lenders (in such capacity, "SYNDICATION AGENT"), THE BANK
OF NOVA SCOTIA, as documentation agent for Lenders (in such capacity,
"DOCUMENTATION AGENT"), and BANKERS TRUST COMPANY, TOKYO BRANCH ("BT TOKYO"), as
agent for Japanese Lenders (in such capacity, "JAPANESE AGENT").
R E C I T A L S
WHEREAS, Holdings (this and other capitalized terms used in these
recitals without definition being used as defined in subsection 1.1) and Company
have been formed by Stonington for the purpose of acquiring (i) the capital
stock of Rockwell Graphic Systems, Inc., a corporation organized under the laws
of the State of Delaware ("RGS US"), Rockwell Systemes Graphiques Nantes, S.A.,
a SOCIETE ANONYME organized under the laws of the Republic of France ("RGS
FRANCE"), and RGS Japan (collectively, the "ACQUIRED STOCK"), and (ii)
substantially all of the assets (the "ACQUIRED ASSETS") and assuming
substantially all of the liabilities (the "ASSUMED LIABILITIES") relating to the
Rockwell Graphic Systems business unit ("RGS") of Rockwell International
Corporation, a corporation organized under the laws of the State of Delaware
("ROCKWELL"), and of Rockwell Graphic Systems Ltd., a corporation organized
under the laws of England ("RGS UK"), Rockwell International of Canada, Ltd.,
Rockwell International GmbH, and Rockwell Australia Ltd.;
WHEREAS, on or before the Closing Date, (i) Stonington and its
Affiliates and Management Investors shall have purchased all of the outstanding
Holdings Common Stock for a cash consideration of not less than $112,500,000,
and (ii) Holdings shall have issued to Rockwell Holdings Preferred Stock with an
aggregate liquidation preference equal to not less than $47,500,000;
WHEREAS, on or before the Closing Date, (a) Holdings shall have
contributed to Company, as common equity, all of the cash consideration received
by Holdings from the sale of Holdings Common Stock, which in no event shall be
less than $112,500,000, in exchange for all of the capital stock of Company, and
(b) Company shall have issued and sold not less than $225,000,000 in aggregate
principal amount of Senior Subordinated Notes;
WHEREAS, on or before the Closing Date, Company will raise
approximately $163,700,000 in cash proceeds from the non-recourse (except for
the Assumed Guaranties which in no event will exceed $20,000,000) sale of
certain Customer Notes to BTCC, as such amount may be adjusted in accordance
with the terms of the Loan Portfolio Purchase Agreement;
WHEREAS, on the Closing Date, (i) Company will purchase the Acquired
Stock (other than the capital stock of RGS Japan) and the Acquired Assets (other
than the assets of RGS UK) pursuant to the Purchase Agreement, and immediately
upon the consummation of the Acquisition, Company will merge with and into RGS
US (the "COMPANY MERGER"), with RGS US being the surviving corporation in such
merger, which corporation will be renamed "Xxxx Graphic Systems, Inc.", (ii) New
Xxxx Japan will purchase all of the outstanding capital stock of RGS Japan, and
(iii) Xxxx UK will acquire substantially all of the assets of RGS UK pursuant to
the Purchase Agreement;
WHEREAS, the US/UK Lenders have agreed to extend certain credit
facilities to Company, the Japanese Lenders have agreed to extend certain credit
facilities to Xxxx Japan and the US/UK Lenders have agreed to extend certain
credit facilities to Xxxx UK, the proceeds of which will be used, (i) together
with the proceeds from the issuance of Senior Subordinated Notes, the proceeds
from the non-recourse sale of the Customer Notes, the proceeds from the sale of
Holdings Common Stock and the issuance of the Holdings Preferred Stock described
above, to pay the Purchase Price for the Acquisition, and (ii) to provide
financing for working capital and other general corporate purposes of Company,
Xxxx Japan and Xxxx UK, as the case may be;
WHEREAS, each of Company, Xxxx Japan and Xxxx UK desire to secure all
of their respective Obligations hereunder and under the other Loan Documents by
granting to the respective Agents, on behalf of Lenders, a First Priority Lien
on substantially all of their respective real, personal and mixed property;
-2-
WHEREAS, Holdings and Domestic Subsidiaries have agreed to guarantee
the Obligations of Borrowers hereunder and under the other Loan Documents,
Company has agreed to guarantee the Obligations of Xxxx Japan and Xxxx UK
hereunder and under the other Loan Documents, and all such Loan Parties have
agreed to secure their respective guaranties by granting to Agents, on behalf of
Lenders, a First Priority Lien on substantially all of their respective real,
personal and mixed property; and
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Borrowers, Lenders and Agents agree
as follows:
SECTION 1. DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
The following terms used in this Agreement shall have the following
meanings:
"ACCOUNT" means, with respect to any Person, all present and future
rights of such Person to payment for goods sold or leased or for services
rendered (except those evidenced by instruments or chattel paper), whether now
existing or hereafter arising and wherever arising, and whether or not they have
been earned by performance.
"ACQUISITION" means the transactions contemplated by the Purchase
Agreement, including, but not limited to, the purchase of the Acquired Stock and
the Acquired Assets and the assumption of the Assumed Liabilities.
"ADJUSTED EURODOLLAR RATE" means, for any Interest Rate Determination
Date with respect to an Interest Period for a Eurodollar Rate Loan, the rate per
annum obtained by DIVIDING (i) the offered quotation (rounded upward to the
nearest 1/16 of one percent) to first class banks in the interbank Eurodollar
market by Administrative Agent for Dollar deposits of amounts in same day funds
comparable to the principal amount of the Eurodollar Rate Loan of the
Administrative Agent for which the Adjusted Eurodollar Rate is then being
determined with maturities comparable to such Interest Period as of
approximately 10:00 a.m. (New York time) on such Interest Rate Determination
Date BY (ii) a percentage equal to 100% MINUS the stated maximum rate of all
reserve requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) applicable on such Interest Rate
Determination Date to any member bank of the Federal Reserve System in respect
of "Eurocurrency liabilities" as defined in Regulation D (or any successor
category of liabilities under Regulation D).
"ADJUSTED PRO RATA SHARE" means, (i) with respect to any US/UK Lender,
the percentage obtained by DIVIDING (a) the US/UK Revolving Loan Exposure of
that US/UK Lender BY (b) the aggregate US/UK Revolving Loan Exposure of all
US/UK Lenders other
-3-
than Daily Funding Lender, and (ii) with respect to any Japanese Lender, the
percentage obtained by DIVIDING (a) the Japanese Revolving Loan Exposure of that
Japanese Lender BY (b) the aggregate Japanese Revolving Loan Exposure of all
Japanese Lenders other than Japanese Funding Lender.
"ADMINISTRATIVE AGENT" has the meaning assigned to that term in the
introduction to this Agreement, and includes any such successor Administrative
Agent appointed pursuant to subsection 9.5.
"AFFECTED LENDER" has the meaning assigned to that term in subsection
2.6C.
"AFFILIATE", as applied to any Person, means any other Person directly
or indirectly controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise; PROVIDED that no Agent shall be considered to be an
"Affiliate" of Holdings or any of its Subsidiaries.
"AGENT" means (i) with respect to Domestic Loans and UK Loans,
Administrative Agent, and (ii) with respect to Japanese Loans, Japanese Agent,
and in each case also means and includes any such successor Agent appointed
pursuant to subsection 9.5.
"AGENT ACCOUNT" means an account maintained by the applicable Agent
into which the applicable Concentration Banks are instructed to transfer funds
on deposit in the Concentration Accounts.
"AGREEMENT" means this Credit Agreement dated as of October 15, 1996,
as it may be amended, supplemented or otherwise modified from time to time.
"APPLICABLE BASE RATE MARGIN" means, as of any date of determination,
(i) 1.00% per annum in the event that the Leverage Ratio for the two most recent
consecutive Fiscal Quarters then ended is equal to or less than 2.75:1.00; (ii)
1.25% per annum in the event that the Leverage Ratio for the two most recent
consecutive Fiscal Quarters then ended is equal to or less than 3.00:1:00 but
the Borrower is not entitled to the rate provided for in the preceding clause
(i); and (iii) 1.50% per annum in the event the Leverage Ratio is greater than
3:00:1.00 or for any period of time in which neither of the preceding clauses
(i) or (ii) applies and for the period of time from the Closing Date until a
Margin Determination Certificate is first delivered pursuant to subsection
6.1(xvii).
"APPLICABLE EURODOLLAR MARGIN" means, as of any date of determination,
(i) 2.00% per annum in the event that the Leverage Ratio for two most recent
consecutive Fiscal Quarters then ended is equal to or less than 2.75:1.00; (ii)
2.25% per annum in the
-4-
event that the Leverage Ratio for the two most recent consecutive Fiscal
Quarters then ended is equal to or less than 3.00:1:00 but the Borrower is not
entitled to the rate provided for in the preceding clause (i); and (iii) 2.50%
per annum in the event that the Leverage Ratio is greater than 3.00:1.00 or for
any period of time in which neither of the preceding clauses (i) or (ii) applies
and for the period of time from the Closing Date until a Margin Determination
Certificate is first delivered pursuant to subsection 6.1(xvii).
"ASSET SALE" means the sale, assignment or other transfer for value by
Company or any of its Subsidiaries to any Person other than Company or any of
its wholly-owned Subsidiaries of (i) any of the stock of any of Company's
Subsidiaries, (ii) substantially all of the assets of any division or line of
business of Company or any of its Subsidiaries, or (iii) any other assets
(whether tangible or intangible) of Company or any of its Subsidiaries (other
than (a) inventory sold in the ordinary course of business and (b) any such
other assets to the extent that the aggregate value of such assets sold in any
single transaction or related series of transactions is equal to $250,000 or
less, or $1,000,000 or less in the aggregate for all such excluded assets under
this clause (b)); PROVIDED that the term "Asset Sale" shall not include (i) the
sale of the Customer Notes pursuant to the Loan Portfolio Purchase Agreement,
(ii) the sale from time to time of Secured Customer Financing Notes and (iii)
the sale of certain machine tools located in Preston, England, in an amount not
to exceed $2,000,000.
"ASSIGNMENT AGREEMENT" means an Assignment Agreement in substantially
the form of EXHIBIT XII annexed hereto.
"ASSUMED GUARANTIES" means those guaranties of Customer Notes to be
assumed or provided by Company for the benefit of BTCC, as purchaser of the
Customer Notes, which guaranties shall be substantially in accordance with the
terms and conditions set forth in the Loan Portfolio Purchase Agreement for such
Assumed Guaranties and which Assumed Guaranties shall consist of: (i) a guaranty
of approximately $5,000,000 of the principal balance of and up to $2,000,000 in
interest accrued after the Closing Date on a Customer Note payable by Sunny
Industries, Inc. (secured by a $5,000,000 letter of credit as to the guarantee
of principal), which guaranty will expire on the earlier to occur of the date on
which Sunny Industries, Inc. makes a scheduled payment of interest or the first
anniversary of the Closing Date; (ii) a guaranty of one-half year's interest
(approximately $1,900,000) accrued after the Closing Date on a Customer Note
payable by a newspaper customer (secured by a letter of credit in an amount of
approximately $1,900,000), which guaranty will expire no later than June 30,
1997; and (iii) a guaranty of $10,500,000 of the principal on a Customer Note
payable by the Hersant Group, which guaranty will expire in approximately four
years, in each case as in effect on the Closing Date and as amended from time to
time to the extent permitted under subsection 7.12.
"AUDITORS" means Xxxxxx Xxxxxxxx LLP.
-5-
"AUDITOR'S LETTER" means a letter, substantially in the form of
EXHIBIT XIII annexed hereto, acknowledged by Auditors, and delivered to
Administrative Agent pursuant to subsection 4.1W or 6.1(iii).
"BANKRUPTCY CODE" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute, and any
similar or comparable law of any applicable Governmental Authority.
"BASE RATE" means, at any time, the higher of (x) the Prime Rate or
(y) the rate which is 1/2 of 1% in excess of the Federal Funds Effective Rate.
"BASE RATE LOANS" means Loans bearing interest at rates determined by
reference to the Base Rate as provided in subsection 2.2A.
"BLOCKED ACCOUNT" means a Deposit Account under the exclusive dominion
and control of an Agent that is maintained by the applicable Loan Party with a
Blocked Account Bank pursuant to a Blocked Account Agreement.
"BLOCKED ACCOUNT AGREEMENT" means a blocked account agreement executed
and delivered by a Blocked Account Bank or a Concentration Bank, as the case may
be, the applicable Agent and the applicable Loan Party, substantially in the
form of EXHIBIT XV annexed hereto, or any other blocked account agreement,
document or instrument with a similar or comparable effect executed by any
Foreign Subsidiary of Company, in form and substance satisfactory to
Administrative Agent, as such Blocked Account Agreement may be amended,
supplemented or otherwise modified from time to time, and "BLOCKED ACCOUNT
AGREEMENTS" means all such Blocked Account Agreements, collectively.
"BLOCKED ACCOUNT BANK" means any commercial bank satisfactory to
Administrative Agent at which any Loan Party maintains a Blocked Account.
"BORROWER" means (i) with respect to Domestic Loans, Company, (ii)
with respect to Japanese Loans, Xxxx Japan, and (iii) with respect to UK Loans,
Xxxx UK.
"BORROWING BASE" means (i) with respect to Domestic Loans, the Company
Borrowing Base, (ii) with respect to Japanese Loans, the Xxxx Japan Borrowing
Base, and (iii) with respect to UK Loans, the Xxxx UK Borrowing Base.
"BORROWING BASE CERTIFICATE" means a certificate substantially in the
form of EXHIBIT VIII annexed hereto delivered by a Borrower pursuant to
subsection 4.1S or subsection 6.1(xviii). Xxxx Japan and Xxxx UK shall complete
such Borrowing Base Certificate based on the respective Yen, Sterling, Franc,
Xxxx or ECU amounts reflected for Accounts, Raw Materials, Finished Goods and
Spare Parts on such Borrower's or Xxxx France's, as applicable, financial books
and records and shall, in addition, provide the Dollar Equivalent of such Yen,
Sterling, Franc, Xxxx or ECU amounts as of the date of
-6-
such Borrowing Base Certificate. For purposes of determining compliance with
the provisions of this Agreement, Administrative Agent shall utilize the Dollar
Equivalent of such Yen, Sterling, Franc, Xxxx or ECU amounts.
"BTCC" means BT Commercial Corporation, an Affiliate of BTCo.
"BTCo" has the meaning assigned to that term in the introduction to
this Agreement.
"BT TOKYO" has the meaning assigned to that term in the introduction
to this Agreement, and is an Affiliate of BTCo.
"BUSINESS DAY" means (i) for all purposes other than as covered by
clause (ii) below, any day excluding Saturday, Sunday and any day which is a
legal holiday under the laws of the State of New York or Illinois or is a day on
which banking institutions located in either such state are authorized or
required by law or other governmental action to close, and (ii) with respect to
all notices, determinations, fundings and payments in connection with any
Japanese Loans, any day that is a Business Day described in clause (i) above but
excluding any day which is a legal holiday under the laws of Japan or which is a
day on which banking institutions located in Tokyo, Japan, are authorized or
required by law or other governmental action to close.
"CAPITAL LEASE", as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"CASH" means money, currency or a credit balance in a Deposit Account.
"CASH EQUIVALENTS" means, as at any date of determination,
(i) (a) marketable securities (1) issued or directly and unconditionally
guaranteed as to interest and principal by the United States Government or (2)
issued by any agency of the United States the obligations of which are backed by
the full faith and credit of the United States, in each case maturing within one
year after such date; (b) marketable direct obligations issued by any state of
the United States of America or any political subdivision of any such state or
any public instrumentality thereof, in each case maturing within one year after
such date and having, at the time of the acquisition thereof, the highest rating
obtainable from either Standard & Poor's Ratings Group ("S&P") or Xxxxx'x
Investors Service, Inc. ("MOODY'S"); (c) commercial paper maturing no more than
one year from the date of creation thereof and having, at the time of the
acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from
Moody's; (d) certificates of deposit or bankers' acceptances maturing within one
year after such date and issued or accepted by any Lender or by any commercial
bank organized under the laws of the United States of America or any state
thereof or the District of Columbia that (1) is at least "adequately
capitalized" (as defined in the regulations of its primary Federal banking
regulator) and (2) has Tier 1 capital (as defined in such regulations)
-7-
of not less than $100,000,000; and (e) shares of any money market mutual fund
that (1) has at least 95% of its assets invested continuously in the types of
investments referred to in clauses (a) and (b) above, (2) has net assets of not
less than $500,000,000, and (3) has the highest rating obtainable from either
S&P or Moody's, and (ii) with respect to Xxxx Japan or Xxxx UK, respectively,
Japanese or UK investments which are comparable in term and credit quality to
those described in the foregoing clause (i)(a)-(e).
"CASH PROCEEDS" means, with respect to any Asset Sale, Cash payments
(including any Cash received by way of deferred payment pursuant to, or
monetization of, a note receivable or otherwise, but only as and when so
received) received from such Asset Sale.
"CERTIFICATE RE NON-BANK STATUS" means a certificate in form and
substance satisfactory to Administrative Agent delivered by a Lender to
Administrative Agent pursuant to subsection 2.7B(iii) pursuant to which such
Lender certifies, under penalty of perjury, that it is not (i) a "bank" as such
term is defined in subsection 881(c)(3) of the Internal Revenue Code; (ii) a 10
percent shareholder of Company within the meaning of Section 871(h)(3)(B) or
Section 881(c)(3)(B) of the Internal Revenue Code; or (iii) a "controlled"
foreign corporation related to Company within the meaning of Section 864(d)(4)
of the Internal Revenue Code.
"CLOSING DATE" means the date on or before October 15, 1996, on which
the initial Loans are made.
"COLLATERAL" means, collectively, all of the real, personal and mixed
property (including capital stock) in which Liens are purported to be granted by
the Collateral Documents.
"COLLATERAL ACCESS AGREEMENT" means any landlord waiver, mortgagee
waiver, bailee letter or any similar acknowledgement agreement of any landlord
or mortgagee in respect of any Real Property Asset where any Inventory is
located or any warehouseman or processor in possession of Inventory,
substantially in the form of EXHIBIT XVII annexed hereto, with such changes
thereto as may be agreed to by Administrative Agent in the reasonable exercise
of its discretion.
"COLLATERAL ACCOUNT" has the meaning assigned to that term in the
Collateral Account Agreement.
"COLLATERAL ACCOUNT AGREEMENT" means the Collateral Account Agreements
executed and delivered by each of the Borrowers and the applicable Agent on the
Closing Date, substantially in the form of EXHIBIT XIV annexed hereto, pursuant
to which such Borrowers may pledge cash to such Agent to secure the obligations
of such Borrower to reimburse an Issuing Lender for payments made under one or
more Letters of Credit as
-8-
provided in Section 3, as such Collateral Account Agreements may hereafter be
amended, supplemented or otherwise modified from time to time.
"COLLATERAL DOCUMENTS" means the Collateral Account Agreements, the
Security Agreements, the Pledge Agreements, the Trademark Security Agreements,
the Patent Security Agreements, the Subsidiary Security Agreements, the
Subsidiary Pledge Agreements, the Subsidiary Trademark Security Agreements, the
Subsidiary Patent Security Agreements, the Blocked Account Agreements, the Lock
Box Agreements and the Mortgages.
"COMMERCIAL LETTER OF CREDIT" means any letter of credit or similar
instrument issued for the purpose of providing the primary payment mechanism in
connection with the purchase of any materials, goods or services by a Borrower
or any of its Subsidiaries in the ordinary course of business of such Borrower
or such Subsidiary.
"COMMITMENTS" means the Domestic Term Loan Commitments, the US/UK
Revolving Loan Commitments, the UK Term Loan Commitments, the Japanese Term Loan
Commitments or the Japanese Revolving Loan Commitments, or any combination
thereof.
"COMPANY" means (i) prior to the consummation of the Company Merger,
Xxxx Graphic Systems, Inc., a corporation organized under the laws of the State
of Delaware, as the Borrower with respect to the Domestic Term Loan Commitments,
and (ii) immediately upon consummation of the Company Merger, RGS US as the
surviving corporation, which corporation will be renamed "Xxxx Graphic Systems,
Inc." and be a wholly-owned Subsidiary of Holdings.
"COMPANY BORROWING BASE" means, as at any date of determination, an
aggregate amount equal to:
(i) eighty-five percent (85%) of Eligible Accounts Receivable of
Company, PLUS
(ii) sixty-five percent (65%) of Eligible Raw Materials of
Company, PLUS
(iii) sixty-five percent (65%) of Eligible Finished Goods of
Company, PLUS
(iv) sixty-five percent (65%) of Eligible Spare Parts of Company,
PLUS
(v) one hundred percent (100%) of Cash on deposit in Blocked
Accounts of Company, MINUS
-9-
(vi) the aggregate amount of reserves, if any, required to be
established by Administrative Agent in its sole discretion with
respect to any Currency Agreement or Interest Rate Agreement between a
Lender or any of its Affiliates as a counterparty and Company, MINUS
(vii) the aggregate amount of reserves, if any, established by
Administrative Agent in the exercise of its Permitted Discretion
against Eligible Accounts Receivable, Eligible Raw Materials, Eligible
Finished Goods and Eligible Spare Parts of Company;
PROVIDED that Administrative Agent, in the exercise of its Permitted Discretion,
may (a) increase or decrease reserves against Eligible Accounts Receivable,
Eligible Raw Materials, Eligible Finished Goods and Eligible Spare Parts of
Company and (b) reduce the advance rates provided in this definition, or restore
such advance rates to any level equal to or below the advance rates in effect as
of the Closing Date.
"COMPANY COMMON STOCK" means the common stock of Company, par value
$0.01 per share.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
of EXHIBIT VI annexed hereto delivered to Administrative Agent and Lenders by
Company pursuant to subsection 6.1(iv).
"CONCENTRATION ACCOUNT" means an account, including without limitation
any Investment Account, under the exclusive dominion and control of an Agent
that is maintained by the applicable Loan Party with a Concentration Bank into
which the applicable Lock Box Banks and Blocked Account Banks are instructed to
transfer funds on deposit in the applicable Lock Box Accounts or Blocked
Accounts, as the case may be, pursuant to the terms of the applicable Lock Box
Agreements or Blocked Account Agreements, as the case may be.
"CONCENTRATION BANK" means an Agent or any Affiliate of such Agent, or
any commercial bank satisfactory to Administrative Agent at which any Loan Party
maintains a Concentration Account.
"CONSOLIDATED ADJUSTED EBITDA" means, for any period, (a) the sum,
without duplication, of the amounts for such period of (i) Consolidated Net
Income, (ii) Consolidated Interest Expense, (iii) provisions for taxes based on
income, (iv) total depreciation expense, (v) total amortization expense, (vi)
expenses related to the Customer Notes, (vii) expenses related to XXXXXXXXXXXX
DRUCKMASCHINEN AG V. HANTSCHO COMMERCIAL PRODUCTS, INC. AND ROCKWELL GRAPHICS
SYSTEMS, INC. and (viii) other non-cash items reducing Consolidated Net Income
LESS (b) the sum, without duplication, of the amounts for such period of (i)
income related to the Customer Notes and (ii) other non-cash items increasing
Consolidated Net Income, all of the foregoing as determined on a consolidated
basis for
-10-
Company and its Subsidiaries in conformity with GAAP; PROVIDED that for any
covenant calculation, the Consolidated Adjusted EBITDA for the quarter ended
March 31, 1996 will be $35,100,000.
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the sum of
the aggregate of all expenditures (whether paid in cash or other consideration
or accrued as a liability and including that portion of Capital Leases which is
capitalized on the consolidated balance sheet of Company and its Subsidiaries)
by Company and its Subsidiaries during that period that, in conformity with
GAAP, are included in "additions to property, plant or equipment" or comparable
items reflected in the consolidated statement of cash flows of Company and its
Subsidiaries.
"CONSOLIDATED CASH INTEREST EXPENSE" means, for any period,
Consolidated Interest Expense for such period EXCLUDING, HOWEVER, any interest
expense not payable in Cash (including amortization of discount and amortization
of debt issuance costs).
"CONSOLIDATED CURRENT ASSETS" means, as at any date of determination,
the total assets of Company and its Subsidiaries on a consolidated basis which
may properly be classified as current assets in conformity with GAAP, EXCLUDING
Cash and Cash Equivalents.
"CONSOLIDATED CURRENT LIABILITIES" means, as at any date of
determination, the total liabilities of Company and its Subsidiaries on a
consolidated basis which may properly be classified as current liabilities in
conformity with GAAP, EXCLUDING the current portion of any Indebtedness.
"CONSOLIDATED EXCESS CASH FLOW" means, for any period, an amount equal
to (i) the sum, without duplication, of the amounts for such period of (a)
Consolidated Adjusted EBITDA and (b) the Consolidated Working Capital Adjustment
(excluding for the Fiscal Year ending September 30, 1997, any amounts
constituting Purchase Price adjustments) MINUS (ii) the sum, without
duplication, of the amounts for such period of (a) voluntary and scheduled
repayments of Consolidated Total Debt (excluding repayments of Revolving Loans
except to the extent the Revolving Loan Commitments are permanently reduced in
connection with such repayments), (b) Consolidated Capital Expenditures (net of
any proceeds of any related financings with respect to such expenditures),
(c) Consolidated Cash Interest Expense, and (d) the provision for current taxes
based on income of Company and its Subsidiaries and payable in cash with respect
to such period to the extent not included as a current liability.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum (without
duplication) of the amounts for such period of (i) Consolidated Cash Interest
Expense accrued after the Closing Date, (ii) scheduled principal payments made
on Consolidated Total Debt, (iii) consolidated cash taxes accrued after the
Closing Date, and (iv) Consolidated Capital Expenditures, all of the foregoing
as determined on a consolidated basis for Company and its Subsidiaries in
conformity with GAAP.
-11-
"CONSOLIDATED INTEREST EXPENSE" means, for any period, total interest
expense (including that portion attributable to Capital Leases in accordance
with GAAP and capitalized interest) of Company and its Subsidiaries on a
consolidated basis with respect to Consolidated Total Debt, including, without
limitation, all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing, but EXCLUDING,
HOWEVER, any amounts referred to in subsection 2.3 payable to Administrative
Agent and Lenders on or before the Closing Date and net costs under Interest
Rate Agreements obtained in compliance with subsection 6.11.
"CONSOLIDATED NET INCOME" means, for any period, the net income (or
loss) of Company and its Subsidiaries on a consolidated basis for such period
taken as a single accounting period determined in conformity with GAAP; PROVIDED
that there shall be excluded (i) the income (or loss) of any Person (other than
a Subsidiary of Company) in which any other Person (other than Company or any of
its Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to Company or any of its
Subsidiaries by such Person during such period, (ii) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of Company or is merged
into or consolidated with Company or any of its Subsidiaries or that Person's
assets are acquired by Company or any of its Subsidiaries, (iii) the income of
any Subsidiary of Company to the extent that the declaration or payment of
dividends or similar distributions by that Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary, (iv) any after-tax gains or losses attributable
to Asset Sales or returned surplus assets of any Pension Plan, and (v) (to the
extent not included in clauses (i) through (iv) above) any net extraordinary
gains or net non-cash extraordinary losses.
"CONSOLIDATED NET WORTH" means, as at any date of determination, the
sum of the capital stock and paid-in capital, plus retained earnings (or minus
accumulated deficits) of Company and its Subsidiaries on a consolidated basis in
conformity with GAAP.
"CONSOLIDATED TOTAL DEBT" means, as at any date of determination, the
aggregate stated balance sheet amount of all Indebtedness of Company and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED WORKING CAPITAL" means, as at any date of determination,
the excess of Consolidated Current Assets over Consolidated Current Liabilities.
"CONSOLIDATED WORKING CAPITAL ADJUSTMENT" means, for any period on a
consolidated basis, the amount (which may be a negative number) equal to the
Consolidated Working Capital of Company and its Subsidiaries as of the beginning
of such period MINUS the Consolidated Working Capital of Company and its
Subsidiaries as of the end of such period.
-12-
"CONTINGENT OBLIGATION", as applied to any Person, means any direct or
indirect liability, contingent or otherwise, of that Person (i) with respect to
any Indebtedness, lease, dividend or other obligation of another if the primary
purpose or intent thereof by the Person incurring the Contingent Obligation is
to provide assurance to the obligee of such obligation of another that such
obligation of another will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of such obligation
will be protected (in whole or in part) against loss in respect thereof,
(ii) with respect to any letter of credit issued for the account of that Person
or as to which that Person is otherwise liable for reimbursement of drawings, or
(iii) under Interest Rate Agreements and Currency Agreements. Contingent
Obligations shall include, without limitation, (a) the direct or indirect
guaranty, endorsement (other than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with recourse
by such Person of the obligation of another, (b) the obligation to make
take-or-pay or similar payments if required regardless of non-performance by any
other party or parties to an agreement, and (c) any liability of such Person for
the obligation of another through any agreement (contingent or otherwise) (X) to
purchase, repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such obligation
(whether in the form of loans, advances, stock purchases, capital contributions
or otherwise) or (Y) to maintain the solvency or any balance sheet item, level
of income or financial condition of another if, in the case of any agreement
described under subclauses (X) or (Y) of this sentence, the primary purpose or
intent thereof is as described in the preceding sentence. The amount of any
Contingent Obligation shall be equal to the amount of the obligation so
guaranteed or otherwise supported or, if less, the amount to which such
Contingent Obligation is specifically limited.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any Security issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
"CURRENCY AGREEMENT" means any foreign exchange contract, currency
swap agreement, futures contract, option contract, synthetic cap or other
similar agreement or arrangement.
"CUSTOMER FINANCING NOTE GUARANTY" means a guaranty of, or a recourse
arrangement relating to, in each case on terms consistent with the past
practices of Company and its Subsidiaries and with prevailing industry
practices, all or a portion of Secured Customer Financing Notes provided by
Company or any of its Subsidiaries for the benefit of an unaffiliated purchaser
of any Secured Customer Financing Note, or all or a portion of promissory notes
or other financing provided by third parties to customers of Company or any of
its Subsidiaries to provide for the payment by such customer of all or any part
of the purchase price of Finished Goods sold by Company or any of its
Subsidiaries to such customer.
-13-
"CUSTOMER NOTES" means those loans and associated instruments,
agreements, documents and collateral created as a result of customer financing
provided by RGS in connection with the sale of printing and like equipment in
the conduct of RGS' business and which are (i) referenced under the heading
"Customer Notes and Related Agreements" on Schedule 5(l) to the Purchase
Agreement, (ii) similar loans entered into between April 29, 1996 and the day
preceding the Closing Date, and which are consented to and purchased by BTCC and
(iii) Customer Notes that are restructured between March 1, 1996 and the Closing
Date, and which are consented to and purchased by BTCC.
"DAILY FUNDING LENDER" means Administrative Agent, in its individual
capacity as a US/UK Lender hereunder.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"DOCUMENTATION AGENT" has the meaning assigned to that term in the
introduction to this Agreement, and includes any such successor Documentation
Agent appointed pursuant to subsection 9.5.
"DOLLAR EQUIVALENTS" means Dollars or, on any date when an amount
expressed in a currency other than Dollars is to be determined in Dollars, an
equivalent amount of Dollars determined at the nominal rate of exchange quoted
by Administrative Agent in New York City, not later than 9:00 A.M. (New York
time) on the date of determination, to prime banks in New York City for the spot
purchase in the New York foreign exchange market of Dollars with such other
currency.
"DOLLARS" and the sign "$" mean the lawful money of the United States
of America.
"DOMESTIC LOANS" means the Domestic Revolving Loans or the Domestic
Term Loans made to Company, or any combination thereof.
"DOMESTIC REVOLVING LOANS" means the Loans made by Lenders to Company
pursuant to subsection 2.1A(ii)(a).
"DOMESTIC REVOLVING NOTES" means (i) the promissory notes of Company
issued pursuant to subsection 2.1F(i) on the Closing Date and (ii) any
promissory notes issued by Company pursuant to the last sentence of subsection
10.1B(i) in connection with assignments of the US/UK Revolving Loan Commitments
and US/UK Revolving Loans of any Lenders, in each case substantially in the form
of EXHIBIT V annexed hereto, as they may be amended, supplemented or otherwise
modified from time to time.
-14-
"DOMESTIC SUBSIDIARY" means a direct or indirect Subsidiary of Company
that is incorporated or organized under the laws of a state of the United States
of America.
"DOMESTIC TERM LOAN COMMITMENT" means the commitment of a Lender to
make Term Loans to Company pursuant to subsection 2.1A(i)(a), and "DOMESTIC TERM
LOAN COMMITMENTS" means such commitments of all such Lenders in the aggregate.
"DOMESTIC TERM LOAN EXPOSURE" means, with respect to any US/UK Lender
as of any date of determination (i) prior to the funding of the Domestic Term
Loans, that Lender's Domestic Term Loan Commitment and (ii) after the funding of
the Domestic Term Loans, the outstanding principal amount of the Domestic Term
Loans of that Lender.
"DOMESTIC TERM LOANS" means the Term Loans made by Lenders to Company
pursuant to subsection 2.1A(i)(a).
"DOMESTIC TERM NOTES" means (i) the promissory notes of Company issued
pursuant to subsection 2.1F(i) on the Closing Date and (ii) any promissory notes
issued by Company pursuant to the last sentence of subsection 10.1B(i) in
connection with assignments of the Domestic Term Loan Commitments or Domestic
Term Loans of any Lenders, in each case substantially in the form of EXHIBIT IV
annexed hereto, as they may be amended, supplemented or otherwise modified from
time to time.
"ECU" means the European Currency Unit that is from time to time used
as the unit of account of the EU and, in the event of any change to the ECU as
may be made by the EU from time to time, the definition of "ECU" used herein
shall be changed accordingly.
"ELIGIBLE ACCOUNTS RECEIVABLE" means, with respect to a Borrower,
Accounts of such Borrower deemed by Administrative Agent in the exercise of its
Permitted Discretion to be eligible for inclusion in the calculation of the
Borrowing Base for such Borrower; PROVIDED that for purposes of this definition
references to Xxxx UK as Borrower shall be deemed to mean and include Xxxx
France. In determining the amount to be so included, the face amount of such
Accounts shall be reduced by the amount of all returns, discounts, deductions,
claims, credits, charges, or other allowances. Unless otherwise approved in
writing by Administrative Agent, an Account shall not be an Eligible Account
Receivable if:
(a) it arises out of a sale made by such Borrower to an Affiliate; or
(b) the goods giving rise to such Account have been shipped,
delivered and invoiced, and title has passed, to the account debtor and
either (i) the payment terms for such Account are longer than 30 days from
the date of such invoice or (ii) such Account is classified by Borrower in
accordance with its past practices and procedures as an "account receivable
not yet due" (collectively, the "EXTENDED PAYMENT ACCOUNTS"), but only to
the extent (1) the aggregate amount of all such
-15-
Extended Payment Accounts of all Borrowers exceed 20% of all Accounts of
all Borrowers or (2) final payment on such an Extended Payment Account
shall not be received by such Borrower within 270 days after shipment and
delivery of the goods giving rise to such Extended Payment Account; or
(c) it is unpaid more than 90 days after the original payment due
date; or
(d) it is from the same account debtor or its Affiliate and fifty
percent (50%) or more of all Accounts from that account debtor (and its
Affiliates) are ineligible under (c) above; or
(e) when aggregated with all other Accounts of an account debtor,
such Account exceeds 25% in face value of all Accounts of such Borrower
then outstanding, but only to the extent of such excess, unless such excess
is supported by an irrevocable letter of credit satisfactory to
Administrative Agent (as to form, substance and issuer) and assigned to
Agent; or
(f) the account debtor for such Account is a creditor of such
Borrower, has or has asserted a right of setoff against such Borrower, or
has disputed its liability or otherwise has made any claim with respect to
such Account or any other Account which has not been resolved, in each case
to the extent of the amount owed by such Borrower to such account debtor,
the amount of such actual or asserted right of setoff, or the amount of
such dispute or claim, as the case may be; or
(g) the account debtor is (or its assets are) the subject of any of
the events described in subsection 8.6 or 8.7; or
(h) (i) with respect to Company, (1) such Account is not payable in
Dollars or (2) the account debtor for such Account is located outside the
United States, (ii) with respect to Xxxx Japan, (1) such Account is not
payable in Dollars or Yen or (2) the account debtor for such Account is
located outside of Japan, and (iii) with respect to Xxxx UK and Xxxx
France, (1) such Account is not payable in Dollars, Sterling, Francs, Marks
or ECU, or (2) the account debtor for such Account is located outside of
the EU, except in each case to the extent (x) the aggregate amount of such
Accounts of all Borrowers which do not comply with sub-clause (2) of clause
(i), (ii) or (iii) above does not exceed 20% of the aggregate amount of all
Accounts of all Borrowers, or (y) such Account is supported by an
irrevocable letter of credit, a guaranty or any other financing
arrangement, in each case satisfactory to Administrative Agent (as to form,
substance and issuer) and assigned to Agent; or
(i) the sale to the account debtor is on a xxxx-and-hold, guarantied
sale, sale-and-return, sale on approval or consignment basis or made
pursuant to any other written agreement providing for repurchase or return;
or
-16-
(j) Administrative Agent determines by its own credit analysis that
collection of such Account is uncertain or that such Account may not be
paid; or
(k) the account debtor is any federal, state, local, provincial, or
other comparable or similar governmental authority, agency or
instrumentality; PROVIDED that if the account debtor is the United States
of America or any department, agency or instrumentality thereof, such
Account shall not be ineligible solely as a result of this clause (k) if
the applicable Loan Party duly assigns its rights to payment of such
Account to Administrative Agent pursuant to the Assignment of Claims Act of
1940, as amended (31 U.S.C. Sections 3727 et seq.); or
(l) the goods giving rise to such Account have not been shipped,
delivered and invoiced to the account debtor, the services giving rise to
such Account have not been performed and invoiced to the account debtor, or
such Account otherwise does not represent a final sale; or
(m) such Account does not comply with all Requirements of Law,
including without limitation the Federal Consumer Credit Protection Act,
the Federal Truth in Lending Act and Regulation Z of the Board of Governors
of the Federal Reserve System; or
(n) such Account arises as a result of any progress billing or such
Account is subject to any adverse security deposit, progress payment or
other similar advance made by or for the benefit of the applicable account
debtor; or
(o) the goods giving rise to such Account are subject to any Secured
Customer Financing Arrangement or Customer Financing Note Guaranty; or
(p) it is not subject to a valid and perfected First Priority Lien in
favor of Agent or does not otherwise conform to the representations and
warranties contained in the Loan Documents; PROVIDED that no Account which
is otherwise an Eligible Account Receivable shall be excluded under this
clause (p) solely as a result of (i) in the case of Xxxx UK, the account
debtor for such Account is located in a jurisdiction other than that of the
UK so long as such account debtor is in the EU; (ii) in the case of Xxxx
France, such Account is not subject to a valid and perfected Lien in favor
of Agent; and (iii) in the case of Xxxx Japan, such Account is not subject
to a perfected Lien in favor of Agent solely because (x) no notification of
Agent's security interest in such Account has been provided to the account
debtor or (y) Agent has not taken possession of any drafts or checks
related to such Account; PROVIDED that Xxxx Japan has caused such drafts or
checks to be deposited in a Blocked Account in accordance with the
procedures set forth in subsection 2.9B;
-17-
PROVIDED that Administrative Agent, in the exercise of its Permitted Discretion,
may impose additional restrictions (or eliminate the same) to the standards of
eligibility set forth in this definition.
"ELIGIBLE ASSIGNEE" means (A) (i) a commercial bank organized under
the laws of the United States or any state thereof; (ii) a savings and loan
association or savings bank organized under the laws of the United States or any
state thereof; (iii) a commercial bank organized under the laws of any other
country or a political subdivision thereof; PROVIDED that (x) such bank is
acting through a branch or agency located in the United States or (y) such bank
is organized under the laws of a country that is a member of the Organization
for Economic Cooperation and Development or a political subdivision of such
country; and (iv) any other entity which is an "accredited investor" (as defined
in Regulation D under the Securities Act) which extends credit or buys loans as
one of its businesses including, but not limited to, insurance companies, mutual
funds and lease financing companies, in each case (under clauses (i) through
(iv) above) that is reasonably acceptable to Administrative Agent; and (B) any
Lender and any Affiliate of any Lender; PROVIDED that no Affiliate of Company
shall be an Eligible Assignee.
"ELIGIBLE FINISHED GOODS" means Finished Goods which constitute
Eligible Inventory.
"ELIGIBLE INVENTORY" means, with respect to a Borrower, the aggregate
amount of Raw Materials, Finished Goods and Spare Parts of such Borrower deemed
by Administrative Agent in the exercise of its Permitted Discretion to be
eligible for inclusion in the calculation of the Borrowing Base; PROVIDED that
for purposes of this definition references to Xxxx UK as Borrower shall be
deemed to mean and include Xxxx France. In determining the amount to be so
included, such Raw Materials, Finished Goods and Spare Parts shall be valued at
the lower of cost or market, on a basis consistent with such Borrower's current
and historical accounting practice, net of any progress payments and/or advance
payments made by customers and received by such Borrower with respect to
Finished Goods otherwise includible in such Borrower's Borrowing Base as
Eligible Inventory. Unless otherwise approved in writing by Administrative
Agent, an item of Raw Materials, Finished Goods and Spare Parts shall not be
included in Eligible Inventory if:
(a) it is not owned solely by such Borrower or such Borrower does not
have good, valid and marketable title thereto; or
(b) (i) with respect to Company, it is not located in the United
States; (ii) with respect to Xxxx Japan, it is not located in Japan; or
(iii) with respect to Xxxx UK, it is not located in the UK, or with respect
to Xxxx France, it is not located in France; or
(c) other than Finished Goods subject to a Secured Customer Financing
Arrangement which are in the process of being installed by such Borrower
for a
-18-
period which does not exceed six months ("SPECIFIED FINISHED GOODS"), it is
not located on property owned or leased by such Borrower or in a contract
warehouse, in each case unless subject to a Collateral Access Agreement
executed by any applicable mortgagee, lessor or contract warehouseman, as
the case may be, and segregated or otherwise separately identifiable from
goods of others, if any, stored on the premises; or
(d) it is not subject to a valid and perfected First Priority Lien in
favor of the Agent except, with respect to Raw Materials, Finished Goods
and Spare Parts stored at sites described in clause (c) above, for Liens
for unpaid rent or normal and customary warehousing charges; PROVIDED that
no Raw Materials, Finished Goods and Spare Parts which are otherwise
Eligible Inventory shall be excluded under this clause (d) solely as a
result of: (i) in the case of Xxxx UK, Specified Finished Goods are being
installed in a jurisdiction other than that of the UK so long as they are
being installed in the EU; and (ii) in the case of Xxxx France, such Raw
Materials, Finished Goods and Spare Parts are not subject to a valid and
perfected Lien in favor of Agent; or
(e) it consists of goods returned or rejected by such Borrower's
customers; or other than Finished Goods subject to a Secured Customer
Financing Arrangement which are in the process of being installed by such
Borrower for a period which does not exceed six months, goods in transit to
third parties (other than to warehouse sites covered by a Collateral Access
Agreement); or
(f) it consists of Raw Materials which are sub-assemblies; or
(g) it is not first-quality goods, is obsolete or slow moving, or
does not otherwise conform to the representations and warranties contained
in the Loan Documents;
PROVIDED that Administrative Agent, in the exercise of its Permitted Discretion,
may impose additional restrictions (or eliminate the same) to the standards of
eligibility set forth in this definition.
"ELIGIBLE RAW MATERIALS" means Raw Materials which constitute Eligible
Inventory.
"ELIGIBLE SPARE PARTS" means Spare Parts which constitute Eligible
Inventory.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as defined
in Section 3(3) of ERISA which is, or was at any time, maintained or contributed
to by Company or any of its ERISA Affiliates. Any such plan of a former ERISA
Affiliate of the Company shall continue to be considered an Employee Benefit
Plan within the meaning of this definition solely with respect to the period
during which such former ERISA Affiliate
-19-
was an ERISA Affiliate of the Company and with respect to liabilities existing
after such period for which the Company could be liable under the Internal
Revenue Code or ERISA.
"ENVIRONMENTAL CLAIM" means any allegation, notice of violation,
claim, demand, abatement order or other direction (conditional or otherwise) by
any Governmental Authority or any Person for any damage, including, without
limitation, personal injury (including sickness, disease or death), tangible or
intangible property damage, contribution, indemnity, indirect or consequential
damages, damage to the environment, nuisance, pollution, contamination or other
adverse effects on the environment, or for fines, penalties or restrictions, in
each case relating to, resulting from or in connection with Hazardous Materials
and relating to Company, any of its Subsidiaries, any of their respective
Affiliates or any Facility.
"ENVIRONMENTAL LAWS" means all statutes, ordinances, orders, rules,
regulations, plans, policies or decrees and requirements having the force of law
of any Governmental Authority relating to (i) environmental matters, including,
without limitation, those relating to fines, injunctions, penalties, damages,
contribution, cost recovery compensation, losses or injuries resulting from the
Release or threatened Release, (ii) the generation, use, storage, transportation
or disposal of Hazardous Materials, or (iii) occupational safety and health,
industrial hygiene, land use or the protection of human, plant or animal health
or welfare from environmental hazards, in any manner applicable to Company or
any of its Subsidiaries or any of their respective properties, including,
without limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. Section 9601 ET SEQ.) ("CERCLA"), the Hazardous
Materials Transportation Act (49 U.S.C. Section 1801 ET SEQ.), the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 ET SEQ.), the Federal
Water Pollution Control Act (33 U.S.C. Section 1251 ET SEQ.), the Clean Air
Act (42 U.S.C. Section 7401 ET SEQ.), the Toxic Substances Control Act (15
U.S.C. Section 2601 ET SEQ.), the Federal Insecticide, Fungicide and
Rodenticide Act (7 U.S.C. Section 136 ET SEQ.), the Occupational Safety and
Health Act (29 U.S.C. Section 651 ET SEQ.) and the Emergency Planning and
Community Right-to-Know Act (42 U.S.C. Section 11001 ET SEQ.), each as amended,
and any analogous future or present local, state and federal laws, statutes and
regulations promulgated pursuant thereto, each as in effect and applicable as of
the date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute, and any similar or
comparable laws in a jurisdiction outside of the U.S. applicable to Company or
any of its Subsidiaries.
"ERISA AFFILIATE", as applied to any Person, means (i) any corporation
which is a member of a controlled group of corporations within the meaning of
Section 414(b) of the Internal Revenue Code of which that Person is a member;
(ii) any trade or business (whether or not incorporated) which is a member of a
group of trades or businesses under common control within the meaning of
Section 414(c) of the Internal Revenue Code of which that Person is a member;
and (iii) except for purposes of Title IV of ERISA, any member of
-20-
an affiliated service group within the meaning of Section 414(m) or (o) of the
Internal Revenue Code of which that Person, any corporation described in clause
(i) above or any trade or business described in clause (ii) above is a member.
Any former ERISA Affiliate of a Person shall continue to be considered an ERISA
Affiliate within the meaning of this definition solely with respect to the
period during which such entity was an ERISA Affiliate of the Person and with
respect to liabilities arising after such period for which the Person could be
liable under the Internal Revenue Code or ERISA.
"ERISA EVENT" means (i) a "reportable event" within the meaning of
Section 4043 of ERISA and the regulations issued thereunder with respect to any
Pension Plan (excluding those for which the provision for 30-day notice to the
PBGC has been waived by regulation); (ii) the failure to meet the minimum
funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the
Internal Revenue Code) or the failure to make by its due date a required
installment under Section 412(m) of the Internal Revenue Code with respect to
any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan
pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such
plan in a distress termination described in Section 4041(c) of ERISA; (iv) the
withdrawal by Company or any of its ERISA Affiliates from any Pension Plan with
two or more contributing sponsors or the termination of any such Pension Plan
resulting in liability pursuant to Sections 4063 or 4064 of ERISA; (v) the
institution by the PBGC of proceedings to terminate any Pension Plan, or the
occurrence of any event or condition which could reasonably be expected to
constitute grounds under ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan; (vi) the imposition of liability on
Company or any of its ERISA Affiliates pursuant to Section 4062(e) or 4069 of
ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the
withdrawal by Company or any of its ERISA Affiliates in a complete or partial
withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any
Multiemployer Plan if there is any potential liability therefor, or the receipt
by Company or any of its ERISA Affiliates of notice from any Multiemployer Plan
that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of
ERISA, or that it intends to terminate or has terminated under Section 4041A or
4042 of ERISA; (viii) the occurrence of an act or omission which could
reasonably be expected to give rise to the imposition on Company or any of its
ERISA Affiliates of material fines, penalties, taxes or related charges under
Chapter 43 of the Internal Revenue Code or under Section 409 or 502(c), (i) or
(l) or 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the assertion
of a material claim (other than routine claims for benefits) against any
Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or
against Company or any of its ERISA Affiliates in connection with any such
Employee Benefit Plan; (x) receipt from the Internal Revenue Service of notice
of the failure of any Pension Plan (or any other Employee Benefit Plan intended
to be qualified under Section 401(a) of the Internal Revenue Code) to qualify
under Section 401(a) of the Internal Revenue Code, or the failure of any trust
forming part of any Pension Plan to qualify for exemption from taxation under
Section 501(a) of the Internal Revenue Code; or (xi) the imposition of a Lien
pursuant to Section 401(a)(29) or 412(n) of
-21-
the Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan;
PROVIDED that any event described in the foregoing clauses shall not be an ERISA
Event if Company and/or its Subsidiaries are (or would be) liable for any
potential liability resulting from such event solely because of their
affiliation with an ERISA Affiliate (excluding Company and all Subsidiaries) and
(i) such events could not reasonably be expected to result (individually or in
the aggregate) in liability (including joint and several liability) of Company
and its Subsidiaries of more than $1,000,000, or (ii) neither Company and its
Subsidiary could reasonably be expected to be liable (either individually or on
a joint and several basis) for any potential liability resulting from such
event; PROVIDED FURTHER that any event described in the foregoing proviso shall
be an ERISA Event if the PBGC or any other governmental authority notifies
Company or one of its Subsidiaries that Company or one of its Subsidiaries is
liable for any potential liability resulting from such event.
"EURODOLLAR RATE LOANS" means Loans bearing interest at rates
determined by reference to the Adjusted Eurodollar Rate as provided in
subsection 2.2A.
"EU" means the European Union.
"EVENT OF DEFAULT" means each of the events set forth in Section 8.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute, and any comparable or similar laws
in a jurisdiction outside of the United States applicable to Company or any of
its Subsidiaries.
"EXCHANGE RATE" means, on any date when an amount expressed in a
currency other than Dollars is to be determined with respect to any Letter of
Credit, the nominal rate of exchange of the applicable Issuing Lender in the New
York foreign exchange market for the purchase by such Issuing Lender (by cable
transfer) of such currency in exchange for Dollars at 12:00 noon (New York time)
one Business Day prior to such date, expressed as a number of units of such
currency per one Dollar.
"FACILITIES" means the manufacturing plants, offices, warehouses and
all other real property (including, without limitation, all buildings, fixtures
or other improvements located thereon) and related facilities now, hereafter or
heretofore owned, leased, operated or used by Company or any of its Subsidiaries
or any of their respective predecessors or Affiliates.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day
-22-
on such transactions received by Administrative Agent from three Federal funds
brokers of recognized standing selected by Administrative Agent.
"FEE PROPERTY" means a Real Property Asset consisting of a fee
interest in real property.
"FINANCIAL PLAN" has the meaning assigned to that term in subsection
6.1(xiii).
"FINISHED GOODS" means all completed web offset newspaper press
systems, insert web offset press systems and commercial web offset printing
presses, or accessories thereto, and other related goods and merchandise, in
each case constituting finished goods which are held for sale or lease by a
Borrower, including those held for display or demonstration, but not including
any Raw Materials, components, work in process, Spare Parts or materials used or
consumed or to be used or consumed in the business of such Borrower.
"FIRST PRIORITY" means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document, that (i) such
Lien has priority over any other Lien (other than Permitted Encumbrances which
as a matter of statutory law have priority over any other Lien irrespective of
the prior perfection or filing of such other Lien) on such Collateral and (ii)
such Lien is the only Lien (other than Permitted Encumbrances) to which such
Collateral is subject.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of Company and its Subsidiaries
ending on September 30 of each calendar year.
"FLOOD HAZARD PROPERTY" means a Mortgaged Property located in an area
in the United States designated by the Federal Emergency Management Agency as
having special flood or mud slide hazards.
"FOREIGN SUBSIDIARY" means a direct or indirect Subsidiary of Company
that is incorporated or organized under the laws of a jurisdiction other than
that of the United States of America.
"FOREIGN UNFUNDED PENSION PLAN" means a Pension Plan described in
Section 4(b)(4) of ERISA that is not required to be funded pursuant to
applicable foreign law.
"FRANCS" and the sign "FF" mean the lawful money of the Republic of
France.
"FUND" means Stonington Capital Appreciation 1994 Fund, L.P., a
limited partnership organized under the laws of the State of Delaware, organized
by Stonington.
-23-
"FUNDING DATE" means the date of the funding of a Loan.
"FUNDING LENDER" means (i) with respect to Domestic and UK Loans,
Daily Funding Lender and (ii) with respect to Japanese Loans, Japanese Funding
Lender.
"FUNDING AND PAYMENT OFFICE" means (i) with respect to Domestic Loans
and UK Loans, the US/UK Funding and Payment Office, and (ii) with respect to
Japanese Loans, the Japanese Funding and Payment Office.
"GAAP" means, subject to the limitations on the application thereof
set forth in subsection 1.2, generally accepted accounting principles set forth
in opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, in each case as the same are applicable to the
circumstances as of the date of determination.
"XXXX AUSTRALASIA" means Xxxx Graphic Systems Australasia PTY Limited,
a corporation organized under the laws of Australia and a wholly-owned
Subsidiary of Company.
"XXXX FRANCE" means, on and after the Closing Date, RGS France, which
corporation will be renamed "Xxxx Systemes Graphiques Nantes S.A." as soon as
practicable after the Closing Date, and is a wholly-owned Subsidiary of Company.
"XXXX INTERNATIONAL" means Xxxx International, Inc., a corporation
organized or to be organized under the laws of Delaware and a wholly-owned
Subsidiary of Company.
"XXXX JAPAN" means (i) prior to the purchase by New Xxxx Japan of all
of the outstanding capital stock of RGS Japan, New Xxxx Japan, as the Borrower
with respect to the Japanese Term Loan Commitments, (ii) immediately upon the
purchase by New Xxxx Japan of all of the outstanding capital stock of RGS Japan,
RGS Japan, as the Borrower with respect to the Japanese Revolving Loan
Commitment and, jointly and severally with New Xxxx Japan, as the Borrowers,
with respect to the Japanese Term Loans and (iii) upon consummation of the Xxxx
Japan Merger, the surviving corporation or such merger, which corporation will
be named "Xxxx Graphic Systems Japan K. K."
"XXXX JAPAN BORROWING BASE" means, as at any date of determination, an
aggregate amount equal to the sum of:
(i) eighty-five percent (85%) of Eligible Accounts Receivable of
Xxxx Japan, PLUS
-24-
(ii) sixty-five percent (65%) of Eligible Raw Materials of Xxxx
Japan, PLUS
(iii) sixty-five percent (65%) of Eligible Finished Goods of Xxxx
Japan, PLUS
(iv) sixty-five percent (65%) of Eligible Spare Parts of Xxxx
Japan, PLUS
(v) one hundred percent (100% of Cash on deposit in Blocked
Accounts of Xxxx Japan, which Blocked Accounts are located at Bankers
Trust Company, Tokyo Branch, MINUS
(vi) the aggregate amount of reserves, if any, required to be
established by Administrative Agent in its sole discretion with
respect to any Currency Agreement or Interest Rate Agreement between a
Lender or any of its Affiliates as a counterparty and Xxxx Japan,
MINUS
(vii) the aggregate amount of reserves, if any, established by
Administrative Agent in the exercise of its Permitted Discretion
against Eligible Accounts Receivable, Eligible Raw Materials, Eligible
Finished Goods and Eligible Spare Parts of Xxxx Japan;
PROVIDED that Administrative Agent, in the exercise of its Permitted Discretion,
may (a) increase or decrease reserves against Eligible Accounts Receivable,
Eligible Raw Materials, Eligible Finished Goods and Eligible Spare Parts of Xxxx
Japan and (b) reduce the advance rates provided for in this definition, or
restore such advance rates to any level equal to or below the advance rates in
effect as of the Closing Date.
"XXXX JAPAN MERGER" means the merger of New Shellco with RGS Japan,
with the surviving corporation being named "Xxxx Graphic Systems Japan K. K."
and a wholly-owned Subsidiary of Company.
"XXXX SERVICES" means Xxxx Services Corporation, a corporation
organized or to be organized under the laws of Delaware and a wholly-owned
Subsidiary of Company.
"XXXX UK" has the meaning assigned to that term in the introduction to
this Agreement, and is a wholly-owned Subsidiary of Company.
"XXXX UK BORROWING BASE" means, as at any date of determination, an
aggregate amount equal to the sum of:
-25-
(i) eighty-five percent (85%) of Eligible Accounts Receivable of
Xxxx UK, PLUS eighty-five percent (85%) of Eligible Accounts
Receivable of Xxxx France, PLUS
(ii) sixty-five percent (65%) of Eligible Raw Materials of Xxxx
UK PLUS sixty-five percent (65%) of Eligible Raw Materials of Xxxx
France, PLUS
(iii) sixty-five percent (65%) of Eligible Finished Goods of Xxxx
UK PLUS sixty-five percent (65%) of Eligible Finished Goods of Xxxx
France, PLUS
(iv) sixty-five percent (65%) of Eligible Spare Parts of Xxxx UK
PLUS sixty-five percent (65%) of Eligible Spare Parts of Xxxx France,
PLUS
(v) one hundred percent (100% of Cash on deposit in Blocked
Accounts of Xxxx UK, MINUS
(vi) the aggregate amount of reserves, if any, required to be
established by Administrative Agent in its sole discretion with
respect to any Currency Agreement or Interest Rate Agreement between a
Lender or any of its Affiliates as a counterparty and Xxxx UK or Xxxx
France, MINUS
(vii) the aggregate amount of reserves, if any, established by
Administrative Agent in the exercise of its Permitted Discretion
against Eligible Accounts Receivable, Eligible Raw Materials, Eligible
Finished Goods and Eligible Spare Parts of Xxxx UK or Xxxx France;
PROVIDED that Administrative Agent, in the exercise of its Permitted Discretion,
may (a) increase or decrease reserves against Eligible Accounts Receivable,
Eligible Raw Materials, Eligible Finished Goods and Eligible Spare Parts of Xxxx
UK or Xxxx France and (b) reduce the advance rates provided for in this
definition, or restore such advance rates to any level equal to or below the
advance rates in effect as of the Closing Date.
"GOVERNMENTAL AUTHORITY" means any federal, state or local
governmental authority, agency or court in the United States, or other
comparable or similar governmental authority, agency or court in a jurisdiction
outside of the United States applicable to Company or any of its Subsidiaries.
"GOVERNMENTAL AUTHORIZATION" means any permit, license, authorization,
plan, directive, consent order or consent decree of or from any Governmental
Authority.
"GUARANTOR" means, at any time, Holdings, Company or any of their
respective Subsidiaries that is then a party to any of the Guaranties or
Subsidiary Guaranties.
-26-
"GUARANTY" means the Guaranty executed and delivered by Company or
Holdings on the Closing Date, substantially in the form of EXHIBIT XVIII annexed
hereto, and any other guaranty, document or instrument with a similar or
comparable effect executed by any Foreign Subsidiary that is a Borrower, in form
and substance satisfactory to Administrative Agent, as such Guaranty may be
amended, supplemented or otherwise modified from time to time, and "GUARANTIES"
means all such Guaranties, collectively.
"HAZARDOUS MATERIALS" means (i) any chemical, material or substance
which, at the time of determination, is defined as or included in the definition
of "hazardous substances", "hazardous wastes", "hazardous materials", "extremely
hazardous waste", "restricted hazardous waste", "infectious waste", "toxic
substances" or any other formulations intended to define, list or classify
substances by reason of deleterious properties such as ignitability,
corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, "TCLP
toxicity" or "EP toxicity" or words of similar meaning and regulatory effect
under any applicable Environmental Laws; (ii) any oil, petroleum, petroleum
fraction or petroleum derived substance; (iii) any drilling fluids, produced
waters and other wastes associated with the exploration, development or
production of crude oil, natural gas or geothermal resources; (iv) any flammable
substances or explosives; (v) any radioactive materials; (vi) asbestos in any
form; (vii) urea formaldehyde foam insulation; (viii) electrical equipment which
contains any dielectric fluid containing a mixture of polychlorinated biphenyls
("PCB") in excess of fifty parts per million of PCB's; (ix) pesticides; and
(x) any other chemical, material or substance, exposure to which is prohibited,
limited, regulated or determined by any Governmental Authority or which may or
could pose a hazard to the health and safety of the owners, occupants or any
Persons in the vicinity of the Facilities.
"HERSANT GROUP" means Socpresse, S.A., Serpo, Presse Ocean and any of
their Affiliates (including Xxxxxx Xxxxxxx, the estate of Xxxxxx Xxxxxxx and any
other successors, assigns or heirs of Xxxxxx Xxxxxxx).
"HOLDINGS" means GGS Holdings, Inc., a corporation organized under the
laws of the State of Delaware, formed by Stonington on behalf of the Fund to
effect the Acquisition.
"HOLDINGS' CERTIFICATE OF DESIGNATION" means Holdings' Certificate of
Designation of 6-1/2% Redeemable Pay-in-Kind Preferred Stock, in the form
delivered to Administrative Agent and Lenders on the Closing Date and as such
provisions may be amended from time to time to the extent permitted under
subsection 7.12.
"HOLDINGS COMMON STOCK" means the voting and nonvoting common stock of
Holdings, par value $0.01 per share.
"HOLDINGS PREFERRED STOCK" means the 6-1/2% Redeemable Pay-in-Kind
Preferred Stock of Holdings, par value $0.01 per share, having a liquidation
preference of
-27-
$1,000 per share (or $47,500,000 in the aggregate), and issued to Rockwell in
connection with the Acquisition.
"INACTIVE SUBSIDIARY" means any Subsidiary of Company that does not
engage in any business activity; PROVIDED that the aggregate assets owned and
the aggregate revenues generated by all Inactive Subsidiaries shall not exceed
$1,000,000; and each Inactive Subsidiary shall be so identified on SCHEDULE 5.1
annexed hereto.
"INDEBTEDNESS", as applied to any Person, means (i) all indebtedness
for borrowed money, (ii) that portion of obligations with respect to Capital
Leases that is properly classified as a liability on a balance sheet in
conformity with GAAP, (iii) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed money,
(iv) any obligation owed for all or any part of the deferred purchase price of
property or services (excluding any such obligations incurred under ERISA),
which purchase price is (a) due more than six months from the date of incurrence
of the obligation in respect thereof or (b) evidenced by a note or similar
written instrument, and (v) all indebtedness secured by any Lien on any property
or asset owned or held by that Person regardless of whether the indebtedness
secured thereby shall have been assumed by that Person or is nonrecourse to the
credit of that Person. Obligations under Interest Rate Agreements and Currency
Agreements constitute Contingent Obligations and not Indebtedness.
"INDEMNIFYING LENDER" means each Japanese Loan Indemnifying Lender and
each UK Loan Indemnifying Lender, and "INDEMNIFYING LENDERS" means,
collectively, all such financial institutions.
"INDEMNITEE" has the meaning assigned to that term in subsection 10.3.
"INDEMNITY AMOUNT" means for each Indemnifying Lender which is a
signatory hereto the amount and the percentage that is so designated and set
forth opposite such Indemnifying Lender's name on SCHEDULE 2.1 annexed hereto,
and for each financial institution which becomes an Indemnifying Lender pursuant
to an Assignment Agreement the amount and the percentage that is so designated
in such Assignment Agreement; PROVIDED that such percentage interest of an
Indemnifying Lender may increase or decrease from time to time depending on a
Funding Lender's interests in the Japanese Term Loans or Japanese Revolving Loan
Commitment or UK Term Loans or US/UK Revolving Loan Commitment, as the case may
be.
"INDEMNITY PARTICIPATION" shall have the meaning set forth therefor in
subsection 2.10.
"INTELLECTUAL PROPERTY" means all patents, trademarks, tradenames,
copyrights, registered names, service marks, technology, know-how and processes
used in or necessary for the conduct of the business of Company and its
Subsidiaries as currently
-28-
conducted that are material to the condition (financial or otherwise), business
or operations of Company and its Subsidiaries, taken as a whole.
"INTEREST PAYMENT DATE" means (i) with respect to any Base Rate Loan,
the first Business Day of each calendar month, commencing on the first such date
to occur after the Closing Date, and (ii) with respect to any Eurodollar Rate
Loan, the last day of each Interest Period applicable to such Loan; PROVIDED
that in the case of each Interest Period of six months "Interest Payment Date"
shall also include the date that is three months after the commencement of such
Interest Period.
"INTEREST PERIOD" has the meaning assigned to that term in subsection
2.2B.
"INTEREST RATE AGREEMENT" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement.
"INTEREST RATE DETERMINATION DATE" means, with respect to any Interest
Period, the second Business Day prior to the first day of such Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, and any similar or
comparable laws in a jurisdiction outside of the United States applicable to
Company or any of its Subsidiaries.
"INVENTORY" means, with respect to any Person, all goods, merchandise
and other personal property which are held by such Person for sale or lease,
including those held for display or demonstration, including without limitation,
Raw Materials, Finished Goods and Spare Parts.
"INVESTMENT" means (i) any direct or indirect purchase or other
acquisition by Company or any of its Subsidiaries of, or of a beneficial
interest in, any Securities of any other Person (other than a Person that prior
to such purchase or acquisition was a wholly-owned Domestic Subsidiary of
Company), (ii) any direct or indirect redemption, retirement, purchase or other
acquisition for value, by any Subsidiary of Company from any Person other than
Company or any of its Subsidiaries, of any equity Securities of such Subsidiary,
or (iii) any direct or indirect loan, advance (other than advances to employees
for moving, entertainment and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business) or capital contribution by
Company or any of its Subsidiaries to any other Person other than a wholly-owned
Domestic Subsidiary of Company, including all indebtedness and accounts
receivable from that other Person that are not current assets or did not arise
from sales to that other Person in the ordinary course of business. The amount
of any Investment shall be the original cost of such Investment plus the cost of
all additions thereto, without any adjustments for increases or decreases in
value, or write-ups, write-downs or write-offs with respect to such Investment.
-29-
"INVESTMENT ACCOUNT" means an interest-bearing account at a
Concentration Bank in the name of, and under the exclusive dominion and control
of, an Agent and maintained by the applicable Loan Party with such Concentration
Bank.
"IP COLLATERAL" means, collectively, the Collateral under the IP
Collateral Documents.
"IP COLLATERAL DOCUMENTS" means, collectively, the Trademark Security
Agreements, the Patent Security Agreements, the Subsidiary Trademark Security
Agreements, and the Subsidiary Patent Security Agreements.
"ISSUING LENDER" means, with respect to any Letter of Credit, Agent
and any other Lender which has been approved by Administrative Agent to be an
Issuing Lender under subsection 3.1A hereof and which Lender has a Revolving
Loan Commitment and has consented to issue such Letter of Credit.
"JAPANESE AGENT" means initially BT Tokyo and any successor Japanese
Agent appointed pursuant to subsection 9.5.
"JAPANESE COMMITMENTS" means the Japanese Revolving Loan Commitment or
Japanese Term Loan Commitment, or any combination thereof.
"JAPANESE FUNDING LENDER" means Japanese Agent, in its individual
capacity as a Japanese Lender hereunder.
"JAPANESE FUNDING AND PAYMENT OFFICE" means (i) the office of Japanese
Agent and Japanese Funding Lender located at Tokyo Ginko Kyokai Bldg., 1-3-1,
Marunouchi, Chiyoda-Ku, Tokyo, Japan, or (ii) such other office of Japanese
Agent and Japanese Funding Lender as may from time to time hereafter be
designated as such in a written notice delivered by Japanese Agent and Japanese
Funding Lender to Xxxx Japan and Japanese Lenders.
"JAPANESE LENDER" and "JAPANESE LENDERS" means the Lenders that have
Japanese Commitments or that have Japanese Loans outstanding.
"JAPANESE LOAN INDEMNIFYING LENDER" means each financial institution
that is designated as a Japanese Loan Indemnifying Lender on SCHEDULE 2.1
annexed hereto, and each financial institution which is designated, with the
approval of the Japanese Funding Lender, as a Japanese Loan Indemnifying Lender
in an Assignment Agreement.
"JAPANESE LOANS" means the Japanese Revolving Loans or the Japanese
Term Loans made to Xxxx Japan, or any combination thereof.
-30-
"JAPANESE REVOLVING LOAN COMMITMENT" means the commitment of a
Japanese Lender to make Japanese Revolving Loans to Xxxx Japan pursuant to
subsection 2.1A(ii)(b), and "JAPANESE REVOLVING LOAN COMMITMENTS" means such
commitments of all such Lenders in the aggregate.
"JAPANESE REVOLVING LOAN EXPOSURE" means, with respect to any Japanese
Lender as of any date of determination (i) prior to the termination of the
Japanese Revolving Loan Commitments, that Lender's Japanese Revolving Loan
Commitment and (ii) after the termination of the Japanese Revolving Loan
Commitments, the sum of (a) the aggregate outstanding principal amount of the
Japanese Revolving Loans of that Lender PLUS (b) in the event that Lender is an
Issuing Lender, the aggregate Letter of Credit Usage in respect of all Letters
of Credit issued by that Lender for the benefit of Xxxx Japan (in each case net
of any participations purchased by other Lenders in such Letters of Credit or
any unreimbursed drawings thereunder) PLUS (c) the aggregate amount of all
participations purchased by that Lender in any outstanding Letters of Credit for
the benefit of Xxxx Japan or any unreimbursed drawings under any such Letters of
Credit.
"JAPANESE REVOLVING LOANS" means the Loans made by Lenders to Xxxx
Japan pursuant to subsection 2.1A(ii)(b).
"JAPANESE REVOLVING NOTES" means (i) the promissory notes of Xxxx
Japan issued pursuant to subsection 2.1F(ii) on the Closing Date and (ii) any
promissory notes issued by Xxxx Japan pursuant to the last sentence of
subsection 10.1B(i) in connection with assignments of Japanese Revolving Loan
Commitments and Japanese Revolving Loans of any Lender, in each case
substantially in the form of EXHIBIT V annexed hereto, as they may be amended,
supplemented or otherwise modified from time to time.
"JAPANESE TERM LOAN COMMITMENT" means the commitment of a Lender to
make Term Loans to Xxxx Japan pursuant to subsection 2.1A(i)(b), and "JAPANESE
TERM LOAN COMMITMENTS" means such commitments of all such Lenders in the
aggregate.
"JAPANESE TERM LOAN EXPOSURE" means, with respect to any Japanese
Lender as of any date of determination (i) prior to the funding of the Japanese
Term Loans, that Lender's Japanese Term Loan Commitment and (ii) after the
funding of the Japanese Term Loans, the outstanding principal amount of the
Japanese Term Loans of that Lender.
"JAPANESE TERM LOANS" means the Term Loans made by Lenders to Xxxx
Japan pursuant to subsection 2.1A(i)(b).
"JAPANESE TERM NOTES" means (i) the promissory notes of Xxxx Japan
issued pursuant to subsection 2.1F(ii) on the Closing Date and (ii) any
promissory notes issued by Xxxx Japan pursuant to the last sentence of
subsection 10.1B(i) in connection with assignments of the Japanese Term Loan
Commitments or Japanese Term Loans of any
-31-
Lenders, in each case substantially in the form of EXHIBIT IV annexed hereto, as
they may be amended, supplemented or otherwise modified from time to time.
"JOINT VENTURE" means a joint venture, partnership, limited liability
company or other similar arrangement, whether in corporate, partnership,
limited liability company or other legal form; PROVIDED that in no event shall
any corporate Subsidiary of any Person be considered to be a Joint Venture to
which such Person is a party.
"LENDER" and "LENDERS" means (i) the US/UK Lenders and (ii) the
Japanese Lenders, or any combination thereof, in each case together with their
successors and permitted assigns pursuant to subsection 10.1; PROVIDED that the
term "Lenders," when used in the context of a particular Commitment, shall mean
Lenders having that Commitment.
"LETTER OF CREDIT" or "LETTERS OF CREDIT" means Commercial Letters of
Credit and Standby Letters of Credit issued or to be issued by Issuing Lenders
for the account of a Borrower pursuant to subsection 3.1.
"LETTER OF CREDIT USAGE" means, as at any date of determination, the
sum of (i) the maximum aggregate amount which is or at any time thereafter may
become available for drawing under all Letters of Credit then outstanding issued
for the account of a Borrower, PLUS (ii) the aggregate amount of all drawings
under such Letters of Credit honored by Issuing Lenders and not theretofore
reimbursed.
"LEVERAGE RATIO" means, as at any date of determination, the ratio of
(i) Consolidated Total Debt MINUS Cash of Company and its Subsidiaries deposited
in a Blocked Account or other account approved by Administrative Agent as set
forth on the consolidated balance sheet of Company and its Subsidiaries, in each
case as of the last day of the Fiscal Quarter for which such determination is
being made, to (ii) Consolidated Adjusted EBITDA for the four-Fiscal Quarter
period ending as of the last day of the Fiscal Quarter for which such
determination is being made.
"LIEN" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing.
"LOAN" or "LOANS" means one or more of the Term Loans or Revolving
Loans or any combination thereof.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Letters of
Credit (and any applications for, or reimbursement agreements or other documents
or certificates executed by a Borrower in favor of an Issuing Lender relating
to, the Letters of Credit), the Guaranties and the Collateral Documents and,
solely for purposes of the use of the term
-32-
"Loan Documents" in the definition of the term "Obligations," the Currency
Agreements to which any Lender or any of its Affiliates is a party and Interest
Rate Agreements to which any Lender or any of its Affiliates is a party.
"LOAN PARTIES" means each of the Borrowers, the Guarantors or any of
Company's Subsidiaries executing any other Loan Document.
"LOAN PORTFOLIO PURCHASE AGREEMENT" means that certain Loan Portfolio
Purchase Agreement dated as of October 15, 1996 entered into between Company and
BTCC whereby Company shall sell and BTCC shall purchase the Customer Notes, as
in effect on the Closing Date, as amended from time to time to the extent
permitted under subsection 7.12.
"LOCAL TIME" means (i) with respect to Domestic Loans and UK Loans,
New York time, and (ii) with respect to Japanese Loans, Tokyo time.
"LOCK BOX" means a lock box maintained by any Loan Party pursuant to
lock box service arrangements satisfactory to Administrative Agent.
"LOCK BOX ACCOUNT" means a Deposit Account under the exclusive
dominion and control of an Agent that is maintained by the applicable Loan Party
with a Lock Box Bank pursuant to a Lock Box Agreement.
"LOCK BOX AGREEMENT" means a lock box agreement executed and delivered
by a Lock Box Bank, an Agent and the applicable Loan Party, substantially in the
form of EXHIBIT XVI annexed hereto, as such Lock Box Agreement may be amended,
supplemented or otherwise modified from time to time, and "LOCK BOX AGREEMENTS"
means all such Lock Box Agreements, collectively.
"LOCK BOX BANK" means any commercial bank satisfactory to
Administrative Agent at which any Loan Party maintains a Lock Box Account.
"MANAGEMENT INVESTMENT INCENTIVE PLAN" means the plan to be adopted by
Holdings as of the Closing Date pursuant to which officers and key employees of
Holdings and its Subsidiaries will be granted shares of Holdings Common Stock as
restricted stock and stock options exercisable into shares of Holdings Common
Stock, as such plan may be amended, supplemented or otherwise modified from time
to time to the extent permitted under subsection 7.12.
"MANAGEMENT INVESTMENT" has the meaning assigned to that term in the
Recitals.
"MANAGEMENT INVESTORS" means those Persons in the management of
Company holding any capital stock of Holdings.
-33-
"MANAGEMENT NOTES" means those certain secured promissory notes
executed and delivered by certain Management Investors to Holdings in connection
with the purchase of Holdings Common Stock by such Management Investors.
"MARGIN DETERMINATION CERTIFICATE" means an Officers' Certificate of
Company delivered with the financial statements required pursuant to subsections
6.1(ii) or 6.1(iii) setting forth in reasonable detail the Leverage Ratio.
"MARGIN STOCK" has the meaning assigned to that term in Regulation U
of the Board of Governors of the Federal Reserve System as in effect from time
to time.
"MARKS" and the sign "DM" mean the lawful money of the Federal
Republic of Germany.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse effect upon the
business, operations, properties, assets, condition (financial or otherwise) or
prospects of (w) Company and its Domestic Subsidiaries, taken as a whole, (x)
Xxxx Japan and its Subsidiaries, taken as a whole, (y) Xxxx UK and its
Subsidiaries, taken as a whole, or (z) Company and its Subsidiaries, taken as a
whole; PROVIDED that in the event of the occurrence of a material adverse effect
as described in the foregoing clauses (w), (x) or (y), such Borrower shall have
five days after receipt of notice from Administrative Agent to cure such
material adverse effect (without causing a material adverse effect for any other
Borrower) before it shall become a "Material Adverse Effect" as defined in this
clause (i); (ii) the impairment in any material respect of the ability of any
Loan Party to perform, or of any Agent or any Lender to enforce, the
Obligations; or (iii) a material adverse effect on the value of the Collateral
or the amount which any Agent or any Lender would be likely to receive (after
giving consideration to delays in payment and costs of enforcement) in the
liquidation of the Collateral.
"MATERIAL CONTRACT" means any contract or other arrangement to which
any Borrower or any of its Subsidiaries is a party (other than the Loan
Documents) for which breach, nonperformance, cancellation or failure to renew
could have a Material Adverse Effect.
"MATERIAL LEASEHOLD" means a Real Property Asset consisting of a
leasehold interest in an Operating Lease or a Capital Lease which is reasonably
determined by Administrative Agent to be of material value as collateral for the
Obligations.
"MATERIAL SUBSIDIARY" means any Subsidiary of Holdings that (i) owns
5% or more of the assets of Holdings and its Subsidiaries, measured on a
consolidated basis, or (ii) accounts for 5% or more of Consolidated Net Income.
"MAXIMUM PERMITTED REVOLVING LOAN COMMITMENTS" means, as of any date
of determination, $150,000,000 MINUS the aggregate amount of all reductions made
to the
-34-
Revolving Loan Commitments pursuant to subsection 2.4B(ii) or 2.4B(iii) since
the Closing Date.
"MORTGAGE" means an instrument (whether designated as a deed of trust,
a trust deed or a mortgage or by any similar title) executed and delivered by
any Borrower or any of its Subsidiaries encumbering a Fee Property or a Material
Leasehold, as such instrument may be amended, supplemented or otherwise modified
from time to time, and "MORTGAGES" means all such instruments, including the
Closing Date Mortgages (as defined in subsection 4.1I) and any Additional
Mortgages (as defined in subsection 6.9), collectively.
"MORTGAGED PROPERTY" means a Closing Date Mortgaged Property (as
defined in subsection 4.1I) or an Additional Mortgaged Property (as defined in
subsection 6.9).
"MULTIEMPLOYER PLAN" means a "multiemployer plan", as defined in
Section 3(37) of ERISA, to which Company or any of its ERISA Affiliates is
contributing, or ever has contributed, or to which Company or any of its ERISA
Affiliates has, or ever has had, an obligation to contribute.
"NET CASH PROCEEDS" means, with respect to any Asset Sale, Cash
Proceeds of such Asset Sale net of bona fide direct costs incurred in connection
with such Asset Sale, including without limitation (i) income taxes reasonably
estimated to be actually payable as a result of such Asset Sale within two years
of the date of such Asset Sale and (ii) payment of the outstanding principal
amount of, premium or penalty, if any, and interest on any Indebtedness (other
than the Loans) that is secured by a Lien on the stock or assets in question and
that is required to be repaid under the terms thereof as a result of such Asset
Sale.
"NET INSURANCE/CONDEMNATION PROCEEDS" means any Cash payments or
proceeds received by Agent or by any Borrower or any of such Borrower's
Subsidiaries (i) under any business interruption or casualty insurance policy in
respect of a covered loss thereunder or (ii) as a result of the taking of any
assets of any Borrower or any of its respective Subsidiaries by any Person
pursuant to the power of eminent domain, condemnation or otherwise, or pursuant
to a sale of any such assets to a purchaser with such power under threat of such
a taking, in each case net of any actual and reasonable documented costs
incurred by such Borrower or any of its respective Subsidiaries in connection
with the adjustment or settlement of any claims of such Borrower or such
Subsidiary in respect thereof.
"NEW XXXX JAPAN" means prior to the transfer to New Shellco of all of
the outstanding capital stock of RGS Japan in accordance with the provisions of
subsection 6.13, Xxxx Graphic Systems Japan K. K., a corporation organized under
the laws of Japan, which corporation was formerly known as "Tomita Engineering
K. K.", and a wholly-owned Subsidiary of Company.
-35-
"NEW SHELLCO" means a corporation organized under the laws of Japan,
which corporation will be named "Xxxx Graphic Systems Japan K. K." immediately
upon the transfer by New Xxxx Japan to it of all of the outstanding capital
stock of RGS Japan in accordance with the provisions of subsection 6.13.
"NOTES" means one or more of the Term Notes or Revolving Notes, or any
combination thereof.
"NOTICE OF ALLOCATION" means a notice substantially in the form of
EXHIBIT XXVIII annexed hereto delivered by Borrowers to Administrative Agent
(with a copy to the applicable Agent) pursuant to subsection 2.1A(ii)(c) for the
purpose of allocating the Revolving Loan Commitments between the Japanese
Revolving Loan Commitment and the US/UK Revolving Loan Commitment.
"NOTICE OF BORROWING" means a notice substantially in the form of
EXHIBIT I annexed hereto delivered by a Borrower to Administrative Agent (with a
copy to the applicable Agent) pursuant to subsection 2.1B with respect to a
proposed borrowing.
"NOTICE OF CONVERSION/CONTINUATION" means a notice substantially in
the form of EXHIBIT II annexed hereto delivered by a Borrower to Administrative
Agent (with a copy to the applicable Agent) pursuant to subsection 2.2D with
respect to a proposed conversion or continuation of the applicable basis for
determining the interest rate with respect to the Loans specified therein.
"NOTICE OF ISSUANCE OF LETTER OF CREDIT" means a notice substantially
in the form of EXHIBIT III annexed hereto delivered by a Borrower to
Administrative Agent (with a copy to the applicable Agent) pursuant to
subsection 3.1B(i) with respect to the proposed issuance of a Letter of Credit.
"OBLIGATIONS" means all obligations of every nature of each Loan Party
from time to time owed to any Agent or any Lender under the Loan Documents,
whether for principal, interest (including interest accruing on or after the
occurrence of any of the events described in subsection 8.6 or 8.7 whether or
not allowed), reimbursement of amounts drawn under Letters of Credit, fees,
expenses, indemnification or otherwise.
"OFFICERS' CERTIFICATE" means, as applied to any corporation, a
certificate executed on behalf of such corporation by its chairman of the board
(if an officer) or its president or one of its vice presidents (or comparable
officer in the case of New Xxxx Japan, RGS Japan, Xxxx UK or Xxxx France) and by
its chief financial officer or its treasurer; PROVIDED that any Officers'
Certificate required to be delivered by any Loan Party on the Closing Date may
be executed on behalf of such Loan Party by any one of the foregoing officers;
PROVIDED FURTHER that every Officers' Certificate with respect to the compliance
with a condition precedent to the making of any Loans hereunder shall include
(i) a statement that the officer or officers making or giving such Officers'
Certificate have read such condition
-36-
and any definitions or other provisions contained in this Agreement relating
thereto, (ii) a statement that, in the opinion of the signers, they have made or
have caused to be made such examination or investigation as is necessary to
enable them to express an informed opinion as to whether or not such condition
has been complied with, and (iii) a statement as to whether, in the opinion of
the signers, such condition has been complied with.
"OPERATING LEASE" means, as applied to any Person, any lease
(including, without limitation, leases that may be terminated by the lessee at
any time) of any property (whether real, personal or mixed) that is not a
Capital Lease other than any such lease under which that Person is the lessor.
"PATENT SECURITY AGREEMENT" means the Patent Collateral Assignment and
Security Agreement executed and delivered by Company, or, if applicable,
Holdings on the Closing Date, substantially in the form of EXHIBIT XXII annexed
hereto, or any other security agreement, document or instrument with a similar
or comparable effect executed by any Foreign Subsidiary that is a Borrower, in
form and substance satisfactory to Administrative Agent, as such Patent Security
Agreement may be amended, supplemented or otherwise modified from time to time,
and "PATENT SECURITY AGREEMENTS" means all such Patent Security Agreements,
collectively.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor thereto), or any similar or comparable governmental agency or
authority in a jurisdiction outside of the United States applicable to Company
or any of its Subsidiaries.
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
"PERMITTED DISCRETION" means Administrative Agent's good faith
judgment based upon any factor which it believes in good faith: (i) will or
could adversely affect the value of any Collateral, the enforceability or
priority of Administrative Agent's or any other Agent's Liens thereon or the
amount which Agents and Lenders would be likely to receive (after giving
consideration to delays in payment and costs of enforcement) in the liquidation
of such Collateral; (ii) suggests that any collateral report or financial
information delivered to Administrative Agent or any other Agent by any Person
on behalf of any Loan Party is incomplete, inaccurate or misleading in any
material respect; (iii) materially increases the likelihood of a bankruptcy,
reorganization or other insolvency proceeding involving any Borrower or any of
its Subsidiaries or any of the Collateral; or (iv) creates or reasonably could
be expected to create a Potential Event of Default or Event of Default. In
exercising such judgment, Administrative Agent may consider such factors already
included in or tested by the definition of Eligible Accounts Receivable,
Eligible Finished Goods, Eligible Raw Materials or Eligible Spare Parts, as well
as any of the following: (i) the financial and business climate of any
Borrower's industry and general macroeconomic conditions, (ii) changes in
collection history and dilution with respect to any such Borrower's Accounts,
(iii)
-37-
changes in demand for, and pricing of, any such Borrower's Raw Materials,
Finished Goods or Spare Parts, (iv) changes in any concentration of risk with
respect to such Accounts or Raw Materials, Finished Goods or Spare Parts, and
(v) any other factors that change the credit risk of lending to any Borrower on
the security of such Accounts or Raw Materials, Finished Goods or Spare Parts,
including without limitation any foreign exchange risks or uncertainties. The
burden of establishing lack of good faith shall be on the Borrower.
"PERMITTED ENCUMBRANCES" means the following types of Liens (other
than any such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or by ERISA):
(i) Liens for taxes, assessments or governmental charges or claims
the payment of which is not, at the time, required by subsection 6.3 (other
than any Lien relating to or imposed in connection with any Environmental
Claim);
(ii) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics and materialmen and other Liens imposed by law incurred in the
ordinary course of business for sums not yet delinquent or being contested
in good faith, if such reserve or other appropriate provision, if any, as
shall be required by GAAP shall have been made therefor;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money); PROVIDED, HOWEVER, that "Permitted
Encumbrances" shall not include Liens for the benefit of any customer of
Company or any of its Subsidiaries or for any advances, deposits, progress
payments or other similar payments made to Company or any of its
Subsidiaries by a customer;
(iv) any attachment or judgment Lien not constituting an Event of
Default under subsection 8.8 (other than any Lien relating to or imposed in
connection with any Environmental Claim);
(v) leases or subleases granted to others not interfering in any
material respect with the ordinary conduct of the business of Company or
any of its Subsidiaries;
(vi) easements, rights-of-way, restrictions, covenants, declarations,
encroachments, minor defects or irregularities in title, and other similar
charges or encumbrances not interfering in any material respect with the
ordinary conduct of the business of Company or any of its Subsidiaries;
-38-
(vii) any (a) restriction or encumbrance that the interest or title of
a lessor or sublessor may be subject to, or (b) subordination of the
interest of the lessee or sublessee under a lease to any restriction or
encumbrance referred to in the preceding clause (a);
(viii) Liens arising from filing UCC financing statements relating
solely to leases permitted by this Agreement;
(ix) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(x) licenses of patents, trademarks and other intellectual property
rights granted by Company or any of its Subsidiaries in the ordinary course
of business and not interfering in any material respect with the ordinary
conduct of the business of Company or such Subsidiary; and
(xi) the title exceptions approved by Administrative Agent and shown
on Schedule B of the Closing Date Mortgage Policies (as defined in
subsection 4.1I(d)).
"PERSON" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments and agencies and
political subdivisions thereof.
"PLEDGE AGREEMENT" means the Pledge Agreement executed and delivered
by Company or Holdings on the Closing Date, substantially in the form of EXHIBIT
XIX annexed hereto, or any other pledge agreement, document or instrument with a
similar or comparable effect executed by a Foreign Subsidiary that is a
Borrower, in form and substance satisfactory to Administrative Agent, as such
Pledge Agreement may be amended, supplemented or otherwise modified from time to
time, and "PLEDGE AGREEMENTS" means all such Pledge Agreements, collectively.
"POTENTIAL EVENT OF DEFAULT" means a condition or event that, after
notice or passage of time or both, would constitute an Event of Default.
"PRIME RATE" means the rate that Administrative Agent announces from
time to time as its prime lending rate as in effect from time to time. The
Prime Rate is a reference rate and does not necessarily represent the lowest or
best rate actually charged to any customer. Any Agent or any other Lender may
make commercial loans or other loans at rates of interest at, above or below the
Prime Rate.
"PRO RATA SHARE" means, on any date of determination, (i) with respect
to all payments, computations and other matters relating to a Type of Term Loan
Commitment or
-39-
a Type of Term Loan of any Lender, the percentage obtained by DIVIDING (x) the
Term Loan Exposure of such Type of that Lender BY (y) the aggregate Term Loan
Exposure of such Type of all Lenders; (ii) with respect to all payments,
computations and other matters relating to a Type of Revolving Loan Commitment
or a Type of Revolving Loans of any Lender or any Letters of Credit of such Type
or participations in such Revolving Loans or Letters of Credit purchased by any
Lender, the percentage obtained by DIVIDING (x) the Revolving Loan Exposure of
such Type of that Lender BY (y) the aggregate Revolving Loan Exposure of such
Type of all Lenders; and (iii) for all other purposes with respect to each
Lender, the percentage obtained by DIVIDING (x) the Term Loan Exposure of all
Types of that Lender PLUS the Revolving Loan Exposure of all Types of that
Lender BY (y) the sum of the aggregate Term Loan Exposure of all Types of all
Lenders PLUS the aggregate Revolving Loan Exposure of all Types of all Lenders,
in any such case as the applicable percentage may be adjusted by assignments
permitted pursuant to subsection 10.1. The initial Pro Rata Share of each
Lender is set forth opposite the name of that Lender in SCHEDULE 2.1 annexed
hereto.
"PUBLIC OFFERING" means any bona fide primary underwritten public
offering of Holdings Common Stock or Company Common Stock pursuant to an
effective registration statement under the Securities Act (other than pursuant
to a registration statement on Form S-8 or otherwise relating to equity
securities issuable exclusively under any employee benefit plan of Holdings).
"PURCHASE AGREEMENT" means that certain Stock and Asset Purchase
Agreement by and between Company and Rockwell dated as of April 26, 1996, in the
form delivered to Administrative Agent and Lenders prior to their execution of
this Agreement, as amended by that certain amendment dated as of July 18, 1996,
and as such agreement may be amended further from time to time thereafter to the
extent permitted under subsection 7.12.
"PURCHASE PRICE" has the meaning given to such term in the Purchase
Agreement as in effect on the date hereof.
"RAW MATERIALS" means all raw materials to be used or consumed in the
production or manufacture of Finished Goods by a Borrower prior to such use or
consumption.
"REAL PROPERTY ASSETS" means all real property from time to time owned
in fee by any Loan Party and all rights, title and interest in and to any and
all leases of real property as to which any Loan Party has a leasehold or
license interest, including without limitation any such fee or leasehold or
license interests acquired by any Loan Party after the date hereof.
"REGISTER" has the meaning assigned to that term in subsection 2.1E.
-40-
"REGULATION D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time, and any similar or
comparable laws in the UK or Japan.
"REIMBURSEMENT DATE" has the meaning assigned to that term in
subsection 3.3B.
"RELATED AGREEMENTS" means, collectively, the Purchase Agreement, the
Stockholders Agreement, the Management Investment Incentive Plan, the Transition
Agreement, the Loan Portfolio Purchase Agreement, the Assumed Guaranties, the
Holdings' Certificate of Designation, the Senior Subordinated Note Indenture,
the Senior Subordinated Notes, the Share Transfer Agreement and the Management
Notes, and all other agreements or instruments delivered pursuant to or in
connection with any of the foregoing including any purchase agreement or
registration rights agreement, and all documentation evidencing any Indebtedness
incurred by Company or any of its Subsidiaries permitted under subsection
7.1(viii).
"RELEASE" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of Hazardous Materials into the environment (including,
without limitation, the abandonment or disposal of any barrels, containers or
other closed receptacles containing any Hazardous Materials), or into or out of
any Facility, including the movement of any Hazardous Material through the air,
soil, surface water or groundwater.
"REQUIREMENT OF LAW" means (a) the certificates or articles of
incorporation, by-laws, partnership agreement, limited liability company
operating agreement and other organizational or governing documents of a Person,
(b) any law, treaty, rule, regulation or determination of an arbitrator, court
or any other Governmental Authority (in each case, other than Environmental
Laws), or (c) any franchise, license, lease, permit, certificate, authorization,
qualification, easement, right of way, right or approval binding on a Person or
any of its property.
"REQUISITE LENDERS" means Lenders having or holding a majority of the
sum of the aggregate Term Loan Exposure of all Types of all Lenders PLUS the
aggregate Revolving Loan Exposure of all Types of all Lenders.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of stock
of Company now or hereafter outstanding, except a dividend payable solely in
shares of that class of stock to the holders of that class, (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of stock of Company now or
hereafter outstanding, (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of stock of Company now or hereafter outstanding, and
(iv) any payment or prepayment of
-41-
principal of, premium, if any, or interest on, or redemption, purchase,
retirement, defeasance (including in-substance or legal defeasance), sinking
fund or similar payment with respect to, any Subordinated Indebtedness.
"REVOLVING LOAN COMMITMENT TERMINATION DATE" means September 30, 2001.
"REVOLVING LOAN COMMITMENTS" means the US/UK Revolving Loan
Commitments or the Japanese Revolving Loan Commitments, or any combination
thereof.
"REVOLVING LOAN EXPOSURES" means the US/UK Revolving Loan Exposure or
the Japanese Revolving Loan Exposure, or any combination thereof.
"REVOLVING LOANS" means Domestic Revolving Loans, the UK Revolving
Loans or the Japanese Revolving Loans, or any combination thereof.
"REVOLVING NOTES" means the Domestic Revolving Notes, the UK Revolving
Notes or the Japanese Revolving Notes, or any combination thereof.
"RGS FRANCE" has the meaning assigned to that term in the recitals to
this Agreement.
"RGS JAPAN" means Rockwell Graphic Systems-Japan Corporation, a
corporation organized under the laws of Japan, which corporation will be renamed
during the period 90 days after the Closing Date and prior to the consummation
of the Xxxx Japan Merger, and, (i) prior to the transfer by New Xxxx Japan to
New Shellco of all of the outstanding capital stock of RGS Japan, is a
wholly-owned Subsidiary of New Xxxx Japan, (ii) immediately upon transfer of by
New Xxxx Japan to New Shellco of all of the outstanding capital stock of RGS
Japan, is a wholly-owned Subsidiary of New Shellco, and (iii) is to be merged
with New Shellco pursuant to the Xxxx Japan Merger, which surviving corporation
will be named "Xxxx Graphic Systems Japan K. K."
"SAYAMA EXCLUDED COLLATERAL" means the Facilities located at 000-0
Xxxxxxxxxxxxxx, Xxxxxxxxxx, Xxxxxx Xxxx, Xxxxxx Prefecture, Japan, together with
all contract rights, rents, issues, royalties, income, revenue, proceeds,
profits, security deposits, accounts or similar interests derived from such
Facilities.
"SAYAMA SUB" means a corporation organized or to be organized under
the laws of Japan and a wholly-owned Subsidiary of Xxxx Japan.
"SECURED CUSTOMER FINANCING ARRANGEMENT" means an arrangement whereby
a customer of Company or any of its Subsidiaries executes and delivers a Secured
Customer Financing Note for all or any part of the purchase price of Finished
Goods sold by Company or any of its Subsidiaries to such customer, the repayment
of which Secured
-42-
Customer Financing Note is secured by a duly perfected security interest in such
Finished Goods in favor of Company or any such Subsidiary.
"SECURED CUSTOMER FINANCING NOTE" means a promissory note (other than
Customer Notes), on terms consistent with the past practices of Company and its
Subsidiaries and with prevailing industry practices, executed and delivered by a
customer of Company or any of its Subsidiaries in connection with a Secured
Customer Financing Arrangement.
"SECURITIES" means any stock, shares, partnership interests, voting
trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time, and any successor statute, and any comparable or similar laws in a
jurisdiction outside of the United States applicable to Company or any of its
Subsidiaries.
"SECURITY AGREEMENT" means the Security Agreement executed and
delivered by Company or, if applicable, Holdings on the Closing Date,
substantially in the form of EXHIBIT XX annexed hereto, or any other security
agreement, document or instrument with a similar or comparable effect executed
by any Foreign Subsidiary that is a Borrower, in form and substance satisfactory
to Administrative Agent, as such Security Agreement may be amended or
supplemented or otherwise modified from time to time, and "SECURITY AGREEMENTS"
means all such Security Agreements, collectively.
"SENIOR SUBORDINATED NOTE INDENTURE" means the senior subordinated
indenture dated as of October 15, 1996 by and between Company and The Bank of
New York, as Trustee, pursuant to which the Senior Subordinated Notes are
issued, as such indenture may be amended from time to time to the extent
permitted under subsection 7.12.
"SENIOR SUBORDINATED NOTES" means the senior subordinated unsecured
notes issued by Company pursuant to the Senior Subordinated Note Indenture in
the aggregate principal amount of $225,000,000, in the form of Exhibit A to the
Senior Subordinated Note Indenture, as such notes may be amended from time to
time to the extent permitted under subsection 7.12.
"SHARE TRANSFER AGREEMENT" means that certain share transfer agreement
and indemnity, dated as of October 2, 1996, by and between Company and Tomita,
whereby Company purchased all of the outstanding capital stock of Tomita
Engineering K. K., a corporation organized under the laws of Japan and, prior to
the purchase of such stock by
-43-
Company, a wholly-owned subsidiary of Tomita, and which corporation was renamed
"Xxxx Graphic Systems Japan K. K." and became a wholly-owned Subsidiary of
Company.
"SOLVENT" means, with respect to any Person, that as of the date of
determination both (A) (i) the then fair saleable value of the property of such
Person is (y) greater than the total amount of liabilities (including contingent
liabilities) of such Person and (z) not less than the amount that will be
required to pay the probable liabilities on such Person's then existing debts as
they become absolute and matured considering all financing alternatives and
potential asset sales reasonably available to such Person; (ii) such Person's
capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (iii) such Person does not intend to
incur, or believe (nor should it reasonably believe) that it will incur, debts
beyond its ability to pay such debts as they become due; and (B) such Person is
"solvent" within the meaning given that term and similar terms under applicable
laws relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
"SPARE PARTS" means all components, goods, merchandise or spare parts,
in each case related to press equipment, which are held for sale or lease by a
Borrower in connection with the servicing, maintenance or repair of Finished
Goods sold or leased by such Borrower but not including any Raw Materials or
work in process.
"STANDBY LETTER OF CREDIT" means any standby letter of credit or
similar instrument issued for the purpose of supporting (i) Indebtedness of
Company or any of its Subsidiaries in respect of industrial revenue or
development bonds or financings; (ii) workers' compensation liabilities of
Company or any of its Subsidiaries; (iii) the obligations of third party
insurers of Company or any of its Subsidiaries arising by virtue of the laws of
any jurisdiction requiring third party insurers; (iv) obligations with respect
to Capital Leases or Operating Leases of Company or any of its Subsidiaries;
(v) performance, payment, deposit or surety obligations of Company or any of its
Subsidiaries, in any case if required by law or governmental rule or regulation
or in accordance with custom and practice in the industry; (vi) payment
obligations of Company in respect of the Assumed Guaranties as described in the
definition thereof; (vii) payment obligations of Company or its Subsidiaries in
respect of Customer Financing Note Guaranties; PROVIDED that the aggregate
amount of all such Customer Financing Note Guaranties supported by a Letter of
Credit does not exceed $10,000,000 at any time outstanding; and (viii) Currency
Agreements designed to hedge against fluctuations in currency values with
respect to customer contracts for the sale of Finished Goods entered into in the
ordinary course of business and consistent with past practices; PROVIDED that
Standby Letters of Credit may not be issued for the purpose of supporting
(a) trade payables or (b) any Indebtedness constituting "antecedent debt" (as
that term is used in the Bankruptcy Code).
"STERLING" and the sign "L" mean the lawful money of the UK.
-44-
"STOCKHOLDERS AGREEMENT" means that certain Stockholders Agreement
dated as of the Closing Date entered into by and among Holdings, the Fund and
the Management Investors, as such agreement may be amended, supplemented or
otherwise modified from time to time to the extent permitted under subsection
7.12.
"STONINGTON" means Stonington Partners, Inc., a corporation organized
under the laws of Delaware.
"SUBORDINATED INDEBTEDNESS" means (i) the Indebtedness of Company
evidenced by the Senior Subordinated Notes and (ii) any other Indebtedness of
Company (other than Indebtedness to any of its Subsidiaries) that is
subordinated in right of payment to the Obligations pursuant to documentation
containing maturities, amortization schedules, covenants, defaults, remedies,
subordination provisions and other material terms in form and substance
satisfactory to Administrative Agent and Requisite Lenders.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence of
any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof.
"SUBSIDIARY GUARANTY" means the Subsidiary Guaranty executed and
delivered by Domestic Subsidiaries on the Closing Date and to be executed and
delivered by Domestic Subsidiaries from time to time thereafter in accordance
with subsection 6.8A, substantially in the form of EXHIBIT XXIII annexed hereto,
or any other guaranty, document or instrument with a similar or comparable
effect executed by any Foreign Subsidiary other than a Borrower, in form and
substance satisfactory to Administrative Agent, as such Subsidiary Guaranty may
be amended, supplemented or otherwise modified from time to time.
"SUBSIDIARY PATENT SECURITY AGREEMENT" means each Subsidiary Patent
Collateral Security Agreement and Conditional Assignment executed and delivered
by Domestic Subsidiaries on the Closing Date or to be executed and delivered by
Domestic Subsidiaries from time to time thereafter in accordance with subsection
6.8A, in each case substantially in the form of EXHIBIT XXVII annexed hereto, or
any other security agreement, document or instrument with a similar or
comparable effect executed by any Foreign Subsidiary other than a Borrower, in
form and substance satisfactory to Administrative Agent, as such Subsidiary
Patent Security Agreement may be amended, supplemented or otherwise modified
from time to time, and "SUBSIDIARY PATENT SECURITY AGREEMENTS" means all such
Subsidiary Patent Security Agreements collectively.
-45-
"SUBSIDIARY PLEDGE AGREEMENT" means each Subsidiary Pledge Agreement
executed and delivered by Domestic Subsidiaries on the Closing Date or to be
executed and delivered by Domestic Subsidiaries from time to time thereafter in
accordance with subsection 6.8A, in each case substantially in the form of
EXHIBIT XXV annexed hereto, or any other pledge agreement, document or
instrument with a similar or comparable effect executed by a Foreign Subsidiary
other than a Borrower, in form and substance satisfactory to Administrative
Agent, as such Subsidiary Pledge Agreement may be amended, supplemented or
otherwise modified from time to time, and "SUBSIDIARY PLEDGE AGREEMENTS" means
all such Subsidiary Pledge Agreements, collectively.
"SUBSIDIARY SECURITY AGREEMENT" means each Subsidiary Security
Agreement executed and delivered by Domestic Subsidiaries on the Closing Date or
to be executed and delivered by Domestic Subsidiaries from time to time
thereafter in accordance with subsection 6.8A, in each case substantially in the
form of EXHIBIT XXIV annexed hereto, or any other security agreement, document
or instrument with a similar or comparable effect executed by any Foreign
Subsidiary other than a Borrower, in form and substance satisfactory to
Administrative Agent, as such Subsidiary Security Agreement may be amended,
supplemented or otherwise modified from time to time, and "SUBSIDIARY SECURITY
AGREEMENTS" means all such Subsidiary Security Agreements, collectively.
"SUBSIDIARY TRADEMARK SECURITY AGREEMENT" means each Subsidiary
Trademark Collateral Security Agreement and Conditional Assignment executed and
delivered by Domestic Subsidiaries on the Closing Date or to be executed and
delivered by Domestic Subsidiaries from time to time thereafter in accordance
with subsection 6.8A, in each case substantially in the form of EXHIBIT XXVI
annexed hereto, or any other security agreement, document or instrument with a
similar or comparable effect executed by any Foreign Subsidiary other than a
Borrower, in form and substance satisfactory to Administrative Agent, as such
Subsidiary Trademark Security Agreement may be amended, supplemented or
otherwise modified from time to time, and "SUBSIDIARY TRADEMARK SECURITY
AGREEMENTS" means all such Subsidiary Trademark Security Agreements,
collectively.
"SYNDICATION AGENT" has the meaning assigned to that term in the
introduction to this Agreement, and includes any such successor Syndication
Agent appointed pursuant to subsection 9.5.
"TAX" or "TAXES" means any present or future tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature and whatever called, by
whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or
assessed; PROVIDED that "TAX ON THE OVERALL NET INCOME" of a Person shall be
construed as a reference to a tax imposed by the jurisdiction in which that
Person's principal office (and/or, in the case of a Lender, its lending office)
is located or in which that Person is deemed to be doing business on all or part
of the net income, profits or gains of that Person (whether worldwide, or only
-46-
insofar as such income, profits or gains are considered to arise in or to relate
to a particular jurisdiction, or otherwise).
"TERM LOAN COMMITMENTS" means the Domestic Term Loan Commitments, the
UK Term Loan Commitments or the Japanese Term Loan Commitments, or any
combination thereof.
"TERM LOAN EXPOSURES" means the Domestic Term Loan Exposure, the UK
Term Loan Exposure or the Japanese Term Loan Exposure, or any combination
thereof.
"TERM LOANS" means Domestic Term Loans, the UK Term Loans or the
Japanese Term Loans, or any combination thereof.
"TERM NOTES" means Domestic Term Notes, the UK Term Notes and the
Japanese Term Notes, or any combination thereof.
"TITLE COMPANY" means First American Title Insurance Company.
"TOMITA" means Xxxxxx X. X., a corporation organized under the laws of
Japan.
"TOTAL UTILIZATION OF REVOLVING LOAN COMMITMENTS" means for any
Borrower, as at any date of determination, the sum of (i) the aggregate
principal amount of all outstanding Revolving Loans made to such Borrower, PLUS
(ii) the Letter of Credit Usage with respect to all Letters of Credit issued for
the account of such Borrower.
"TRADEMARK SECURITY AGREEMENT" means the Trademark Collateral Security
Agreement and Conditional Assignment executed and delivered by Company or, if
applicable, Holdings on the Closing Date, substantially in the form of EXHIBIT
XXI annexed hereto, or any other security agreement, document or instrument with
a similar or comparable effect executed by any Foreign Subsidiary that is a
Borrower, in form and substance satisfactory to Administrative Agent, as such
Trademark Security Agreement may be amended, supplemented or otherwise modified
from time to time, and "TRADEMARK SECURITY AGREEMENTS" means all such Trademark
Security Agreements, collectively.
"TRANSACTION COSTS" means the fees, costs and expenses payable by any
Loan Party on or before the Closing Date in connection with the transactions
contemplated hereby or by the Purchase Agreement.
"TRANSITION AGREEMENT" means that certain Transition Agreement dated
as of the Closing Date between Rockwell and Company with respect to certain
transitional arrangements in conformity with the Outline of Terms set forth as
Exhibit C to the Purchase Agreement.
-47-
"TRIGGERING EVENT" means (i) the occurrence and continuation of any
Event of Default under subsection 8.1, 8.6 or 8.7 or (ii) the acceleration of
the maturity of the Obligations as a result of any Event of Default, which
acceleration has not been rescinded in accordance with the provisions of Section
8.
"TYPE" means (i) with respect to a Commitment, a Domestic Term Loan
Commitment, a Japanese Term Loan Commitment, a UK Term Loan Commitment or a
US/UK Revolving Loan Commitment or a Japanese Revolving Loan Commitment, and
(ii) with respect to a Term Loan, means a Domestic Term Loan, a Japanese Term
Loan or a UK Term Loan, and (iii) with respect to a Revolving Loan, means a
Domestic Revolving Loan, a Japanese Revolving Loan or a UK Revolving Loan.
"UK" means the United Kingdom of Great Britain and Northern Ireland.
"UK DOUBLE TAX TREATY LENDER" means a Person resident in a
jurisdiction with a double tax treaty with the UK under which payments of
interest by Xxxx UK to such Person may be made without withholding or deduction
for or on account of Tax.
"UK LOAN INDEMNIFYING LENDER" means each financial institution that is
designated as a UK Loan Indemnifying Lender on SCHEDULE 2.1 annexed hereto, and
each financial institution which is designated, with the approval of the Daily
Funding Lender, as a UK Loan Indemnifying Lender in an Assignment Agreement.
"UK LOANS" means the UK Revolving Loans or UK Term Loans made to Xxxx
UK, or any combination thereof.
"UK QUALIFYING LENDER" means a Person entitled to receive payments of
interest in respect of each UK Loan under this Agreement free of withholding or
deduction for or on account of UK income tax under Section 349(3)(a) of the
Income and Corporation Taxes Xxx 0000 of the UK.
"UK REVOLVING LOANS" means the Loans made by the Lenders to Xxxx UK
pursuant to subsection 2.1A(ii)(a).
"UK REVOLVING NOTES" means (i) the promissory notes of Xxxx UK issued
pursuant to subsection 2.1F(iii) on the Closing Date and (ii) any promissory
notes issued by Xxxx UK pursuant to the last sentence of subsection 10.1B(i) in
connection with assignments of US/UK Revolving Loan Commitments and US/UK
Revolving Loans of any Lender, in each case substantially in the form of
EXHIBIT V annexed hereto, as they may be amended, supplemented or otherwise
modified from time to time.
"UK TERM LOAN COMMITMENT" means the commitment of a Lender to make
Term Loans to Xxxx UK pursuant to subsection 2.1A(i)(c), and "UK TERM LOAN
COMMITMENTS" means such commitments of all such Lenders in the aggregate.
-48-
"UK TERM LOAN EXPOSURE" means, with respect to any UK Lender as of any
date of determination (i) prior to the funding of the UK Term Loans, that
Lender's UK Term Loan Commitment and (ii) after the funding of the UK Term
Loans, the outstanding principal amount of the UK Term Loans of that Lender.
"UK TERM LOANS" means the Term Loans made by Lenders to Xxxx UK
pursuant to subsection 2.1A(i)(c).
"UK TERM NOTES" means (i) the promissory notes of Xxxx UK issued
pursuant to subsection 2.1F(iii) on the Closing Date and (ii) any promissory
notes issued by Xxxx UK pursuant to the last sentence of subsection 10.1B(i) in
connection with assignments of the UK Term Loan Commitments or UK Term Loans of
any Lenders, in each case substantially in the form of EXHIBIT IV annexed
hereto, as they may be amended, supplemented or otherwise modified from time to
time.
"US/UK FUNDING AND PAYMENT OFFICE" means (i) the office of
Administrative Agent and Daily Funding Lender located at 00 Xxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or (ii) such other office of Administrative
Agent and Daily Funding Lender as may from time to time hereafter be designated
as such in a written notice delivered by Administrative Agent and Daily Funding
Lender to Borrowers and Lenders.
"US/UK LENDER" and "US/UK LENDERS" means the Lenders that have
Domestic Term Loan Commitments, UK Term Loan Commitments or US/UK Revolving Loan
Commitments or that have Domestic or UK Loans outstanding.
"US/UK REVOLVING LOAN COMMITMENT" means the commitment of a Lender to
make Revolving Loans to Company or Xxxx UK pursuant to subsection 2.1A(ii)(a),
and "US/UK REVOLVING LOAN COMMITMENTS" means such commitments of all such
Lenders in the aggregate.
"US/UK REVOLVING LOAN EXPOSURE" means, with respect to any US/UK
Lender as of any date of determination (i) prior to the termination of the US/UK
Revolving Loan Commitments, that Lender's US/UK Revolving Loan Commitment and
(ii) after the termination of the US/UK Revolving Loan Commitments, the sum of
(a) the aggregate outstanding principal amount of the US/UK Revolving Loans of
that Lender PLUS (b) in the event that Lender is an Issuing Lender, the
aggregate Letter of Credit Usage in respect of all Letters of Credit issued by
that Lender for the benefit of Company or the benefit of Xxxx UK (in each case
net of any participations purchased by other Lenders in such Letters of Credit
or any unreimbursed drawings thereunder) PLUS (c) the aggregate amount of all
participations purchased by that Lender in any outstanding Letters of Credit for
the benefit of Company or the benefit of Xxxx UK or any unreimbursed drawings
under any such Letters of Credit.
"US/UK REVOLVING LOANS" means the Domestic Revolving Loans and the UK
Revolving Loans.
-49-
"WESTMONT EXCLUDED COLLATERAL" means the Facilities, including all
heating/air conditioning and ventilation systems, all electrical and light
fixtures, appliances, conduits, boxes and outlets serving the Facilities, all
water fixtures, piping, valves, sprinkler systems and distribution systems for
serving the Facilities with water, all bathroom fixtures, maintenance equipment,
windows, window treatments, doors, elevators and all other personal property or
fixtures which are integral to the use and occupancy of the Facilities and
improvements for general use as stand-alone Facilities, located at 000 Xxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx, together with all contract rights, rents, issues,
royalties, income, revenue, proceeds, profits, security deposits, accounts or
similar interests derived from such Facilities.
"WESTMONT SUB" means Xxxx Realty, L.L.C., a limited liability company
organized under the laws of Delaware and a wholly-owned Subsidiary of Company."
"YEN" and the sign "Y" mean the lawful money of Japan.
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF CALCULATIONS UNDER
AGREEMENT.
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements and other information
required to be delivered by Company to Lenders pursuant to clauses (i), (ii),
(iii) and (xiii) of subsection 6.1 shall be prepared in accordance with GAAP (to
the extent GAAP is applicable thereto) as in effect at the time of such
preparation (and delivered together with the reconciliation statements provided
for in subsection 6.1(v)). Calculations in connection with the definitions,
covenants and other provisions of this Agreement shall utilize accounting
principles and policies in conformity with those used to prepare the financial
statements referred to in subsection 5.3.
1.3 OTHER DEFINITIONAL PROVISIONS.
References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Agreement unless otherwise specifically
provided. Any of the terms defined in subsection 1.1 may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference. An Event of Default shall "continue" or be "continuing" until such
Event of Default has been waived in accordance with subsection 10.6 hereof.
-50-
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 COMMITMENTS; MAKING OF LOANS; THE REGISTER; NOTES.
A. COMMITMENTS.
(i) TERM LOANS. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Borrowers
herein set forth, Lenders hereby severally agree to make the Term Loans
described in subsections 2.1A(i)(a), 2.1A(i)(b) and 2.1A(i)(c).
(a) DOMESTIC TERM LOANS. Each US/UK Lender severally
agrees to lend to Company on the Closing Date an amount in Dollars not
exceeding its Pro Rata Share of the aggregate amount of the Domestic Term
Loan Commitments to be used for the purposes identified in subsection 2.5A.
The amount of each US/UK Lender's Domestic Term Loan Commitment is set
forth opposite its name on SCHEDULE 2.1 annexed hereto and the aggregate
amount of the Domestic Term Loan Commitments is $25,000,000; PROVIDED that
the Domestic Term Loan Commitments of Lenders shall be adjusted to give
effect to any assignments of the Domestic Term Loan Commitments pursuant to
subsection 10.1B. Each Lender's Domestic Term Loan Commitment shall expire
immediately and without further action on October 15, 1996 if the Domestic
Term Loans are not made on or before that date. Company may make only one
borrowing under the Domestic Term Loan Commitments. Amounts borrowed under
this subsection 2.1A(i)(a) and subsequently repaid or prepaid may not be
reborrowed.
(b) JAPANESE TERM LOANS. Each US/UK Lender which has an
office, branch or Affiliate listed as a Japanese Lender on SCHEDULE 2.1
annexed hereto severally agrees to lend to Xxxx Japan on the Closing Date
an amount in Dollars not exceeding its Pro Rata Share of the aggregate
amount of the Japanese Term Loan Commitments to be used for the purposes
identified in subsection 2.5A; PROVIDED that promptly upon consummation of
the Closing, each such US/UK Lender (other than such US/UK Lenders which
are United States branches of Japanese banks) shall transfer or assign its
Japanese Term Loans and its Japanese Revolving Loan Commitment to such
office, branch or Affiliate, as the case may be, in Japan, which office,
branch or Affiliate in Japan shall thereupon become a Japanese Lender for
all purposes hereunder in accordance with subsection 10.1B. The amount of
each such Lender's Japanese Term Loan Commitment is set forth opposite its
name on SCHEDULE 2.1 annexed hereto and the aggregate amount of the
Japanese Term Loan Commitments is $25,000,000; PROVIDED that the Japanese
Term Loan Commitments of Lenders shall be adjusted to give effect to any
assignments of the Japanese Term Loan Commitments pursuant to subsection
10.1B. Each such Lender's Japanese Term Loan Commitment shall expire
immediately and without further action on October 15, 1996 if the Japanese
Term Loans are not made on or before that date.
-00-
Xxxx Xxxxx may make only one borrowing under the Japanese Term Loan
Commitments. Amounts borrowed under this subsection 2.1A(i)(b) and
subsequently repaid or prepaid may not be reborrowed.
(c) UK TERM LOANS. Each US/UK Lender severally agrees to
lend to Xxxx UK on the Closing Date an amount in Dollars not exceeding its
Pro Rata Share of the aggregate amount of the UK Term Loan Commitments to
be used for the purposes identified in subsection 2.5A. The amount of each
US/UK Lender's UK Term Loan Commitment is set forth opposite its name on
SCHEDULE 2.1 annexed hereto and the aggregate amount of the UK Term Loan
Commitments is $25,000,000; PROVIDED that the UK Term Loan Commitments of
Lenders shall be adjusted to give effect to any assignments of the UK Term
Loan Commitments pursuant to subsection 10.1B. Each Lender's UK Term Loan
Commitment shall expire immediately and without further action on
October 15, 1996 if the UK Term Loans are not made on or before that date.
Xxxx UK may make only one borrowing under the UK Term Loan Commitments.
Amounts borrowed under this subsection 2.1A(i)(c) and subsequently repaid
or prepaid may not be reborrowed.
(ii) REVOLVING LOANS. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of
Borrowers herein set forth, Lenders hereby severally agree to make the Revolving
Loans described in subsections 2.1A(ii)(a) and 2.1A(ii)(b).
(a) US/UK REVOLVING LOANS. Each US/UK Lender severally
agrees, subject to the limitations set forth in subsections 2.1A(ii)(c) and
2.1A(iii), to lend to Company or to Xxxx UK, as the case may be, from time
to time during the period from the Closing Date to but excluding the
Revolving Loan Commitment Termination Date an aggregate amount in Dollars
not exceeding its Pro Rata Share of the aggregate amount of the US/UK
Revolving Loan Commitments as in effect from time to time to be used for
the purposes identified in subsection 2.5B. The original amount of each
US/UK Lender's US/UK Revolving Loan Commitment is set forth opposite its
name on SCHEDULE 2.1 annexed hereto and the maximum aggregate amount of the
US/UK Revolving Loan Commitments is $150,000,000; PROVIDED that the US/UK
Revolving Loan Commitments shall be adjusted to give effect to any Notices
of Allocation pursuant to subsection 2.1A(ii)(c) and any assignments of the
US/UK Revolving Loan Commitments pursuant to subsection 10.1B;and PROVIDED,
FURTHER that the amount of the US/UK Revolving Loan Commitments shall be
reduced from time to time by the amount of any reductions thereto made
pursuant to subsections 2.4B(ii) and 2.4B(iii). Each Lender's US/UK
Revolving Loan Commitment shall expire on the Revolving Loan Commitment
Termination Date and all US/UK Revolving Loans and all other amounts owed
hereunder with respect to the US/UK Revolving Loans and the US/UK Revolving
Loan Commitments shall be paid in full no later than that date; PROVIDED
that each Lender's US/UK Revolving Loan Commitment shall expire immediately
and without further action on October 15, 1996
-52-
if the Domestic Term Loans and the initial US/UK Revolving Loans are not
made on or before that date. Amounts borrowed under this subsection
2.1A(ii)(a) may be repaid and reborrowed to but excluding the Revolving
Loan Commitment Termination Date.
(b) JAPANESE REVOLVING LOANS. Each Japanese Lender
severally agrees, subject to the limitations set forth in subsections
2.1A(ii)(c) and 2.1A(iii), upon consummation of the purchase by New Xxxx
Japan of all of the outstanding capital stock of RGS Japan, to lend to Xxxx
Japan from time to time during the period from the Closing Date to but
excluding the Revolving Loan Commitment Termination Date an aggregate
amount in Dollars not exceeding its Pro Rata Share of the aggregate amount
of the Japanese Revolving Loan Commitments as in effect from time to time
to be used for the purposes identified in subsection 2.5B. The original
amount of each Japanese Lender's Japanese Revolving Loan Commitment is set
forth opposite its name on SCHEDULE 2.1 annexed hereto and the maximum
aggregate amount of the Japanese Revolving Loan Commitments is $25,000,000;
PROVIDED that such amounts shall be adjusted to give effect to any Notices
of Allocation pursuant to subsection 2.1A(ii)(c) and any assignments of the
Japanese Revolving Loan Commitments pursuant to subsection 10.1B; and
PROVIDED, FURTHER that the amount of the Japanese Revolving Loan
Commitments shall be reduced from time to time by the amount of any
reductions thereto made pursuant to subsections 2.4B(ii) and 2.4B(iii).
Each Lender's Japanese Revolving Loan Commitment shall expire on the
Revolving Loan Commitment Termination Date and all Japanese Revolving Loans
and all other amounts owed hereunder with respect to the Japanese Revolving
Loans and the Japanese Revolving Loan Commitments shall be paid in full no
later than that date; PROVIDED that each Lender's Japanese Revolving Loan
Commitment shall expire immediately and without further action on
October 15, 1996 if the Japanese Term Loans are not made on or before that
date. Amounts borrowed under this subsection 2.1A(ii)(b) may be repaid and
reborrowed to but excluding the Revolving Loan Commitment Termination Date.
(c) ALLOCATION OF REVOLVING LOAN COMMITMENTS; NOTICES OF
ALLOCATION. The initial amounts allocated to the US/UK Revolving Loan
Commitment and to the Japanese Revolving Loan Commitment are set forth in
SCHEDULE 2.1 annexed hereto. Borrowers may change the amount of the
Revolving Loan Commitments allocated to the US/UK Revolving Loan
Commitments and the Japanese Revolving Loan Commitments at any time by
delivering a Notice of Allocation to Administrative Agent (with a copy to
the applicable Agent) designating a new amount for the US/UK Revolving Loan
Commitments and the Japanese Revolving Loan Commitments at least five
Business Days prior to the date upon which such allocation is to be
effective; PROVIDED that (1) the sum of the US/UK Revolving Loan
Commitments and the Japanese Revolving Loan Commitments shall always equal
the Maximum Permitted Revolving Loan Commitments then in effect; (2) the
Japanese Revolving Loan Commitments shall not in any event (a) exceed an
amount equal to $25,000,000
-53-
MINUS the aggregate amount of all reductions made to the Japanese Revolving
Loan Commitments pursuant to subsection 2.4B(ii) or 2.4B(iii) since the
Closing Date, or (b) be reduced to an amount that is less than the Total
Utilization of Revolving Loan Commitments for Xxxx Japan; and (3) the US/UK
Revolving Loan Commitments shall not in any event (a) exceed an amount
equal to the Maximum Permitted Revolving Loan Commitments then in effect
MINUS the Japanese Revolving Loan Commitments then in effect, or (b) be
reduced to an amount that is less than the Total Utilization of Revolving
Loan Commitments for Company and Xxxx UK. Administrative Agent shall
promptly notify each Lender of any requested change in the allocation of
the Revolving Loan Commitments and the amount of such Lender's Pro Rata
Share of the new Japanese Revolving Loan Commitments or US/UK Revolving
Loan Commitments, as the case may be.
(iii) LIMITATIONS ON REVOLVING LOANS. Anything contained in this
Agreement to the contrary notwithstanding, the Revolving Loans and the
Revolving Loan Commitments shall be subject to the following limitations in
the amounts indicated:
(a) in no event shall: (1) the Total Utilization of Revolving
Loan Commitments for all Borrowers at any time exceed the Maximum
Permitted Revolving Loan Commitments; (2) the Total Utilization of
Revolving Loan Commitments for Company at any time exceed
$100,000,000; (3) the Total Utilization of Revolving Loan Commitments
for Xxxx Japan at any time exceed the Japanese Revolving Loan
Commitments then in effect; (4) the Total Utilization of Revolving
Loan Commitments for Xxxx UK at any time exceed $100,000,000; and (5)
the Total Utilization of Revolving Loan Commitments for Company and
Xxxx UK at any time exceed the US/UK Revolving Loan Commitments then
in effect;
(b) in no event shall: (1) the Total Utilization of Revolving
Loan Commitments for Company at any time exceed the Company Borrowing
Base then in effect; (2) the Total Utilization of Revolving Loan
Commitments for Xxxx Japan at any time exceed the Xxxx Japan Borrowing
Base then in effect; and (3) the Total Utilization of Revolving Loan
Commitments for Xxxx UK at any time exceed the Xxxx UK Borrowing Base
then in effect;
(c) in no event shall the sum of the aggregate outstanding
principal amount of all Revolving Loans borrowed pursuant to
subsections 2.1A(ii)(a) and 2.1A(ii)(b) at any time exceed
$110,000,000; and
(d) in no event shall the aggregate amount of Eligible Accounts
Receivable for all Borrowers at any time be less than 50% of the Total
Utilization of Revolving Loan Commitments of all Borrowers.
-54-
B. BORROWING MECHANICS.
(i) MINIMUM AMOUNTS. Loans made on any Funding Date as Base Rate
Loans shall not be subject to any minimum amounts. Loans made on any
Funding Date as Eurodollar Rate Loans with a particular Interest Period
shall be in an aggregate minimum amount of $2,000,000 and integral
multiples of $250,000 in excess of that amount.
(ii) NOTICE TO AGENT. Whenever a Borrower desires that Lenders make
Term Loans or Revolving Loans it shall deliver to Administrative Agent
(with a copy to Agent) a Notice of Borrowing (1) no later than 12:00 Noon
(Local Time) at least three Business Days in advance of the proposed
Funding Date in the case of a Eurodollar Rate Loan or (2) no later than
12:00 Noon (New York time) on the proposed Funding Date in the case of a
Loan made to Company as a Base Rate Loan or (3) no later than 12:00 Noon
(Local Time) at least one Business Day in advance of the proposed Funding
Date in the case of a Loan made to Xxxx Japan or Xxxx UK as a Base Rate
Loan.
(iii) NOTICE OF BORROWING. The Notice of Borrowing shall specify
(i) the Borrower, (ii) the proposed Funding Date (which shall be a Business
Day), (iii) the amount and Type of Loans requested, (iv) in the case of any
Loans made on the Closing Date, that such Loans shall be Base Rate Loans,
(v) in the case of Revolving Loans not made on the Closing Date, whether
such Loans shall be Base Rate Loans or Eurodollar Rate Loans, (vi) in the
case of any Loans requested to be made as Eurodollar Rate Loans, the
initial Interest Period requested therefor, and (vii) in the case of
Revolving Loans, that, after giving effect to the requested Loans, Borrower
will be in compliance with the limitations on Revolving Loans and Revolving
Loan Commitments set forth in subsections 2.1A(ii) and 2.1A(iii).
(iv) CONTINUATION/CONVERSION. Term Loans and Revolving Loans may be
continued as or converted into Base Rate Loans and Eurodollar Rate Loans in
the manner provided in subsection 2.2D.
(v) TELEPHONIC NOTICE. In lieu of delivering the above-described
Notice of Borrowing, Borrower may give Administrative Agent (and Agent)
telephonic notice by the required time of any proposed borrowing under this
subsection 2.1B; PROVIDED that such notice shall be promptly confirmed in
writing by delivery of a Notice of Borrowing to Administrative Agent (with
a copy to Agent) on or before the applicable Funding Date.
Neither any Agent nor any Lender shall incur any liability to any
Borrower in acting upon any telephonic notice referred to above that such
Agent believes in good faith to have been given by a duly authorized
officer or other person authorized to borrow on behalf of such Borrower or
for otherwise acting in good faith
-55-
under this subsection 2.1B, and upon funding of Loans by any Funding
Lender, Agent and/or Lenders in accordance with this Agreement pursuant to
any such telephonic notice such Borrower shall have effected Loans
hereunder.
(vi) CERTIFICATION OF CERTAIN ITEMS. The Borrower shall notify the
Administrative Agent (with a copy to Agent) prior to the funding of any
Loans in the event that any of the matters to which such Borrower is
required to certify in the Notice of Borrowing is no longer true and
correct as of the applicable Funding Date, and the acceptance by such
Borrower of the proceeds of any Loans shall constitute a re-certification
by such Borrower, as of the applicable Funding Date, as to the matters to
which such Borrower is required to certify in the Notice of Borrowing.
(vii) EURODOLLAR RATE LOANS. Except as otherwise provided in
subsections 2.6B, 2.6C and 2.6G, a Notice of Borrowing for any Eurodollar
Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable on
and after the related Interest Rate Determination Date, and the Borrower
shall be bound to make a borrowing in accordance therewith.
C. DISBURSEMENT OF FUNDS.
(i) Subject to this subsection 2.1C and subsection 2.1D, (a) all
Domestic Loans under this Agreement shall be made by US/UK Lenders
simultaneously and proportionately to their respective Pro Rata Shares of
the Commitments for the Domestic Loans requested, (b) all Japanese Loans
under this Agreement shall be made by Japanese Lenders simultaneously and
proportionately to their respective Pro Rata Shares of the Commitments for
the Japanese Loans requested, and (c) all UK Loans under this Agreement
shall be made by US/UK Lenders simultaneously and proportionately to their
respective Pro Rata Shares of the Commitments for the UK Loans requested,
it being understood that no Lender shall be responsible for any default by
any other Lender in that other Lender's obligation to make a Loan requested
hereunder nor shall the Commitment of any Lender to make the particular
Type of Loan requested be increased or decreased as a result of a default
by any other Lender in that other Lender's obligation to make a Loan
requested hereunder.
(ii) Upon receipt by Agent of a Notice of Borrowing pursuant to
subsection 2.1B (or telephonic notice in lieu thereof) for Revolving Loans
that consist of Base Rate Loans and upon satisfaction or waiver of the
conditions precedent specified in subsection 4.1 (in the case of Loans made
on the Closing Date) and, subject to the provisions set forth in the
immediately succeeding paragraph, subsection 4.2 (in the case of all
Loans), the Funding Lender, without prior notice to the other Lenders,
shall make such Revolving Loans on the applicable Funding Date (subject to
settlement with the other applicable Lenders in accordance with
subsection 2.1D) by making the proceeds of such Revolving Loans available
to the Borrower on such Funding Date by causing an amount of same day
funds equal to the proceeds of such
-56-
Revolving Loans to be credited to the account of such Borrower at
the Funding and Payment Office. Such Revolving Loans shall constitute
Revolving Loans by the Funding Lender for all purposes under the Loan
Documents, subject to settlement with the other applicable Lenders pursuant
to subsection 2.1D. The Funding Lender shall make Revolving Loans pursuant
to this subsection 2.1C(ii) notwithstanding the fact that the principal
amount of such Revolving Loans, when added to the aggregate principal
amount of such Funding Lender's Revolving Loans then outstanding and Pro
Rata Share of the Letter of Credit Usage then in effect, may exceed such
Funding Lender's Revolving Loan Commitment then in effect; PROVIDED that
such Revolving Loans shall at all times be Obligations owed to such Funding
Lender under this Agreement; and PROVIDED, FURTHER that in no event shall
any Borrower fail to comply with the limitations on Revolving Loans and
Revolving Loan Commitments set forth in subsections 2.1A(ii) and 2.1A(iii).
Notwithstanding anything in this Agreement to the contrary, if
the conditions precedent specified in subsection 4.2 cannot be fulfilled
with respect to any proposed Revolving Loans that consist of Base Rate
Loans, the Borrower which requested such Revolving Loans shall, in its
Notice of Borrowing or otherwise, give immediate written notice thereof
(specifying the circumstances which prevent the conditions precedent from
being fulfilled) to Agent (with a copy to each Lender) and the Funding
Lender may (and each Lender hereby authorizes the Funding Lender to), but
is not obligated to, continue to make Revolving Loans that are Base Rate
Loans to such Borrower for 20 Business Days from the date Agent first
receives such notice, or until sooner instructed by Requisite Lenders to
cease making such Revolving Loans (the "FUNDING LENDER DISCRETIONARY
PERIOD") to such Borrower. Once notice is given by a Borrower that
circumstances exist which prevent the conditions precedent to borrowing
from being fulfilled, no additional notice with respect to the same
circumstances will be effective to commence a new Funding Lender
Discretionary Period for such Borrower.
(iii) Promptly after receipt by Agent of a Notice of Borrowing pursuant
to subsection 2.1B (or telephonic notice in lieu thereof) for any Loans
(other than Revolving Loans that consist of Base Rate Loans), Agent shall
notify each Lender having that Type of Commitment of the proposed
borrowing. Each such Lender shall make the amount of its Loan available to
Agent in same day funds in Dollars, at the Funding and Payment Office, not
later than 12:00 Noon (Local Time) on the applicable Funding Date; PROVIDED
that Japanese Term Loans made on the Closing Date shall be made available
to the US/UK Funding and Payment Office. Except as provided in subsection
3.3B with respect to Revolving Loans used to reimburse any Issuing Lender
for the amount of a drawing under a Letter of Credit issued by it, upon
satisfaction or waiver of the conditions precedent specified in subsections
4.1 (in the case of Loans made on the Closing Date) and, subject to the
provisions set forth in the immediately preceding paragraph, 4.2 (in the
case of all Loans), Agent shall make the proceeds of the Loans available to
the applicable Borrower on the Funding
-57-
Date by causing an amount of same day funds in Dollars equal to the
proceeds of all such Loans received by Agent from Lenders to be credited to
the account of the applicable Borrower at the applicable Funding and
Payment Office.
Unless Agent shall have been notified by any Lender prior to the
Funding Date for any Loans pursuant to this subsection 2.1C(iii) that such
Lender does not intend to make available to Agent the amount of such
Lender's Loan requested on such Funding Date, Agent may assume that such
Lender has made such amount available to Agent on such Funding Date and
Agent may, in its sole discretion, but shall not be obligated to, make
available to the applicable Borrower a corresponding amount on such Funding
Date. If such corresponding amount is not in fact made available to Agent
by such Lender, Agent shall be entitled to recover such corresponding
amount on demand from such Lender together with interest thereon, for each
day from such Funding Date until the date such amount is paid to Agent at
the customary rate set by Agent for the correction of errors among banks
for three Business Days and thereafter at the Base Rate. If such Lender
does not pay such corresponding amount forthwith upon Agent's demand
therefor, Agent shall promptly notify the Borrower and the Borrower shall
immediately pay such corresponding amount in Dollars to Agent together with
interest thereon, for each day from such Funding Date until the date such
amount is paid to Agent at the rate payable under this Agreement for Base
Rate Loans of the applicable Type of Loans. Nothing in this subsection
2.1C shall be deemed to relieve any Lender from its obligation to fulfill
its Commitments hereunder or to prejudice any rights that the Borrower may
have against any Lender as a result of any default by such Lender
hereunder.
D. SETTLEMENT PROCEDURES.
(i) Each Funding Lender will from time to time notify the other
applicable Lenders, not later than 12:00 Noon (Local Time) (a) on at least
one Business Day during each seven calendar-day period, (b) on each date on
which payment of interest on any Revolving Loans is required to be made
pursuant to subsection 2.2C, (c) on the Revolving Loan Commitment
Termination Date, and (d) at such other times as such Funding Lender in its
discretion may determine (each such notice by such Funding Lender being a
"SETTLEMENT NOTICE" and the date of each Settlement Notice being a
"SETTLEMENT DATE") of the aggregate principal amount of outstanding
Revolving Loans made by such Funding Lender and each other applicable
Lender as of the close of business on the Business Day immediately
preceding the applicable Settlement Date.
(ii) If a Settlement Notice indicates that the aggregate principal
amount of outstanding Revolving Loans made by such Funding Lender
(including Revolving Loans made by such Funding Lender pursuant to
subsection 2.1C(ii)) is in excess of such Funding Lender's Pro Rata Share
of the aggregate principal amount of outstanding Revolving Loans made by
all applicable Lenders (the amount of such
-58-
excess being the "EXCESS FUNDED AMOUNT"), each other applicable Lender
will, not later than 4:00 P.M. (Local Time) on the Settlement Date, pay to
such Funding Lender, by depositing same day funds in the account specified
by such Funding Lender at the Funding and Payment Office, an amount equal
to such Lender's Adjusted Pro Rata Share of the Excess Funded Amount, upon
which payment such Funding Lender shall, in the case of a transfer to a UK
Qualifying Lender, be deemed to have transferred by means of novation, or,
in any other case, be deemed to have sold, and such Lender shall be deemed
to have purchased, as of the Settlement Date, a portion of the outstanding
Revolving Loans made by such Funding Lender for its own account pursuant to
subsection 2.1C(ii) on or after the immediately preceding Settlement Date
equal to such Lender's Adjusted Pro Rata Share of the Excess Funded Amount.
The obligation of each applicable Lender to purchase a portion of any
Revolving Loan made by any Funding Lender as provided in this subsection
2.1D(ii) is subject to the condition that at the time such Revolving Loan
was made by such Funding Lender (a) the duly authorized officer of such
Funding Lender responsible for the administration of such Funding Lender's
credit relationship with the Borrower believed in good faith that either
(X) no Event of Default had occurred and was continuing or (Y) any Event of
Default that had occurred and was continuing had been waived by Requisite
Lenders at the time such Revolving Loan was made or (b) a Funding Lender
Discretionary Period with respect to such Borrower was in effect.
(iii) If a Settlement Notice indicates that the aggregate principal
amount of outstanding Revolving Loans made by a Funding Lender is less than
such Funding Lender's Pro Rata Share of the aggregate principal amount of
outstanding Revolving Loans made by all applicable Lenders (the amount of
such difference being the "EXCESS PAYDOWN AMOUNT"), such Funding Lender
will, no later than 4:00 P.M. (Local Time) on the Settlement Date,
unconditionally pay to each other applicable Lender, by depositing same day
funds in the account specified by such Lender to such Funding Lender, an
amount equal to such Lender's Adjusted Pro Rata Share of the Excess Paydown
Amount, upon which payment such Lender shall be deemed to have sold, and
Funding Lender shall be deemed to have purchased, as of the Settlement
Date, a portion of the outstanding Revolving Loans of such Lender equal to
such Lender's Adjusted Pro Rata Share of the Excess Paydown Amount.
(iv) Except as provided in subsection 2.1D(ii), the obligations of any
Funding Lender and each other applicable Lender pursuant to subsections
2.1D(ii) and 2.1D(iii) shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (a) any
set-off, counterclaim, recoupment, defense or other right which an Agent or
any Lender may have against an Agent, any other Lender, any Loan Party or
any other Person for any reason whatsoever; (b) the occurrence or
continuance of an Event of Default or a Potential Event of Default; (c) any
adverse change in the condition (financial or otherwise) of any Loan Party;
(d) any breach of this Agreement by any Borrower, an Agent or any
-59-
Lender; or (e) any other circumstance, happening, or event whatsoever,
whether or not similar to any of the foregoing. In the event that any
Person (the "PAYOR") obligated to make a payment to any other Person (the
"PAYEE") pursuant to this subsection 2.1D fails to make available to the
Payee the amount of such payment required to be made by the Payor, the
Payee shall be entitled to recover such amount on demand from the Payor
together with interest at the customary rate set by Administrative Agent
for the correction of errors among Lenders for three Business Days and
thereafter at the sum of the Base Rate plus 1.50% per annum.
(v) In the event that all or any portion of any repayment of
principal of the Revolving Loans is thereafter recovered by or on behalf of
any Borrower from any Funding Lender (including any such recovery in a
proceeding under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect) in an amount that is proportionately greater
(based on the respective Pro Rata Shares of applicable Lenders) than any
such recovery from the other Lenders, the loss of the amount so recovered
shall be ratably shared among all Lenders in the manner contemplated by
subsection 10.5.
E. THE REGISTER.
(i) Administrative Agent shall maintain, at its address referred to
in subsection 10.8, a register for the recordation of the names and
addresses of Lenders and the Commitments and Loans of each Lender from time
to time (the "REGISTER"). The Register shall be available for inspection
by any Borrower or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
(ii) Administrative Agent shall record in the Register the Term Loan
Commitments and the Revolving Loan Commitments and the Term Loans and
Revolving Loans from time to time of each Lender, and each repayment or
prepayment in respect of the principal amount of the Term Loans or
Revolving Loans of each Lender. Any such recordation shall be conclusive
and binding on each Borrower and each Lender, absent manifest error;
PROVIDED that failure to make any such recordation, or any error in such
recordation, shall not affect any Borrower's Obligations in respect of the
applicable Loans.
(iii) Each Lender shall record on its internal records (including,
without limitation, the Notes held by such Lender) the amount of each Loan
made by it and each payment in respect thereof. Any such recordation shall
be conclusive and binding on each Borrower, absent manifest error; PROVIDED
that failure to make any such recordation, or any error in such
recordation, shall not affect such Borrower's Obligations in respect of the
applicable Loans; and PROVIDED, FURTHER that in the event of any
inconsistency between the Register and any Lender's records, the
recordations in the Register shall govern.
-60-
(iv) Borrowers, Agents and Lenders shall deem and treat the Persons
listed as Lenders in the Register as the holders and owners of the
corresponding Commitments and Loans listed therein for all purposes hereof,
and no assignment or transfer of any such Commitment or Loan shall be
effective, in each case unless and until an Assignment Agreement effecting
the assignment or transfer thereof shall have been accepted by
Administrative Agent and recorded in the Register as provided in subsection
10.1B(ii). Prior to such recordation, all amounts owed with respect to the
applicable Commitment or Loan shall be owed to the Lender listed in the
Register as the owner thereof, and any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is listed in the Register as a Lender shall be conclusive and
binding on any subsequent holder, assignee or transferee of the
corresponding Commitments or Loans.
(v) Each Borrower hereby designates BTCo to serve as such Borrower's
agent solely for purposes of maintaining the Register as provided in this
subsection 2.1E, and each Borrower hereby agrees that, to the extent BTCo
serves in such capacity, BTCo and its officers, directors, employees,
agents and affiliates shall constitute Indemnitees for all purposes under
subsection 10.3.
F. NOTES.
(i) Company shall execute and deliver on the Closing Date (a) to each
US/UK Lender (or to Administrative Agent for that Lender) a Domestic Term
Note substantially in the form of EXHIBIT IV annexed hereto to evidence
that Lender's Domestic Term Loan, in the principal amount of that Lender's
Domestic Term Loan and with other appropriate insertions, and (b) to each
US/UK Lender (or to Administrative Agent for that Lender) a Domestic
Revolving Note substantially in the form of EXHIBIT V annexed hereto to
evidence that Lender's Domestic Revolving Loans, in the principal amount of
that Lender's US/UK Revolving Loan Commitment and with other appropriate
insertions;
(ii) New Xxxx Japan and RGS Japan shall jointly execute and deliver on
the Closing Date to each Japanese Lender (or to Administrative Agent for
that Lender) a Japanese Term Note substantially in the form of EXHIBIT IV
annexed hereto to evidence that Lender's Japanese Term Loan, in the
principal amount of that Lender's Japanese Term Loan and with other
appropriate insertions, and on the Closing Date, immediately upon
consummation of the Acquisition, RGS Japan shall execute and deliver to
each Japanese Lender (or to Administrative Agent for that Lender) a
Japanese Revolving Note substantially in the form of EXHIBIT V annexed
hereto to evidence that Lender's Japanese Revolving Loans, in the principal
amount of that Lender's Japanese Revolving Loan Commitment and an
assumption of the Japanese Term Note; and
-61-
(iii) Xxxx UK shall execute and deliver on the Closing Date (a) to each
Lender (or to Administrative Agent for that Lender) a UK Term Note
substantially in the form of EXHIBIT IV annexed hereto to evidence that
Lender's UK Term Loan, in the principal amount of that Lender's UK Term
Loan and with other appropriate insertions, and (b) to each US/UK Lender
(or to Administrative Agent for that Lender) a UK Revolving Note
substantially in the form of EXHIBIT V annexed hereto to evidence that
Lender's UK Revolving Loans, in the principal amount of that Lender's US/UK
Revolving Loan Commitment and with other appropriate insertions.
2.2 INTEREST ON THE LOANS.
A. RATE OF INTEREST. Subject to the provisions of subsections 2.6 and
2.7, each Term Loan and each Revolving Loan shall bear interest on the unpaid
principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate determined by reference to the Base Rate or
to the Adjusted Eurodollar Rate. The applicable basis for determining the rate
of interest with respect to any Term Loan or any Revolving Loan shall be
selected by the Borrower initially at the time a Notice of Borrowing is given
with respect to such Loan pursuant to subsection 2.1B, and the basis for
determining the interest rate with respect to any Term Loan or any Revolving
Loan may be changed from time to time pursuant to subsection 2.2D. If on any day
a Term Loan or Revolving Loan is outstanding with respect to which notice has
not been delivered to the Agent in accordance with the terms of this Agreement
specifying the applicable basis for determining the rate of interest, then for
that day that Loan shall bear interest determined by reference to the Base Rate.
Subject to the provisions of subsections 2.2E and 2.7, the Term Loans
and the Revolving Loans shall bear interest through maturity as follows:
(a) if a Base Rate Loan, then at the sum of the Base Rate PLUS
the Applicable Base Rate Margin; or
(b) if a Eurodollar Rate Loan, then at the sum of the Adjusted
Eurodollar Rate PLUS the Applicable Eurodollar Margin.
Upon delivery of the Margin Determination Certificate by Company to
Administrative Agent pursuant to subsection 6.1(xvii), the Applicable Base Rate
Margin and the Applicable Eurodollar Rate Margin shall automatically be adjusted
in accordance with such Margin Determination Certificate, such adjustment to
become effective on the first day of the Fiscal Quarter immediately succeeding
the Fiscal Quarter in which Administrative Agent receives such Margin
Determination Certificate; PROVIDED that if a Margin Determination Certificate
is not delivered at the time required pursuant to subsection 6.1(xvii), clause
(iii) of the definitions "Applicable Base Rate Margin" and "Applicable
Eurodollar Rate Margin", as the case may be, shall be applicable from such time
until delivery of the succeeding Margin Determination Certificate; PROVIDED
FURTHER that if a
-62-
Margin Determination Certificate erroneously indicates an applicable margin more
favorable to Borrowers than should be afforded by the actual calculation of the
Leverage Ratio, each Borrower shall promptly pay additional interest, letter of
credit fees and all other applicable fees to correct for such error.
B. INTEREST PERIODS. In connection with each Eurodollar Rate Loan, a
Borrower may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
"INTEREST PERIOD") to be applicable to such Loan, which Interest Period shall
be, at Borrower's option, either a one, two, three or six month period; PROVIDED
that:
(i) the initial Interest Period for any such Loan shall commence on
the Funding Date in respect of such Loan, in the case of a Loan initially
made as a Eurodollar Rate Loan or on the date specified in the applicable
Notice of Conversion/Continuation, in the case of a Loan converted to a
Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods applicable
to a Eurodollar Rate Loan continued as such pursuant to a Notice of
Conversion/Continuation, each successive Interest Period shall commence on
the day on which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day that is not
a Business Day, such Interest Period shall expire on the next succeeding
Business Day; PROVIDED that, if any Interest Period would otherwise expire
on a day that is not a Business Day but is a day of the month after which
no further Business Day occurs in such month, such Interest Period shall
expire on the next preceding Business Day;
(iv) 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,
subject to clause (v) of this subsection 2.2B, end on the last Business Day
of a calendar month;
(v) no Interest Period with respect to any portion of the Term Loans
shall extend beyond September 30, 2001 and no Interest Period with respect
to any portion of the Revolving Loans shall extend beyond the Revolving
Loan Commitment Termination Date;
(vi) no Interest Period with respect to any portion of the Term Loans
of any Borrower shall extend beyond a date on which such Borrower is
required to make a scheduled payment of principal of the Term Loans of such
Borrower unless the sum of (a) the aggregate principal amount of Term Loans
of such Borrower that are Base Rate Loans PLUS (b) the aggregate principal
amount of Term Loans of such Borrower that are Eurodollar Rate Loans with
Interest Periods expiring on or before such date
-63-
equals or exceeds the principal amount required to be paid on the Term
Loans of such Borrower on such date;
(vii) there shall be no more than 4 Interest Periods for any Borrower
outstanding at any time; and
(viii) in the event a Borrower fails to specify an Interest Period for
any Eurodollar Rate Loan in the applicable Notice of Borrowing or Notice of
Conversion/Continuation, such Borrower shall be deemed to have selected an
Interest Period of one month.
C. INTEREST PAYMENTS. Subject to the provisions of subsection 2.2E,
interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity (including final
maturity); PROVIDED that in the event any Revolving Loans that are Base Rate
Loans are prepaid pursuant to subsection 2.4B(i) or subsection 2.4B(iii)(g),
interest accrued on such Revolving Loans through the date of such prepayment
shall be payable on the next succeeding Interest Payment Date applicable to Base
Rate Loans (or, if earlier, at final maturity).
D. CONVERSION OR CONTINUATION. Subject to the provisions of subsection
2.6, a Borrower shall have the option to convert at any time all or any part of
its outstanding Term Loans or Revolving Loans equal to $2,000,000 and integral
multiples of $250,000 in excess of that amount from Loans bearing interest at a
rate determined by reference to one basis to Loans bearing interest at a rate
determined by reference to an alternative basis, or upon the expiration of any
Interest Period applicable to any Eurodollar Rate Loan to continue all or any
portion of such Loan equal to $2,000,000 and integral multiples of $250,000 in
excess of that amount as a Eurodollar Rate Loan; PROVIDED, HOWEVER, that any
Eurodollar Rate Loan may only be converted into a Base Rate Loan on the
expiration date of an Interest Period applicable thereto.
A Borrower shall deliver a Notice of Conversion/Continuation to
Administrative Agent (with a copy to Agent) no later than 12:00 Noon (Local
Time) at least one Business Day in advance of the proposed conversion date and
at least three Business Days in advance of the proposed conversion/continuation
date (in the case of a conversion to, or a continuation of, a Eurodollar Rate
Loan). A Notice of Conversion/Continuation shall specify (i) the proposed
conversion/continuation date (which shall be a Business Day), (ii) the amount
and Type of the Loan to be converted/continued, (iii) the nature of the proposed
conversion/continuation, (iv) in the case of a conversion to, or a continuation
of, a Eurodollar Rate Loan, the requested Interest Period, and (v) in the case
of a conversion to, or a continuation of, a Eurodollar Rate Loan, that no
Potential Event of Default or Event of Default has occurred and is continuing.
In lieu of delivering the above-described Notice of Conversion/Continuation, a
Borrower may give Administrative Agent and the Agent telephonic notice by the
required time of any proposed conversion/continuation under this
-64-
subsection 2.2D; PROVIDED that such notice shall be promptly confirmed in
writing by delivery of a Notice of Conversion/Continuation to Administrative
Agent (with a copy to Agent) on or before the proposed conversion/continuation
date.
No Agent and no Lender shall incur any liability to any Borrower in
acting upon any telephonic notice referred to above that Agent believes in good
faith to have been given by a duly authorized officer or other person authorized
to act on behalf of such Borrower or for otherwise acting in good faith under
this subsection 2.2D, and upon conversion or continuation of the applicable
basis for determining the interest rate with respect to any Loans in accordance
with this Agreement pursuant to any such telephonic notice any Borrower shall
have effected a conversion or continuation, as the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a
Notice of Conversion/Continuation for conversion to, or continuation of, a
Eurodollar Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable
on and after the related Interest Rate Determination Date, and the Borrower
shall be bound to effect a conversion or continuation in accordance therewith.
E. DEFAULT RATE. Upon the occurrence and during the continuation of any
Event of Default, the outstanding principal amount of all Loans and, to the
extent permitted by applicable law, any interest payments thereon not paid when
due and any fees and other amounts then due and payable hereunder, shall
thereafter bear interest (including post-petition interest in any proceeding
under the Bankruptcy Code) payable upon demand at a rate that is 2.00% per annum
in excess of the interest rate otherwise payable under this Agreement with
respect to Base Rate Loans. Payment or acceptance of the increased rates of
interest provided for in this subsection 2.2E is not a permitted alternative to
timely payment and shall not constitute a waiver of any Event of Default or
otherwise prejudice or limit any rights or remedies of any Agent or any Lender.
F. COMPUTATION OF INTEREST. Interest on the Loans shall be computed on
the basis of a 360-day year, in each case for the actual number of days elapsed
in the period during which it accrues. In computing interest on any Loan,
(i) the date of the making of such Loan or the first day of an Interest Period
applicable to such Loan or, with respect to a Base Rate Loan being converted
from a Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan
to such Base Rate Loan shall be included, and (ii) the date of payment of such
Loan or the expiration date of an Interest Period applicable to such Loan or,
with respect to a Base Rate Loan being converted to a Eurodollar Rate Loan, the
date of conversion of such Base Rate Loan to such Eurodollar Rate Loan shall be
excluded; PROVIDED that if a Loan is repaid on the same day on which it is made,
no interest shall be paid on that Loan.
-65-
2.3 FEES.
A. COMMITMENT FEES.
(1) COMPANY. Company agrees to pay to Administrative Agent, for
distribution to each US/UK Lender in proportion to that Lender's Pro Rata
Share of the US/UK Revolving Loan Commitment, commitment fees for the
period from and including the Closing Date to and excluding the Revolving
Loan Commitment Termination Date in an amount equal to fifty percent (50%)
of (x) the average of the daily excess of (a) the Maximum Permitted
Revolving Loan Commitments over (b) the Total Utilization of Revolving Loan
Commitments for all Borrowers MULTIPLIED BY (y) 0.50% per annum.
(2) XXXX JAPAN. Xxxx Japan agrees to pay to Japanese Agent, for
distribution to each Japanese Lender in proportion to that Lender's Pro
Rata Share of the Japanese Revolving Loan Commitment, commitment fees for
the period from and including the Closing Date to and excluding the
Revolving Loan Commitment Termination Date in an amount equal to fifteen
percent (15%) of (x) the average of the daily excess of (a) the Maximum
Permitted Revolving Loan Commitments over (b) the Total Utilization of
Revolving Loan Commitments for all Borrowers MULTIPLIED BY (y) 0.50% per
annum.
(3) XXXX UK. Xxxx UK agrees to pay to Administrative Agent, for
distribution to each US/UK Lender in proportion to that Lender's Pro Rata
Share of the US/UK Revolving Loan Commitment, commitment fees for the
period from and including the Closing Date to and excluding the Revolving
Loan Commitment Termination Date in an amount equal to thirty-five percent
(35%) of (x) the average of the daily excess of (a) the Maximum Permitted
Revolving Loan Commitments over (b) the Total Utilization of Revolving Loan
Commitments for all Borrowers MULTIPLIED BY (y) 0.50% per annum.
(4) CALCULATION. Such commitment fees shall be calculated on
the basis of a 360-day year and the actual number of days elapsed and be
payable monthly in arrears on the first Business Day of each calendar
month, commencing on the first such date to occur after the Closing Date,
and on the applicable Revolving Loan Commitment Termination Date.
B. OTHER FEES. Each Borrower agrees to pay to each Agent, Syndication
Agent and Documentation Agent such other fees in the amounts and at the times
separately agreed upon between Stonington or such Borrower and such Agent,
Syndication Agent or Documentation Agent.
-66-
2.4 REPAYMENTS, PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN COMMITMENTS;
GENERAL PROVISIONS REGARDING PAYMENTS.
A. SCHEDULED PAYMENTS OF TERM LOANS.
(i) SCHEDULED PAYMENTS OF DOMESTIC TERM LOANS. Company shall make
principal payments on the Domestic Term Loans in installments on the dates
and in the amounts set forth below:
Scheduled Repayment
Date of Domestic Term Loans
------ ----------------------
December 31, 1997 $1,250,000.00
March 31, 1998 $1,250,000.00
June 30, 1998 $1,250,000.00
September 30, 1998 $1,250,000.00
December 31, 1998 $1,250,000.00
March 31, 1999 $1,250,000.00
June 30, 1999 $1,250,000.00
September 30, 1999 $1,250,000.00
December 31, 1999 $1,250,000.00
March 31, 2000 $1,250,000.00
June 30, 2000 $1,250,000.00
September 30, 2000 $1,250,000.00
December 31, 2000 $2,500,000.00
March 31, 2001 $2,500,000.00
June 30, 2001 $2,500,000.00
September 30, 2001 $2,500,000.00
------------
TOTAL $25,000,000.00
--------------
--------------
; PROVIDED that the scheduled installments of principal of the Domestic
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Term Loans in accordance with
subsection 2.4B(iv); and PROVIDED, FURTHER that the Domestic Term Loans and
all other amounts owed hereunder with respect to the Domestic Term Loans
shall be paid in full no later than September 30, 2001, and the final
installment payable by Company in respect of the Domestic Term Loans on
such date shall be in an amount, if such amount is different from that
specified above, sufficient to repay all amounts owing by Company under
this Agreement with respect to the Domestic Term Loans.
-67-
(ii) SCHEDULED PAYMENTS OF JAPANESE TERM LOANS. Xxxx Japan shall make
principal payments on the Japanese Term Loans in installments on the dates
and in the amounts set forth below:
Scheduled Repayment
Date of Japanese Term Loans
---- ----------------------
December 31, 1997 $1,250,000.00
March 31, 1998 $1,250,000.00
June 30, 1998 $1,250,000.00
September 30, 1998 $1,250,000.00
December 31, 1998 $1,250,000.00
March 31, 1999 $1,250,000.00
June 30, 1999 $1,250,000.00
September 30, 1999 $1,250,000.00
December 31, 1999 $1,250,000.00
March 31, 2000 $1,250,000.00
June 30, 2000 $1,250,000.00
September 30, 2000 $1,250,000.00
December 31, 2000 $2,500,000.00
March 31, 2001 $2,500,000.00
June 30, 2001 $2,500,000.00
September 30, 2001 $2,500,000.00
-------------
TOTAL $25,000,000.00
--------------
--------------
; PROVIDED that the scheduled installments of principal of the Japanese Term
Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Term Loans in accordance with subsection 2.4B(iv);
and PROVIDED, FURTHER that the Japanese Term Loans and all other amounts owed
hereunder with respect to the Japanese Term Loans shall be paid in full no later
than September 30, 2001 and the final installment payable by Xxxx Japan in
respect of the Japanese Term Loans on such date shall be in an amount, if such
amount is different from that specified above, sufficient to repay all amounts
owing by Xxxx Japan under this Agreement with respect to the Japanese Term
Loans.
-68-
(iii) SCHEDULED PAYMENTS OF UK TERM LOANS. Xxxx UK shall make
principal payments on the UK Term Loans in installments on the dates and in
the amounts set forth below:
Scheduled Repayment
Date of UK Term Loans
---- -------------------
December 31, 1997 $1,250,000.00
March 31, 1998 $1,250,000.00
June 30, 1998 $1,250,000.00
September 30, 1998 $1,250,000.00
December 31, 1998 $1,250,000.00
March 31, 1999 $1,250,000.00
June 30, 1999 $1,250,000.00
September 30, 1999 $1,250,000.00
December 31, 1999 $1,250,000.00
March 31, 2000 $1,250,000.00
June 30, 2000 $1,250,000.00
September 30, 2000 $1,250,000.00
December 31, 2000 $2,500,000.00
March 31, 2001 $2,500,000.00
June 30, 2001 $2,500,000.00
September 30, 2001 $2,500,000.00
-------------
TOTAL $25,000,000.00
--------------
--------------
; PROVIDED that the scheduled installments of principal of the UK Term Loans set
forth above shall be reduced in connection with any voluntary or mandatory
prepayments of the Term Loans in accordance with subsection 2.4B(iv); and
PROVIDED, FURTHER that the UK Term Loans and all other amounts owed hereunder
with respect to the UK Term Loans shall be paid in full no later than
September 30, 2001 and the final installment payable by Xxxx UK in respect of
the UK Term Loans on such date shall be in an amount, if such amount is
different from that specified above, sufficient to repay all amounts owing by
Xxxx UK under this Agreement with respect to the UK Term Loans.
-69-
B. PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN COMMITMENTS.
(i) VOLUNTARY PREPAYMENTS. Each Borrower may, upon not less than one
Business Day's prior written or telephonic notice, in the case of Base Rate
Loans, and three Business Days' prior written or telephonic notice, in the
case of Eurodollar Rate Loans, in each case given to Administrative Agent
(with a copy to Agent) by 12:00 Noon (Local Time) on the date required and,
if given by telephone, promptly confirmed in writing to Administrative
Agent (with a copy to Agent) (which original written or telephonic notice
such Agent will promptly transmit by telefacsimile or telephone to each
Lender), at any time and from time to time prepay any Term Loans or
Revolving Loans on any Business Day in whole or in part in an aggregate
minimum amount of $500,000 and integral multiples of $250,000 in excess of
that amount; PROVIDED, HOWEVER, that a Eurodollar Rate Loan may not be
prepaid prior to the expiration of the Interest Period applicable thereto
unless such Borrower pays to each Lender all such amounts as are payable
pursuant to subsection 2.6D. Notice of prepayment having been given as
aforesaid, the principal amount of the Loans specified in such notice shall
become due and payable on the prepayment date specified therein. Any such
voluntary prepayment shall be applied as specified in subsection 2.4B(iv).
(ii) VOLUNTARY REDUCTIONS OF REVOLVING LOAN COMMITMENTS. Each
Borrower may, upon not less than three Business Days' prior written or
telephonic notice confirmed in writing to Administrative Agent (with a copy
to Agent) (which original written or telephonic notice such Agent will
promptly transmit by telefacsimile or telephone to each Lender), at any
time and from time to time terminate in whole or permanently reduce in
part, without premium or penalty, any Revolving Loan Commitments with
respect to such Borrower in an amount up to the amount by which such
Revolving Loan Commitments exceed the Total Utilization of Revolving Loan
Commitments with respect to such Borrower; PROVIDED that any such partial
reduction of such Revolving Loan Commitments shall be in an aggregate
minimum amount of $1,000,000 and integral multiples of $500,000 in excess
of that amount; and PROVIDED FURTHER that any reduction of the US/UK
Revolving Loan Commitment shall be made jointly by Company and Xxxx UK.
Any Borrower's notice to an Agent shall designate the date (which shall be
a Business Day) of such termination or reduction and the amount of any
partial reduction, and such termination or reduction of any such Revolving
Loan Commitments shall be effective on the date specified in such
Borrower's notice and shall reduce such Revolving Loan Commitment of each
Lender proportionately to its Pro Rata Share.
(iii) MANDATORY PREPAYMENTS AND MANDATORY REDUCTIONS OF REVOLVING LOAN
COMMITMENTS.
(a) PREPAYMENTS AND REDUCTIONS FROM ASSET SALES. No later than
the first Business Day following the date of receipt (x) by Xxxx Japan
or any
-70-
of its Subsidiaries, (y) by Xxxx UK or any of its Subsidiaries, or
(z) by Company or any of its Subsidiaries (other than the Subsidiaries
included in the foregoing clauses (x) and (y)) of Cash Proceeds of any
Asset Sale, (1) such Borrower shall prepay its Term Loans in an
aggregate amount equal to the Net Cash Proceeds of such Asset Sale;
(2) to the extent the Net Cash Proceeds of such Asset Sale exceed the
aggregate outstanding amount of such Borrower's Term Loans, (i) in the
case of Xxxx Japan or Xxxx UK, such Borrower shall prepay the Term
Loans of Xxxx UK or Xxxx Japan, respectively, in an aggregate amount
equal to such excess or (ii) in the case of Company, Company shall
prepay the Japanese Term Loans and the UK Term Loans on a pro rata
basis (in accordance with the respective outstanding principal amount
thereof) in an aggregate amount equal to such excess; (3) to the
extent the Net Cash Proceeds of such Asset Sale exceed the Term Loan
prepayments required to be made by such Borrower pursuant to the
foregoing clauses (1) - (2), such Borrower shall prepay its Revolving
Loans without any corresponding reduction in the related Revolving
Loan Commitments, in an aggregate amount equal to such excess; and
(4) to the extent that Net Cash Proceeds of such Asset Sale remain
after the applications required pursuant to the foregoing clauses
(1) - (3), such Borrower shall cause the excess of such Net Cash
Proceeds to be applied first to prepay the remaining outstanding Term
Loans of any Borrower, including the Company, on a pro rata basis (in
accordance with the respective outstanding principal amount thereof)
and after payment of all remaining outstanding Term Loans, to prepay
the remaining outstanding Revolving Loans of any Borrower, including
the Company, on a pro rata basis (in accordance with the respective
outstanding amount of Revolving Loan Commitments) without any
corresponding reduction in the related Revolving Loan Commitments.
Concurrently with any prepayment of the Loans pursuant to this
subsection 2.4B(iii)(a), the Borrower shall deliver to the
Administrative Agent (with a copy to Agent) an Officers' Certificate
demonstrating the derivation of the Net Cash Proceeds of the
correlative Asset Sale from the gross sales price thereof. In the
event that any Borrower shall, at any time after receipt of Cash
Proceeds of any Asset Sale requiring a prepayment of the Loans
pursuant to this subsection 2.4B(iii)(a), determine that the
prepayments previously made in respect of such Asset Sale were in an
aggregate amount less than that required by the terms of this
subsection 2.4B(iii)(a), such Borrower shall promptly make an
additional prepayment of Term Loans or Revolving Loans, as the case
may be, in the manner described above in an aggregate amount equal to
the amount of any such deficit, and such Borrower shall concurrently
therewith deliver to the Administrative Agent (with a copy to Agent)
an Officers' Certificate demonstrating the derivation of the
additional Net Cash Proceeds. Any mandatory prepayments pursuant to
this subsection 2.4B(iii)(a) shall be applied as specified in
subsection 2.4B(iv).
-71-
(b) PREPAYMENTS AND REDUCTIONS FROM NET INSURANCE/ CONDEMNATION
PROCEEDS. No later than the first Business Day following the date of
receipt by Agent or (x) by Xxxx Japan or any of its Subsidiaries,
(y) by Xxxx UK or any of its Subsidiaries, or (z) by Company or any of
its Subsidiaries (other than the Subsidiaries included in the
foregoing clauses (x) and (y)) of any Net Insurance/Condemnation
Proceeds that are required to be applied to prepay the Loans and/or
reduce the Revolving Loan Commitments pursuant to the provisions of
subsection 6.4C, (1) such Borrower shall prepay its Term Loans in an
aggregate amount equal to such Net Insurance/Condemnation Proceeds;
(2) to the extent the Net Insurance/Condemnation Proceeds exceed the
aggregate outstanding amount of such Borrower's Term Loans, (i) in the
case of Xxxx Japan or Xxxx UK, such Borrower shall prepay the Term
Loans of Xxxx UK or Xxxx Japan, respectively, in an aggregate amount
equal to such excess or (ii) in the case of Company, Company shall
prepay the Japanese Term Loans and the UK Term Loans on a pro rata
basis (in accordance with the respective outstanding principal amount
thereof) in an aggregate amount equal to such excess; (3) to the
extent the Net Insurance/Condemnation Proceeds exceed the Term Loan
prepayments required to be made by such Borrower pursuant to the
foregoing clauses (1) - (2), such Borrower shall prepay its Revolving
Loans without any corresponding reduction in the related Revolving
Loan Commitments, in an aggregate amount equal to such excess; and
(4) to the extent that Net Insurance/Condemnation Proceeds remain
after the applications required pursuant to the foregoing clauses
(1) - (3), such Borrower shall cause the excess of such Net
Insurance/Condemnation Proceeds to be applied first to prepay the
remaining outstanding Term Loans of any Borrower, including the
Company, on a pro rata basis (in accordance with the respective
outstanding principal amount thereof) and after payment of all
remaining outstanding Term Loans, to prepay the remaining outstanding
Revolving Loans of any Borrower, including the Company, on a pro rata
basis (in accordance with the respective outstanding amount of
Revolving Loan Commitments) without any corresponding reduction in the
related Revolving Loan Commitments. Any mandatory prepayments
pursuant to this subsection 2.4B(iii)(a) shall be applied as specified
in subsection 2.4B(iv).
(c) PREPAYMENTS AND REDUCTIONS DUE TO REVERSION OF SURPLUS
ASSETS OF PENSION PLANS. On the date of return (x) to Xxxx Japan or
any of its Subsidiaries, (y) to Xxxx UK or any of its Subsidiaries, or
(z) to Company or any of its Subsidiaries (other than the Subsidiaries
included in the foregoing clauses (x) and (y)) of any surplus assets
of any pension plan of such Borrower or any of its Subsidiaries,
(1) such Borrower shall prepay its Term Loans in an aggregate amount
(the "NET REVERSION AMOUNT") equal to 100% of such returned surplus
assets, net of transaction costs and expenses incurred in obtaining
such return, including incremental taxes payable as a result thereof;
(2) to the extent the Net Reversion Amount exceeds the aggregate
outstanding
-72-
amount of such Borrower's Term Loans, (i) in the case of Xxxx Japan or
Xxxx UK, such Borrower shall prepay the Term Loans of Xxxx UK or Xxxx
Japan, respectively, in an aggregate amount equal to such excess or
(ii) in the case of Company, Company shall prepay the Japanese Term
Loans and the UK Term Loans on a pro rata basis (in accordance with
the respective outstanding principal amount thereof) in an aggregate
amount equal to such excess; (3) to the extent the Net Reversion
Amount exceeds the Term Loan prepayments required to be made by such
Borrower pursuant to the foregoing clauses (1) - (2), such Borrower
shall prepay its Revolving Loans without any corresponding reduction
in the related Revolving Loan Commitments, in an aggregate amount
equal to such excess; and (4) to the extent that the Net Reversion
Amount remains after the applications required pursuant to the
foregoing clauses (1) - (3), such Borrower shall cause the excess of
such Net Reversion Amount to be applied first to prepay the remaining
outstanding Term Loans of any Borrower, including the Company, on a
pro rata basis (in accordance with the respective outstanding
principal amount thereof) and after payment of all remaining
outstanding Term Loans, to prepay the remaining outstanding Revolving
Loans of any Borrower, including the Company, on a pro rata basis (in
accordance with the respective outstanding amount of Revolving Loan
Commitments) without any corresponding reduction in the related
Revolving Loan Commitments. Any such mandatory prepayments shall be
applied as specified in subsection 2.4B(iv).
(d) PREPAYMENTS AND REDUCTIONS DUE TO ISSUANCE OF EQUITY
SECURITIES. No later than the first Business Day following the date
of receipt by Holdings or Company of the cash proceeds (net of
underwriting discounts and commissions and other reasonable costs
associated therewith) from the issuance of any equity Securities of
Holdings or Company (other than proceeds from Holdings Common Stock
issued to officers and employees of Company and its Subsidiaries
pursuant to option plans or other similar plans or agreements adopted
by Holdings' Board of Directors), (1) Company shall prepay the
Domestic Term Loans, the Japanese Term Loans and the UK Term Loans on
a pro rata basis (in accordance with the respective outstanding
principal amount thereof) in an aggregate amount equal to such cash
proceeds, (2) to the extent that such cash proceeds exceed the
aggregate outstanding principal amount of such Term Loans, Company
shall prepay its Revolving Loans without any corresponding reduction
in the related Revolving Loan Commitments, in an aggregate amount
equal to such excess, and (3) to the extent of any remaining cash
proceeds after the applications required pursuant to the foregoing
clauses (1) - (2), Company shall cause such remaining cash proceeds to
be applied to prepay the remaining outstanding Revolving Loans on a
pro rata basis (in accordance with the respective outstanding amount
of Revolving Loan Commitments) without any corresponding reduction in
the related Revolving Loan Commitments. In the case of the receipt by
Holdings
-73-
of such cash proceeds from the issuance of any equity Securities of
Holdings, Company shall cause Holdings to immediately contribute such
cash proceeds to Company and Company shall apply such cash proceeds
pursuant to this subsection 2.4B(iii)(d) as though initially received
by Company from the issuance of its own equity Securities. Any such
mandatory prepayments shall be applied as specified in subsection
2.4B(iv).
(e) PREPAYMENTS AND REDUCTIONS DUE TO ISSUANCE OF DEBT
SECURITIES. No later than the first Business Day following the date
of receipt (x) by Xxxx Japan or any of its Subsidiaries, (y) by Xxxx
UK or any of its Subsidiaries, or (z) by Company or any of its
Subsidiaries (other than the Subsidiaries included in the foregoing
clauses (x) and (y)) of the cash proceeds (net of underwriting
discounts and commissions and other reasonable costs and expenses
associated therewith) from the issuance of any debt Securities of
Holdings, such Borrower or any such Subsidiary, (1) such Borrower
shall prepay its Term Loans in an aggregate amount equal to such net
cash proceeds; (2) to the extent such net cash proceeds exceed the
aggregate outstanding amount of such Borrower's Term Loans, (i) in the
case of Xxxx Japan or Xxxx UK, such Borrower shall prepay the Term
Loans of Xxxx UK or Xxxx Japan, respectively, in an aggregate amount
equal to such excess or (ii) in the case of Company, Company shall
prepay the Japanese Term Loans and the UK Term Loans on a pro rata
basis (in accordance with the respective outstanding principal amount
thereof) in an aggregate amount equal to such excess; (3) to the
extent such net cash proceeds exceed the Term Loan prepayments
required to be made by such Borrower pursuant to the foregoing clauses
(1) - (2), such Borrower shall prepay its Revolving Loans without any
corresponding reduction in the related Revolving Loan Commitments, in
an aggregate amount equal to such excess; and (4) to the extent that
such net cash proceeds remain after the applications required pursuant
to the foregoing clauses (1) - (3), such Borrower shall cause the
excess of such net cash proceeds to be applied first to prepay the
remaining outstanding Term Loans of any Borrower, including the
Company, on a pro rata basis (in accordance with the respective
outstanding principal amount thereof) and after payment of all
remaining outstanding Term Loans, to prepay the remaining outstanding
Revolving Loans of any Borrower, including the Company, on a pro rata
basis (in accordance with the respective outstanding amount of
Revolving Loan Commitments) without any corresponding reduction in the
related Revolving Loan Commitments. In the case of the receipt by
Holdings of such cash proceeds from the issuance of any debt
Securities of Holdings, Holdings shall immediately contribute such
cash proceeds to Company and Company shall apply such cash proceeds
pursuant to this subsection 2.4B(iii)(e) as though initially received
by Company from the issuance of its own debt Securities. Any such
mandatory prepayments shall be applied as specified in subsection
2.4B(iv).
-74-
(f) PREPAYMENTS AND REDUCTIONS FROM CONSOLIDATED EXCESS CASH
FLOW. In the event that there shall be Consolidated Excess Cash Flow
for any Fiscal Year, commencing with the Fiscal Year ending September
30, 1997, within 90 days after the last day of such Fiscal Year
(1) Company shall, and shall cause Xxxx Japan and Xxxx UK to, prepay
their respective Term Loans on a pro rata basis (in accordance with
the respective outstanding principal amount thereof) in an aggregate
amount equal to 75% of such Consolidated Excess Cash Flow and (2) to
the extent such amount exceeds the aggregate outstanding principal
amount of the Term Loans, Company shall, and shall cause Xxxx Japan
and Xxxx UK to, prepay their respective Revolving Loans on a pro rata
basis (in accordance with the respective outstanding Revolving Loan
Commitments), without any corresponding reductions in the related
Revolving Loan Commitments, in an aggregate amount equal to such
excess. Any such mandatory prepayments shall be applied as specified
in subsection 2.4B(iv).
(g) PREPAYMENTS DUE TO REDUCTIONS OR RESTRICTIONS OF REVOLVING
LOAN COMMITMENTS OR DUE TO INSUFFICIENT BORROWING BASE. (i) Company
shall immediately prepay the Domestic Revolving Loans to the extent
necessary so that (1) the Total Utilization of Revolving Loan
Commitments for Company and Xxxx UK at any time does not exceed the
US/UK Revolving Loan Commitments then in effect; (2) the Total
Utilization of Revolving Loan Commitments for Company at any time does
not exceed $100,000,000; (3) the Total Utilization of Revolving Loan
Commitments for Company at any time does not exceed the Company
Borrowing Base then in effect; (4) the aggregate outstanding principal
amount of all Revolving Loans borrowed pursuant to subsections
2.1A(ii)(a) and 2.1A(ii)(b) at any time does not exceed $110,000,000;
(5) the aggregate amount of Eligible Accounts Receivable for all
Borrowers at any time shall not be less than 50% of the Total
Utilization of Revolving Loan Commitments of all Borrowers; and (6)
the sum of the Total Utilization of Revolving Loan Commitments for all
Borrowers at any time does not exceed the Maximum Permitted Revolving
Loan Commitments; (ii) Xxxx Japan shall immediately prepay the
Japanese Revolving Loans to the extent necessary so that (1) the Total
Utilization of Revolving Loan Commitments for Xxxx Japan at any time
does not exceed the Japanese Revolving Loan Commitments then in
effect; (2) the Total Utilization of Revolving Loan Commitments for
Xxxx Japan at any time does not exceed the Xxxx Japan Borrowing Base
then in effect; (3) the aggregate outstanding principal amount of all
Revolving Loans borrowed pursuant to subsections 2.1A(ii)(a) and
2.1A(ii)(b) at any time does not exceed $110,000,000; (4) the
aggregate amount of Eligible Accounts Receivable for all Borrowers at
any time shall not be less than 50% of the Total Utilization of
Revolving Loan Commitments of all Borrowers; and (5) the sum of the
Total Utilization of Revolving Loan Commitments for all Borrowers at
any time does not exceed the Maximum Permitted Revolving Loan
Commitments; and (iii) Xxxx UK
-75-
shall immediately prepay the UK Revolving Loans to the extent
necessary so that (1) the Total Utilization of Revolving Loan
Commitments for Company and Xxxx UK at any time does not exceed the
US/UK Revolving Loan Commitments then in effect; (2) the Total
Utilization of Revolving Loan Commitments for Xxxx UK at any time does
not exceed $100,000,000; (3) the Total Utilization of Revolving Loan
Commitments for Xxxx UK at any time does not exceed the Xxxx UK
Borrowing Base then in effect; (4) the aggregate outstanding principal
amount of all Revolving Loans borrowed pursuant to subsections
2.1A(ii)(a) and 2.1A(ii)(b) at any time does not exceed $110,000,000;
(5) the aggregate amount of Eligible Accounts Receivable for all
Borrowers at any time shall not be less than 50% of the Total
Utilization of Revolving Loan Commitments of all Borrowers; and (6)
the sum of the Total Utilization of Revolving Loan Commitments for all
Borrowers at any time does not exceed the Maximum Permitted Revolving
Loan Commitments.
(h) PREPAYMENTS OF REVOLVING LOANS FROM AMOUNTS TRANSFERRED TO
AN AGENT ACCOUNT. With respect to any and all amounts transferred to
a Concentration Account on any Business Day pursuant to the terms of
any Blocked Account Agreement or Lock Box Agreement, as the case may
be, then on such Business Day, if such amounts are transferred to an
Agent Account prior to 12:00 Noon (Local Time) on such Business Day,
or on the next succeeding Business Day, if such amounts are
transferred to an Agent Account on or after 12:00 Noon (Local Time) on
such Business Day, (1) Borrower shall prepay such Borrower's Revolving
Loans in an amount equal to the amount transferred to such Agent
Account on such Business Day (to the extent such amount relates to
payments received in respect of Accounts of Borrower) until all of
such Borrower's Revolving Loans that are Base Rate Loans shall have
been paid in full and (2) to the extent any such amount transferred to
such Agent Account with respect to any Borrower exceeds the amount
required to be prepaid by such Borrower pursuant to clause (1), so
long as no Potential Event of Default or Event of Default exists, such
excess amount shall be deposited at the end of a Business Day in an
Investment Account, with any interest earned for the benefit of such
Borrower (with funds in such Investment Account being applied to
Revolving Loans that are Base Rate Loans on the next Business Day or
disbursed in accordance with subsection 2.9D). With respect to Xxxx
UK only, such Investment Accounts may be denominated in Dollars,
Sterling, Marks or Francs. With respect to Xxxx Japan only, such
Investment Accounts may be denominated in Dollars or Yen. Each
Borrower hereby irrevocably authorizes Agent to apply funds
transferred to an Agent Account to effect prepayments required under
this subsection 2.4B(iii)(h).
(i) REDUCTIONS OF REVOLVING LOAN COMMITMENTS NOT LIMITED TO
AMOUNT OF REVOLVING LOANS OUTSTANDING. The amount of any required
-76-
reduction of the Revolving Loan Commitments pursuant to any provision
of this subsection 2.4B(iii) shall not be affected by the fact that
the outstanding principal amount of Revolving Loans at the time of
such reduction is less than the amount of such reduction.
(iv) APPLICATION OF PREPAYMENTS.
(a) APPLICATION OF VOLUNTARY PREPAYMENTS BY TYPE OF LOANS AND
ORDER OF MATURITY. Any voluntary prepayments pursuant to subsection
2.4B(i) shall be applied as specified by the Borrower in the
applicable notice of prepayment; PROVIDED that in the event such
Borrower fails to specify the Loans to which any such prepayment shall
be applied, such prepayment shall be applied FIRST to repay such
Borrower's outstanding Revolving Loans to the full extent thereof, and
SECOND to repay such Borrower's outstanding Term Loans to the full
extent thereof. Any voluntary prepayments of the Term Loans pursuant
to subsection 2.4B(i) shall be applied on a pro rata basis (in
accordance with the respective outstanding principal amount thereof)
to each scheduled installment of principal of the Term Loans of such
Borrower set forth in subsection 2.4A that is unpaid at the time of
such prepayment.
(b) APPLICATION OF MANDATORY PREPAYMENTS BY TYPE OF LOANS. Any
amount (the "APPLIED AMOUNT") required to be applied as a mandatory
prepayment of the Loans pursuant to subsections 2.4B(iii)(a)-(f) shall
be applied FIRST to prepay the Term Loans to the extent required
pursuant to and in accordance with subsection 2.4B(iii), and SECOND,
to the extent of any remaining portion of the Applied Amount, to
prepay the Revolving Loans to the full extent thereof.
(c) APPLICATION OF MANDATORY PREPAYMENTS OF TERM LOANS BY ORDER
OF MATURITY. Any mandatory prepayments of the Term Loans pursuant to
subsections 2.4B(iii)(a)-(e) shall be applied to reduce the scheduled
installments of principal of the applicable Term Loans set forth in
subsections 2.4A(i), 2.4A(ii) and 2.4A(iii) in inverse order of
maturity. Any mandatory prepayments of the Term Loans pursuant to
subsection 2.4B(iii)(f) shall be applied to reduce the scheduled
installments of principal of the applicable Term Loans set forth in
subsections 2.4A(i), 2.4A(ii) and 2.4A(iii) on a pro rata basis (in
accordance with the respective outstanding principal amount thereof).
(d) APPLICATION OF PREPAYMENTS TO BASE RATE LOANS AND EURODOLLAR
RATE LOANS. Considering Term Loans and Revolving Loans being prepaid
separately, any prepayment thereof shall be applied first to Base Rate
Loans to the full extent thereof before application to Eurodollar Rate
Loans, in each
-77-
case in a manner which minimizes the amount of any payments required
to be made by Borrowers pursuant to subsection 2.6D.
C. GENERAL PROVISIONS REGARDING PAYMENTS.
(i) MANNER AND TIME OF PAYMENT. All payments by any Borrower of
principal, interest, fees and other Obligations hereunder and under the
Notes shall be made in Dollars in same day funds, without defense, setoff
or counterclaim, free of any restriction or condition, and delivered to
Agent, not later than 12:00 Noon (Local Time) on the date due at the
Funding and Payment Office for the account of such Lenders. Funds received
by Agent after that time on such due date shall be deemed to have been paid
by the Borrower on the next succeeding Business Day. In order to effect
timely payment of any interest, fees, commissions or other amounts due
hereunder, each Borrower hereby authorizes Agent to request the Funding
Lender to make Revolving Loans for its own account (subject to settlement
pursuant to subsection 2.1D) in a principal amount equal to such interest,
fees, commissions or other amounts; PROVIDED that Agent shall not have the
right to request such Revolving Loans if, after giving effect to such
Revolving Loans: (a) the Total Utilization of Revolving Loan Commitments
for all Borrowers at any time exceeds the Maximum Permitted Revolving Loan
Commitments; (b) the Total Utilization of Revolving Loan Commitments for
Company and Xxxx UK at any time exceeds the US/UK Revolving Loan
Commitments then in effect; (c) the Total Utilization of Revolving Loan
Commitments for Xxxx Japan at any time exceeds the Japanese Revolving Loan
Commitments then in effect; (d) the Total Utilization of Revolving Loan
Commitments for Company exceeds $100,000,000; and (5) the Total Utilization
of Revolving Loan Commitments for Xxxx UK exceeds $100,000,000. Such
Funding Lender shall make the amount of such Revolving Loans (which shall
be made as Base Rate Loans) available to Agent in same day funds, at the
Funding and Payment Office not later than 1:00 P.M. (Local Time) on the
date requested by Agent and Borrowers and Lenders hereby authorize Agent,
whether or not the conditions specified in subsection 4.2 have been
satisfied or waived, to apply the proceeds of such Revolving Loans directly
to the payment of such unpaid interest, fees, commissions or other amounts.
Each Borrower hereby agrees that, upon the funding of any such Revolving
Loans by the applicable Funding Lender in accordance with the provisions of
this subsection 2.4C(i), such Borrower shall have effected Revolving Loans
hereunder, which Revolving Loans shall for all purposes of this Agreement
be deemed to have been made by the Funding Lender pursuant to and in
accordance with the provisions of subsection 2.1C(ii). Agent shall deliver
prompt notice to the Borrower of the amount of Revolving Loans made
pursuant to this subsection 2.4C together with copies of all invoices or
other statements evidencing the fees, commissions or other amounts due
hereunder (other than interest) paid with the proceeds of such Revolving
Loans; PROVIDED that Agent shall give notice to the Borrower five days in
advance of the making of any such Revolving Loans for the payment of any
amounts owed under subsection 10.2 together with copies of all invoices or
other statements evidencing
-78-
such amounts. In addition, each Borrower hereby authorizes Agent to charge
its accounts with Agent in order to cause timely payment to be made to
Agent of all principal, interest, fees and expenses due hereunder (subject
to sufficient funds being available in its accounts for that purpose).
Each Agent shall promptly notify Administrative Agent of all such payments
received by such Agent.
(ii) APPLICATION OF PAYMENTS TO PRINCIPAL AND INTEREST. Except as
provided in subsection 2.2C, all payments in respect of the principal
amount of any Loan shall include payment of accrued interest on the
principal amount being repaid or prepaid, and all such payments (and, in
any event, any payments in respect of any Loan on a date when interest is
due and payable with respect to such Loan) shall be applied to the payment
of interest before application to principal.
(iii) APPORTIONMENT OF PAYMENTS. Aggregate principal and interest
payments in respect of Term Loans and Revolving Loans shall be apportioned
among all outstanding Loans to which such payments relate, in each case
proportionately to such Lenders' respective Pro Rata Shares of such Loans;
PROVIDED that (i) payments of principal in respect of the Revolving Loans
pursuant to subsection 2.4B(iii)(h) shall be applied to reduce the
outstanding Revolving Loans of the applicable Funding Lender (subject to
settlement pursuant to subsection 2.1D) prior to application to the
outstanding Revolving Loans of any other Lender, and (ii) payments of
interest in respect of Revolving Loans which are Base Rate Loans shall be
apportioned ratably among applicable Lenders in proportion to the Base Rate
Loans of each applicable Lender outstanding during the period in which such
interest shall have accrued. Each Agent shall promptly distribute to the
applicable Lender, at its primary address set forth below its name on the
appropriate signature page hereof or at such other address as such Lender
may request, its Pro Rata Share of all such payments received by Agent and
the commitment fees of such Lender when received by Agent pursuant to
subsection 2.3. Notwithstanding the foregoing provisions of this
subsection 2.4C(iii), if, pursuant to the provisions of subsection 2.6C,
any Notice of Conversion/Continuation is withdrawn as to any Affected
Lender or if any Affected Lender makes Base Rate Loans in lieu of its Pro
Rata Share of any Eurodollar Rate Loans, Agent shall give effect thereto in
apportioning payments received thereafter.
(iv) PAYMENTS ON BUSINESS DAYS. Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business Day,
such payment shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of the payment of
interest hereunder or of the commitment fees hereunder, as the case may be.
(v) NOTATION OF PAYMENT. Each Lender agrees that before disposing of
any Note held by it, or any part thereof (other than by granting
participations therein), that Lender will make a notation thereon of all
Loans evidenced by that Note and all principal payments previously made
thereon and of the date to which interest thereon
-79-
has been paid; PROVIDED that the failure to make (or any error in the
making of) a notation of any Loan made under such Note shall not limit or
otherwise affect the obligations of any Borrower hereunder or under such
Note with respect to any Loan or any payments of principal or interest on
such Note.
2.5 USE OF PROCEEDS.
A. TERM LOANS. The proceeds of the Term Loans, together with up to
$5,000,000 in proceeds of the initial Revolving Loans and other funds available
to Borrowers, shall be applied by Borrowers to purchase the Acquired Stock and
Acquired Assets and to pay any fees or other amounts relating thereto.
B. REVOLVING LOANS. The proceeds of the initial Revolving Loans in an
amount not to exceed $5,000,000, together with the proceeds of the Term Loans
and other funds available to Borrowers, shall be applied by Borrowers to
purchase the Acquired Stock and Acquired Assets and to pay any fees or other
amounts relating thereto. Any excess proceeds of the initial Revolving Loans
and the proceeds of any subsequent Revolving Loans shall be applied by each
Borrower for working capital and general corporate purposes, which may include
the making of intercompany loans to any of Company's wholly-owned Subsidiaries,
in accordance with subsection 7.1(iii), for their own working capital and
general corporate purposes.
C. MARGIN REGULATIONS. No portion of the proceeds of any borrowing under
this Agreement shall be used by any Borrower or any of its Subsidiaries in any
manner that might cause the borrowing or the application of such proceeds to
violate Regulation G, Regulation U, Regulation T or Regulation X of the Board of
Governors of the Federal Reserve System or any other regulation of such Board or
to violate the Exchange Act, or to violate any other similar or comparable laws
of Japan or the UK, in each case as in effect on the date or dates of such
borrowing and such use of proceeds.
2.6 SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS.
Notwithstanding any other provision of this Agreement to the contrary,
the following provisions shall govern with respect to Eurodollar Rate Loans as
to the matters covered:
A. DETERMINATION OF APPLICABLE INTEREST RATE. As soon as practicable
after 10:00 A.M. (Local Time) on each Interest Rate Determination Date,
Administrative Agent shall determine (which determination shall, absent manifest
error, be final, conclusive and binding upon all parties) the interest rate that
shall apply to the Eurodollar Rate Loans for which an interest rate is then
being determined for the applicable Interest Period and shall promptly give
notice thereof (in writing or by telephone confirmed in writing) to the Borrower
and each applicable Lender.
-80-
B. INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the event that
Administrative Agent shall have determined (which determination shall be final
and conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date with respect to any Eurodollar Rate Loans that by reason of
circumstances affecting the interbank Eurodollar market adequate and fair means
do not exist for ascertaining the interest rate applicable to such Loans on the
basis provided for in the definition of Adjusted Eurodollar Rate, such Agent
shall on such date give notice (by telefacsimile or by telephone confirmed in
writing) to the Borrower and each applicable Lender, of such determination,
whereupon (i) no Loans may be made as, or converted to, Eurodollar Rate Loans
until such time as such Agent notifies such Borrower and such Lenders that the
circumstances giving rise to such notice no longer exist and (ii) any Notice of
Borrowing or Notice of Conversion/Continuation given by a Borrower with respect
to the Loans in respect of which such determination was made shall be deemed to
be rescinded by such Borrower.
C. ILLEGALITY OR IMPRACTICABILITY OF EURODOLLAR RATE LOANS. In the event
that on any date any Lender shall have determined (which determination shall be
final and conclusive and binding upon all parties hereto but shall be made only
after consultation with the Borrower and Administrative Agent) that the making,
maintaining or continuation of its Eurodollar Rate Loans (i) has become unlawful
as a result of compliance by such Lender in good faith with any law, treaty,
governmental rule, regulation, guideline or order (or would conflict with any
such treaty, governmental rule, regulation, guideline or order not having the
force of law even though the failure to comply therewith would not be unlawful)
or (ii) has become impracticable, or would cause such Lender material hardship,
as a result of contingencies occurring after the date of this Agreement which
materially and adversely affect the interbank Eurodollar market or the position
of such Lender in that market, then, and in any such event, such Lender shall be
an "AFFECTED LENDER" and it shall on that day give notice (by telefacsimile or
by telephone confirmed in writing) to the Borrower and Administrative Agent of
such determination (which notice Administrative Agent shall promptly transmit to
each other applicable Lender). Thereafter (a) the obligation of the Affected
Lender to make Loans as, or to convert Loans to, Eurodollar Rate Loans shall be
suspended until such notice shall be withdrawn by the Affected Lender, (b) to
the extent such determination by the Affected Lender relates to an Eurodollar
Rate Loan then being requested by a Borrower pursuant to a Notice of Borrowing
or a Notice of Conversion/Continuation, the Affected Lender shall make such Loan
as (or convert such Loan to, as the case may be) a Base Rate Loan, (c) the
Affected Lender's obligation to maintain its outstanding Eurodollar Rate Loans
(the "AFFECTED LOANS"), shall be terminated at the earlier to occur of the
expiration of the Interest Period then in effect with respect to the Affected
Loans or when required by law, and (d) the Affected Loans shall automatically
convert into applicable Base Rate Loans on the date of such termination.
Notwithstanding the foregoing, to the extent a determination by an Affected
Lender as described above relates to a Eurodollar Rate Loan then being requested
by a Borrower pursuant to a Notice of Borrowing or a Notice of Conversion/
Continuation, such Borrower shall have the option, subject to the provisions of
subsection 2.6D, to rescind such Notice of Borrowing or Notice of Conversion/
Continuation as to all Lenders by giving notice (by telefacsimile or by
-81-
telephone confirmed in writing) to Administrative Agent of such rescission on
the date on which the Affected Lender gives notice of its determination as
described above (which notice of rescission Administrative Agent shall promptly
transmit to each other applicable Lender). Except as provided in the
immediately preceding sentence, nothing in this subsection 2.6C shall affect the
obligation of any Lender other than an Affected Lender to make or maintain Loans
as, or to convert Loans to, Eurodollar Rate Loans in accordance with the terms
of this Agreement.
D. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST PERIODS. A
Borrower shall compensate each Lender, upon written request by that Lender
(which request shall set forth in reasonable detail the basis for requesting
such amounts), for all reasonable losses, expenses and liabilities (including,
without limitation, any interest paid by that Lender to lenders of funds
borrowed by it to make or carry its Eurodollar Rate Loans, and any loss, expense
or liability sustained by that Lender in connection with the liquidation or
re-employment of such funds) which that Lender may sustain: (i) if for any
reason (other than a default by that Lender) a borrowing of any Eurodollar Rate
Loan does not occur on a date specified therefor in a Notice of Borrowing or a
telephonic request for borrowing, or a conversion to or continuation of any
Eurodollar Rate Loan does not occur on a date specified therefor in a Notice of
Conversion/Continuation or a telephonic request for conversion or continuation,
(ii) if any prepayment or other principal payment or any conversion of any of
its Eurodollar Rate Loans occurs on a date prior to the last day of an Interest
Period applicable to that Loan, (iii) if any prepayment of any of its Eurodollar
Rate Loans is not made on any date specified in a notice of prepayment given by
the Borrower, or (iv) as a consequence of any other default by the Borrower in
the repayment of its Eurodollar Rate Loans when required by the terms of this
Agreement.
E. BOOKING OF EURODOLLAR RATE LOANS. Any Lender may make, carry or
transfer Eurodollar Rate Loans at, to, or for the account of any of its branch
offices or the office of an Affiliate of that Lender.
F. ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR RATE LOANS. Calculation
of all amounts payable to a Lender under this subsection 2.6 and under
subsection 2.7A shall be made as though that Lender had actually funded each of
its relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit
bearing interest at the rate obtained pursuant to clause (i) of the definition
of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar
Rate Loan and having a maturity comparable to the relevant Interest Period and
through the transfer of such Eurodollar deposit from an offshore office of that
Lender to a domestic office of that Lender; PROVIDED, HOWEVER, that each Lender
may fund each of its Eurodollar Rate Loans in any manner it sees fit and the
foregoing assumptions shall be utilized only for the purposes of calculating
amounts payable under this subsection 2.6 and under subsection 2.7A.
G. EURODOLLAR RATE LOANS AFTER DEFAULT. After the occurrence of and
during the continuation of a Potential Event of Default or an Event of Default,
(i) Borrowers may
-82-
not elect to have a Loan be made or maintained as, or converted to, a Eurodollar
Rate Loan after the expiration of any Interest Period then in effect for that
Loan and (ii) subject to the provisions of subsection 2.6D, any Notice of
Borrowing or Notice of Conversion/Continuation given by any Borrower with
respect to a requested borrowing or conversion/continuation that has not yet
occurred shall be deemed to be rescinded by such Borrower.
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
A. COMPENSATION FOR INCREASED COSTS AND TAXES. Subject to the provisions
of subsection 2.7B, in the event that any Lender shall determine (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto) that any law, treaty or governmental rule, regulation
or order, or any change therein or in the interpretation, administration or
application thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of a court or
governmental authority, in each case that becomes effective after the date
hereof, or compliance by such Lender with any guideline, request or directive
issued or made after the date hereof by any central bank or other governmental
or quasi-governmental authority (whether or not having the force of law):
(i) subjects such Lender (or its applicable lending office) to any
additional Tax (other than any Tax on the overall net income of such
Lender) with respect to this Agreement or any of its obligations hereunder
or any payments to such Lender (or its applicable lending office) of
principal of, or interest, commitment fees or any other amount payable
hereunder;
(ii) imposes, modifies or holds applicable any reserve (including
without limitation any marginal, emergency, supplemental, special or other
reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement against assets held by, or deposits or other liabilities in or
for the account of, or advances or loans by, or other credit extended by,
or any other acquisition of funds by, any office of such Lender (other than
any such reserve or other requirements with respect to Eurodollar Rate
Loans that are reflected in the definition of Adjusted Eurodollar Rate); or
(iii) imposes any other condition (other than with respect to a Tax
matter) on or affecting such Lender (or its applicable lending office) or
its obligations hereunder or the interbank Eurodollar market;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Loans hereunder or to reduce any amount
received or receivable by such Lender (or its applicable lending office) with
respect thereto in an amount deemed by such Lender (in its sole discretion) to
be material; then, in any such case, the applicable Borrower shall promptly pay
to such Lender, upon receipt of the statement referred to in the next sentence,
such additional amount or amounts (in the form of an
-83-
increased rate of, or a different method of calculating, interest or otherwise
as such Lender in its sole discretion shall determine) as may be necessary to
compensate such Lender for any such increased cost or reduction in amounts
received or receivable hereunder. Such Lender shall deliver to the applicable
Borrower (with a copy to Administrative Agent) a written statement, setting
forth in reasonable detail the basis for calculating the additional amounts owed
to such Lender under this subsection 2.7A, which statement shall be conclusive
and binding upon all parties hereto absent manifest error.
B. WITHHOLDING OF TAXES.
(i) PAYMENTS TO BE FREE AND CLEAR. All sums payable by Borrowers
under this Agreement and the other Loan Documents shall be paid free and
clear of, and, except to the extent required by law, without any deduction
or withholding on account of, any Tax (other than a Tax on the overall net
income of any Lender) imposed, levied, collected, withheld or assessed by
or within the United States of America, Japan or the UK or any political
subdivision in or of the United States of America, Japan or the UK or any
other jurisdiction from or to which a payment is made by or on behalf of
any Borrower or by any federation or organization of which the United
States of America, Japan or the UK or any such jurisdiction is a member at
the time of payment.
(ii) GROSSING-UP OF PAYMENTS. If any Borrower or any other Person
(including any Funding Lender with respect to any payments made to an
Indemnifying Lender under subsection 2.10) is required by law to make any
deduction or withholding on account of any such Tax from any sum paid or
payable by any Borrower to any Agent or any Lender under any of the Loan
Documents or by any Funding Lender with respect to any payments made to an
Indemnifying Lender under subsection 2.10:
(a) such Borrower shall notify Administrative Agent (with a copy
to Agent) of any such requirement or any change in any such
requirement as soon as such Borrower becomes aware of it;
(b) such Borrower shall pay any such Tax before the date on
which penalties attach thereto, such payment to be made (if the
liability to pay is imposed on such Borrower) for its own account or
(if that liability is imposed on such Agent or any such Lender, as the
case may be) on behalf of and in the name of such Agent or any such
Lender;
(c) the sum payable by such Borrower or by such Funding Lender
in respect of which the relevant deduction, withholding or payment is
required shall be increased to the extent necessary to ensure that,
after the making of that deduction, withholding or payment, such
Agent, such Lender or Indemnifying Lender, as the case may be,
receives on the due date a net sum
-84-
equal to what it would have received had no such deduction,
withholding or payment been required or made; and
(d) within 30 days after paying any sum from which it is
required by law to make any deduction or withholding, and within 30
days after the due date of payment of any Tax which it is required by
clause (b) above to pay, such Borrower shall deliver to such Agent
evidence reasonably satisfactory to the other affected parties of such
deduction, withholding or payment and of its making payment thereof to
the relevant taxing or other authority;
PROVIDED that no such additional amount of United States Tax shall be
required to be paid to any Lender under clause (c) above except to the
extent that any change after the date hereof (in the case of each Lender
listed on the signature pages hereof) or after the date of the Assignment
Agreement pursuant to which such Lender became a Lender (in the case of
each other Lender) in any such requirement for a deduction, withholding or
payment as is mentioned therein shall result in an increase in the rate of
such deduction, withholding or payment from that in effect at the date of
this Agreement or at the date of such Assignment Agreement, as the case may
be, in respect of payments to such Lender; PROVIDED FURTHER that any such
additional amount of Japanese or UK Tax, as the case may be, shall be
required to be paid by Borrower to the applicable Agent, the applicable
Funding Lender, any applicable Indemnifying Lender or to any other Lender
under clause (c) above whether or not any such payment shall be required as
a result of any change in applicable laws and regulations after the date
hereof (i.e., Borrower shall be required to pay such additional amount of
Japanese or UK Tax, as the case may be, even if the obligation to make such
payment shall have arisen under applicable laws and regulations as in
effect on the date hereof); and PROVIDED FURTHER that notwithstanding
anything to the contrary contained in this Agreement or in any other Loan
Document, to the extent that any Funding Lender is required by any
applicable law or regulation, whether or not in effect on the date hereof,
to make any deduction or withholding on account of any such Japanese or UK
Tax from any sum paid or payable by the applicable Funding Lender to any
Indemnifying Lender pursuant to subsection 2.10, (a) Borrower shall pay any
such Tax before the date on which penalties attach thereto, such payment to
be made (if the liability to pay is imposed on such Borrower) for its own
account or (if that liability is imposed on such Funding Lender or such
Indemnifying Lender, as the case may be) on behalf of and in the name of
such Funding Lender or such Indemnifying Lender; and (b) the sum payable by
such Borrower or by such Funding Lender in respect of which the relevant
deduction, withholding or payment is required shall be increased to the
extent necessary to ensure that, after the making of that deduction,
withholding or payment, such Funding Lender or Indemnifying Lender, as the
case may be, receives on the due date a net sum equal to what it would have
received had no such deduction, withholding or payment been required or
made. Borrower shall indemnify the applicable Funding Lender and each
applicable Indemnifying Lender for any Tax (other than a Tax on the overall
net income of any
-00-
Xxxxxx) imposed, levied, collected, withheld or assessed by or under any
applicable Governmental Authority with respect to the payments to be made
pursuant to subsection 2.10.
(iii) EVIDENCE OF EXEMPTION FROM WITHHOLDING TAXES.
(a) (1) Each Lender that is organized under the laws of any
jurisdiction other than the United States or any state or other
political subdivision thereof (for purposes of this subsection
2.7B(iii), a "NON-US LENDER") shall deliver to Administrative Agent
for transmission to Company, on or prior to the Closing Date (in the
case of each Lender listed on the signature pages hereof) or on or
prior to the date of the Assignment Agreement pursuant to which it
becomes a Lender (in the case of each other Lender), and at such other
times as may be necessary in the determination of Company or
Administrative Agent (each in the reasonable exercise of its
discretion), (X) two original copies of Internal Revenue Service Form
1001 or 4224 (or any successor forms), properly completed and duly
executed by such Non-US Lender, together with any other certificate or
statement of exemption required under the Internal Revenue Code or the
regulations issued thereunder to establish that such Non-US Lender is
not subject to deduction or withholding of United States federal
income tax with respect to any payments to such Non-US Lender of
principal, interest, fees or other amounts payable under any of the
Loan Documents or (Y) if such Non-US Lender is not a "bank" or other
Person described in Section 881(c)(3) of the Internal Revenue Code and
cannot deliver either Internal Revenue Service Form 1001 or 4224
pursuant to clause (X) above, a Certificate re Non-Bank Status
together with two original copies of Internal Revenue Service Form W-8
(or any successor form), properly completed and duly executed by such
Non-US Lender, together with any other certificate or statement of
exemption required under the Internal Revenue Code or the regulations
issued thereunder to establish that such Non-US Lender is not subject
to deduction or withholding of United States federal income tax with
respect to any payments to such Non-US Lender of interest payable
under any of the Loan Documents.
(2) Each Japanese Lender that is organized under the laws of
any jurisdiction other than Japan or any political subdivision thereof
(for purposes of this subsection 2.7B(iii), a "NON-JAPANESE LENDER")
agrees to deliver to Xxxx Japan and Japanese Agent upon request such
certificates, documents or other evidence as may be required from time
to time, properly completed and duly executed by such Non-Japanese
Lender, to establish the basis for any applicable exemption from or
reduction of Taxes with respect to any payments to such Non-Japanese
Lender of principal, interest, fees, commissions or any other amount
payable under this Agreement or the Japanese Loans.
-86-
(3) Each US/UK Lender that has UK Term Loans or UK Revolving
Loans (a "UK LENDER") (other than a UK Qualifying Lender (PROVIDED
that this clause 2.7B(iii)(a)(3) shall apply to a UK Qualifying Lender
who loses such status, other than through a change in any applicable
law, treaty or governmental rule, regulation or order, or any change
in the interpretation, administration or application thereof after the
Relevant Date as set out in clause 2.7B(iii)(c), from the date of such
loss)) shall deliver to the appropriate Person such application forms,
certificates, documents or other evidence as may be required from time
to time, properly completed and duly executed by such UK Lender, to
enable Xxxx UK to be able to pay interest on the UK Loans from it
without withholding or deduction for or on account of any UK income
tax. Each UK Lender severally warrants to Xxxx UK that on the
Relevant Date (as defined in clause 2.7B(iii)(c)) (i) it is a UK
Qualifying Lender or (ii) it is a UK Double Tax Treaty Lender that has
or will timely fulfill its obligations under subsection 2.7B(iii).
(b) Each Lender required to deliver any forms, certificates or
other evidence with respect to United States federal income tax
withholding matters, Japanese income tax withholding matters or UK
income tax withholding matters pursuant to subsection 2.7B(iii)(a)
hereby agrees, from time to time after the initial delivery by such
Lender of such forms, certificates or other evidence, whenever a lapse
in time or change in circumstances renders such forms, certificates or
other evidence obsolete or inaccurate in any material respect, that
such Lender shall (1)(X) in the case of any Non-US Lender, promptly
deliver to Administrative Agent for transmission to Company two new
original copies of Internal Revenue Service Form 1001 or 4224, or a
Certificate re Non-Bank Status and two original copies of Internal
Revenue Service Form W-8, as the case may be, (Y) in the case of any
Non-Japanese Lender, promptly deliver to Japanese Agent for
transmission to Xxxx Japan such certificates, documents or other
evidence as may be required from time to time under the second
paragraph of subsection 2.7B(iii)(a), or (Z) in the case of any UK
Lender, promptly deliver to the appropriate Persons such application
forms, certificates, documents or other evidence as may be required
from time to time under the third paragraph of subsection
2.7B(iii)(a), in each case properly completed and duly executed by
such Lender, together with any other certificate or statement of
exemption required in order to confirm or establish that such Lender
is not subject to deduction or withholding of United States, Japanese
or UK (as applicable) Tax with respect to payments to such Lender
under the Loan Documents or (2) notify Agent and the Borrower of its
inability to deliver any such forms, certificates or other evidence.
(c) The Borrower shall not be required to pay any additional
amount to or in respect of any payment to any Non-US Lender,
Non-Japanese Lender
-87-
or US/UK Lender that is not a UK Loan Indemnifying Lender in respect
of that payment, as the case may be, under clause (c) of subsection
2.7B(ii) if such Lender shall both (i) have failed to satisfy the
requirements of clause (a) or (b) (PROVIDED that for the purpose of
this subsection 2.7B(iii)(c) its obligations under such clause (b)
shall not be considered to be duly fulfilled by its notification to
the Agent and the Borrower of its inability to deliver any form,
certificate or other evidence) of this subsection 2.7B(iii) and (ii)
is not a UK Qualifying Lender; PROVIDED FURTHER that if such Lender
shall have satisfied the requirements of subsection 2.7B(iii)(a) (in
the case of any payment, or part thereof, connected with any
Commitment, Loan, Letter of Credit or Participation, sold, assigned or
transferred pursuant to an Assignment Agreement) after the date of
such Assignment Agreement or (in any other case) after the Closing
Date (hereinafter, the "RELEVANT DATE"), or is a UK Qualifying Lender
on the Relevant Date, as the case may be, nothing in this subsection
2.7B(iii)(c) shall relieve the Borrower of its obligation to pay any
additional amounts pursuant to clause (c) of subsection 2.7B(ii) in
the event that, as a result of any change in any applicable law,
treaty or governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof, such Lender
either is no longer a UK Qualifying Lender or is no longer properly
entitled to deliver forms, certificates or other evidence at a
subsequent date establishing the fact that such Lender is exempt from
withholding tax or is subject to withholding tax at a rate higher than
on the Relevant Date, as described in subsection 2.7B(iii)(a), as the
case may be.
(d) The Borrower shall not be required to pay any additional
amount under clause (c) of subsection 2.7B(ii) to any Japanese Loan
Indemnifying Lender if the Japanese Funding Lender is not either a
Japanese corporation or a bank which has and acts through a permanent
establishment in Japan and holds a valid Certificate of Exemption from
withholding tax for foreign corporations or non-residents, PROVIDED,
HOWEVER, that nothing in this subsection 2.7(iii) shall relieve the
applicable Borrower of its obligation to pay any additional amounts
pursuant to clause (c) of subsection 2.7B(ii) to an Indemnifying
Lender which becomes a Japanese Lender or a US/UK Lender, as the case
may be, upon the occurrence of a Triggering Event under subsection
2.10A, notwithstanding the fact that such Indemnifying Lender is not
properly entitled to deliver forms, certificates or other evidence
establishing that such Indemnifying Lender is exempt from Tax (other
than Tax on its overall net income) with respect to payments received
from such Borrower, whether or not as a result of any change in
applicable law, treaty or governmental rule, regulation or order, or
any change in the interpretation, administration or application
thereof after the Closing Date.
(e) If:
-88-
(i) Xxxx UK makes a payment under paragraph (c) of
subsection 2.7B(ii) (a "TAX PAYMENT") in respect of a payment to a UK
Double Tax Treaty Lender (that had duly fulfilled its obligations
under subsection 2.7B(iii)), such payment having been made prior to
Xxxx UK receiving a notice from the Inland Revenue permitting it to
pay gross, and
(ii) that UK Double Tax Treaty Lender determines that it has
obtained a refund of Tax or obtained and used a credit against Tax on
its Overall Net Income (a "TAX CREDIT") which that UK Lender is
attributable to that Tax Payment
then, if in its absolute discretion it can do so without any adverse
consequences, that UK Double Tax Treaty Lender shall reimburse Xxxx UK
such amount as that UK Double Tax Treaty Lender shall reasonably
determine to be such proportion of that Tax Credit as will leave that
UK Double Tax Treaty Lender (after that reimbursement) in no better or
worse position in respect of its world wide Tax liabilities than it
would have been in if no Tax Payment had been required. No UK Double
Tax Treaty Lender shall be obliged to disclose any information
regarding its Tax affairs and computations.
C. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have determined that
the adoption, effectiveness, phase-in or applicability after the date hereof of
any law, rule or regulation (or any provision thereof) regarding capital
adequacy, or any change therein or in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
(or its applicable lending office) with any guideline, request or directive
regarding capital adequacy (whether or not having the force of law) of any such
governmental authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of, or with reference to,
such Lender's Loans, Commitments or Letters of Credit or any participations
therein or any other obligations hereunder with respect to the Loans or the
Letters of Credit, in the case of any Lender, to a level below that which such
Lender or such controlling corporation could have achieved but for such
adoption, effectiveness, phase-in, applicability, change or compliance (taking
into consideration the policies of such Lender or such controlling corporation
with regard to capital adequacy and in an amount deemed by such Lender (in its
sole discretion) to be material), then from time to time, within five Business
Days after receipt by the Borrower from such Lender of the statement referred to
in the next sentence, Borrowers shall pay to such Lender such additional amount
or amounts as will compensate such Lender or such controlling corporation on an
after-tax basis for such reduction. Such Lender shall deliver to the Borrower
(with a copy to Administrative Agent and Agent) a written statement, setting
forth in reasonable detail the basis of the calculation of such additional
amounts, which statement shall be conclusive and binding upon all parties hereto
absent manifest error. Notwithstanding any provision of this subsection 2.7 to
the contrary, Borrowers shall pay,
-89-
on terms and conditions consistent with this subsection 2.7, any additional
amount or amounts as will compensate any Lender or any corporation controlling
such Lender on an after-tax basis for any reduction in the rate of return on the
capital of such Lender or such controlling entity because of any overlap of the
Revolving Loan Commitments, whether or not as a result of any change in
applicable law, treaty or governmental rule, regulation or order, or any change
in the interpretation, administration or application thereof.
2.8 OBLIGATION OF LENDERS AND ISSUING LENDERS TO MITIGATE.
Each Lender and Issuing Lender agrees that, as promptly as practicable
after the officer of such Lender or Issuing Lender responsible for administering
the Loans or Letters of Credit of such Lender or Issuing Lender, as the case may
be, becomes aware of the occurrence of an event or the existence of a condition
that would cause such Lender to become an Affected Lender or that would entitle
such Lender or Issuing Lender to receive payments under subsection 2.7 or
subsection 3.6, it will, to the extent not inconsistent with the internal
policies of such Lender or Issuing Lender and any applicable legal or regulatory
restrictions, use reasonable efforts (i) to make, issue, fund or maintain the
Commitments of such Lender or the affected Loans or Letters of Credit of such
Lender or Issuing Lender through another lending or letter of credit office of
such Lender or Issuing Lender, or (ii) take such other measures as such Lender
or Issuing Lender may deem reasonable, if as a result thereof the circumstances
which would cause such Lender to be an Affected Lender would cease to exist or
the additional amounts which would otherwise be required to be paid to such
Lender or Issuing Lender pursuant to subsection 2.7 or subsection 3.6 would be
materially reduced and if, as determined by such Lender or Issuing Lender in its
sole discretion, the making, issuing, funding or maintaining of such Commitments
or Loans or Letters of Credit through such other lending or letter of credit
office or in accordance with such other measures, as the case may be, would not
otherwise materially adversely affect such Commitments or Loans or Letters of
Credit or the interests of such Lender or Issuing Lender; PROVIDED that such
Lender or Issuing Lender will not be obligated to utilize such other lending or
letter of credit office pursuant to this subsection 2.8 unless the applicable
Borrower agrees to pay all incremental expenses incurred by such Lender or
Issuing Lender as a result of utilizing such other lending or letter of credit
office as described in clause (i) above or if the use of such other office is
inconsistent with the internal policies of such Lender or any applicable legal
or regulatory restrictions. A certificate as to the amount of any such expenses
payable by a Borrower pursuant to this subsection 2.8 (setting forth in
reasonable detail the basis for requesting such amount) submitted by such Lender
or Issuing Lender to such Borrower (with a copy to Administrative Agent) shall
be conclusive absent manifest error.
2.9 COLLECTION, DEPOSIT AND TRANSFER OF PAYMENTS IN RESPECT OF ACCOUNTS.
Each Borrower shall, and shall cause each of its Subsidiaries to,
maintain in effect at all times a system of accounts and procedures reasonably
satisfactory to Administrative Agent for the collection and deposit of payments
in respect of such Person's
-90-
Accounts and the transfer of amounts so deposited to the applicable
Concentration Account and Agent Account. Without limiting the generality of the
foregoing:
A. MAINTENANCE OF LOCK BOXES, LOCK BOX ACCOUNTS, BLOCKED ACCOUNTS
AND CONCENTRATION ACCOUNTS.
(i) Except as permitted under subsection 2.9A(ii), each Borrower
shall, and shall cause each of its Subsidiaries to maintain at all times
any Lock Boxes, Lock Box Accounts, Blocked Accounts and Concentration
Accounts established pursuant to the terms of this Agreement, the Lock Box
Agreements and the Blocked Account Agreements, if any.
(ii) Each Borrower shall not, and shall not permit any of its
Subsidiaries to, close any Lock Box, Lock Box Account, Blocked Account or
Concentration Account or open a new Lock Box, Lock Box Account, Blocked
Account or Concentration Account unless it shall have (a) notified
Administrative Agent (with a copy to Agent) in writing at least 30 days (or
such lesser number of days as may be agreed to by Administrative Agent)
prior to the proposed closing or opening, (b) in the case of a new Lock Box
Account, entered into a Lock Box Agreement with the applicable Lock Box
Bank, (c) in the case of a new Blocked Account, entered into a Blocked
Account Agreement with the applicable Blocked Account Bank, and (d) in the
case of a new Concentration Account, entered into a Blocked Account
Agreement, or in the case of a Concentration Account that is an Investment
Account, such other agreement in form and substance satisfactory to
Administrative Agent, with the applicable Concentration Bank.
B. COLLECTION AND DEPOSIT OF PAYMENTS IN RESPECT OF ACCOUNTS.
(i) Each Borrower shall, and shall cause each of its Subsidiaries to,
deliver such notices to account debtors and take all such other actions as
may reasonably be necessary to cause all payments in respect of such
Person's Accounts to be made directly to a Lock Box or to a Blocked
Account, as applicable, except for any such payments made by wire transfer
or transmitted by the automated clearing house system, with respect to
which the account debtors shall be instructed to send payments to the
applicable Concentration Accounts.
(ii) Each Borrower shall, and shall cause each of its Subsidiaries to,
direct its authorized representative, at least once on each Business Day,
to retrieve all checks and other instruments delivered to a Lock Box and,
as promptly as possible on the same Business Day so retrieved, to endorse
for payment and deposit each such check or other instrument in the Lock Box
Account related to such Lock Box. Notwithstanding the foregoing, upon the
occurrence and during the continuation of a Potential Event of Default or
an Event of Default and from and after such time as Administrative Agent
shall have notified any Borrower of Administrative Agent's
-91-
election to exercise the rights provided for in this subsection 2.9B(ii),
such Borrower shall not, and shall not permit its Subsidiaries to, retrieve
any items from any Lock Box unless accompanied by a representative of an
Agent, and each Borrower hereby appoints each Agent or any of its designees
as such Borrower's attorneys-in-fact with powers, upon notification by
Administrative Agent as aforesaid, to (a) access all Lock Boxes and (b)
endorse for payment any checks or other instruments representing payment in
respect of any Accounts of such Persons that are delivered to any Lock Box.
All acts of said attorneys or designees are hereby ratified and approved,
and said attorneys or designees shall not be liable for any acts of
omission or commission (other than acts or omissions constituting gross
negligence or wilful misconduct as determined in a final order by a court
of competent jurisdiction), nor for any error of judgment or mistake of
fact or law. The power of attorney set forth in this subsection 2.9B(ii)
is irrevocable until all Obligations shall have been paid in full and the
Commitments shall have terminated.
(iii) In the event that any Borrower or any of its Subsidiaries
receives any check, cash, note or other instrument representing payment of
an Account, such Borrower shall, or shall cause such Subsidiary to, hold
such item in trust for Agent and shall, as soon as practicable (and in any
event within one Business Day) after receipt thereof, cause such item to be
deposited into an applicable Lock Box Account or Blocked Account, as the
case may be, with any necessary endorsements.
(iv) Each Borrower hereby agrees on behalf of itself and on behalf of
any of its Subsidiaries, from and after such time, if any, as
Administrative Agent shall have notified such Borrower or such Subsidiary
in writing that the provisions of this subsection 2.9B(iv) are to become
effective until such later time, if any, as Administrative Agent shall have
notified such Borrower or such Subsidiary in writing that such provisions
are no longer to be effective, not to deposit any monies into the Lock Box
Accounts, the Blocked Accounts or the Concentration Accounts or to
otherwise permit any monies to be deposited into any of such accounts,
except payments received in respect of such Borrower's or Subsidiary's
Accounts.
C. TRANSFER OF AMOUNTS DEPOSITED IN THE LOCK BOX ACCOUNTS AND
BLOCKED ACCOUNTS TO THE CONCENTRATION ACCOUNTS. Each Borrower shall, and shall
cause each of its Subsidiaries to, cause all collected amounts deposited in each
Lock Box Account and each Blocked Account to be transferred on each Business Day
to the applicable Concentration Account in accordance with the terms of the
applicable Lock Box Agreement or Blocked Account Agreement, as the case may be;
PROVIDED, HOWEVER, that each Borrower shall, and shall cause each of its
Subsidiaries to, always maintain collected amounts equal to the Franc equivalent
of $5,000 in any Blocked Account in France or a similar equivalent amount in the
local currency in any other jurisdiction where a minimum balance is required to
be maintained.
-92-
D. TRANSFER OF AMOUNTS DEPOSITED IN THE CONCENTRATION ACCOUNTS TO
THE AGENT ACCOUNT. Each Borrower shall, and shall cause each of its
Subsidiaries to, cause all collected amounts deposited in each Concentration
Account to be transferred on each Business Day to the applicable Agent Account;
PROVIDED, HOWEVER, that any collected amounts in a Concentration Account that is
an Investment Account need not be transferred to an Agent Account. Any amounts
so transferred to such Agent Account FIRST shall be applied as provided in
subsection 2.4B(iii)(h) to the extent therein provided and THEREAFTER, so long
as no Event of Default or Potential Event of Default shall have occurred and be
continuing, shall be available for disbursement to the applicable Loan Parties
for working capital and other general corporate purposes.
E. TREATMENT OF ACCOUNTS. Each Borrower shall not, and shall not
allow any of its Subsidiaries to, without Administrative Agent's prior written
consent, grant any extension of the time of payment of any Account, compromise
or settle any Account for less than the full amount thereof, release, in whole
or in part, any person or property liable for the payment thereof, or allow any
credit or discount whatsoever thereon, except, prior to the occurrence of an
Event of Default, in accordance with their usual and customary business
practices.
F. BORROWERS TO PROVIDE INFORMATION. Each Borrower shall, and shall
cause each of its Subsidiaries to, at such intervals as Administrative Agent may
reasonably request, furnish such statements, schedules and/or information as
Administrative Agent may request relating to such Borrowers' or such
Subsidiaries' Accounts and the collection, deposit and transfer of payments in
respect thereof, including, without limitation, all invoices evidencing such
Accounts.
2.10 INDEMNIFYING LENDERS.
A. PURCHASE OF PARTICIPATIONS BY INDEMNIFYING LENDERS. Upon the
execution of this Agreement or an Assignment Agreement, as the case may be, (1)
each Japanese Loan Indemnifying Lender shall be deemed to, and hereby agrees to,
have irrevocably purchased a participation (the "INDEMNITY PARTICIPATION") from
the Japanese Funding Lender in (x) the Japanese Term Loans of the Japanese
Funding Lender and (y) the Japanese Revolving Loan Commitment of the Japanese
Funding Lender, including without limitation the Japanese Revolving Loans and
the participations purchased by the Japanese Funding Lender pursuant to
subsection 3.1C in the Letters of Credit issued by an Issuing Lender for the
benefit of Xxxx Japan and any drawings thereunder, and (2) each UK Loan
Indemnifying Lender shall be deemed to, and hereby agrees to, have irrevocably
purchased an Indemnity Participation from the Daily Funding Lender in (x) the UK
Term Loans of the Daily Funding Lender and (y) the US/UK Revolving Loan
Commitment of the Daily Funding Lender, including without limitation the UK
Revolving Loans and the participations purchased by the Daily Funding Lender
pursuant to subsection 3.1C in the Letters of Credit issued by the an Issuing
Lender for the benefit of Xxxx UK and any drawings thereunder, in each case in a
proportionate amount based on such Indemnifying Lender's Indemnity Amount. Upon
the occurrence of a
-93-
Triggering Event, each Indemnifying Lender, upon one Business Day's notice from
the applicable Funding Lender, shall deliver to such Funding Lender by wire
transfer in immediately available funds its proportionate share based on its
Indemnity Amount of the aggregate unpaid principal amount of such Funding
Lender's Japanese Loans or UK Loans, as the case may be, and any accrued and
unpaid interest thereon and the aggregate unreimbursed amount of any payments
made by such Funding Lender pursuant to subsection 3.3C to the applicable
Issuing Lender with respect to any unreimbursed drawings on Letters of Credit
issued by such Issuing Lender. Each Indemnifying Lender's obligations under
this subsection 2.10 shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (a) any set-off,
counterclaim, recoupment, defense or other right which any Agent, Funding Lender
or Lender may have against any Agent, Funding Lender, Loan Party or other Person
for any reason whatsoever; (b) the occurrence or continuance of an Event of
Default or a Potential Event of Default; (c) any adverse change in the condition
(financial or otherwise) of any Loan Party; (d) any breach of this Agreement by
any Loan Party, Agent, Funding Lender or Lender; or (e) any other circumstance,
happening, or event whatsoever, whether or not similar to any of the foregoing;
PROVIDED that the obligations of each Indemnifying Lender are subject to the
condition that at the time such Japanese Loan or UK Loan, as the case may be,
was made or such Letter of Credit was issued (a) the duly authorized officer of
such Funding Lender or such Issuing Lender, as the case may be, responsible for
the administration of the credit relationship with Xxxx Japan or Xxxx UK, as the
case may be, believed in good faith that either (x) no Event of Default had
occurred and was continuing or (y) any Event of Default that had occurred and
was continuing had been waived by Requisite Lenders at the time such Japanese
Loan or UK Loan, as the case may be, was made or such Letter of Credit was
issued, (b) with respect to the making of Japanese Revolving Loans, a Funding
Lender Discretionary Period with respect to Xxxx Japan was in effect or (c) with
respect to the making of US/UK Revolving Loans, a Funding Lender Discretionary
Period with respect to Xxxx UK was in effect.
B. PAYMENT OF INDEMNITY FEES. The Funding Lender shall promptly pay
by wire transfer of immediately available funds to each applicable Indemnifying
Lender, as an indemnity fee for the Indemnity Participation provided to such
Funding Lender by such Indemnifying Lender in this subsection 2.10, the
following amounts, in each case in proportion to such Indemnifying Lender's
Indemnity Amount: (i) with respect to the Japanese Loans or UK Loans, as the
case may be, an amount equal to the excess of the interest received by such
Funding Lender pursuant to subsection 2.2C from Xxxx Japan or Xxxx UK, as the
case may be, over the Base Rate or the Adjusted Eurodollar Rate, as the case may
be, on such Japanese Loans or UK Loans; (ii) with respect to Letters of Credit,
letter of credit fees received by such Funding Lender pursuant to subsections
3.2(i)(b) and 3.2(ii)(b) from the applicable Agent; and (iii) commitment fees
received by such Funding Lender pursuant to subsection 2.3A from Administrative
Agent; PROVIDED that if any such indemnity fee is less than $10,000, such
Funding Lender shall not be required to so promptly pay such indemnity fee to an
Indemnifying Lender until the aggregate unpaid amount of indemnity fees
accumulates to an amount exceeding $10,000. The excess, if any,
-94-
of the interest payable to a Funding Lender on the Japanese Loans or UK Loans,
as the case may be, over the interest distributable to an Indemnifying Lender
under this subsection 2.10B in respect thereof, and the excess, if any, of the
letter of credit and commitment fees payable to such Funding Lender over and in
addition to the letter of credit and commitment fees distributable to such
Indemnifying Lender under this subsection 2.10B, shall be retained by such
Funding Lender.
C. OTHER PAYMENTS. Provided that an Indemnifying Lender shall have
made any payments to the applicable Funding Lender required by this subsection
2.10, including the payments required to be made upon the occurrence of a
Triggering Event pursuant to subsection 2.10A, such Funding Lender shall
promptly pay by wire transfer of immediately available funds to such
Indemnifying Lender any principal or other payments thereafter recovered by such
Funding Lender from Xxxx Japan or Xxxx UK, as the case may be, to the extent
allocable to such Indemnifying Lender's Indemnity Participation. If a Funding
Lender shall pay any amount to an Indemnifying Lender pursuant to this
subsection 2.10 in the belief or expectation that a related payment has been or
will be received or collected and such related payment is not received or
collected by such Funding Lender, then such Indemnifying Lender will promptly on
demand by such Funding Lender return such amount to such Funding Lender,
together with interest thereon at such rate as such Funding Lender shall
determine to be customary between banks for correction of errors. If a Funding
Lender determines at any time that any amount received or collected by such
Funding Lender pursuant to this Agreement is to be returned to Xxxx Japan or
Xxxx UK, as the case may be, under this Agreement or paid to any other Person or
entity pursuant to any insolvency law, any sharing clause in this Agreement, or
otherwise, then, notwithstanding any other provision of this Agreement, such
Funding Lender shall not be required to distribute any portion thereof to any
Indemnifying Lender, and each Indemnifying Lender will promptly on demand by
such Funding Lender repay any portion that such Funding Lender shall have
distributed to such Indemnifying Lender, together with interest thereon at such
rate, if any, as such Funding Lender shall pay to Xxxx Japan or Xxxx UK, as the
case may be, or such other Person or entity with respect thereto. If any
amounts returned by a Funding Lender to Xxxx Japan or Xxxx UK, as the case may
be, pursuant to this subsection 2.10 are later recouped by such Funding Lender,
such Funding Lender shall promptly pay to each Indemnifying Lender a
proportionate amount based on such Indemnifying Lender's Indemnity Amount.
D. INDEMNITY FOR COSTS AND EXPENSES. If a Funding Lender incurs any
costs or expenses (including, without limitation, in indemnifying an Agent
pursuant to subsection 9.4) in connection with any effort to enforce or protect
such Funding Lender's or any Indemnifying Lender's rights or interests with
respect to this Agreement or the other Loan Documents, then, other than in the
case of such Funding Lender's gross negligence or willful misconduct, each
Indemnifying Lender will reimburse such Funding Lender on demand for each such
Indemnifying Lender's proportionate share based on such Indemnifying Lender's
Indemnity Amount of any portion of such costs or expenses which is not
reimbursed by or on behalf of Xxxx Japan or Xxxx UK, as the case may be. If a
Funding
-95-
Lender recovers any amounts for which such Funding Lender has previously been
reimbursed by an Indemnifying Lender hereunder, such Funding Lender shall
promptly distribute to such Indemnifying Lender such Indemnifying Lender's
proportionate share thereof based on such Indemnifying Lender's Indemnity
Amount.
E. CERTAIN TAX MATTERS. Each Indemnifying Lender agrees to deliver
to the applicable Funding Lender from time to time upon request such
certificates, statements, documents, forms or other evidence, properly completed
and executed by such Indemnifying Lender, as may be required at any time in
order to comply with any applicable tax laws or regulations or to confirm or
maintain in effect such Indemnifying Lender's entitlement to exemption from or
reduction of any applicable withholding tax on any payments hereunder. Each
Indemnifying Lender hereby agrees to indemnify and hold harmless the applicable
Funding Lender from any applicable taxes, penalties, interest and other
expenses, costs and losses incurred or payable by such Funding Lender as a
result of either (i) such Indemnifying Lender's failure to submit any statement,
document, form or certificate or other evidence that such Indemnifying Lender is
required to provide pursuant to this subsection or (ii) such Funding Lender's
reliance on any such statement, document, form or certificate or other evidence
which such Indemnifying Lender has provided to such Funding Lender pursuant to
this subsection.
F. INDEMNIFYING LENDER CONSENT. Notwithstanding any provision to
the contrary contained in this Agreement or the other Loan Documents and so long
as an Indemnifying Lender has not failed to make any payments required to be
made by such Indemnifying Lender under this subsection 2.10 or is not otherwise
in default under its obligations under this subsection 2.10, the applicable
Funding Lender hereby agrees that, to the extent of but only to the extent of
such Indemnifying Lender's proportionate share based on its Indemnity Amount,
such Funding Lender will not agree to any amendment, modification, termination
or waiver of any provision of this Agreement or the other Loan Documents, or to
any departure by Xxxx Japan or Xxxx UK, as the case may be, therefrom, in each
case related to the Indemnity Participation without the prior written consent of
such Indemnifying Lender. Nothing herein contained shall prevent a Funding
Lender from consenting to any amendment, modification, termination or waiver of
any provision of this Agreement or the other Loan Documents, or to any departure
by Xxxx Japan or Xxxx UK, as the case may be, therefrom, to the extent unrelated
to the Indemnity Participation or to the extent that such Funding Lender's
interests or Pro Rata Share is not related to the Indemnity Participation or the
Indemnity Amount.
G. FAILURE TO MAKE REQUIRED PAYMENTS. In the event that any Person
obligated to make a payment to any other Person pursuant to this subsection 2.10
fails to make available to the Person entitled to receive such payment the
amount of such payment, the Person entitled to receive such payment shall be
entitled to recover such amount on demand from such other Person, together with
interest at the customary rate set by Administrative Agent for the correction of
errors among Lenders for three Business Days and thereafter at the sum of the
Base Rate plus 1.50% per annum.
-96-
H. ASSIGNMENT MATTERS. A Funding Lender may from time to time sell
or transfer to other Persons assignments or participations or other interests in
such Funding Lender's Japanese Loans and Japanese Revolving Loan Commitments or
UK Loans and US/UK Revolving Loan Commitments, as the case may be, but not in
the portion thereof allocated to the Indemnity Participation hereunder. An
Indemnifying Lender's Indemnity Participation may not be sold, pledged,
assigned, or otherwise transferred (i) without the applicable Funding Lender's
prior written consent; PROVIDED that this restriction shall not apply to any
such transfer to any of such Indemnifying Lender's Affiliates; or (ii) without a
pro rata assignment in accordance with subsection 10.1B of each Type of
Commitment and Loan held by such Indemnifying Lender.
I. MISCELLANEOUS. In no event shall the Indemnity Participation be
construed as a loan or other extension of credit by an Indemnifying Lender to
the applicable Funding Lender. In no event shall this Agreement be construed to
require an Indemnifying Lender to make any Loans or to otherwise extend any
credit to Xxxx Japan or Xxxx UK, as the case may be, or to the applicable
Funding Lender under this Agreement or under the other Loan Documents. In no
event shall this Agreement be construed to require an Indemnifying Lender to
fund or pay to the applicable Funding Lender such Indemnifying Lender's
Indemnity Amount except upon the occurrence of a Triggering Event pursuant to
subsection 2.10A. Each Indemnifying Lender agrees that the Funding Lender or
Agent may take legal action to enforce or protect an Indemnifying Lender's or a
Funding Lender's interests in respect of this Agreement and the other Loan
Documents.
SECTION 3. LETTERS OF CREDIT
3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF PARTICIPATIONS
THEREIN.
A. LETTERS OF CREDIT. In addition to Borrowers requesting that Lenders
make Revolving Loans pursuant to subsection 2.1A(ii)(a) and 2.1A(ii)(b), as the
case may be, Borrowers may request, in accordance with the provisions of this
subsection 3.1, from time to time during the period from the Closing Date to but
excluding the Revolving Loan Commitment Termination Date, that an Issuing Lender
issue Letters of Credit for the account of such Borrower for the purposes
specified in the definitions of Commercial Letters of Credit and Standby Letters
of Credit. Subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties of Borrowers herein set forth,
such Issuing Lenders shall issue such Letters of Credit in accordance with the
provisions of this subsection 3.1; PROVIDED that Borrowers shall not request
that any Agent issue (and no Agent shall issue):
(i) any Letter of Credit if, after giving effect to such issuance,
(1) the Total Utilization of Revolving Loan Commitments for all Borrowers
would exceed the Maximum Permitted Revolving Loan Commitments; (2) the
Total Utilization of Revolving Loan Commitments for Company at any time
would exceed $100,000,000;
-97-
(3) the Total Utilization of Revolving Loan Commitments for Xxxx Japan at
any time would exceed the Japanese Revolving Loan Commitments then in
effect; (4) the Total Utilization of Revolving Loan Commitments for Xxxx UK
at any time would exceed $100,000,000; and (5) the Total Utilization of
Revolving Loan Commitments for Company and Xxxx UK at any time would exceed
the US/UK Revolving Loan Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance,
(1) the Total Utilization of Revolving Loan Commitments for Company at any
time would exceed the Company Borrowing Base then in effect; (2) the Total
Utilization of Revolving Loan Commitments for Xxxx Japan at any time would
exceed the Xxxx Japan Borrowing Base then in effect; and (3) the Total
Utilization of Revolving Loan Commitments for Xxxx UK at any time would
exceed the Xxxx UK Borrowing Base then in effect;
(iii) any Letter of Credit if, after giving effect to such issuance,
(1) the aggregate stated amount of all Letters of Credit supporting
Customer Financing Note Guaranties would exceed $10,000,000 at any time;
and (2) the aggregate amount of Eligible Accounts Receivable for all
Borrowers would at any time be less than 50% of the Total Utilization of
Revolving Loan Commitments of all Borrowers;
(iv) any Standby Letter of Credit having an expiration date later than
the earlier of (a) the date which is five Business Days prior to the
Revolving Loan Commitment Termination Date and (b) the date which is one
year from the date of issuance of such Standby Letter of Credit; PROVIDED
that the immediately preceding clause (b) shall not prevent any Issuing
Lender from agreeing that a Standby Letter of Credit will automatically be
extended for one or more successive periods not to exceed one year each
unless such Issuing Lender elects not to extend for any such additional
period; and PROVIDED, FURTHER that such Issuing Lender shall elect not to
extend such Standby Letter of Credit if it has knowledge that an Event of
Default has occurred and is continuing (and has not been waived in
accordance with subsection 10.6) at the time such Issuing Lender must elect
whether or not to allow such extension; or
(v) any Commercial Letter of Credit having an expiration date (a)
later than the earlier of (X) the date which is five Business Days prior to
the Revolving Commitment Termination Date and (Y) the date which is 180
days from the date of issuance of such Commercial Letter of Credit or (b)
that is otherwise unacceptable to the applicable Issuing Lender in its
reasonable discretion.
Any Letter of Credit may be denominated in a currency other than Dollars.
For the purposes of making any determinations hereunder with respect to a Letter
of Credit denominated in a currency other than Dollars, the stated amount of
such Letter of Credit
-98-
shall be valued based on the applicable Exchange Rate for such currency as of
the applicable date of determination.
B. MECHANICS OF ISSUANCE.
(i) NOTICE OF ISSUANCE. Whenever any Borrower desires the issuance
of a Letter of Credit, it shall deliver to Administrative Agent (with a
copy to Agent or such other proposed Issuing Lender approved by the
Administrative Agent) a Notice of Issuance of Letter of Credit
substantially in the form of EXHIBIT III annexed hereto no later than 12:00
Noon (Local Time) at least three Business Days, or such shorter period as
may be agreed to by the Issuing Lender in any particular instance, in
advance of the proposed date of issuance. The Notice of Issuance of Letter
of Credit shall specify (a) the proposed date of issuance (which shall be a
Business Day), (b) the face amount of the Letter of Credit, (c) the
applicable currency the Letter of Credit is requested to be denominated in,
(d) the expiration date of the Letter of Credit, (e) the name and address
of the beneficiary, and (f) either the verbatim text of the proposed Letter
of Credit or the proposed terms and conditions thereof, including a precise
description of any documents to be presented by the beneficiary which, if
presented by the beneficiary prior to the expiration date of the Letter of
Credit, would require the Issuing Lender to make payment under the Letter
of Credit; PROVIDED that the Issuing Lender, in its reasonable discretion,
may require changes in the text of the proposed Letter of Credit or any
such documents; and PROVIDED, FURTHER that no Letter of Credit shall
require payment against a conforming draft to be made thereunder on the
same business day (under the laws of the jurisdiction in which the office
of the Issuing Lender to which such draft is required to be presented is
located) that such draft is presented if such presentation is made after
10:00 A.M. (in the time zone of such office of the Issuing Lender) on such
business day.
The Borrower shall notify the Administrative Agent (with a copy
to Issuing Lender) prior to the issuance of any Letter of Credit in the
event that any of the matters to which it is required to certify in the
applicable Notice of Issuance of Letter of Credit is no longer true and
correct as of the proposed date of issuance of such Letter of Credit, and
upon the issuance of any Letter of Credit Borrower shall be deemed to have
re-certified, as of the date of such issuance, as to the matters to which
it is required to certify in the applicable Notice of Issuance of Letter of
Credit.
(ii) DETERMINATION OF ISSUING LENDER. Upon receipt by Agent or such
other Issuing Lender of a Notice of Issuance of Letter of Credit (or a copy
thereof) pursuant to subsection 3.1B(i) requesting the issuance of a Letter
of Credit, Agent or such other Issuing Lender shall be the Issuing Lender
with respect thereto.
(iii) ISSUANCE OF LETTER OF CREDIT. Upon satisfaction or waiver (in
accordance with subsection 10.6) of the conditions set forth in subsection
4.3, the
-99-
Issuing Lender shall issue the requested Letter of Credit in accordance
with the Issuing Lender's standard operating procedures.
(iv) NOTIFICATION TO LENDERS. Upon the issuance of any Letter of
Credit the applicable Issuing Lender shall promptly notify Administrative
Agent of such issuance which notice shall be accompanied by a copy of such
Letter of Credit. Promptly after receipt of such notice (or, if Agent is
the Issuing Lender, together with such notice), Agent shall notify each
Lender, of the amount of such Lender's respective participation in such
Letter of Credit, determined in accordance with subsection 3.1C.
(v) REPORTS TO LENDERS. Within 15 days after the end of each
calendar quarter ending after the Closing Date, so long as any Letter of
Credit shall have been outstanding during such calendar quarter, each
Issuing Lender shall deliver to Administrative Agent, for distribution to
each other Lender, a report setting forth for such calendar quarter the
daily maximum amount available to be drawn under the Letters of Credit
issued by such Issuing Lender that were outstanding during such calendar
quarter.
C. REVOLVING LENDERS' PURCHASE OF PARTICIPATIONS IN LETTERS OF CREDIT.
Immediately upon the issuance of each Letter of Credit for the benefit of
Company, Xxxx Japan or Xxxx UK, each applicable Lender shall be deemed to, and
hereby agrees to, have irrevocably purchased from the Issuing Lender a
participation in such Letter of Credit and drawings thereunder in an amount
equal to such Lender's Pro Rata Share of the Revolving Loan Commitment of such
Type of the maximum amount which is or at any time may become available to be
drawn thereunder.
3.2 LETTER OF CREDIT FEES.
Each Borrower agrees to pay the following amounts with respect to
Letters of Credit issued hereunder for such Borrower's account:
(i) with respect to each Standby Letter of Credit, (a) a fronting
fee, payable directly to the applicable Issuing Lender, equal to 0.25% per
annum of the daily maximum amount available to be drawn under such Standby
Letter of Credit, but in any event not less than $500 per year per Standby
Letter of Credit, and (b) a letter of credit fee, payable to Administrative
Agent equal to (x) the Applicable Eurodollar Margin MULTIPLIED BY (y) the
daily maximum amount available to be drawn under such Standby Letter of
Credit, in each case payable in arrears on and to (but excluding) each
March 31, June 30, September 30 and December 31 of each year and computed
on the basis of a 360-day year for the actual number of days elapsed;
(ii) with respect to each Commercial Letter of Credit, (a) a fronting
fee, payable directly to the applicable Issuing Lender, equal to 0.25% per
annum of the
-100-
daily maximum amount available to be drawn under such Commercial Letter of
Credit, but in any event not less than $500 per year per Commercial Letter
of Credit, and (b) a letter of credit fee payable to Administrative Agent
equal to (x) the Applicable Eurodollar Margin MULTIPLIED BY (y) the daily
maximum amount available to be drawn under such Commercial Letter of Credit
in each case payable in arrears on and to (but excluding) each March 31,
June 30, September 30 and December 31 of each year and computed on the
basis of a 360-day year for the actual number of days elapsed; and
(iii) with respect to the issuance, amendment or transfer of each
Letter of Credit and each payment of a drawing made thereunder (without
duplication of the fees payable under clauses (i) and (ii) above),
documentary and processing charges payable directly to the applicable
Issuing Lender for its own account in accordance with such Issuing Lender's
standard schedule for such charges in effect at the time of such issuance,
amendment, transfer or payment, as the case may be.
For purposes of calculating any fees payable under clauses (i) or (ii) of this
subsection 3.2, (1) the daily amount available to be drawn under any Letter of
Credit shall be determined as of the close of business on any date of
determination, (2) any adjustments in the Applicable Eurodollar Margin shall be
made in accordance with subsection 2.2A and (3) any amount which is denominated
in a currency other than Dollars shall be valued based on the applicable
Exchange Rate for such currency as of the applicable date of determination.
Promptly upon receipt by Administrative Agent or such Issuing Lender of any
amount described in clause (i)(b) and (ii)(b) of this subsection 3.2, such
Administrative Agent or Issuing Lender shall distribute to each other applicable
Lender its Pro Rata Share of such amount.
3.3 DRAWINGS AND REIMBURSEMENT OF AMOUNTS DRAWN UNDER LETTERS OF CREDIT.
A. RESPONSIBILITY OF ISSUING LENDER WITH RESPECT TO DRAWINGS. In
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to exercise
reasonable care to determine that the documents required to be delivered under
such Letter of Credit have been delivered and that they comply on their face
with the requirements of such Letter of Credit.
B. REIMBURSEMENT BY BORROWERS OF AMOUNTS DRAWN UNDER LETTERS OF CREDIT.
In the event an Issuing Lender has determined to honor a drawing under a Letter
of Credit issued by it, (i) such Issuing Lender shall immediately notify the
Borrower and Administrative Agent (with a copy to Agent) and (ii) the Borrower
shall reimburse such Issuing Lender on or before the Business Day immediately
following the date on which such drawing is honored (the "REIMBURSEMENT DATE")
in an amount in same day funds in Dollars (which amount, in the case of a
drawing under a Letter of Credit which is denominated in a currency other than
Dollars, shall be calculated by reference to the applicable Exchange Rate) equal
to the amount of such drawing; PROVIDED that, anything contained in this
-101-
Agreement to the contrary notwithstanding, (i) unless the Borrower shall have
notified Administrative Agent and such Issuing Lender (with a copy to Agent)
prior to 12:00 Noon (Local Time) on the date such drawing is honored that such
Borrower intends to reimburse such Issuing Lender for the amount of such drawing
with funds other than the proceeds of Revolving Loans, such Borrower shall be
deemed to have given a timely Notice of Borrowing to Administrative Agent
requesting Lenders to make Revolving Loans that are Base Rate Loans on the
Reimbursement Date in an amount in Dollars (which amount, in the case of a
drawing under a Letter of Credit which is denominated in a currency other than
Dollars, shall be calculated by reference to the applicable Exchange Rate) equal
to the amount of such drawing and (ii) subject to satisfaction or waiver of the
conditions specified in subsection 4.2B, Lenders shall, on the Reimbursement
Date, make Revolving Loans that are Base Rate Loans in the amount of such
drawing, the proceeds of which shall be applied directly by Agent to reimburse
such Issuing Lender for the amount of such drawing; and PROVIDED, FURTHER that
if for any reason proceeds of Revolving Loans are not received by such Issuing
Lender on the Reimbursement Date in an amount equal to the amount of such
drawing, such Borrower shall reimburse such Issuing Lender, on demand, in an
amount in same day funds equal to the excess of the amount of such drawing over
the aggregate amount of such Revolving Loans, if any, which are so received.
Nothing in this subsection 3.3B shall be deemed to relieve any Lender from its
obligation to make Revolving Loans on the terms and conditions set forth in this
Agreement, and such Borrower shall retain any and all rights it may have against
any Lender resulting from the failure of such Lender to make such Revolving
Loans under this subsection 3.3B.
C. PAYMENT BY LENDERS OF UNREIMBURSED DRAWINGS UNDER LETTERS OF CREDIT.
(i) PAYMENT BY LENDERS. In the event that the Borrower shall
fail for any reason to reimburse any Issuing Lender as provided in
subsection 3.3B in an amount (calculated in the case of a drawing under a
Letter of Credit denominated in a currency other than Dollars, by reference
to the applicable Exchange Rate) equal to the amount of any drawing honored
by such Issuing Lender under a Letter of Credit issued by it, such Issuing
Lender shall promptly notify each other Lender having a Revolving Loan
Commitment of such Type, of the unreimbursed amount of such drawing and
having a Revolving Loan Commitment of such Type, of such other Lender's
respective participation therein based on such Lender's Pro Rata Share.
Each such Lender shall make available to such Issuing Lender an amount
equal to its respective participation in same day funds in Dollars, at the
office of such Issuing Lender specified in such notice, not later than
12:00 Noon (Local Time) on the first business day (under the laws of the
jurisdiction in which such office of such Issuing Lender is located) after
the date notified by such Issuing Lender. In the event that any such
Lender fails to make available to such Issuing Lender on such business day
the amount of such Lender's participation in such Letter of Credit or the
amount of the unreimbursed drawing regarding such Letter of Credit as
provided in this subsection 3.3C, such Issuing Lender shall be entitled to
recover such amount on demand from such Lender together with interest
thereon at the rate customarily used
-102-
by such Issuing Lender for the correction of errors among banks for three
Business Days and thereafter at the Base Rate. Nothing in this subsection
3.3C shall be deemed to prejudice the right of any such Lender to recover
from any Issuing Lender any amounts made available by such Lender to such
Issuing Lender pursuant to this subsection 3.3C in the event that it is
determined by the final judgment of a court of competent jurisdiction that
the payment with respect to a Letter of Credit by such Issuing Lender in
respect of which payment was made by such Lender constituted gross
negligence or willful misconduct on the part of such Issuing Lender.
(ii) DISTRIBUTION TO LENDERS OF REIMBURSEMENTS RECEIVED FROM
BORROWERS. In the event any Issuing Lender shall have been reimbursed by
other Lenders pursuant to subsection 3.3C(i) for all or any portion of any
drawing honored by such Issuing Lender under a Letter of Credit issued by
it, such Issuing Lender shall distribute to each other Lender which has
paid all amounts payable by it under subsection 3.3C(i) with respect to
such drawing such other Lender's Pro Rata Share of all payments
subsequently received by such Issuing Lender from a Borrower in
reimbursement of such drawing when such payments are received. Any such
distribution shall be made to a Lender at its primary address set forth
below its name on the appropriate signature page hereof or at such other
address as such Lender may request.
D. INTEREST ON AMOUNTS DRAWN UNDER LETTERS OF CREDIT.
(i) PAYMENT OF INTEREST BY BORROWERS. Each Borrower agrees to
pay to Issuing Lender, with respect to drawings made under any Letters of
Credit issued by such Issuing Lender at such Borrower's request, interest
on the amount paid by such Issuing Lender in respect of each such drawing
from the date of such drawing to but excluding the date such amount is
reimbursed by the Borrower (including any such reimbursement out of the
proceeds of Revolving Loans pursuant to subsection 3.3B) at a rate equal to
(a) for the period from the date of such drawing to but excluding the
Reimbursement Date, the rate then in effect under this Agreement with
respect to Revolving Loans that are Base Rate Loans and (b) thereafter, a
rate which is 2% per annum in excess of the rate of interest otherwise
payable under this Agreement with respect to Revolving Loans that are Base
Rate Loans. Interest payable pursuant to this subsection 3.3D(i) shall be
computed on the basis of a 360-day year for the actual number of days
elapsed in the period during which it accrues and shall be payable on
demand or, if no demand is made, on the date on which the related drawing
under a Letter of Credit is reimbursed in full.
(ii) DISTRIBUTION OF INTEREST PAYMENTS BY ISSUING LENDER.
Promptly upon receipt by any Issuing Lender of any payment of interest
pursuant to subsection 3.3D(i) with respect to a drawing under a Letter of
Credit issued by it, (a) such Issuing Lender shall distribute to each other
applicable Lender, out of the interest received by such Issuing Lender in
respect of the period from the date of such
-103-
drawing to but excluding the date on which such Issuing Lender is
reimbursed for the amount of such drawing (including any such reimbursement
out of the proceeds of Revolving Loans pursuant to subsection 3.3B), the
amount that such other Lender would have been entitled to receive in
respect of the letter of credit fee that would have been payable in respect
of such Letter of Credit for such period pursuant to subsection 3.2 if no
drawing had been made under such Letter of Credit, and (b) in the event
such Issuing Lender shall have been reimbursed by other Lenders pursuant to
subsection 3.3C(i) for all or any portion of such drawing, such Issuing
Lender shall distribute to each other Lender which has paid all amounts
payable by it under subsection 3.3C(i) with respect to such drawing such
other Lender's Pro Rata Share of any interest received by such Issuing
Lender in respect of that portion of such drawing so reimbursed by such
other Lender for the period from the date on which such Issuing Lender was
so reimbursed by such other Lender to but excluding the date on which such
portion of such drawing is reimbursed by the Borrower. Any such
distribution shall be made to a Lender at its primary address set forth
below its name on the appropriate signature page hereof or at such other
address as such Lender may request.
3.4 OBLIGATIONS ABSOLUTE.
The obligation of a Borrower to reimburse an Issuing Lender for
drawings made under the Letters of Credit issued by it and to repay any
Revolving Loans made by Lenders pursuant to subsection 3.3B and the obligations
of Lenders under subsection 3.3C(i) shall be unconditional and irrevocable, and
any such payments shall be made strictly in accordance with the terms of this
Agreement under all circumstances including, without limitation, the following
circumstances:
(i) any lack of validity or enforceability of any Letter of
Credit;
(ii) the existence of any claim, set-off, defense or other right
which any Borrower or any Lender may have at any time against a beneficiary
or any transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), any Issuing Lender or other Lender or any other
Person or, in the case of a Lender, against any Borrower, whether in
connection with this Agreement, the transactions contemplated herein or any
unrelated transaction (including any underlying transaction between
Borrower or one of its Subsidiaries and the beneficiary for which any
Letter of Credit was procured);
(iii) any draft or document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect;
-104-
(iv) payment by the applicable Issuing Lender under any Letter of
Credit against presentation of a draft or document which does not comply
with the terms of such Letter of Credit;
(v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Borrower or any
of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document by
any party thereto;
(vii) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing;
PROVIDED, in each case, that payment by the applicable Issuing Lender under the
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing Lender under the circumstances in question
(as determined by a final judgment of a court of competent jurisdiction).
3.5 INDEMNIFICATION; NATURE OF ISSUING LENDERS' DUTIES.
A. INDEMNIFICATION. In addition to amounts payable as provided in
subsection 3.6, each Borrower hereby agrees to protect, indemnify, pay and save
harmless each Issuing Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and reasonable allocated costs of
internal counsel) which such Issuing Lender may incur or be subject to as a
consequence, direct or indirect, of (i) the issuance of any Letter of Credit by
such Issuing Lender, other than as a result of (a) the gross negligence or
willful misconduct of such Issuing Lender as determined by a final judgment of a
court of competent jurisdiction or (b) subject to the following clause (ii), the
wrongful dishonor by such Issuing Lender of a proper demand for payment made
under any Letter of Credit issued by it or (ii) the failure of such Issuing
Lender to honor a drawing under any such Letter of Credit as a result of any act
or omission, whether rightful or wrongful, of any Governmental Authority (all
such acts or omissions herein called "GOVERNMENTAL ACTS").
B. NATURE OF ISSUING LENDERS' DUTIES. As between any Borrower on the one
hand and any Issuing Lender on the other hand, Borrower assumes all risks of the
acts and omissions of, or misuse of the Letters of Credit issued by such Issuing
Lender by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, such Issuing Lender shall
not be responsible (absent a determination of a court of competent jurisdiction
of gross negligence or willful misconduct by Issuing Lender) for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
-105-
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing under
such Letter of Credit; or (viii) any consequences arising from causes beyond the
control of such Issuing Lender, including without limitation any Governmental
Acts, and none of the above shall affect or impair, or prevent the vesting of,
any of such Issuing Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first paragraph of this subsection 3.5B, any action
taken or omitted by any Issuing Lender under or in connection with the Letters
of Credit issued by it or any documents and certificates delivered thereunder,
if taken or omitted in good faith, shall not put such Issuing Lender under any
resulting liability to any Borrower.
Notwithstanding anything to the contrary contained in this subsection
3.5, each Borrower shall retain any and all rights it may have against any
Issuing Lender for any liability arising solely out of the gross negligence or
willful misconduct of such Issuing Lender, as determined by a final judgment of
a court of competent jurisdiction or out of a wrongful dishonor by Issuing
Lender of a proper demand for payment made under any Letter of Credit.
3.6 INCREASED COSTS AND TAXES RELATING TO LETTERS OF CREDIT.
In the event that any Issuing Lender or Lender shall determine (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto) that any law, treaty or governmental rule, regulation
or order, or any change therein or in the interpretation, administration or
application thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of a court or
governmental authority, in each case that becomes effective after the date
hereof, or compliance by any Issuing Lender or Lender with any guideline,
request or directive issued or made after the date hereof by any central bank or
other governmental or quasi-governmental authority (whether or not having the
force of law):
(i) subjects such Issuing Lender or Lender (or its applicable
lending or letter of credit office) to any additional Tax (other than any
Tax on the overall net
-106-
income of such Issuing Lender or Lender) with respect to the issuing or
maintaining of any Letters of Credit or the purchasing or maintaining of
any participations therein or any other obligations under this Section 3,
whether directly or by such being imposed on or suffered by any particular
Issuing Lender;
(ii) imposes, modifies or holds applicable any reserve (including
without limitation any marginal, emergency, supplemental, special or other
reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement in respect of any Letters of Credit issued by any Issuing
Lender or participations therein purchased by any Lender; or
(iii) imposes any other condition (other than with respect to a
Tax matter) on or affecting such Issuing Lender or Lender (or its
applicable lending or letter of credit office) regarding this Section 3 or
any Letter of Credit or any participation therein;
and the result of any of the foregoing is to increase the cost to such Issuing
Lender or Lender of agreeing to issue, issuing or maintaining any Letter of
Credit or agreeing to purchase, purchasing or maintaining any participation
therein or to reduce any amount received or receivable by such Issuing Lender or
Lender (or its applicable lending or letter of credit office) with respect
thereto in an amount deemed by such Issuing Lender or Lender (in its sole
discretion) to be material; then, in any case, such Borrower shall promptly pay
to such Issuing Lender or Lender, upon receipt of the statement referred to in
the next sentence, such additional amount or amounts as may be necessary to
compensate such Issuing Lender or Lender for any such increased cost or
reduction in amounts received or receivable hereunder. Such Issuing Lender or
Lender shall deliver to the Borrower a written statement, setting forth in
reasonable detail the basis for calculating the additional amounts owed to such
Issuing Lender or Lender under this subsection 3.6, which statement shall be
conclusive and binding upon all parties hereto absent manifest error.
SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the issuance of Letters
of Credit hereunder are subject to the satisfaction of the following conditions.
4.1 CONDITIONS TO TERM LOANS AND INITIAL REVOLVING LOANS.
The obligations of Lenders to make the Term Loans and any Revolving
Loans to be made on the Closing Date are, in addition to the conditions
precedent specified in subsection 4.2, subject to prior or concurrent
satisfaction of the following conditions:
A. BORROWER DOCUMENTS. On or before the Closing Date, each Borrower and,
in the case of Xxxx Japan, both New Xxxx Japan and RGS Japan (PROVIDED that in
the case of
-107-
RGS Japan, it is understood that such actions shall be taken immediately upon
consummation of the purchase by New Xxxx Japan of all of the outstanding capital
stock of RGS Japan) shall deliver or cause to be delivered to Lenders (or to
Administrative Agent for Lenders with sufficient originally executed copies,
where appropriate, for each Lender and its counsel) the following, each, unless
otherwise noted, dated the Closing Date:
(i) Certified copies of its Certificate or Articles of
Incorporation, together with a good standing certificate from the Secretary
of State of its jurisdiction of incorporation and each other state in which
it is qualified as a foreign corporation to do business and, to the extent
generally available, a certificate or other evidence of good standing as to
payment of any applicable franchise or similar taxes from the appropriate
taxing authority of each of such jurisdictions, and in the case of New Xxxx
Japan, RGS Japan and Xxxx UK, the comparable or equivalent documentation
under the laws of the applicable Governmental Authority, each dated a
recent date prior to the Closing Date.
(ii) Copies of its Bylaws, certified as of the Closing Date by
its corporate secretary or an assistant secretary, and in the case of New
Xxxx Japan, RGS Japan and Xxxx UK, the comparable or equivalent
documentation.
(iii) Resolutions of its Board of Directors approving and
authorizing the execution, delivery and performance of this Agreement and
the other Loan Documents and Related Agreements to which it is a party,
certified as of the Closing Date by its corporate secretary or an assistant
secretary as being in full force and effect without modification or
amendment;
(iv) Signature and incumbency certificates of its officers
executing this Agreement and the other Loan Documents to which it is a
party;
(v) Executed and acknowledged (where applicable) originals of
this Agreement, the Notes (duly executed in accordance with subsection
2.1F, drawn to the order of each applicable Lender and with appropriate
insertions) and the other Loan Documents to which it is a party, which Loan
Documents shall include:
a. in the case of Company: a Collateral Account Agreement, Blocked
Account Agreements, any applicable Collateral Access Agreements, Lock
Box Agreements, Guaranties of the Obligations of Xxxx Japan and Xxxx
UK, Pledge Agreements pledging 100% of the stock of its Domestic
Subsidiaries and 66% of the stock of its Foreign Subsidiaries, a
Security Agreement, a Trademark Security Agreement, a Patent Security
Agreement, Mortgages and the Share Transfer Agreement (as executed by
Company and Tomita);
b. in the case of RGS Japan with respect to its Obligations: a
Collateral Account Agreement, Blocked Account Agreements, Security
Agreements, a
-108-
Trademark Security Agreement, a Patent Security Agreement, any
applicable Collateral Access Agreements and Mortgages;
c. in the case of New Xxxx Japan: a Guaranty of the Obligations of
RGS Japan and a Pledge Agreement pledging 100% of the stock of RGS
Japan;
d. in the case of Xxxx UK with respect to its Obligations: a
Collateral Account Agreement, Blocked Account Agreements, any
applicable Collateral Access Agreements, a Security Agreement, a
Trademark Security Agreement, a Patent Security Agreement and
Mortgages;
(vi) An Officers' Certificate from each Borrower (and in the case
of Xxxx Japan, both New Xxxx Japan and RGS Japan) as to authorized
signatories of that Borrower for Notices of Borrowing, Notices of
Conversion/Continuation, Notices of Issuance of Letters of Credit and
Notices of Allocation; and
(vii) Such other documents as Administrative Agent may reasonably
request.
B. HOLDINGS AND SUBSIDIARY DOCUMENTS. On or before the Closing Date,
Company shall cause Holdings, and each Borrower shall cause each of its
Subsidiaries (other than Inactive Subsidiaries) (including after giving effect
to the consummation of the Acquisition) to deliver to Lenders (or to
Administrative Agent for Lenders with sufficient originally executed copies,
where appropriate, for each Lender and its counsel) the following, each, unless
otherwise noted, dated the Closing Date:
(i) Certified copies of the Certificate or Articles of
Incorporation of such Person, together with a good standing certificate
from the Secretary of State of the State of its jurisdiction of
incorporation and each other state in which such Person is qualified as a
foreign corporation to do business and, to the extent generally available,
a certificate or other evidence of good standing as to payment of any
applicable franchise or similar taxes from the appropriate taxing authority
of each of such jurisdictions, and in the case of any Foreign Subsidiary,
the comparable or equivalent documentation under the laws of the applicable
Governmental Authority, each dated a recent date prior to the Closing Date;
(ii) Copies of the Bylaws of such Person, certified as of the
Closing Date by such Person's corporate secretary or an assistant
secretary, and in the case of any Foreign Subsidiary, the comparable or
equivalent documentation;
(iii) Resolutions of the Board of Directors of such Person
approving and authorizing the execution, delivery and performance of the
Loan Documents and Related Agreements to which it is a party, certified as
of the Closing Date by the corporate secretary or an assistant secretary of
such Person as being in full force and effect without modification or
amendment;
-109-
(iv) Signature and incumbency certificates of the officers of
such Person executing the Loan Documents to which it is a party;
(v) Executed originals of the Loan Documents to which such
Person is a party, which Loan Documents shall include:
a. in the case of Xxxx France: Blocked Account Agreements, a
Subsidiary Guaranty of the Obligations of Xxxx UK, and, with respect
to such Subsidiary Guaranty, a Mortgage, a Subsidiary Trademark
Security Agreement and a Subsidiary Patent Security Agreement;
b. in the case of each Domestic Subsidiary: Blocked Account
Agreements, any applicable Collateral Access Agreements, Lock Box
Agreements, Subsidiary Guaranties of the Obligations of each Borrower,
and with respect to such Subsidiary Guaranties, a Subsidiary Pledge
Agreement, a Subsidiary Security Agreement, a Subsidiary Trademark
Security Agreement, a Subsidiary Patent Security Agreement and
Mortgages;
c. in the case of each other Foreign Subsidiary: Blocked
Account Agreements, any applicable Collateral Access Agreements, Lock
Box Agreements, and, to the extent available without causing adverse
tax consequences for Company and its Subsidiaries, Subsidiary
Guaranties of the Obligations of the Borrowers, and with respect to
such Subsidiary Guaranties, a Subsidiary Pledge Agreement, a
Subsidiary Security Agreement, a Subsidiary Trademark Security
Agreement, a Subsidiary Patent Security Agreement and Mortgages; and
d. in the case of Holdings: Guaranties of the Obligations of
each Borrower, and, with respect to such Guaranties, a Pledge
Agreement pledging 100% of Company's Stock and a Security Agreement;
and
(vi) Such other documents as Administrative Agent may reasonably
request.
C. CORPORATE AND CAPITAL STOCK STRUCTURE, OWNERSHIP, MANAGEMENT, ETC.
The capital stock, organizational and share ownership structure of Company and
its Subsidiaries, both before and after giving effect to the Acquisition and the
Company Merger, shall be as set forth on SCHEDULE 5.1 annexed hereto (and
Administrative Agent shall have received an Officers' Certificate of Company to
such effect), and Administrative Agent shall have received copies of, and shall
be satisfied with the form and substance of any and all employment contracts
with senior management of Company and its Subsidiaries.
-110-
D. PROCEEDS OF DEBT AND EQUITY CAPITALIZATION OF HOLDINGS AND COMPANY.
(i) EQUITY CAPITALIZATION OF HOLDINGS. On or before the Closing
Date, (a) Stonington and its Affiliates and Management Investors shall have
purchased all of the outstanding Holdings Common Stock for a cash
consideration of not less than $112,500,000, and (b) Holdings shall have
issued to Rockwell all of the outstanding Holdings Preferred Stock with an
aggregate liquidation preference equal to $47,500,000. The terms and
conditions of the Holdings Preferred Stock, including the type and amount
of dividend payments and any redemption provisions, shall be satisfactory
to Administrative Agent and Requisite Lenders, PROVIDED that no payments of
cash dividends shall be required thereon. Holdings shall have delivered to
Administrative Agent an Officers' Certificate in form and substance
reasonably satisfactory to Administrative Agent setting forth the
shareholders of, and such shareholders' share ownership interests in, the
Holdings Common Stock.
(ii) DEBT AND EQUITY CAPITALIZATION OF COMPANY. On or before the
Closing Date, (a) Holdings shall have contributed to Company, as common
equity, all of the cash consideration received by Holdings from the sale of
Holdings Common Stock, which in no event shall be less than $112,500,000,
(b) Company shall have issued and sold not less than $225,000,000 in
aggregate principal amount of Senior Subordinated Notes, and (c) Company
shall have sold to BTCC the Customer Notes on a non-recourse (except for
Assumed Guaranties which in no event shall exceed $20,000,000) basis for
approximately $163,700,000 in accordance with the terms of the Loan
Portfolio Purchase Agreement, as such amount may be adjusted in accordance
with the terms of the Loan Portfolio Purchase Agreement.
(iii) USE OF PROCEEDS BY COMPANY. Company shall have provided
evidence satisfactory to Administrative Agent that the cash proceeds from
the debt and equity capitalization of Company described in the immediately
preceding clause (ii) shall have been irrevocably committed, prior to the
application of the proceeds of the Term Loans and the Revolving Loans made
on the Closing Date, to the payment of the Purchase Price and Transaction
Costs.
E. RELATED AGREEMENTS.
(i) THE SENIOR SUBORDINATED NOTES. The terms and conditions of
the Senior Subordinated Notes shall be satisfactory to Administrative Agent
and Requisite Lenders. Company shall have delivered to Administrative
Agent a fully executed or conformed copy of the Senior Subordinated Note
Indenture.
(ii) APPROVAL OF CERTAIN RELATED AGREEMENTS. The Stockholders
Agreement, the Loan Portfolio Purchase Agreement, the Assumed Guaranties,
the Holdings' Certificate of Designation, and the Transition Agreement,
shall each be satisfactory in form and substance to Administrative Agent
and Requisite Lenders.
-111-
(iii) RELATED AGREEMENTS IN FULL FORCE AND EFFECT. Administrative
Agent shall have received (a) a fully executed or conformed copy of each
Related Agreement and any documents executed in connection therewith, and
each Related Agreement shall be in full force and effect and no provision
thereof shall have been modified or waived in any respect determined by
Administrative Agent to be material, in each case without the consent of
Administrative Agent and Requisite Lenders, and (b) an Officers'
Certificate from Company, in form and substance satisfactory to
Administrative Agent, certifying to the effect that each such document
(which shall be attached thereto) is correct and complete and is in full
force and effect and certifying as to such matters with respect to each of
the Related Documents. The guaranties to be delivered by Rockwell with
respect to the Customer Notes pursuant to the terms and conditions of the
Loan Portfolio Purchase Agreement shall have been so delivered, shall be in
full force and effect and shall be satisfactory in form and substance to
Administrative Agent.
F. TERMINATION OF EXISTING CREDIT AGREEMENTS; EXISTING LETTERS OF CREDIT.
(i) On the Closing Date, Company and its Subsidiaries shall have
(a) repaid in full all amounts outstanding under any existing credit or
other loan agreements, (b) shall have terminated any commitments to lend or
make other extensions of credit thereunder, (c) delivered to Administrative
Agent all documents or instruments necessary to release all Liens securing
Indebtedness or other obligations of Company and its Subsidiaries
thereunder, including without limitation all termination statements,
terminations of lockbox agreements, blocked account agreements and
collateral account agreements, assignment documents, satisfactions,
reconveyances, releases and similar documents as to any financing
statements, mortgages, deeds of trust, assignment and other agreement or
instruments creating or perfecting liens or security interests which shall
release all liens securing any and all indebtedness under such existing
credit or other loan agreements, and (d) made arrangements satisfactory to
Administrative Agent with respect to the cancellation of any letters of
credit outstanding thereunder or the issuance of Letters of Credit to
support the obligations of Company and its Subsidiaries with respect
thereto.
(ii) Administrative Agent shall have received an Officers'
Certificate of Company stating that after giving effect to the actions
described in this subsection 4.1F, the Indebtedness of the Loan Parties
(other than Indebtedness under the Loan Documents and the Senior
Subordinated Notes) shall consist only of the Indebtedness described on
SCHEDULE 7.1 annexed hereto. The terms and conditions of all such
remaining Indebtedness shall be in form and substance satisfactory to
Administrative Agent.
G. NECESSARY CONSENTS. Company and its Subsidiaries shall have obtained
all Governmental Authorizations and all consents of other Persons, in each case
that are necessary or advisable in connection with the Acquisition and the
Company Merger, the
-112-
transactions contemplated by the Loan Documents and the Related Agreements and
the continued operation of the business to be conducted by Company and its
Subsidiaries in substantially the same manner as conducted prior to the
consummation of the Acquisition and the Company Merger, and each of the
foregoing shall be in full force and effect, in each case other than those the
failure to obtain, which either individually or in the aggregate, would not be
reasonably likely to have a Material Adverse Effect. All applicable waiting
periods shall have expired without any action being taken or threatened by any
competent authority which would restrain, prevent or otherwise impose adverse
conditions on the Acquisition or the Company Merger or the financing thereof,
and no action, request for stay, petition for review or rehearing,
reconsideration or appeal shall be pending and any time for agency action to set
aside its consent on its own motion has expired. Administrative Agent shall
have received an Officer's Certificate of Company to the effect set forth in
this subsection 4.1G.
H. ACQUISITION AND COMPANY MERGER.
(i) the Purchase Agreement shall be in full force and effect and
shall not have been amended, supplemented, waived or otherwise modified
without the consent of Administrative Agent and Requisite Lenders,
including without limitation any Closing Date supplements to such Purchase
Agreement, and executed or conformed copies thereof (including all exhibits
and schedules thereto) and any amendments thereto and all documents
executed in connection therewith shall have been delivered to
Administrative Agent;
(ii) the Purchase Agreement and any and all documents executed in
connection therewith shall specifically include provisions, in each case
satisfactory in form and substance to Administrative Agent, providing for
(a) Rockwell's indemnification of Company and its Subsidiaries for all
costs, expenses, settlements and judgments arising out of XXXXXXXXXXXX
DRUCKMASCHINEN AG V. HANTSCHO COMMERCIAL PRODUCTS, INC. AND ROCKWELL
GRAPHICS SYSTEMS, INC.; (b) the Transition Agreement; and (c) the transfer
to, and ownership by, Company and its Subsidiaries of all intellectual
property rights, including without limitation all patents, patent
applications, copyrights and trade secrets, which are used primarily in, or
related primarily to, the business to be conducted by Company and its
Subsidiaries;
(iii) all conditions to the Acquisition set forth in the Purchase
Agreement shall have been satisfied or the fulfillment of any such
conditions shall have been waived with the consent of Administrative Agent
and Requisite Lenders;
(iv) the Acquisition shall have become effective in accordance
with the terms of the Purchase Agreement;
(v) the Company Merger shall have become effective in accordance
with the terms of the applicable merger agreement and the laws of the State
of Delaware
-113-
and Company shall have delivered a fully executed copy of such merger
agreement to Administrative Agent and such merger agreement shall be
satisfactory in form and substance to Administrative Agent;
(vi) the aggregate cash purchase price for the Acquired Stock and
Acquired Assets shall not exceed $552,500,000 (subject to certain
adjustments as provided in the Purchase Agreement) PLUS the issuance of the
Holdings Preferred Stock to Rockwell;
(vii) Transaction Costs plus the payment of any financial
advisory, structuring or other similar fees with respect to the Acquisition
and related transactions shall not exceed $30,000,000;
(viii) Administrative Agent shall have received an Officers'
Certificate of Company to the effect set forth in clauses (i) - (vii).
I. CLOSING DATE MORTGAGES; CLOSING DATE MORTGAGE POLICIES; ETC.
Administrative Agent shall have received from Borrowers and each applicable
Subsidiary (other than an Inactive Subsidiary):
(a) CLOSING DATE MORTGAGES. Fully executed and acknowledged
Mortgages (each a "CLOSING DATE MORTGAGE" and, collectively, the "CLOSING
DATE MORTGAGES"), in proper form for recording in all appropriate places in
all applicable jurisdictions, encumbering each Real Property Asset listed
in SCHEDULE 5.5 annexed hereto and identified on such Schedule as being so
encumbered (each a "CLOSING DATE MORTGAGED PROPERTY" and, collectively, the
"CLOSING DATE MORTGAGED PROPERTIES");
(b) OPINIONS OF LOCAL COUNSEL. An opinion of counsel (which counsel
shall be reasonably satisfactory to Administrative Agent) in each
jurisdiction in which a Closing Date Mortgaged Property is located with
respect to the enforceability of the Closing Date Mortgages to be recorded
in such jurisdiction and such other matters as Administrative Agent may
reasonably request, in each case in form and substance reasonably
satisfactory to Administrative Agent;
(c) LANDLORD CONSENTS AND ESTOPPELS; RECORDED LEASEHOLD INTERESTS.
In the case of each Closing Date Mortgaged Property consisting of a
Material Leasehold, (a) a landlord consent and estoppel with respect
thereto and (b) evidence that such Material Leasehold is a recorded or
registered (in the case of Material Leaseholds in the UK) leasehold
property;
(d) TITLE INSURANCE. (a) ALTA mortgagee title insurance policies or
unconditional commitments therefor (or such comparable or equivalent
insurance to the extent available with respect to properties located
outside of the United States) (the "CLOSING DATE MORTGAGE POLICIES") issued
by a title company with respect to the
-114-
Closing Date Mortgaged Properties as listed in SCHEDULE 5.5 annexed hereto
and identified on such Schedule as being so encumbered, in amounts not less
than the respective amounts designated therein with respect to any
particular Closing Date Mortgaged Properties, insuring fee simple title to,
or a valid leasehold interest in, each such Closing Date Mortgaged Property
vested in such Loan Party and insuring Administrative Agent that the
applicable Closing Date Mortgages create valid and enforceable First
Priority mortgage Liens on the respective Closing Date Mortgaged Properties
encumbered thereby, subject only to the Permitted Encumbrances, which
Closing Date Mortgage Policies (1) shall include an endorsement for
mechanics' liens, for future advances under this Agreement and for any
other matters requested by Administrative Agent and (2) shall provide for
affirmative insurance and such reinsurance as Administrative Agent may
request, all of the foregoing in form and substance reasonably satisfactory
to Administrative Agent; and (b) evidence reasonably satisfactory to
Administrative Agent that such Loan Party has (i) delivered to such title
company all certificates and affidavits required by the title company in
connection with the issuance of the Closing Date Mortgage Policies and (ii)
paid to the title company or to the appropriate governmental authorities
all expenses and premiums of the title company in connection with the
issuance of the Closing Date Mortgage Policies and all recording and stamp
taxes (including mortgage recording and intangible taxes) payable in
connection with recording the Closing Date Mortgages in the appropriate
real estate records;
(e) SURVEYS. A current survey with respect to each Closing Date
Mortgaged Property located in the United States prepared in accordance with
the Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys
jointly established and adopted by ALTA and ACSM in 1992 and meeting the
requirements of a Class A Survey, as defined therein ("SURVEY"), showing
gross area of such Closing Date Mortgaged Property, lot lines and
monuments, building lines, easements both burdening and benefiting such
Closing Date Mortgaged Property, utilities, including water and sewer lines
to the point of connection with the public system, the improvements
(including loading docks and the location and number of parking spaces),
encroachments, if any, on such Closing Date Mortgaged Property or over
adjoining properties, and other matters located on or affecting such
Closing Date Mortgaged Property requested by the Administrative Agent.
Each such Survey will contain a certificate addressed to the Administrative
Agent and Title Company in form and substance satisfactory to
Administrative Agent;
(f) COPIES OF DOCUMENTS RELATING TO TITLE EXCEPTIONS. Copies of all
recorded documents listed as exceptions to title or otherwise referred to
in the Closing Date Mortgage Policies;
(g) MATTERS RELATING TO FLOOD HAZARD PROPERTIES. (a) Evidence, which
may be in the form of a letter from an insurance broker or a municipal
engineer, as to whether (1) any Closing Date Mortgaged Property is a Flood
Hazard Property and
-115-
(2) the community in which any such Flood Hazard Property is located is
participating in the National Flood Insurance Program, (b) if there are any
such Flood Hazard Properties, such Loan Party's written acknowledgement of
receipt of written notification from Administrative Agent (1) as to the
existence of each such Flood Hazard Property and (2) as to whether the
community in which each such Flood Hazard Property is located is
participating in the National Flood Insurance Program, and (c) in the event
any such Flood Hazard Property is located in a community that participates
in the National Flood Insurance Program, evidence that Company has obtained
flood insurance in respect of such Flood Hazard Property to the extent
required under the applicable regulations of the Board of Governors of the
Federal Reserve System; and
(h) ENVIRONMENTAL INDEMNITY. An environmental indemnity
agreement, satisfactory in form and substance to Administrative Agent and
its counsel, with respect to the indemnification of Administrative Agent
and Lenders for any liabilities that may be imposed on or incurred by any
of them as a result of the treatment, storage, disposal, use, presence or
Release of any Hazardous Materials at or from any Facility or relating to
the business operations of a Borrower or any of its Subsidiaries.
J. SECURITY INTERESTS IN PERSONAL AND MIXED PROPERTY. To the extent not
already satisfied pursuant to subsection 4.1I, Administrative Agent shall have
received evidence satisfactory to it that Holdings, Company and their respective
Subsidiaries (other than Inactive Subsidiaries) shall have taken or caused to be
taken such actions, executed and delivered or caused to be executed and
delivered all such agreements, documents and instruments, and made or caused to
be made all such filings and recordings (other than the filing or recording of
items described in clauses (iii), (iv) and (v) below) that may be necessary or,
in the opinion of Administrative Agent, desirable in order to create in favor of
Administrative Agent, for the benefit of Lenders, a valid and (upon such filing
and recording) perfected First Priority security interest as of such date in the
entire personal and mixed property Collateral. Such actions shall include,
without limitation, the following:
(i) SCHEDULES TO COLLATERAL DOCUMENTS. Delivery to
Administrative Agent of accurate and complete schedules to all of the
applicable Collateral Documents.
(ii) STOCK CERTIFICATES AND INSTRUMENTS. Delivery to
Administrative Agent of (a) certificates (which certificates shall be
registered in the name of Administrative Agent or properly endorsed in
blank for transfer or accompanied by irrevocable undated stock powers duly
endorsed in blank, all in form and substance satisfactory to Administrative
Agent) representing the capital stock pledged pursuant to the Pledge
Agreements and the Subsidiary Pledge Agreements and (b) all promissory
notes or other instruments (duly endorsed, where appropriate, in a manner
satisfactory to Administrative Agent) evidencing any Collateral.
-116-
(iii) LIEN SEARCHES, UCC TERMINATION STATEMENTS, ETC. Delivery to
Administrative Agent of the results of a recent search, by a Person
satisfactory to Administrative Agent, of (a) all effective Uniform
Commercial Code ("UCC") financing statements and fixture filings and all
judgment and tax lien filings which may have been made in the United States
with respect to any personal or mixed property of any Loan Party, together
with copies of all such filings disclosed by such search, (b) all
comparable filings which may have been made with respect to any personal or
mixed property of any Loan Party outside of the United States, together
with copies of all such filings disclosed by such search, and (c) UCC
termination statements or other comparable filings for non-U.S.
jurisdictions duly executed by all applicable Persons for filing in all
applicable jurisdictions as may be necessary to terminate any effective UCC
financing statements or fixture filings or other comparable filings in
non-U.S. jurisdictions disclosed in such searches (other than any such
financing statements or fixture filings in respect of Liens permitted to
remain outstanding pursuant to the terms of this Agreement).
(iv) UCC FINANCING STATEMENTS, FIXTURE FILINGS AND OTHER FILINGS.
Delivery to Administrative Agent of UCC financing statements, and where
appropriate, fixture filings, and any other comparable filings to be made
outside of the United States, duly executed by each applicable Loan Party
with respect to all personal and mixed property Collateral of such Loan
Party, for filing in all jurisdictions as may be necessary or, in the
opinion of Administrative Agent, desirable to perfect the security
interests created in such Collateral pursuant to the Collateral Documents.
(v) IP COLLATERAL DOCUMENTS, ETC. Delivery to Administrative
Agent of the IP Collateral Documents, together with accurate and complete
schedules thereto and any cover sheets or other documents or instruments
required for filing with the United States Patent and Trademark Office (the
"PTO") or any comparable Governmental Authority outside of the United
States.
(vi) DEPOSIT ACCOUNTS. Delivery to Administrative Agent of a
Lock Box Agreement or a Blocked Account Agreement executed by each Person
that is a party thereto with respect to each Deposit Account listed on
SCHEDULE I annexed to the Security Agreements and the Subsidiary Security
Agreements (other than any Concentration Account) as requested by
Administrative Agent.
(vii) OPINIONS OF LOCAL COUNSEL. Delivery to Administrative Agent
of an opinion of counsel (which counsel shall be reasonably satisfactory to
Administrative Agent) under the laws of each jurisdiction in which any Loan
Party or any personal or mixed property Collateral is located with respect
to the creation and perfection of the security interests in favor of
Administrative Agent in such Collateral and such other matters governed by
the laws of such jurisdiction regarding such security
-117-
interests, in each case as Administrative Agent may reasonably request and
in form and substance reasonably satisfactory to Administrative Agent.
(viii) OTHER DOCUMENTS. Delivery to Administrative Agent of such
other documents and instruments that Administrative Agent reasonably deems
necessary or advisable to establish, preserve and perfect the First
Priority Liens granted to Administrative Agent on behalf of Lenders under
the Collateral Documents.
(ix) EVIDENCE OF OTHER FILINGS. Evidence reasonably satisfactory
to Administrative Agent that all other filings (including, without
limitation, UCC termination statements and comparable instruments under the
laws and regulations of Governmental Authorities outside of the United
States), recordings and other actions Administrative Agent deems necessary
or advisable to establish, preserve and perfect the First Priority Liens
granted to Administrative Agent in personal and mixed property shall have
been made.
K. AUDIT OF INVENTORY AND ACCOUNTS RECEIVABLE. On or before the Closing
Date, Administrative Agent (or an independent auditor satisfactory to
Administrative Agent) shall have completed audits of the Inventory and Accounts
of each Borrower and its Subsidiaries, and Administrative Agent shall be
satisfied with the results thereof.
L. REAL ESTATE APPRAISALS. Administrative Agent shall have received
appraisals from one or more independent real estate appraisers satisfactory to
Administrative Agent, in form, scope and substance reasonably satisfactory to
Administrative Agent and satisfying the requirements of any applicable laws and
regulations, concerning any Closing Date Mortgaged Properties (as defined in
subsection 4.1I) located in the United States, in each case to the extent
required under such laws and regulations as determined by Administrative Agent
in its discretion.
M. ENVIRONMENTAL REPORTS. Administrative Agent shall have received
reports and other information, in form, scope and substance satisfactory to
Administrative Agent, regarding environmental matters relating to the
Facilities.
N. FINANCIAL STATEMENTS; PRO FORMA BALANCE SHEET. On or before the
Closing Date, Lenders shall have received from Company:
(i) audited financial statements of RGS, consisting of combined
balance sheets for Fiscal Years ended September 30, 1995 and 1994, and the
combined statements of operations and cash flows for Fiscal Years ended
September 30, 1995, 1994 and 1993;
(ii) unaudited financial statements of RGS as at June 30, 1996,
consisting of a combined balance sheet and the related combined statement
of operations and cash flows for the nine-month period ending on such date,
all in reasonable detail and
-118-
certified by the chief financial officer of Company that they fairly
present the financial condition of RGS as at the dates indicated and the
results of its operations and its cash flows for the periods indicated,
subject to changes resulting from audit and normal year-end adjustments;
(iii) pro forma combined balance sheet of Company and its
Subsidiaries as at June 30, 1996, prepared in accordance with GAAP and
reflecting the consummation of the Acquisition and the Company Merger and
the financings and other transactions contemplated hereby, which pro forma
financial statements shall be in form and substance satisfactory to
Lenders; and
(iv) projected financial statements of Company and its
Subsidiaries consisting of a combined balance sheet and the related
combined statements of operations and cash flows for the seven-year period
after the Closing Date, which financial projections shall be in form and
substance satisfactory to Lenders.
O. NO MATERIAL ADVERSE EFFECT. Since September 30, 1995, no Material
Adverse Effect (in the sole opinion of Administrative Agent) shall have
occurred.
P. SOLVENCY ASSURANCES. On the Closing Date, as to each Borrower and
such Borrower's respective Subsidiaries, Administrative Agent and Lenders shall
have received (i) a letter or letters from Xxxxxx, Xxxxxx & Co. dated the
Closing Date and addressed to Administrative Agent and Lenders, in form and
substance satisfactory to Administrative Agent and with appropriate attachments,
and (ii) Financial Condition Certificates dated the Closing Date, substantially
in the form annexed hereto as EXHIBIT VII and with appropriate attachments, in
each case demonstrating that, after giving effect to the consummation of the
Acquisition and the Company Merger and the financing transactions contemplated
hereby, each such Borrower and its respective Subsidiaries will be Solvent under
the laws of such Borrower's applicable jurisdiction. In addition,
Administrative Agent shall have received copies of all such other resolutions,
certifications, determinations, appraisals, opinions and other documents and
instruments as may be necessary to comply with the solvency, financial
assistance or other comparable or equivalent laws of such jurisdictions, all of
the foregoing to be in form and substance satisfactory to Administrative Agent.
Q. INSURANCE REVIEW; EVIDENCE OF INSURANCE. Administrative Agent shall
have received (i) a report from a consultant satisfactory to Administrative
Agent, in form, scope and substance satisfactory to Administrative Agent,
concerning the adequacy of the Borrowers' existing and proposed insurance
program or programs, and (ii) a certificate from Company's insurance broker and
each of Company's Subsidiary's (other than Company's Inactive Subsidiaries')
insurance brokers or other evidence satisfactory to it that all insurance
required to be maintained pursuant to subsection 6.4 is in full force and effect
and that Administrative Agent on behalf of Lenders has been named as additional
insured and/or loss payee thereunder to the extent required under subsection
6.4.
-119-
R. NO DISRUPTION OF FINANCIAL AND CAPITAL MARKETS. There shall have been
no material adverse change after July 12, 1996 to the syndication markets for
credit facilities similar in nature to the credit facilities provided herein and
there shall not have occurred and be continuing a material disruption of or
material adverse change in financial, banking or capital markets that would have
an adverse effect on such syndication market, in each case as determined by
Administrative Agent in its sole discretion.
S. BORROWING BASE CERTIFICATES. On or before the Closing Date, each
Borrower shall have delivered to Administrative Agent and Lenders a Borrowing
Base Certificate substantially in the form of EXHIBIT VIII annexed hereto
prepared as of a recent date prior to the Closing Date.
T. OPINIONS OF BORROWERS' COUNSEL. Lenders shall have received
(i) originally executed copies of one or more favorable written opinions of
Wachtell, Lipton, Xxxxx & Xxxx, counsel for Borrowers, and of Xxxx X. Xxxxxxxx,
General Counsel of the Borrowers, in form and substance reasonably satisfactory
to Administrative Agent and its counsel, dated as of the Closing Date and
setting forth substantially the matters in the opinions designated in
EXHIBIT IX-A annexed hereto, EXHIBIT IX-B annexed hereto and as to such other
matters as Administrative Agent acting on behalf of Lenders may reasonably
request, and (ii) originally executed copies of one or more favorable written
opinions of (i) Nishimura & Partners, local counsel for Xxxx Japan, (ii)
Linklaters & Paines, local counsel for Xxxx UK, and (iii) Xxxxxx Prat &
Associates, local counsel for Xxxx France, each in form and substance reasonably
satisfactory to Administrative Agent and its counsel, dated as of the Closing
Date and setting forth substantially the matters in the opinions designated in
EXHIBIT X-A annexed hereto, EXHIBIT X-B annexed hereto and EXHIBIT X-C annexed
hereto and as to such other matters as Administrative Agent acting on behalf of
Lenders may reasonably request.
U. OPINIONS OF O'MELVENY & XXXXX LLP. Lenders shall have received
originally executed copies of one or more favorable written opinions of
O'Melveny & Xxxxx LLP, dated as of the Closing Date, substantially in the form
of EXHIBIT XI annexed hereto and as to such other matters as Administrative
Agent acting on behalf of Lenders may reasonably request.
V. OPINIONS OF COUNSEL DELIVERED UNDER RELATED AGREEMENTS.
Administrative Agent and its counsel shall have received copies of each of the
opinions of counsel delivered to the parties under the Related Agreements,
together with a letter from each such counsel authorizing Lenders to rely upon
such opinion to the same extent as though it were addressed to Lenders.
W. AUDITOR'S LETTERS AND STAND-ALONE REPORT. Administrative Agent shall
have received (i) copies of the Auditor's Letter acknowledged by Auditors and
(ii) a report from Auditors, in form, scope and substance satisfactory to
Administrative Agent, concerning certain stand-alone costs of RGS.
-120-
X. EXPENSES AND FEES. Company shall have paid to Administrative Agent,
for distribution (as appropriate) to Administrative Agent, Syndication Agent,
Documentation Agent and Lenders, the fees payable on the Closing Date referred
to in subsection 2.3. Company shall have paid to Administrative Agent all of
the Administrative Agent's costs and expenses incurred in connection with the
consummation of the transactions contemplated hereby and shall have paid all of
the fees, costs and expenses of all of Administrative Agent's experts,
consultants, auditors, appraisers, counsel and other advisors, including without
limitation the fees and expenses of O'Melveny & Xxxxx LLP and of local and
foreign counsel to Administrative Agent.
Y. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF AGREEMENTS. Each
Borrower shall have delivered to Administrative Agent an Officers' Certificate,
in form and substance satisfactory to Administrative Agent, to the effect that
the representations and warranties in Section 5 hereof are true, correct and
complete in all material respects on and as of the Closing Date to the same
extent as though made on and as of that date (or, to the extent such
representations and warranties specifically relate to an earlier date, that such
representations and warranties were true, correct and complete in all material
respects on and as of such earlier date) and that such Borrower shall have
performed in all material respects all agreements and satisfied all conditions
which this Agreement provides shall be performed or satisfied by it on or before
the Closing Date except as otherwise disclosed to and agreed to in writing by
Administrative Agent and Requisite Lenders.
Z. DUE DILIGENCE. The results of Agents' continuing financial, legal,
tax and accounting due diligence investigations with respect to the Acquisition
and the other transactions contemplated hereunder, including without limitation
the due diligence investigation with respect to the future need for customer
notes and customer advances, shall be satisfactory in all respects to Agents,
and any supplemental business or financial due diligence that Agents reasonably
determine has become necessary shall not have disclosed information not
previously disclosed to Agents which causes the results of such diligences not
to be satisfactory in all respects to Agents and the other Lenders. Lenders
shall have also received any information reasonably necessary to conduct their
continuing due diligence.
AA. COMPLETION OF PROCEEDINGS. All corporate and other proceedings taken
or to be taken in connection with the transactions contemplated hereby and all
documents incidental thereto not previously found acceptable by Administrative
Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in
form and substance to Administrative Agent and such counsel, and Administrative
Agent and such counsel shall have received all such counterpart originals or
certified copies of such documents as Administrative Agent may reasonably
request.
Each Lender hereby agrees that by its execution and delivery of its
signature pages thereto and by the funding of its loans to be made on the
Closing Date, such Lender approves of and consents to each of the matters set
forth in this subsection 4.1 which must
-121-
be approved by, or which must be satisfactory to, all or Requisite Lenders;
PROVIDED that in the case of any agreement or document which must be approved
by, or which must be satisfactory to, all or Requisite Lenders,
Administrative Agent or Company shall have delivered a copy of such agreement
or document in substantially the form in which executed or delivered to such
Lender on or prior to the Closing Date.
4.2 CONDITIONS TO ALL LOANS.
The obligations of Lenders to make Loans on each Funding Date are
subject to the following further conditions precedent:
A. Administrative Agent (with a copy to Agent) shall have received before
that Funding Date, in accordance with the provisions of subsection 2.1B, an
originally executed Notice of Borrowing, in each case signed by the chief
executive officer, the chief financial officer or the treasurer of the Borrower
or by any other authorized signatory of such Borrower.
B. As of that Funding Date:
(i) The representations and warranties contained herein and in
the other Loan Documents shall be true, correct and complete in all
material respects on and as of that Funding Date to the same extent as
though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in
which case such representations and warranties shall have been true,
correct and complete in all material respects on and as of such earlier
date;
(ii) No event shall have occurred and be continuing or would
result from the consummation of the borrowing contemplated by such Notice
of Borrowing that would constitute an Event of Default or a Potential Event
of Default;
(iii) Borrower shall have performed in all material respects all
agreements and satisfied all conditions which this Agreement provides shall
be performed or satisfied by it on or before that Funding Date;
(iv) No order, judgment or decree of any court, arbitrator or
governmental authority shall purport to enjoin or restrain any Lender from
making the Loans to be made by it on that Funding Date;
(v) The making of the Loans requested on such Funding Date shall
not violate any law including, without limitation, Regulation G,
Regulation T, Regulation U or Regulation X of the Board of Governors of the
Federal Reserve System or any other comparable or similar law of any
Governmental Authority; and
-122-
(vi) There shall not be pending or, to the knowledge of Borrower,
threatened, any action, suit, proceeding, governmental investigation or
arbitration against or affecting Company or any of its Subsidiaries or any
property of Company or any of its Subsidiaries that has not been disclosed
by any Borrower in writing pursuant to subsection 5.6 or 6.1(x) prior to
the making of the last preceding Loans (or, in the case of the initial
Loans, prior to the execution of this Agreement), and there shall have
occurred no development not so disclosed in any such action, suit,
proceeding, governmental investigation or arbitration so disclosed, that,
in either event, in the opinion of Administrative Agent or of Requisite
Lenders, would be expected to have a Material Adverse Effect; and no
injunction or other restraining order shall have been issued and no hearing
to cause an injunction or other restraining order to be issued shall be
pending or noticed with respect to any action, suit or proceeding seeking
to enjoin or otherwise prevent the consummation of, or to recover any
damages or obtain relief as a result of, the transactions contemplated by
this Agreement or the making of Loans hereunder.
4.3 CONDITIONS TO LETTERS OF CREDIT.
The issuance of any Letter of Credit hereunder (whether or not the
Issuing Lender is obligated to issue such Letter of Credit) is subject to the
following conditions precedent:
A. On or before the date of issuance of the initial Letter of Credit
pursuant to this Agreement, the initial Loans shall have been made.
B. On or before the date of issuance of such Letter of Credit,
Administrative Agent (with a copy to Agent) shall have received, in accordance
with the provisions of subsection 3.1B(i), an originally executed Notice of
Issuance of Letter of Credit, in each case signed by the chief executive
officer, the chief financial officer or the treasurer of Borrower, or by any
other authorized signatory of Borrower, together with all other information
specified in subsection 3.1B(i) and such other documents or information as the
Issuing Lender may reasonably require in connection with the issuance of such
Letter of Credit.
C. On the date of issuance of such Letter of Credit, all conditions
precedent described in subsection 4.2B shall be satisfied to the same extent as
if the issuance of such Letter of Credit were the making of a Loan and the date
of issuance of such Letter of Credit were a Funding Date.
SECTION 5. BORROWERS' REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make
the Loans, to induce Issuing Lenders to issue Letters of Credit and to induce
other Lenders to
-123-
purchase participations therein, each Borrower represents and warrants to each
Lender, on the date of this Agreement, on each Funding Date and on the date of
issuance of each Letter of Credit, that the following statements are true,
correct and complete:
5.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING, BUSINESS AND
SUBSIDIARIES.
A. ORGANIZATION AND POWERS. Each Loan Party is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation. Each Loan Party has all requisite corporate
power and authority to own and operate its properties, to carry on its business
as now conducted and as proposed to be conducted, to enter into the Loan
Documents and the Related Agreements to which it is a party and to carry out the
transactions contemplated thereby.
B. QUALIFICATION AND GOOD STANDING. Each Loan Party is qualified to do
business and in good standing in every jurisdiction where its assets are located
and wherever necessary to carry out its business and operations, except in
jurisdictions, individually or in the aggregate for all such jurisdictions,
where the failure to be so qualified or in good standing has not had and will
not have a Material Adverse Effect.
C. CONDUCT OF BUSINESS. Company and its Subsidiaries are engaged only in
the businesses permitted to be engaged in pursuant to subsection 7.11.
D. SUBSIDIARIES. All of the Subsidiaries of Holdings are identified in
SCHEDULE 5.1 annexed hereto. The capital stock of each of the Subsidiaries of
Holdings identified in SCHEDULE 5.1 annexed hereto is duly authorized, validly
issued, fully paid and nonassessable and none of such capital stock constitutes
Margin Stock. Each of the Subsidiaries of Holdings identified in SCHEDULE 5.1
annexed hereto is a corporation duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of incorporation set
forth therein, has all requisite corporate power and authority to own and
operate its properties and to carry on its business as now conducted and as
proposed to be conducted, and is qualified to do business and in good standing
in every jurisdiction where its assets are located and wherever necessary to
carry out its business and operations, in each case except where failure to be
so qualified or in good standing or a lack of such corporate power and
authority, individually or in the aggregate, has not had and will not have a
Material Adverse Effect. SCHEDULE 5.1 annexed hereto correctly sets forth, the
ownership interest of Holdings and each of its Subsidiaries in each of the
Subsidiaries of Holdings identified therein.
5.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION OF BORROWING. The execution, delivery and performance
of the Loan Documents and the Related Agreements have been duly authorized by
all necessary corporate action on the part of each Loan Party that is a party
thereto.
-124-
B. NO CONFLICT. The execution, delivery and performance by any Loan
Party of the Loan Documents and the Related Agreements to which it is a party
and the consummation of the transactions contemplated by the Loan Documents and
such Related Agreements do not and will not (i) violate any provision of any law
or any governmental rule or regulation applicable to any Loan Party, the
Certificate or Articles of Incorporation or Bylaws, or other organizational or
governing documents, of any Loan Party or any order, judgment or decree of any
court or other Governmental Authority binding on any Loan Party, (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any Contractual Obligation of any Loan Party, except for
such breaches, conflicts and defaults which could not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect, (iii) result
in or require the creation or imposition of any Lien upon any of the properties
or assets of any Loan Party (other than any Liens created under any of the Loan
Documents in favor of Administrative Agent on behalf of Lenders), or
(iv) require any approval of stockholders or any approval or consent of any
Person under any Contractual Obligation of any Loan Party, except for such
approvals or consents (a) which will be obtained on or before the Closing Date
or (b) which the failure to obtain could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
C. GOVERNMENTAL CONSENTS. The execution, delivery and performance by any
Loan Party of the Loan Documents and the Related Agreements to which it is a
party and the consummation of the transactions contemplated by the Loan
Documents and such Related Agreements do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other governmental authority or regulatory
body, except for those set forth on Schedules 5(d) and 6(d) to the Purchase
Agreement, filings required by federal or state securities laws, filing under
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act, filings required in respect of
the Xxxx Japan Merger under the Japanese Antimonopoly Law (which filing will be
made after the Closing Date), filings required in connection with the perfection
of security interests granted pursuant to the Loan Documents, and such other
registrations, consents, approvals, notices or other actions which have been or
will be made, obtained, given or taken on or before the Closing Date or which
the failure to obtain or take could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
D. BINDING OBLIGATION. Each of the Loan Documents and the Related
Agreements has been duly executed and delivered by each Loan Party that is a
party thereto and is the legally valid and binding obligation of such Loan
Party, enforceable against such Loan Party in accordance with its respective
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability.
-125-
E. VALID ISSUANCE OF COMPANY COMMON STOCK, HOLDINGS COMMON STOCK AND
HOLDINGS PREFERRED STOCK.
(i) COMPANY COMMON STOCK. The Company Common Stock to be sold
on or before the Closing Date, when issued and delivered, will be duly and
validly issued, fully paid and nonassessable. No stockholder of Company
has or will have any preemptive rights to subscribe for any additional
equity Securities of Company. The issuance and sale of such Company Common
Stock, upon such issuance and sale, will either (a) have been registered or
qualified under applicable federal and state securities laws or (b) be
exempt therefrom.
(ii) HOLDINGS COMMON STOCK. All issued and outstanding shares of
Holdings Common Stock have been duly and validly issued, fully paid and
nonassessable. Except as provided in the Stockholders Agreement, no
stockholder of Holdings has or will have any preemptive rights to subscribe
for any additional equity Securities of Holdings. Any issuance and sale of
Holdings Common Stock, upon such issuance and sale, will either (a) have
been registered or qualified under applicable federal and state securities
laws or (b) be exempt therefrom.
(iii) HOLDINGS PREFERRED STOCK. All issued and outstanding shares
of Holdings Preferred Stock have been duly and validly issued, fully paid
and nonassessable. No stockholder of Holdings has or will have any
preemptive rights to subscribe for any additional Holdings Preferred Stock.
Any issuance and sale of Holdings Preferred Stock, upon such issuance and
sale, will either (a) have been registered and qualified under applicable
federal and state securities laws or (b) be exempt therefrom.
5.3 FINANCIAL CONDITION.
Company has heretofore delivered to Lenders, at Lenders' request, the
financial statements and information described in subsection 4.1N. All such
statements (other than the projected financial statements of Company and its
Subsidiaries) were prepared in conformity with GAAP and fairly present the
financial position (on a consolidated and, where applicable, consolidating
basis) of the entities described in such financial statements as at the
respective dates thereof and the results of operations and cash flows (on a
consolidated and, where applicable, consolidating basis) of the entities
described therein for each of the periods then ended, subject, in the case of
any such unaudited financial statements, to changes resulting from audit and
normal year-end adjustments. None of the Loan Parties has (and none of the Loan
Parties will have following the funding of the initial Loans) any Contingent
Obligation, contingent liability or liability for taxes, long-term lease or
unusual forward or long-term commitment that is not reflected in the foregoing
financial statements or the notes thereto and which in any such case is material
in relation to the business, operations, properties, assets, condition
(financial or otherwise) or prospects of Company and its Subsidiaries, taken as
a whole.
-126-
5.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED JUNIOR PAYMENTS.
Since September 30, 1995, no event or change has occurred that has
caused or evidences, either in any case or in the aggregate, a Material Adverse
Effect. Since April 26, 1996, neither Company nor any of its Subsidiaries has
directly or indirectly declared, ordered, paid or made, or set apart any sum or
property for, any Restricted Junior Payment or agreed to do so except as
permitted by the Purchase Agreement or by subsection 7.5.
5.5 TITLE TO PROPERTIES; LIENS.
Except as set forth in Schedules 5(j)(i) and 5(j)(ii) to the Purchase
Agreement, Holdings, Company and their respective Subsidiaries have (i) good,
sufficient and legal title to (in the case of fee interests in real property),
(ii) valid leasehold interests in (in the case of leasehold interests in real or
personal property), or (iii) good title to (in the case of all other personal
property), all of their respective properties and assets reflected in the
financial statements referred to in subsection 5.3 or in the most recent
financial statements delivered pursuant to subsection 6.1, in each case except
for assets disposed of since the date of such financial statements in the
ordinary course of business or as otherwise permitted under subsection 7.2.
Except for (x) Permitted Encumbrances and (y) Liens on the Westmont Excluded
Collateral and Sayama Excluded Collateral created solely in connection with the
incurrence of Indebtedness by Westmont Sub and Sayama Sub, respectively,
permitted under subsection 7.1(viii).
5.6 LITIGATION; ADVERSE FACTS.
Except as set forth in SCHEDULE 5.6 annexed hereto or, with respect to
Environmental Claims, as set forth on SCHEDULE 5.13 annexed hereto, there are no
actions, suits, proceedings, arbitrations or governmental investigations
(whether or not purportedly on behalf of Holdings, Company or any of their
respective Subsidiaries) at law or in equity or before or by any federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, pending or, to the knowledge of any
Borrower, threatened against or affecting Holdings, Company or any of their
respective Subsidiaries or any property of Holdings, Company or any of their
respective Subsidiaries that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. Neither Holdings nor
Company nor any of their respective Subsidiaries is (i) in violation of any
applicable laws (excluding Environmental Laws which are covered in subsection
5.13) that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect or (ii) subject to or in default with
respect to any final judgments, writs, injunctions, decrees, rules or
regulations of any court or any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
-127-
5.7 PAYMENT OF TAXES.
Except to the extent permitted by subsection 6.3, all material tax returns
and reports of Holdings, Company and their respective Subsidiaries required to
be filed by any of them have been timely filed, and all material taxes,
assessments, fees and other governmental charges upon Holdings, Company and
their respective Subsidiaries and upon their respective properties, assets,
income, businesses and franchises which are due and payable have been paid when
due and payable. None of the Borrowers knows of any material proposed tax
assessment against Holdings, Company or any of their respective Subsidiaries
which is not being actively contested by Holdings, Company or such Subsidiary in
good faith and by appropriate proceedings; PROVIDED that such reserves or other
appropriate provisions, if any, as shall be required in conformity with GAAP
shall have been made or provided therefor.
5.8 PERFORMANCE OF AGREEMENTS; NO MATERIALLY ADVERSE AGREEMENTS.
A. Neither Holdings nor Company nor any of their respective Subsidiaries
is in default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any of its Contractual
Obligations, and no condition exists that, with the giving of notice or the
lapse of time or both, would constitute such a default, except where the
consequences, direct or indirect, of such default or defaults, if any,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
B. Neither Holdings nor Company nor any of their respective Subsidiaries
is a party to or is otherwise subject to any agreements or instruments or any
charter or other internal restrictions which, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect.
C. The Material Contracts of each of Holdings and Company and their
respective Subsidiaries are in full force and effect and no material defaults
currently exist thereunder.
5.9 GOVERNMENTAL REGULATION.
Neither Holdings nor Company nor any of their respective Subsidiaries
is subject to regulation under the Public Utility Holding Company Act of 1935,
the Federal Power Act, the Interstate Commerce Act or the Investment Company Act
of 1940 or under any other federal or state statute or regulation or under any
other comparable or similar laws of any Governmental Authority which may limit
its ability to incur Indebtedness or which may otherwise render all or any
portion of the Obligations unenforceable.
5.10 SECURITIES ACTIVITIES.
Neither Holdings nor Company nor any of their respective Subsidiaries
is engaged principally, or as one of its important activities, in the business
of extending credit for the purpose of purchasing or carrying any Margin Stock.
-128-
5.11 EMPLOYEE BENEFIT PLANS.
A. Holdings and Company and each of their respective Subsidiaries are in
compliance in all material respects with all applicable provisions and
requirements of ERISA and the regulations and published interpretations
thereunder and the terms of each Employee Benefit Plan, and have performed all
their material obligations under each Employee Benefit Plan.
B. No ERISA Event has occurred or is reasonably expected to occur that
could reasonably be expected to result in an aggregate liability to the Company
or any of its Subsidiaries of more than $1,000,000.
C. In accordance with the most recent actuarial valuation for any Pension
Plan, the excess of the aggregated accumulated benefit obligations, as defined
in Statement of Financial Accounting Standards No. 87, over the aggregate total
fair market value for all such Pension Plans (excluding for purposes of such
computation (1) any Pension Plans with respect to which the fair market value of
the assets exceeds such accumulated benefit obligations and (2) any Foreign
Unfunded Pension Plan), does not exceed $8,000,000.
5.12 CERTAIN FEES.
Except as set forth in SCHEDULE 5.12 annexed hereto, no broker's or
finder's fee or commission will be payable with respect to this Agreement or any
of the transactions contemplated hereby, and each Borrower hereby indemnifies
Lenders against, and agrees that it will hold Lenders harmless from, any claim,
demand or liability for any such broker's or finder's fees alleged to have been
incurred in connection herewith or therewith and any expenses (including
reasonable fees, expenses and disbursements of counsel) arising in connection
with any such claim, demand or liability.
5.13 ENVIRONMENTAL PROTECTION.
Except as set forth in SCHEDULE 5.13 annexed hereto:
(i) the operations of Company and each of its Subsidiaries
(including, without limitation, all operations and conditions at or in the
Facilities) comply in all material respects with all Environmental Laws;
(ii) Company and each of its Subsidiaries have obtained all
Governmental Authorizations under Environmental Laws necessary to their
respective operations, and all such Governmental Authorizations are being
maintained in good standing, and Company and each of its Subsidiaries are
in compliance in all material respects with such Governmental
Authorizations;
-129-
(iii) neither Company nor any of its Subsidiaries has received
(a) any notice or claim to the effect that it is or may be liable to any
Person as a result of or in connection with any Hazardous Materials or
(b) any letter or request for information under Section 104 of the
Comprehensive Environmental Response, Compensation, and Liability Act (42
U.S.C. Section 9604) or comparable state laws, and, to the best of the
Borrowers' knowledge, none of the operations of Company or any of its
Subsidiaries is the subject of any federal or state investigation relating
to or in connection with any Hazardous Materials at any Facility or at any
other location except for such of the foregoing which would not reasonably
be expected to have a Material Adverse Effect;
(iv) none of the operations of Company or any of its Subsidiaries
is subject to any judicial or administrative proceeding alleging the
violation of or liability under any Environmental Laws which if adversely
determined could reasonably be expected to have a Material Adverse Effect;
(v) neither Company nor any of its Subsidiaries nor any of their
respective Facilities or operations are subject to any outstanding written
order or agreement with any governmental authority or private party
relating to (a) any actual or potential violation of or liability under
Environmental Laws or (b) any Environmental Claims except for such of the
foregoing which would not reasonably be expected to have a Material Adverse
Effect;
(vi) neither Company nor any of its Subsidiaries has any
contingent liability in connection with any Release by Company or any of
its Subsidiaries except for such of the foregoing which would not
reasonably be expected to have a Material Adverse Effect;
(vii) neither Company nor any of its Subsidiaries nor, to the best
knowledge of the Borrowers, any predecessor of Company or any of its
Subsidiaries has filed any notice under any Environmental Law indicating
past or present treatment, storage or disposal of hazardous waste at any
Facility, as defined under 40 C.F.R. Parts 260-270 or any state equivalent;
(viii) no Hazardous Materials exist on, under or about any Facility
in a manner that would reasonably be expected to give rise to an
Environmental Claim having a Material Adverse Effect, and neither Company
nor any of its Subsidiaries has filed any notice or report of a Release
that would reasonably be expected to give rise to an Environmental Claim
having a Material Adverse Effect;
(ix) neither Company nor any of its Subsidiaries nor, to the best
knowledge of Company, any of their respective predecessors has disposed of
any Hazardous Materials in a manner that would reasonably be expected to
give rise to an Environmental Claim having a Material Adverse Effect;
-130-
(x) to the best knowledge of Company, no underground storage
tanks or surface impoundments are on or at any Facility; and
(xi) no Lien in favor of any Person relating to or in connection
with any Environmental Claim has been filed or has been attached to any
Facility except for any such Lien which would not reasonably be expected to
have a Material Adverse Effect.
Notwithstanding anything in this subsection 5.13 to the contrary, no
event or condition has occurred with respect to the Loan Parties relating to any
Environmental Laws or any Release of any Hazardous Materials at any Facility or
any other location, including without limitation any matter disclosed in
SCHEDULE 5.13 annexed hereto which, individually or in the aggregate, has had or
could reasonably be expected to have, a Material Adverse Effect.
5.14 EMPLOYEE MATTERS.
There is no strike or work stoppage in existence or threatened
involving Company or any of its Subsidiaries that could reasonably be expected
to have a Material Adverse Effect.
5.15 SOLVENCY.
Company and each of its Subsidiaries is and, upon the incurrence of
any Obligations by any Borrower on any date on which this representation is
made, will be, Solvent.
5.16 DISCLOSURE.
No representation or warranty of Company or any of its Subsidiaries
contained in any Loan Document or Related Agreement or in any other document,
certificate or written statement furnished to Lenders by or on behalf of Company
or any of its Subsidiaries for use in connection with the transactions
contemplated by this Agreement contains any untrue statement of a material fact
or omits to state a material fact (known to any Borrower, in the case of any
document not furnished by it) necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in
which the same were made. Any projections and pro forma financial information
contained in such materials are based upon good faith estimates and assumptions
believed by the Borrowers to be reasonable at the time made, it being recognized
by Lenders that such projections as to future events are not to be viewed as
facts and that actual results during the period or periods covered by any such
projections may differ from the projected results. There are no facts known (or
which should upon the reasonable exercise of diligence be known) to the
Borrowers (other than matters of a general economic nature) that, individually
or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect and that have
-131-
not been disclosed herein or in such other documents, certificates and
statements furnished to Lenders for use in connection with the transactions
contemplated hereby.
5.17 RELATED AGREEMENTS.
A. Company has delivered to Lenders complete and correct copies of the
Related Agreements and of all exhibits and schedules thereto.
B. Except to the extent otherwise set forth herein or in the schedules
hereto, each of the representations and warranties given by Rockwell to Company
in the Purchase Agreement is true and correct in all material respects as of the
Closing Date, subject to the qualifications set forth in the schedules to the
Purchase Agreement.
C. Each of the representations and warranties given by Company to
Rockwell in the Purchase Agreement is true and correct in all material respects
as of the Closing Date.
D. Notwithstanding anything in the Purchase Agreement to the contrary,
the representations and warranties of Borrowers set forth in subsections 5.17B
and 5.17C shall, solely for purposes of this Agreement, survive the Closing Date
for the benefit of Lenders.
SECTION 6. BORROWERS' AFFIRMATIVE COVENANTS
Each Borrower covenants and agrees that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other Obligations and the cancellation or expiration of all
Letters of Credit, unless Requisite Lenders shall otherwise give prior written
consent, such Borrower shall perform, and shall cause each of its Subsidiaries
to perform, all covenants in this Section 6.
6.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Each Borrower will maintain, and cause each of its Subsidiaries to
maintain, a system of accounting established and administered in accordance with
sound business practices to permit preparation of financial statements in
conformity with GAAP. Company will deliver to Administrative Agent and Lenders:
(i) MONTHLY FINANCIALS: as soon as available and in any event
(1) within 45 days after the end of each month ending after the Closing
Date through the first anniversary of the Closing Date and (2) within 30
days after the end of each month ending after the first anniversary of the
Closing Date, (a) the consolidated and consolidating (by geographic region,
which regions shall consist of the United States, Europe other than France,
France and Asia, each, a "Region") balance sheets of each Borrower and its
Subsidiaries as at the end of such month and the related consolidated and
consolidating (by Region) statements of income, stockholders' equity and
cash
-132-
flows of such Borrower and its Subsidiaries for such month and for the
period from the beginning of the then current Fiscal Year to the end of
such month and, in the case of such monthly financials delivered after the
first anniversary of the Closing Date, setting forth in comparative form
the corresponding figures for the corresponding periods of the previous
Fiscal Year and the corresponding figures from the Financial Plan for the
current Fiscal Year, all in reasonable detail and certified by the chief
financial officer of Company that they fairly present, in all material
respects, the financial condition of such Borrower and its Subsidiaries as
at the dates indicated and the results of their operations and their cash
flows for the periods indicated, subject to changes resulting from audit
and normal year-end adjustments, and (b) a report describing the operations
of such Borrower and its Subsidiaries in the form prepared for presentation
to senior management for such month and for the period from the beginning
of the then current Fiscal Year to the end of such month;
(ii) QUARTERLY FINANCIALS: as soon as available and in any event
within 45 days after the end of each Fiscal Quarter, (a) the consolidated
and consolidating (by Region) balance sheets of each Borrower and its
Subsidiaries as at the end of such Fiscal Quarter and the related
consolidated and consolidating (by Region) statements of income,
stockholders' equity and cash flows of such Borrower and its Subsidiaries
for such Fiscal Quarter and for the period from the beginning of the then
current Fiscal Year to the end of such Fiscal Quarter, setting forth in
each case in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year and the corresponding
figures from the Financial Plan for the current Fiscal Year, all in
reasonable detail and certified by the chief financial officer of Company
that they fairly present, in all material respects, the financial condition
of such Borrower and its Subsidiaries as at the dates indicated and the
results of their operations and their cash flows for the periods indicated,
subject to changes resulting from audit and normal year-end adjustments,
and (b) a narrative report describing the operations of such Borrower and
its Subsidiaries in the form prepared for presentation to senior management
for such Fiscal Quarter and for the period from the beginning of the then
current Fiscal Year to the end of such Fiscal Quarter;
(iii) YEAR-END FINANCIALS: as soon as available and in any event
within 90 days after the end of each Fiscal Year, (a) the consolidated and
consolidating (by Region) balance sheets of such Borrower and its
Subsidiaries as at the end of such Fiscal Year and the related consolidated
and consolidating (by Region) statements of income, stockholders' equity
and cash flows of such Borrower and its Subsidiaries for such Fiscal Year,
setting forth in each case in comparative form the corresponding figures
for the previous Fiscal Year and the corresponding figures from the
Financial Plan for the Fiscal Year covered by such financial statements,
all in reasonable detail and certified by the chief financial officer of
Company that they fairly present, in all material respects, the financial
condition of such Borrower and its Subsidiaries as at the dates indicated
and the results of their operations and their cash flows for the periods
indicated, (b) a narrative report describing the operations of such
Borrower
-133-
and its Subsidiaries in the form prepared for presentation to senior
management for such Fiscal Year, and (c) in the case of such consolidated
financial statements with respect to Company and its Subsidiaries, (1) a
report thereon of Xxxxxx Xxxxxxxx LLP or other independent certified public
accountants of recognized national standing selected by Company and
satisfactory to Administrative Agent, which report shall be unqualified as
to scope of audit, shall express no doubts about the ability of Company and
its Subsidiaries to continue as a going concern, and shall state that such
consolidated financial statements fairly present, in all material respects,
the consolidated financial position of Company and its Subsidiaries as at
the dates indicated and the results of their operations and their cash
flows for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years (except as otherwise disclosed in such
financial statements) and that the examination by such accountants in
connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards and (2) a letter
acknowledged by such accounting firm, substantially in the form of EXHIBIT
XIII annexed hereto with such changes as are approved by Administrative
Agent, acknowledging that Lenders will receive such consolidated financial
statements in such report and will use such financial statements and report
in their credit analyses of each Borrower and its Subsidiaries;
(iv) OFFICERS' AND COMPLIANCE CERTIFICATES: (a) together with
each delivery of financial statements of each Borrower and its Subsidiaries
pursuant to subdivisions (i), (ii) and (iii) above, an Officers'
Certificate of Company stating that the signers have reviewed the terms of
this Agreement and have made, or caused to be made under their supervision,
a review in reasonable detail of the transactions and condition of each
Borrower and its Subsidiaries during the accounting period covered by such
financial statements and that such review has not disclosed the existence
during or at the end of such accounting period, and that the signers do not
have knowledge of the existence as at the date of such Officers'
Certificate, of any condition or event that constitutes an Event of Default
or Potential Event of Default, or, if any such condition or event existed
or exists, specifying the nature and period of existence thereof and what
action Borrowers have taken, are taking and propose to take with respect
thereto; (b) together with each delivery of financial statements pursuant
to subdivision (ii) and (iii) above, a Compliance Certificate demonstrating
in reasonable detail compliance during and at the end of the applicable
accounting periods with the restrictions contained in Section 7; and (c)
within 90 days after the beginning of each Fiscal Year and in any event on
or prior to the date of any mandatory prepayments made pursuant to
subsection 2.4B(iii)(f) during such Fiscal Year, an Officers' Certificate
of Company setting forth the Consolidated Excess Cash Flow for the Fiscal
Year covered by such financial statements and demonstrating in reasonable
detail the derivation of such Consolidated Excess Cash Flow;
(v) RECONCILIATION STATEMENTS: if, as a result of any change in
accounting principles and policies from those used in the preparation of
the audited financial
-134-
statements referred to in subsection 5.3, the consolidated financial
statements of Company and its Subsidiaries delivered pursuant to
subdivisions (i), (ii), (iii) or (xiii) of this subsection 6.1 will differ
in any material respect from the consolidated financial statements that
would have been delivered pursuant to such subdivisions had no such change
in accounting principles and policies been made, then (a) together with the
first delivery of financial statements pursuant to subdivision (i), (ii),
(iii) or (xiii) of this subsection 6.1 following such change, consolidated
financial statements of Company and its Subsidiaries for (y) the current
Fiscal Year to the effective date of such change and (z) the full Fiscal
Year immediately preceding the Fiscal Year in which such change is made, in
each case prepared on a pro forma basis as if such change had been in
effect during such periods, and (b) together with each delivery of
financial statements pursuant to subdivision (i), (ii), (iii) or (xiii) of
this subsection 6.1 following such change, a written statement of the chief
accounting officer or chief financial officer of Company setting forth the
differences (including without limitation any differences that would affect
any calculations relating to the financial covenants set forth in
subsection 7.6) which would have resulted if such financial statements had
been prepared without giving effect to such change;
(vi) ACCOUNTANTS' CERTIFICATION: together with each delivery of
consolidated financial statements of Company and its Subsidiaries pursuant
to subdivision (iii) above, a written statement by the independent
certified public accountants giving the report thereon (a) stating that
their audit examination has included a review of the terms of this
Agreement and the other Loan Documents as they relate to accounting
matters, (b) stating whether, in connection with their audit examination,
any condition or event that constitutes an Event of Default or Potential
Event of Default has come to their attention and, if such a condition or
event has come to their attention, specifying the nature and period of
existence thereof; PROVIDED that such accountants shall not be liable by
reason of any failure to obtain knowledge of any such Event of Default or
Potential Event of Default that would not be disclosed in the course of
their audit examination, and (c) stating that based on their audit
examination nothing has come to their attention that causes them to believe
either or both that the information contained in the certificates delivered
therewith pursuant to subdivision (iv) above is not correct or that the
matters set forth in the Compliance Certificates delivered therewith
pursuant to subdivision (iv) above for the applicable Fiscal Year are not
stated in accordance with the terms of this Agreement;
(vii) ACCOUNTANTS' REPORTS: promptly upon receipt thereof (unless
restricted by applicable professional standards), copies of all reports
submitted to any Borrower by independent certified public accountants in
connection with each annual, interim or special audit of the financial
statements of any Borrower and its Subsidiaries made by such accountants,
including, without limitation, any comment letter submitted by such
accountants to management in connection with their annual audit;
-135-
(viii) SEC FILINGS AND PRESS RELEASES: promptly upon their
becoming available, copies of (a) all financial statements, reports,
notices and proxy statements sent or made available generally by any
Borrower to its security holders or by any Subsidiary of any Borrower to
its security holders other than any Borrower or another Subsidiary of a
Borrower, (b) all regular and periodic reports and all registration
statements (other than on Form S-8 or a similar form) and prospectuses, if
any, filed by a Borrower or any of its Subsidiaries with any securities
exchange or with the Securities and Exchange Commission or any governmental
or private regulatory authority, and (c) all press releases and other
statements made available generally by a Borrower or any of its
Subsidiaries to the public concerning material developments in the business
of such Borrower or any of its Subsidiaries;
(ix) EVENTS OF DEFAULT, ETC.: promptly upon any officer of any
Loan Party obtaining knowledge (a) of any condition or event that
constitutes an Event of Default or Potential Event of Default, or becoming
aware that any Lender has given any notice (other than to Administrative
Agent) or taken any other action with respect to a claimed Event of Default
or Potential Event of Default, (b) that any Person has given any notice to
a Borrower or any of its Subsidiaries or taken any other action with
respect to a claimed default or event or condition of the type referred to
in subsection 8.2, (c) of any condition or event that would be required to
be disclosed in a current report filed by a Borrower with the Securities
and Exchange Commission on Form 8-K (Items 1, 2, 4, 5 and 6 of such Form as
in effect on the date hereof) if such Borrower were required to file such
reports under the Exchange Act, or (d) of the occurrence of any event or
change that has caused or evidences, either in any case or in the
aggregate, a Material Adverse Effect, an Officers' Certificate specifying
the nature and period of existence of such condition, event or change, or
specifying the notice given or action taken by any such Person and the
nature of such claimed Event of Default, Potential Event of Default,
default, event or condition, and what action Borrowers have taken, are
taking and propose to take with respect thereto;
(x) LITIGATION OR OTHER PROCEEDINGS: (a) promptly upon any
officer of any Loan Party obtaining knowledge of (X) the institution of, or
non-frivolous threat of, any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration against or affecting such Borrower or any of its Subsidiaries
or any property of such Borrower or any of its Subsidiaries (collectively,
"PROCEEDINGS") not previously disclosed in writing by Company or any of its
Subsidiaries to Lenders or (Y) any material development in any Proceeding
that, in any case:
(1) could reasonably be expected to result in a Material Adverse
Effect; or
-136-
(2) seeks to enjoin or otherwise prevent the consummation of, or
to recover any damages or obtain relief as a result of, the
transactions contemplated hereby;
written notice thereof together with such other information as may be
reasonably available to such Borrower to enable Lenders and their counsel
to evaluate such matters; and (b) within twenty days after the end of each
Fiscal Quarter, a schedule of all Proceedings involving an alleged
liability of, or claims against or affecting, any Borrower or any of its
Subsidiaries equal to or greater than $500,000, and promptly after request
by Administrative Agent such other information as may be reasonably
requested by Administrative Agent to enable Administrative Agent and its
counsel to evaluate any of such Proceedings;
(xi) ERISA EVENTS: promptly upon becoming aware of the
occurrence of or forthcoming occurrence of any ERISA Event, a written
notice specifying the nature thereof, what action Company or any of its
ERISA Affiliates has taken, is taking or proposes to take with respect
thereto and, when known, any action taken or threatened by the Internal
Revenue Service, the Department of Labor or the PBGC with respect thereto;
(xii) ERISA NOTICES: with reasonable promptness, copies of
(a) each Schedule B (Actuarial Information) to the annual report (Form 5500
Series) filed by Company or any of its ERISA Affiliates with the Internal
Revenue Service with respect to each Pension Plan; (b) all notices received
by Company or any of its ERISA Affiliates from a Multiemployer Plan sponsor
concerning an ERISA Event; and (c) such other documents or governmental
reports or filings relating to any Employee Benefit Plan as Administrative
Agent shall reasonably request;
(xiii) FINANCIAL PLANS: as soon as practicable and in any event no
later than 30 days after the beginning of each Fiscal Year, a consolidated
and consolidating (by Region) plan and financial forecast for such Fiscal
Year (the "FINANCIAL PLAN" for such Fiscal Year), including without
limitation (a) a forecasted consolidated and consolidating (by Region)
balance sheet and forecasted consolidated and consolidating (by Region)
statements of income and cash flows of each Borrower and its Subsidiaries
for such Fiscal Year, together with a PRO FORMA Compliance Certificate for
such Fiscal Year and an explanation of the assumptions on which such
forecasts are based, and (b) forecasted consolidated and consolidating (by
Region) statements of income and cash flows of each Borrower and its
Subsidiaries for each month of such Fiscal Year, together with an
explanation of the assumptions on which such forecasts are based;
(xiv) INSURANCE: as soon as practicable and in any event by the
last day of each Fiscal Year, a report in form and substance satisfactory
to Administrative Agent outlining all material insurance coverage
maintained as of the date of such report by
-137-
Company and its Subsidiaries and all material insurance coverage planned to
be maintained by Company and its Subsidiaries in the immediately succeeding
Fiscal Year and confirming the status of Administrative Agent as loss payee
under all such insurance to the extent required by subsection 6.4;
(xv) BOARD OF DIRECTORS: with reasonable promptness, written
notice of any change in the Board of Directors of any Borrower;
(xvi) NEW SUBSIDIARIES: promptly upon any Person becoming a
Subsidiary of Company, a written notice setting forth with respect to such
Person (a) the date on which such Person became a Subsidiary of Company and
(b) all of the data required to be set forth in SCHEDULE 5.1 annexed hereto
with respect to all Subsidiaries of Company (it being understood that such
written notice shall be deemed to supplement SCHEDULE 5.1 annexed hereto
for all purposes of this Agreement);
(xvii) MARGIN DETERMINATION CERTIFICATE: concurrently with the
delivery of the financial statements required under subsections 6.1(ii) and
6.1(iii), Company shall deliver a Margin Determination Certificate with
respect to the Fiscal Quarter then ended;
(xviii) BORROWING BASE CERTIFICATE: (a) as soon as available and in
any event (1) within 30 days after the last Business Day of each month
ending after the Closing Date through the first anniversary of the Closing
Date and (2) within 15 days after the last Business Day of each month
ending after the first anniversary of the Closing Date (or, at any time
that the sum of Company Borrowing Base, the Xxxx Japan Borrowing Base and
the Xxxx UK Borrowing Base exceeds the Total Utilization of Revolving Loan
Commitments by less than $25,000,000, as soon as available and in any event
within three Business Days after the last Business Day of each week) or (b)
as soon as available and in any event within three Business Days after a
written request from Administrative Agent, a Borrowing Base Certificate
dated as of the last Business Day of such month (or such week) or such date
of request, as applicable, together with any additional schedules and other
information as Administrative Agent may reasonably request (it being
understood that (1) each Borrower, in addition to any such Borrowing Base
Certificate, may from time to time deliver to Administrative Agent and
Lenders on any Business Day after the Closing Date a Borrowing Base
Certificate dated as of such Business Day, together with an aged
receivables schedule identifying each account debtor by name and address,
an inventory schedule, and any additional schedules and other information
as Administrative Agent may reasonably request, and (2) the most recent
Borrowing Base Certificate described in this clause (xviii) that is
delivered to Administrative Agent shall be used in calculating the Company
Borrowing Base, the Xxxx Japan Borrowing Base and the Xxxx UK Borrowing
Base, as applicable, as of any date of determination);
-138-
(xix) UCC SEARCH REPORT: as promptly as practicable after the
date of delivery to Administrative Agent of any UCC financing statement
executed by any Loan Party pursuant to subsection 4.1J(iv) or 6.8A, copies
of completed UCC searches evidencing the proper filing, recording and
indexing of all such UCC financing statements and listing all other
effective financing statements in that jurisdiction that name such Loan
Party as debtor, together with copies of all such financing statements not
previously delivered to Administrative Agent by or on behalf of any
Borrower or such Loan Party; and
(xx) OTHER INFORMATION: with reasonable promptness, such other
information and data with respect to any Borrower or any of its
Subsidiaries as from time to time may be reasonably requested by
Administrative Agent on its own behalf or on behalf of any Lender.
6.2 CORPORATE EXISTENCE, ETC.
Except as permitted under subsection 7.7, each Borrower will, and will
cause each of its Subsidiaries (other than Inactive Subsidiaries) to, at all
times preserve and keep in full force and effect its corporate existence and all
rights and franchises material to its business.
6.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION.
A. Each Borrower will, and will cause each of its Subsidiaries to, pay
all taxes, assessments and other governmental charges imposed upon it or any of
its properties or assets or in respect of any of its income, businesses or
franchises before any material penalty accrues thereon, and all claims
(including, without limitation, claims for labor, services, materials and
supplies) for sums that have become due and payable and that by law have or may
become a material Lien upon any of its properties or assets, prior to the time
when any material penalty or fine shall be incurred with respect thereto;
PROVIDED that no such charge or claim need be paid if being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted
and if such reserve or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made therefor.
B. None of the Borrowers will nor will any such Borrower permit any of
its Subsidiaries to, file or consent to the filing of any consolidated income
tax return with any Person (other than Company or any of its Subsidiaries).
6.4 MAINTENANCE OF PROPERTIES; INSURANCE; APPLICATION OF NET
INSURANCE/CONDEMNATION PROCEEDS.
A. MAINTENANCE OF PROPERTIES. Each Borrower will, and will cause each of
its Subsidiaries to, maintain or cause to be maintained in good repair, working
order and condition, ordinary wear and tear excepted, all of their respective
material properties used or
-139-
useful in the business of such Borrower and its Subsidiaries (including, without
limitation, Intellectual Property) and from time to time will make or cause to
be made all appropriate repairs, renewals and replacements thereof such that the
properties will remain in substantially the same condition and working order,
ordinary wear and tear excepted, that exists as of the Closing Date.
B. INSURANCE. Each Borrower will maintain or cause to be maintained,
with financially sound and reputable insurers, insurance with respect to its
properties and business and the properties and businesses of its Subsidiaries
against loss or damage of the kinds customarily carried or maintained under
similar circumstances by corporations of established reputation engaged in
similar businesses. Without limiting the generality of the foregoing, each
Borrower will maintain or cause to be maintained (i) flood insurance with
respect to each Initial Flood Hazard Property (as defined in subsection 6.10B)
and each Additional Flood Hazard Property (as defined in subsection 6.12A), in
each case to the extent such Initial Flood Hazard Property or Additional Flood
Hazard Property is located in a community that participates in the National
Flood Insurance Program and (ii) public liability insurance, third party
property damage insurance and replacement value insurance on the Collateral
under such policies of insurance, with such insurance companies, in such amounts
and covering such risks as are at all times satisfactory to Administrative Agent
in its commercially reasonable judgment. Each such policy of insurance that
insures against loss or damage with respect to any Collateral or against losses
due to business interruption shall name the applicable Agent for the benefit of
Lenders as the loss payee thereunder for any covered loss in excess of $500,000
and shall provide for at least 30 days (15 days in the event of non-payment of
premium) prior written notice to such Agent of any modification or cancellation
of such policy.
C. APPLICATION OF NET INSURANCE/CONDEMNATION PROCEEDS.
Upon receipt by Administrative Agent of any Net Insurance/Condemnation
Proceeds as loss payee (i) in respect of any such business interruption
insurance constituting Net Insurance/Condemnation Proceeds, (a) Administrative
Agent shall, so long as no Event of Default or Potential Event of Default shall
have occurred and be continuing, deliver such Net Insurance/Condemnation
Proceeds to the applicable Borrower, and (b) if an Event of Default or Potential
Event of Default shall have occurred and be continuing, Administrative Agent
shall, and Borrowers hereby authorize Administrative Agent to, apply such Net
Insurance/Condemnation Proceeds to prepay the Loans as provided in subsection
2.4B(iii)(b), and (ii) in respect of any such insurance against loss or damage
with respect to any Collateral, (a) to the extent that any Borrower or any of
its Subsidiaries intends to use any such insurance proceeds to repair, restore
or replace the assets of such Borrower or Subsidiary in respect of which such
Net Insurance/Condemnation Proceeds were received, Administrative Agent shall,
so long as no Event of Default or Potential Event of Default shall have occurred
and be continuing, (A) in the event the aggregate amount of such Net
Insurance/Condemnation Proceeds in respect of any covered loss does not exceed
$1,000,000, deliver such Net Insurance/Condemnation Proceeds to such Borrower,
and such
-140-
Borrower shall, or shall cause such Subsidiary to, use such Net
Insurance/Condemnation Proceeds to effect such repair, restoration or
replacement, and (B) in the event the aggregate amount of such Net
Insurance/Condemnation Proceeds exceeds $1,000,000, hold such proceeds in a cash
collateral account and so long as any Borrower or any of its Subsidiaries
proceeds to repair, restore or replace the assets of such Borrower or such
Subsidiary in respect of which such Net Insurance/Condemnation Proceeds were
received, Administrative Agent shall from time to time disburse to such Borrower
or such Subsidiary amounts necessary to pay the cost of such repair, restoration
or replacement after the receipt by Administrative Agent of invoices or other
documentation reasonably satisfactory to Administrative Agent describing the
amount of costs so incurred; PROVIDED HOWEVER that if in the reasonable good
faith belief of Administrative Agent, such Borrower or such Subsidiary is not
proceeding diligently with the repair, restoration or replacement,
Administrative Agent shall, and Borrowers hereby authorize Administrative Agent
to, apply such insurance proceeds to prepay the Loans as provided in subsection
2.4B(iii)(b), and (b) if an Event of Default or Potential Event of Default shall
have occurred and be continuing or to the extent that neither the applicable
Borrower nor any of its Subsidiaries intends to use any such Net
Insurance/Condemnation Proceeds to repair, restore or replace assets of such
Borrower or any of its Subsidiaries as described above, Administrative Agent
shall, and Borrowers hereby authorize Administrative Agent to, apply such Net
Insurance/Condemnation Proceeds to prepay the Loans as provided in subsection
2.4B(iii)(b).
6.5 INSPECTION; AUDITS OF INVENTORY AND ACCOUNTS RECEIVABLE; LENDER MEETING.
A. INSPECTION RIGHTS. Each Borrower shall, and shall cause each of its
Subsidiaries to, permit any authorized representatives designated by
Administrative Agent to visit and inspect any of the properties of such Borrower
or any of its Subsidiaries, including its and their financial and accounting
records, and to make copies and take extracts therefrom, and to discuss its and
their affairs, finances and accounts with its and their officers and independent
public accountants (provided that such Borrower may, if it so chooses, be
present at or participate in any such discussion).
B. AUDITS OF INVENTORY AND ACCOUNTS RECEIVABLE. Upon the request of
Administrative Agent, each Borrower shall, and shall cause each of its
Subsidiaries to, permit any authorized representatives designated by
Administrative Agent to conduct two audits of all Inventory and Accounts of Loan
Parties during each twelve-month period after the Closing Date (exclusive of the
audit of Inventory and Accounts referred to in subsection 4.1K (the "BASE
AUDIT")) or upon the occurrence and during the continuation of an Event of
Default, such additional audits of Inventory and Accounts as Administrative
Agent may require, each such audit to be substantially similar in scope and
substance to the Base Audit, all upon reasonable notice and at such reasonable
times during normal business hours and as often as may be reasonably requested.
C. LENDER MEETING. Without in any way limiting the foregoing, each
Borrower will participate in a meeting of Agent and Lenders at least once during
each Fiscal Year to
-141-
be held at such Borrower's corporate offices (or such other location as may be
agreed to by such Borrower and Agent) at such time as may be agreed to by such
Borrower and Agent.
6.6 COMPLIANCE WITH LAWS, ETC.
Each Borrower shall, and shall cause each of its Subsidiaries to,
comply with the requirements of all applicable laws, rules, regulations and
orders of any governmental authority (including without limitation all
Environmental Laws), noncompliance with which could reasonably be expected to
cause, individually or in the aggregate at any time, a Material Adverse Effect.
6.7 ENVIRONMENTAL DISCLOSURE AND INSPECTION.
A. COMPLIANCE WITH ENVIRONMENTAL LAWS. Each Borrower shall, and shall
cause each of its Subsidiaries to, exercise all due diligence in order to comply
in all material respects and cause (i) all tenants under any leases or occupancy
agreements affecting any portion of the Facilities and (ii) all other Persons on
or occupying such property, to comply in all material respects with all
Environmental Laws.
B. ENVIRONMENTAL REVIEW AND INSPECTION. Each Borrower agrees that
Administrative Agent may, from time to time and in its reasonable discretion,
retain, at Borrower's expense, an independent professional consultant to review
any report relating to Hazardous Materials prepared by or for Borrower and, upon
a reasonable belief that any Borrower has breached any covenant or
representation with respect to environmental matters or that there has been a
material violation of Environmental Laws at any Facility or by any Borrower, to
conduct its own reasonable investigation of such matter at any Facility
currently owned, leased, operated or used by Borrower or any of its
Subsidiaries, and Borrower agrees to use its best efforts to obtain permission
for Administrative Agent's professional consultant to conduct its own
investigation of any such matter at any Facility previously owned, leased,
operated or used by Borrower or any of its Subsidiaries. Each Borrower hereby
grants to each Agent and its agents, employees, consultants and contractors the
right to enter into or onto the Facilities currently owned, leased, operated or
used by Borrower or any of its Subsidiaries upon reasonable notice to Borrower
to perform such assessments on such property as are reasonably necessary to
conduct such a review and/or investigation. Any such investigation of any
Facility shall be conducted, unless otherwise agreed to by Borrower and Agent,
during normal business hours and, to the extent reasonably practicable, shall be
conducted so as not to interfere with the ongoing operations at any such
Facility or to cause any damage or loss to any property at such Facility.
Borrowers and Agents hereby acknowledge and agree that any report of any
investigation conducted at the request of Agent pursuant to this subsection 6.7B
will be obtained and shall be used by Agent and Lenders for the purposes of
Lenders' internal credit decisions, to monitor and police the Loans and to
protect Lenders' security interests, if any, created by the Loan Documents.
Each Agent agrees to deliver a copy of any such report to Borrower with the
understanding that each Borrower acknowledges and agrees that (i) it will
indemnify
-142-
and hold harmless such Agent and each Lender from any costs, losses or
liabilities relating to such Borrower's use of or reliance on such report,
(ii) neither Agent nor any Lender makes any representation or warranty with
respect to such report, and (iii) by delivering such report to Borrower, neither
Agent nor any Lender is requiring or recommending the implementation of any
suggestions or recommendations contained in such report.
C. ENVIRONMENTAL DISCLOSURE. Each Borrower and its Subsidiaries will
deliver to Administrative Agent and Lenders:
(i) ENVIRONMENTAL AUDITS AND REPORTS. As soon as practicable
following receipt thereof, copies of all environmental audits,
investigations, analyses and reports of any kind or character, whether
prepared by personnel of Borrower or any of its Subsidiaries or by
independent consultants, governmental authorities or any other Persons,
with respect to significant environmental matters at any Facility which,
individually or in the aggregate, could reasonably be expected to result in
a Material Adverse Effect or with respect to any Environmental Claims
which, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect;
(ii) NOTICE OF CERTAIN RELEASES, REMEDIAL ACTIONS, ETC. Each
Borrower shall promptly advise Administrative Agent and Lenders in writing
and in reasonable detail of (i) any Release required to be reported to any
Governmental Authority under any applicable Environmental Laws, (ii) any
and all written communications with respect to any Environmental Claims
made to or on such Borrower or any of its Subsidiaries or Affiliates that
could reasonably be expected to give rise to a Material Adverse Effect or
with respect to any Release required to be reported to any Governmental
Authority, (iii) any remedial action taken by such Borrower or any other
Person in response to (x) any Hazardous Materials on, under or about any
Facility, the existence of which could reasonably be expected to give rise
to an Environmental Claim having a Material Adverse Effect, or (y) any
Environmental Claim made to or on such Borrower or any of its Subsidiaries
or Affiliates that could have a Material Adverse Effect, (iv) such
Borrower's discovery of any occurrence or condition on any real property
adjoining or in the vicinity of any Facility that could cause such Facility
or any part thereof to be subject to any restrictions on the ownership,
occupancy, transferability or use thereof under any Environmental Laws, and
(v) any request for information from any Governmental Authority that
suggests such agency is investigating whether such Borrower or any of its
Subsidiaries may be potentially responsible for a Release, except for in
each case those matters set forth on SCHEDULE 5.13.
(iii) NOTICE OF CERTAIN PROPOSED ACTIONS HAVING ENVIRONMENTAL
IMPACT. Each Borrower shall promptly notify Administrative Agent and
Lenders of (i) any proposed acquisition of stock, assets, or property by
Borrower or any of its Subsidiaries that could reasonably be expected to
expose Borrower or any of its Subsidiaries to, or result in, Environmental
Claims that could reasonably be expected
-143-
to have a Material Adverse Effect or that could reasonably be expected to
have a material adverse effect on any Governmental Authorization then held
by Borrower or any of its Subsidiaries and (ii) any proposed action to be
taken by Borrower or any of its Subsidiaries to commence manufacturing,
industrial or other operations (beyond those presently undertaken) that
could reasonably be expected to subject Borrower or any of its Subsidiaries
to material additional obligations or requirements under Environmental
Laws.
(iv) OTHER INFORMATION. Each Borrower shall, at its own expense,
provide copies of such documents or information as Administrative Agent may
reasonably request in relation to any matters disclosed pursuant to this
subsection 6.7.
D. BORROWER'S REMEDIAL ACTION REGARDING HAZARDOUS MATERIALS.
(i) REMEDIAL ACTIONS RELATING TO HAZARDOUS MATERIALS ACTIVITIES.
Each Borrower shall promptly take, and shall cause each of its Subsidiaries
promptly to take, any and all remedial action in connection with the
presence, storage, use, disposal, transportation or Release on, under or
about any Facility in order to comply in all material respects with all
applicable Environmental Laws and Governmental Authorizations. In the
event any Borrower or any of its Subsidiaries undertakes any remedial
action with respect to any Hazardous Materials on, under or about any
Facility, Borrower or such Subsidiary shall conduct and complete such
remedial action in compliance in all material respects with all applicable
Environmental Laws, and in accordance with the applicable policies, orders
and directives of all Governmental Authorities with jurisdiction except
when, and only to the extent that, Borrower's or such Subsidiary's
liability for such presence, storage, use, disposal, transportation or
discharge of any Hazardous Materials is being contested in good faith by
Borrower or such Subsidiary.
(ii) ACTIONS WITH RESPECT TO ENVIRONMENTAL CLAIMS AND VIOLATIONS
OF ENVIRONMENTAL LAWS. Each Borrower shall promptly take, and shall cause
each of its Subsidiaries promptly to take, any and all actions necessary to
(i) cure any violation of applicable Environmental Laws by Borrower or its
Subsidiaries that could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect (provided Borrower may reasonably
contest alleged violations so long as the delay in the cure by reason of
such contest could not reasonably be expected to have a Material Adverse
Effect) and (ii) make an appropriate response to any Environmental Claim
made to or on Borrower or any of its Subsidiaries and discharge any
obligations it may have to any Person thereunder where failure to do so
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
-144-
6.8 EXECUTION OF FUTURE GUARANTIES AND COLLATERAL DOCUMENTS.
A. EXECUTION OF FUTURE SUBSIDIARY GUARANTY AND COLLATERAL DOCUMENTS. In
the event that any Person becomes a Domestic Subsidiary of Company after the
date hereof, Company will promptly notify Administrative Agent of that fact,
will execute a pledge amendment to the Pledge Agreement executed and delivered
by Company pledging all of the stock of such Domestic Subsidiary owned by
Company and cause such Subsidiary (other than an Inactive Subsidiary) to execute
and deliver to Administrative Agent a counterpart of the Subsidiary Guaranty
and, as applicable, a Subsidiary Pledge Agreement, a Subsidiary Security
Agreement, a Subsidiary Trademark Security Agreement, a Subsidiary Patent
Security Agreement and Additional Mortgages and to take all such further action
and execute all such further documents and instruments as may be reasonably
required to grant and perfect in favor of Administrative Agent, for the benefit
of Lenders, a First Priority security interest in all of the Real Property
Assets and all of the personal property assets of such Subsidiary described in
the applicable Collateral Documents; PROVIDED, HOWEVER, that Company shall not
be required to take any action nor execute any documents or instruments granting
and perfecting in favor of Administrative Agent, for the benefit of Lenders, a
First Priority security interest in the Westmont Excluded Collateral or the
Sayama Excluded Collateral.
B. EXECUTION OF FUTURE FOREIGN SUBSIDIARY GUARANTY AND COLLATERAL
DOCUMENTS. In the event that any Person becomes a direct Foreign Subsidiary of
Company after the date hereof, Company will promptly notify Administrative Agent
of that fact and will execute a pledge amendment to the Pledge Agreement
executed and delivered by Company pledging not less than 66% of the stock of
such Foreign Subsidiary. In the event that U.S. tax laws are amended to permit
a Foreign Subsidiary to guarantee the Domestic Loans without the incurrence of
an investment in U.S. property or other deemed dividends for U.S. tax purposes
or without otherwise resulting in U.S. taxable income, Company will promptly
notify Administrative Agent of that fact and will execute pledge amendments to
the Pledge Agreement executed and delivered by Company pledging not less than
100% of the stock of its Foreign Subsidiaries and Company will cause its Foreign
Subsidiaries (other than Inactive Subsidiaries) to execute and deliver to
Administrative Agent, a counterpart of a Subsidiary Guaranty, a Subsidiary
Pledge Agreement, a Subsidiary Security Agreement, a Subsidiary Trademark
Security Agreement, a Subsidiary Patent Security Agreement and Additional
Mortgages, as applicable, and to take all such further action and execute all
such further documents and instruments as may be reasonably required to grant
and perfect in favor of the applicable Agent, for the benefit of Lenders, a
First Priority security interest in all of the Real Property Assets and all of
the personal property assets of such Subsidiary described in the applicable
Collateral Documents.
C. SUBSIDIARY CHARTER DOCUMENTS, LEGAL OPINIONS, ETC. With respect any
such new Subsidiary (other than an Inactive Subsidiary), Company shall deliver
to Administrative Agent, together with the applicable Guaranty and such
Collateral Documents:
-145-
(i) certified copies of such Subsidiary's Articles or
Certificate of Incorporation, together with a good standing certificate
from the Secretary of State (or comparable official) of the jurisdiction of
its incorporation, each to be dated a recent date prior to their delivery
to Administrative Agent
(ii) a copy of such Subsidiary's Bylaws (or comparable or
equivalent documentation), certified by its corporate secretary or an
assistant corporate secretary or other appropriate officer as of a recent
date prior to their delivery to Administrative Agent;
(iii) a certificate executed by the secretary or an assistant
secretary or other appropriate officer of such Subsidiary as to (a) the
incumbency and signatures of the officers of such Subsidiary executing such
Guaranty and the Collateral Documents to which such Subsidiary is a party
and (b) the fact that the attached resolutions of the Board of Directors of
such Subsidiary authorizing the execution, delivery and performance of such
Guaranty and such Collateral Documents are in full force and effect and
have not been modified or rescinded; and
(iv) a favorable opinion of counsel to such Subsidiary, in form
and substance satisfactory to Administrative Agent and its counsel, as to
(a) the due organization and good standing of such Subsidiary, (b) the due
authorization, execution and delivery by such Subsidiary of such Guaranty
and such Collateral Documents, (c) the enforceability of such Guaranty and
such Collateral Documents against such Subsidiary, and (d) such other
matters as Administrative Agent may reasonably request, all of the
foregoing to be satisfactory in form and substance to Administrative Agent
and its counsel.
6.9 ADDITIONAL REAL PROPERTY COLLATERAL.
A. ADDITIONAL MORTGAGES, ETC. From and after the Closing Date, in the
event that (i) any Borrower or any of its Subsidiaries (other than Inactive
Subsidiaries) acquires any Fee Property or any Material Leasehold (other than
any Fee Property or Material Leasehold which Administrative Agent in its sole
discretion affirmatively waives the requirements set forth in this subsection
6.9 with respect to such Fee Property or Material Leasehold) (each a "COVERED
REAL PROPERTY ASSET") or (ii) at the time any Person becomes a Subsidiary (other
than an Inactive Subsidiary) of any Borrower, such Person owns or holds any
Covered Real Property Asset, such Borrower or such Subsidiary shall, as soon as
practicable after the acquisition of such or such Covered Real Property Asset or
such Person's becoming a Subsidiary of any Borrower, as the case may be, deliver
to Administrative Agent the following:
(a) ADDITIONAL MORTGAGE. Fully executed and acknowledged
counterparts of Mortgages (each an "ADDITIONAL MORTGAGE" and collectively,
the "ADDITIONAL MORTGAGES") in recordable form encumbering such Covered
Real Property Asset,
-146-
which Mortgages shall create a valid and enforceable First Priority Lien
(or such other priority lien as may be specified in the applicable
Additional Mortgage), subject to Permitted Encumbrances, on such Covered
Real Property Asset in favor of Agent (or such other trustee as may be
required or desired under local law) for the benefit of Lenders;
(b) OPINION OF COUNSEL. If required by Administrative Agent, an
opinion of local counsel (which counsel shall be reasonably satisfactory to
Administrative Agent) in the jurisdiction in which such Covered Real
Property Asset is located with respect to the enforceability of Additional
Mortgage recorded in such jurisdiction and such other matters as
Administrative Agent may reasonably request, in form and substance
reasonably satisfactory to Administrative Agent;
(c) LANDLORD CONSENT AND ESTOPPEL; RECORDED LEASEHOLD INTEREST. In
the case of a Covered Real Property Asset consisting of a Material
Leasehold, such estoppel letters from the landlord on such Material
Leasehold as may be reasonably requested by Administrative Agent, in form
and substance reasonably satisfactory to Administrative Agent;
(d) TITLE INSURANCE. (1) If required by Administrative Agent, in the
case of each such Covered Real Property Asset consisting of a Fee Property,
an ALTA mortgagee title insurance policy issued by a title insurer
reasonably satisfactory to Administrative Agent (an "ADDITIONAL MORTGAGE
POLICY"), in an amount reasonably satisfactory to Administrative Agent,
ensuring Administrative Agent that the applicable Additional Mortgage
creates a valid and enforceable First Priority mortgage Lien (or such other
priority lien as may be specified in the applicable Additional Mortgage) on
such Covered Real Property Asset, free and clear of all defects and
encumbrances except Permitted Encumbrances, which Additional Mortgage
Policy (x) shall be in form and substance satisfactory to Administrative
Agent and (y) shall include an endorsement for mechanics' liens, for future
advances under this Agreement, the Notes and the other Loan Documents, and
for any other matters that Administrative Agent may request, and (z) shall
provide for affirmative insurance and such reinsurance as Administrative
Agent may request, all of the foregoing in form and substance reasonably
satisfactory to Administrative Agent; and (2) a current Survey (as defined
in subsection 4.1I(d)) with respect to such Covered Real Property Asset
showing gross area of such Covered Real Property Asset, lot lines and
monuments, building lines, easements both burdening and benefiting such
Covered Real Property Asset, utilities, including water and sewer lines to
the point of connection with the public system, the improvements (including
loading docks and the location and number of parking spaces),
encroachments, if any, on such Covered Real Property Asset or over
adjoining properties, and other matters located on or affecting such
Covered Real Property Asset requested by the Administrative Agent. Each
such Survey will contain a certificate addressed to the Administrative
Agent and Title Company in form and substance satisfactory to
Administrative Agent;
-147-
(e) TITLE REPORT. If no Additional Mortgage Policy is required with
respect to such Covered Real Property Asset, a title report obtained by
Borrower in respect of any such Covered Real Property Asset, dated not more
than 30 days prior to the date such Additional Mortgage is to be recorded
and satisfactory in form and substance to Administrative Agent;
(f) MATTERS RELATING TO FLOOD HAZARD PROPERTIES. (i) Evidence, which
may be in the form of a letter from an insurance broker or a municipal
engineer, as to whether (1) such Covered Real Property Asset (an
"ADDITIONAL FLOOD HAZARD PROPERTY") is Flood Hazard Property and (2) the
community in which such Covered Real Property Asset (if it is an Additional
Flood Hazard Property) is located is participating in the National Flood
Insurance Program; (ii) if such Covered Real Property Asset is an
Additional Flood Hazard Property, Borrower's written acknowledgement of
receipt of written notification from Administrative Agent (1) as to the
existence of such Additional Flood Hazard Property and (2) as to whether
the community in which such Flood Hazard Property is located is
participating in the National Flood Insurance Program; and (iii) in the
event such Covered Real Property Asset is an Additional Flood Hazard
Property that is located in a community that participates in the National
Flood Insurance Program, evidence that Borrower has obtained flood
insurance in respect of such Flood Hazard Property to the extent required
under the applicable regulations of the Board of Governors of the Federal
Reserve System; and
(g) ENVIRONMENTAL AUDIT. If required by Administrative Agent, in the
case of each such Covered Real Property Asset consisting of a Fee Property,
environmental audits, reports and other information prepared by
professional consultants mutually acceptable to Borrower and Administrative
Agent, in form, scope and substance satisfactory to Administrative Agent in
its reasonable discretion, concerning any environmental hazards or
liabilities to which Borrower or any of its Subsidiaries may be subject
with respect to such Additional Mortgaged Property.
B. REAL ESTATE APPRAISALS. Each Borrower shall, and shall cause each of
its Subsidiaries to, permit any authorized representatives designated by any
Agent, upon reasonable notice, to visit and inspect any Additional Mortgaged
Property for the purpose of obtaining an appraisal of value, conducted by
consultants retained by such Agent in compliance with all applicable banking
regulations, with respect to such Covered Real Property Asset.
6.10 ASSIGNABILITY AND RECORDING OF LEASE AGREEMENTS.
From and after the Closing Date, in the event that any Borrower or any
of its Subsidiaries enters into any lease that is a Material Leasehold (other
than any Material Leasehold as to which Administrative Agent in its sole
discretion affirmatively waives the requirements set forth in this subsection
6.10), such Borrower shall, or shall cause such
-148-
Subsidiary to, (i) obtain lease terms permitting (or not expressly prohibiting)
the encumbrancing of such Material Leasehold pursuant to an Additional Mortgage
and the assignment of such Material Leasehold interest to the successful bidder
at a foreclosure or similar sale (and to a subsequent third party assignee by
Agent or any Lender to the extent Agent or such Lender is the successful bidder
at such sale) in the event of a foreclosure or similar action pursuant to such
Additional Mortgage and (ii) cause such lease, or a memorandum of lease with
respect thereto, or other evidence of such lease in form and substance
reasonably satisfactory to Agent, to be recorded in all places to the extent
necessary or desirable, in the reasonable judgment of Agent, so as to enable an
Additional Mortgage encumbering such Material Leasehold to effectively create a
valid and enforceable First Priority Lien (subject to Permitted Encumbrances) on
such Material Leasehold in favor of Agent (or such other Person as may be
required or desired under local law) for the benefit of Lenders.
6.11 INTEREST RATE PROTECTION.
Within ninety (90) days after the Closing Date, Borrowers shall
obtain, and shall thereafter maintain in effect for a period of not less than
two years one or more Interest Rate Agreements with respect to the Loans, in an
aggregate notional principal amount of not less than $37,500,000, each such
Interest Rate Agreement to be in form and substance satisfactory to
Administrative Agent.
6.12 CHANGE OF CORPORATE NAMES; FURTHER ACTIONS.
No later than fifteen days prior to a change of name of any Loan
Party, Company shall provide written notice to Administrative Agent (with a copy
to Agent) of such name change. Such notice shall include the new corporate name
of such Loan Party and the date on which such new corporate name shall become
effective. Company shall, and shall cause such Loan Party to, take any and all
necessary actions to maintain Agent's priority and perfected security interest
in the Collateral, including without limitation obtaining all necessary
Governmental Authorizations, execution or reexecution of all applicable
agreements, documents, filings or any other instrument and filing of any and all
appropriate instruments with any applicable Governmental Authority. As soon as
practicable after such corporate name change, Company and such Loan Party shall
provide to Administrative Agent evidence in form and substance satisfactory to
Administrative Agent that such new corporate name has been appropriately
obtained, filed and/or registered with the applicable Governmental Authority.
6.13 TRANSFER OF STOCK OF RGS JAPAN; XXXX JAPAN MERGER.
As soon as practicable after the Closing Date, Company shall, or shall
cause New Xxxx Japan to, take all such actions as may be required to form a
wholly-owned Subsidiary, New Shellco, to which will be transferred all of the
outstanding capital stock of RGS Japan and all of the other assets, if any, of
New Xxxx Japan acquired upon or after the
-149-
Closing Date. In addition, New Shellco shall assume all of the Obligations and
liabilities of New Xxxx Japan under the Loan Documents and such other
obligations and liabilities as may have arisen in the ordinary course of its
business on or after the Closing Date or as may be approved by Administrative
Agent; PROVIDED, HOWEVER, that no liabilities of New Xxxx Japan arising prior to
the Closing Date shall be so assumed. Promptly after the transfer to New
Shellco of all of the outstanding capital stock of RGS Japan, New Xxxx Japan
shall be dissolved or otherwise liquidated. As soon as practicable after the
Closing Date, but in any event prior to the first anniversary of the Closing
Date, Company shall cause New Shellco and RGS Japan to consummate the Xxxx Japan
Merger. In no event shall Company permit New Xxxx Japan and RGS Japan to merge.
All of the foregoing actions and all of the documentation to effect such actions
shall be (i) in form and substance satisfactory to Administrative Agent and its
counsel, (ii) in compliance with any and all Japanese laws and regulations, and
(iii) completed prior to the first anniversary of the Closing Date.
6.14 ESTABLISHMENT OF BLOCKED ACCOUNTS.
In the event that a Borrower or any of its Subsidiaries has failed to
establish a Blocked Account or Blocked Accounts pursuant to subsection 2.9 as of
the Closing Date, such Borrower shall, or shall cause such Subsidiary to,
establish any and all Blocked Accounts required to be established under this
Agreement or by Administrative Agent (x) in the case of any such Borrower or any
such Subsidiary other than Xxxx France, no later than forty-five days after the
Closing Date (or such greater number of days up to a maximum of forty-five
additional days as may be agreed to by Administrative Agent in its sole
discretion) and (y) in the case of Xxxx France, no later than September 30,
1997. During the period prior to the establishment of the Blocked Account or
Blocked Accounts to the satisfaction of Administrative Agent, in the event that
such Borrower or such Subsidiary receives any checks, cash, notes and other
instruments representing payment of an Account, such Borrower shall, or shall
cause such Subsidiary to, as soon as practicable (and in any event within one
Business Day) after receipt thereof, deposit or cause to be deposited such item
or items in an Account approved by and satisfactory to Administrative Agent.
Such Borrower shall not, or shall not permit such Subsidiary to, remove such
deposited funds without promptly notifying and obtaining the consent of
Administrative Agent.
SECTION 7. BORROWERS' NEGATIVE COVENANTS
Each Borrower covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
such Borrower shall perform, and shall cause each of its Subsidiaries to
perform, all covenants in this Section 7.
-150-
7.1 INDEBTEDNESS.
Each Borrower shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume or guaranty, or otherwise
become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(i) Borrowers may become and remain liable with respect to the
Obligations;
(ii) Company and its Subsidiaries may become and remain liable
with respect to Contingent Obligations permitted by subsection 7.4 and,
upon any matured obligations actually arising pursuant thereto, the
Indebtedness corresponding to the Contingent Obligations so extinguished;
(iii) Company may become and remain liable with respect to
Indebtedness to any of its wholly-owned Subsidiaries, and any wholly-owned
Subsidiary of Company may become and remain liable with respect to
Indebtedness to Company or any other wholly-owned Subsidiary of Company;
PROVIDED that (a) all such intercompany Indebtedness shall be evidenced by
promissory notes that are pledged to the applicable Agent pursuant to the
terms of the applicable Collateral Documents, (b) all such intercompany
Indebtedness owed by any Borrower to any of its Subsidiaries shall be
subordinated in right of payment to the payment in full of the applicable
Obligations pursuant to the terms of the such promissory notes or an
intercompany subordination agreement, and (c) any payment by any Subsidiary
of any Borrower under any guaranty of the applicable Obligations shall
result in a PRO TANTO reduction of the amount of any intercompany
Indebtedness owed by such Subsidiary to such Borrower or to any of its
Subsidiaries for whose benefit such payment is made; PROVIDED, FURTHER,
that the aggregate amount of all such intercompany Indebtedness owing at
any time from any Foreign Subsidiary to Company or any Domestic Subsidiary
shall not exceed $100,000,000 in the aggregate at any time;
(iv) Company and its Subsidiaries, as applicable, may remain
liable with respect to Indebtedness described in SCHEDULE 7.1 annexed
hereto;
(v) Company may become and remain liable with respect to
repurchase obligations not in excess of $4,000,000 and indemnity
obligations to BTCC as set forth in the Loan Portfolio Purchase Agreement
and the Assumed Guaranties;
(vi) Company may become and remain liable with respect to
Indebtedness evidenced by the Senior Subordinated Notes in an aggregate
principal amount not to exceed $225,000,000; and
(vii) (a) Company may become and remain liable with respect to
Capital Leases relating to its Westmont, Illinois facility and Xxxx Japan
may become and
-151-
remain liable with respect to a Capital Lease relating to its Sayama, Japan
facility, in each case in a sale/leaseback of such facility permitted
pursuant to subsection 7.7(iv); and (b) Company may become and remain
liable with respect to other Capital Leases and other Indebtedness in an
aggregate principal amount with respect to such Capital Leases, other
Indebtedness and any outstanding Contingent Obligations permitted pursuant
to subsection 7.4(ix) which does not exceed $7,500,000 at any time
outstanding; and
"(viii) Westmont Sub may become and remain liable with respect to
Indebtedness secured by the Westmont Excluded Collateral, and Sayama Sub
may become and remain liable with respect to Indebtedness secured by the
Sayama Excluded Collateral, and Administrative Agent shall release any
Liens in favor of Administrative Agent for the benefit of Lenders in the
Westmont Excluded Collateral and in the Sayama Excluded Collateral and
terminate any Collateral Documents relating solely thereto upon the
incurrence of such Indebtedness; PROVIDED that (a) the initial principal
amount of such Indebtedness shall not be less than 70% of the fair market
value of the Westmont Excluded Collateral or the Sayama Excluded
Collateral, as the case may be, (b) Company or Xxxx Japan, as the case may
be, prepays its outstanding Loans in an amount equal to the cash proceeds
(net of bona fide direct costs incurred in connection with such
Indebtedness) from the initial principal amount of such Indebtedness in
accordance with subsection 2.4B(iii)(e), (c) all documentation relating to
such Indebtedness shall be in form and substance reasonably satisfactory to
Administrative Agent, and (d) Company or Xxxx Japan, as the case may be,
delivers a legal opinion to Administrative Agent to the effect that such
Indebtedness does not violate the terms of any Contractual Obligation of
Company or any of its Subsidiaries".
7.2 LIENS AND RELATED MATTERS.
A. PROHIBITION ON LIENS. No Borrower shall, nor shall any Borrower
permit any of its Subsidiaries to, directly or indirectly, create, incur, assume
or permit to exist any Lien on or with respect to any property or asset of any
kind (including any document or instrument in respect of goods or accounts
receivable) of such Borrower or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any such property, asset, income or
profits under the Uniform Commercial Code of any State or under any similar
recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the applicable Collateral
Documents;
(iii) Liens described in SCHEDULE 7.2 annexed hereto;
-152-
(iv) Liens solely on the equipment and the proceeds of such
equipment securing the Capital Leases permitted under subsection 7.1(vii);
and
(v) Other Liens securing other Indebtedness permitted under
subsection 7.1(vii); and
(vi) Liens securing the mortgage Indebtedness permitted under
subsection 7.1(viii).
B. EQUITABLE LIEN IN FAVOR OF LENDERS. If any Borrower or any of its
Subsidiaries shall create or assume any Lien upon any of its properties or
assets, whether now owned or hereafter acquired, other than Liens excepted by
the provisions of subsection 7.2A, it shall make or cause to be made effective
provision whereby the Obligations will be secured by such Lien equally and
ratably with any and all other Indebtedness secured thereby as long as any such
Indebtedness shall be so secured; PROVIDED that, notwithstanding the foregoing,
this covenant shall not be construed as a consent by Requisite Lenders to the
creation or assumption of any such Lien not permitted by the provisions of
subsection 7.2A.
C. NO FURTHER NEGATIVE PLEDGES. Except with respect to specific property
encumbered to secure payment of particular Indebtedness or to be sold pursuant
to an executed agreement with respect to an Asset Sale, none of the Borrowers or
any of their respective Subsidiaries shall enter into any agreement (other than
the Senior Subordinated Note Indenture) prohibiting the creation or assumption
of any Lien upon any of its properties or assets, whether now owned or hereafter
acquired; PROVIDED that each of Westmont Sub and Sayama Sub, solely in
connection with the incurrence of Indebtedness permitted under subsection
7.1(viii), may enter into agreements prohibiting the creation or assumption of
Liens upon the Westmont Excluded Collateral and the Sayama Excluded Collateral,
respectively".
D. NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO BORROWERS OR OTHER
SUBSIDIARIES. Except as provided herein, no Borrower will, nor will any
Borrower permit any of its Subsidiaries to, create or otherwise cause or suffer
to exist or become effective any consensual encumbrance or restriction of any
kind on the ability of any such Subsidiary to (i) pay dividends or make any
other distributions on any of such Subsidiary's capital stock owned by such
Borrower or any other Subsidiary of such Borrower, (ii) repay or prepay any
Indebtedness owed by such Subsidiary to such Borrower or any other Subsidiary of
such Borrower, (iii) make loans or advances to such Borrower or any other
Subsidiary of such Borrower, or (iv) transfer any of its property or assets to
such Borrower or any other Subsidiary of such Borrower ; PROVIDED that each of
Westmont Sub and Sayama Sub, solely in connection with the incurrence of
Indebtedness permitted under subsection 7.1(viii), may create or otherwise cause
or suffer to exist or become effective any consensual encumbrance or restriction
on its ability to pay dividends on its capital stock owned by Company or any of
its Subsidiaries or Xxxx Japan or any of its Subsidiaries, respectively.
-153-
7.3 INVESTMENTS; JOINT VENTURES.
No Borrower shall, nor shall any Borrower permit any of its
Subsidiaries to, directly or indirectly, make or own any Investment in any
Person, including any Joint Venture, except:
(i) Company and its Subsidiaries may make and own Investments in
Cash Equivalents;
(ii) Company and its Subsidiaries may (1) continue to own the
Investments owned by them as of the Closing Date in any Subsidiaries of
Company; (2) make Investments after the Closing Date in (a) Westmont Sub
and contribute to Westmont Sub the Westmont Excluded Collateral in
connection with the incurrence of Indebtedness permitted under subsection
7.1(viii), (b) Sayama Sub and contribute to Sayama Sub the Sayama Excluded
Collateral in connection with the incurrence of Indebtedness permitted
under subsection 7.1(viii), (c) Xxxx Australasia, (d) Xxxx Services, and
(e) Xxxx International and contribute to Xxxx International foreign
intangible rights, certain intercompany loans and the assets and
liabilities of its German operations; PROVIDED, HOWEVER, that in each case
the provisions of subsection 6.8 are complied with prior to or at the time
of such Investment and that the aggregate amount of all such Investments
pursuant to this clause (2) in excess of the described contributions of
property and other assets does not exceed $5,000,000 in the aggregate; and
(3) make additional Investments after the Closing Date in such wholly-owned
Subsidiaries of up to $5,000,000 in the aggregate for all such additional
Investments;
(iii) in addition to the amounts permitted pursuant to subsection
7.3(ii) above, Company and its Subsidiaries may make intercompany loans to
the extent permitted under subsection 7.1(iii);
(iv) Company and its Subsidiaries may continue to own the
Investments owned by them and described in SCHEDULE 7.3 annexed hereto;
(v) Company may continue to own its Joint Venture interests in
Shanghai Rockwell Graphic Systems Co., Ltd. pursuant to the terms of its
joint venture contract with Shanghai Printing & Packaging Machinery Co., as
in effect on the Closing Date and may make additional Investments after the
Closing Date in such Joint Venture of up to $7,500,000;
(vi) Company and its Subsidiaries may make and maintain
Investments in non-cash proceeds of Asset Sales in accordance with the
provisions of subsection 7.7(iv);
-154-
(vii) Company and its Subsidiaries may make and maintain
investments received in connection with the bankruptcy or reorganization of
suppliers and customers and in settlement of delinquent obligations of, and
other disputes with, customers and suppliers, in each case arising in the
ordinary course of business;
(viii) Company and its Subsidiaries may make and maintain
Investments with respect to Secured Customer Financing Arrangements;
PROVIDED that the aggregate outstanding amount of such Secured Customer
Financing Arrangements made after the Closing Date PLUS the aggregate
outstanding amount of Contingent Obligations with respect to Customer
Financing Note Guaranties provided after the Closing Date under subsection
7.4(viii)(b) does not exceed $30,000,000 at any time; and
(ix) Company and its Subsidiaries may make and own other Investments
in an aggregate amount not to exceed at any time $1,000,000.
7.4 CONTINGENT OBLIGATIONS.
No Borrower shall nor shall any Borrower permit any of its
Subsidiaries to, directly or indirectly, create or become or remain liable with
respect to any Contingent Obligation, except:
(i) Company and its Subsidiaries may become and remain liable
with respect to Contingent Obligations arising under their respective
Guaranties, including Contingent Obligations thereunder with respect to
Interest Rate Agreements and Currency Agreements entered into with any
Lender or any of its Affiliates;
(ii) Company and its Subsidiaries may become and remain liable
with respect to Contingent Obligations in respect of Letters of Credit;
(iii) Company and its Subsidiaries may become and remain liable
with respect to Contingent Obligations in respect of customary
indemnification and purchase price adjustment obligations incurred in
connection with Asset Sales or other sales of assets;
(iv) Company may become and remain liable with respect to the
Assumed Guaranties relating to the Customer Notes;
(v) Company may become and remain liable with respect to
Contingent Obligations in respect of any Indebtedness of any of Company's
Subsidiaries permitted by subsection 7.1;
(vi) Company and its Subsidiaries, as applicable, may remain
liable with respect to Contingent Obligations described in SCHEDULE 7.4
annexed hereto;
-155-
(vii) Company and its Subsidiiaries may become and remain liable
with respect to Contingent Obligations under Interest Rate Agreements
required under subsection 6.11 and under Currency Agreements designed to
hedge against fluctuations in currency values entered into in the ordinary
course of business;
(viii) Company and its Subsidiaries (a) may become and remain
liable with respect to Customer Financing Note Guaranties existing as of
the Closing Date in an aggregate amount not to exceed $7,000,000; (b) may
become and remain liable with respect to Customer Financing Note Guaranties
provided after the Closing Date which Customer Financing Note Guaranties
are not supported by Letters of Credit; PROVIDED that the aggregate
outstanding amount of such Customer Financing Note Guaranties under this
clause (b) PLUS the aggregate outstanding amount of Investments with
respect to Secured Customer Financing Arrangements made after the Closing
Date in accordance with subsection 7.3(viii) does not exceed $30,000,000 at
any time; and (c) may become and remain liable with respect to Customer
Financing Note Guaranties supported by Letters of Credit; PROVIDED that the
aggregate amount of all Customer Financing Note Guaranties supported by
Letters of Credit under clause (c) shall not exceed $10,000,000 outstanding
at any time; and
(ix) Company and its Subsidiaries may become and remain liable
with respect to unsecured Contingent Obligations in respect of letters of
credit; PROVIDED that the outstanding maximum aggregate stated or face
amount of all such letters of credit, together with the aggregate amount of
all Capital Leases and Indebtedness permitted pursuant to clause (b) of
subsection 7.1(vii) shall not exceed $7,500,000 at any time; and
(x) Company and its Subsidiaries may become and remain liable
with respect to other Contingent Obligations; PROVIDED that the maximum
aggregate liability, contingent or otherwise, of Company and its
Subsidiaries in respect of all such other Contingent Obligations shall at
no time exceed $1,000,000.
7.5 RESTRICTED JUNIOR PAYMENTS.
No Borrower shall nor shall any Borrower permit any of its
Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart
any sum for any Restricted Junior Payment; PROVIDED that (i) Company may make
payments of regularly scheduled interest in respect of the Senior Subordinated
Notes, in accordance with the terms of and to the extent required by, and
subject to the subordination provisions contained in, the Senior Subordinated
Note Indenture, and (ii) so long as no Event of Default or Potential Event of
Default shall have occurred and be continuing or shall be caused thereby,
Company may make Restricted Junior Payments to Holdings (X) in an aggregate
amount not to exceed $500,000 in any Fiscal Year in order to permit Holdings to
pay general administrative costs and expenses, (Y) in an aggregate amount not to
exceed in the aggregate $1,000,000 in any Fiscal Year (PROVIDED that the unused
portion of such $1,000,000 may be carried forward to
-156-
the succeeding Fiscal Year, but only up to an aggregate amount not to exceed
$2,000,000 of such Restricted Junior Payments for any given Fiscal Year) or
$5,000,000 during the term of this Agreement PLUS the net cash proceeds of any
issuance of Holdings Common Stock to Management Investors and other officers and
employees of Company and its Subsidiaries in accordance with the terms of the
Stockholders Agreement and the Management Stock Incentive Plan, which net cash
proceeds have been contributed to Company, and (Z) in an amount necessary to
permit Holdings to discharge the consolidated tax liabilities of Holdings,
Company and Company's Subsidiaries, in each case so long as Holdings applies the
amount of any such Restricted Junior Payment for such purpose.
7.6 FINANCIAL COVENANTS.
A. MINIMUM FIXED CHARGE RATIO. Company shall not permit the ratio of
(i) Consolidated Adjusted EBITDA to (ii) Consolidated Fixed Charges for any
four-Fiscal Quarter period ending during any of the periods set forth below to
be less than the correlative ratio indicated:
PERIOD MINIMUM FIXED CHARGE RATIO
------------------------ --------------------------
1st Fiscal Quarter, 1997 1.00:1.00
2nd Fiscal Quarter, 1997 1.00:1.00
3rd Fiscal Quarter, 1997 1.00:1.00
4th Fiscal Quarter, 1997 1.00:1.00
1st Fiscal Quarter, 1998 1.10:1.00
2nd Fiscal Quarter, 1998 1.10:1.00
3rd Fiscal Quarter, 1998 1.10:1.00
4th Fiscal Quarter, 1998 1.10:1.00
1st Fiscal Quarter, 1999 1.15:1.00
2nd Fiscal Quarter, 1999 1.15:1.00
3rd Fiscal Quarter, 1999 1.15:1.00
4th Fiscal Quarter, 1999 1.15:1.00
1st Fiscal Quarter, 2000
and each Fiscal Quarter thereafter 1.20:1.00
-157-
B. MAXIMUM LEVERAGE RATIO. Company shall not permit the ratio of
(i) Consolidated Total Debt MINUS Cash of Company and its Subsidiaries deposited
in a Blocked Account or other account approved by Administrative Agent as set
forth on the consolidated balance sheet of Company and its Subsidiaries, in each
case as of the last day of any Fiscal Quarter occurring during any of the
periods set forth below to (ii) Consolidated Adjusted EBITDA for the four-Fiscal
Quarter period ending on such last day to exceed the correlative ratio
indicated:
PERIOD MAXIMUM LEVERAGE RATIO
------------------------ -------------------------
1st Fiscal Quarter, 1997 6.25:1.00
2nd Fiscal Quarter, 1997 7.50:1.00
3rd Fiscal Quarter, 1997 5.75:1.00
4th Fiscal Quarter, 1997 5.00:1.00
1st Fiscal Quarter, 1998 4.50:1.00
2nd Fiscal Quarter, 1998 4.50:1.00
3rd Fiscal Quarter, 1998 4.25:1.00
4th Fiscal Quarter, 1998 4.00:1.00
1st Fiscal Quarter, 1999 4.00:1.00
2nd Fiscal Quarter, 1999 4.00:1.00
3rd Fiscal Quarter, 1999 4.00:1.00
4th Fiscal Quarter, 1999 3.50:1.00
1st Fiscal Quarter, 2000 3.50:1.00
2nd Fiscal Quarter, 2000 3.50:1.00
3rd Fiscal Quarter, 2000 3.50:1.00
4th Fiscal Quarter, 2000 3.50:1.00
1st Fiscal Quarter, 2001 3.25:1.00
2nd Fiscal Quarter, 2001 3.25:1.00
3rd Fiscal Quarter, 2001 3.25:1.00
4th Fiscal Quarter, 2001 3.25:1.00
-158-
C. MINIMUM CONSOLIDATED ADJUSTED EBITDA. Company shall not permit
Consolidated Adjusted EBITDA for any four-Fiscal Quarter period ending as of the
last day of any Fiscal Quarter occurring during any of the periods set forth
below to be less than the correlative amount indicated:
MINIMUM CONSOLIDATED
PERIOD ADJUSTED EBITDA
------------------------ --------------------
1st Fiscal Quarter, 1997 $50,000,000
2nd Fiscal Quarter, 1997 $37,500,000
3rd Fiscal Quarter, 1997 $52,500,000
4th Fiscal Quarter, 1997 $62,500,000
1st Fiscal Quarter, 1998 $67,500,000
2nd Fiscal Quarter, 1998 $72,500,000
3rd Fiscal Quarter, 1998 $75,000,000
4th Fiscal Quarter, 1998 $75,000,000
1st Fiscal Quarter, 1999 $75,000,000
2nd Fiscal Quarter, 1999 $75,000,000
3rd Fiscal Quarter, 1999 $75,000,000
4th Fiscal Quarter, 1999 $75,000,000
1st Fiscal Quarter, 2000
and each Fiscal Quarter thereafter $80,000,000
-159-
D. MINIMUM CONSOLIDATED NET WORTH. Company shall not permit Consolidated
Net Worth at any time during any of the periods set forth below to be less than
the correlative amount indicated:
MINIMUM CONSOLIDATED
PERIOD NET WORTH
------------------------ --------------------
1st Fiscal Quarter, 1997 $100,000,000
2nd Fiscal Quarter, 1997 $100,000,000
3rd Fiscal Quarter, 1997 $100,000,000
4th Fiscal Quarter, 1997 $100,000,000
1st Fiscal Quarter, 1998 $105,000,000
2nd Fiscal Quarter, 1998 $110,000,000
3rd Fiscal Quarter, 1998 $115,000,000
4th Fiscal Quarter, 1998 $120,000,000
1st Fiscal Quarter, 1999 $125,000,000
2nd Fiscal Quarter, 1999 $130,000,000
3rd Fiscal Quarter, 1999 $135,000,000
4th Fiscal Quarter, 1999 $140,000,000
1st Fiscal Quarter, 2000 $145,000,000
2nd Fiscal Quarter, 2000 $150,000,000
3rd Fiscal Quarter, 2000 $155,000,000
4th Fiscal Quarter, 2000 $160,000,000
1st Fiscal Quarter, 2001 $165,000,000
2nd Fiscal Quarter, 2001 $170,000,000
3rd Fiscal Quarter, 2001 $175,000,000
4th Fiscal Quarter, 2001 $180,000,000
7.7 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS.
No Borrower shall nor shall any Borrower permit any of its
Subsidiaries to, alter the corporate, capital or legal structure of such
Borrower or any of its Subsidiaries, or enter into any transaction of merger or
consolidation, or liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or
sub-lessor), transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business, property or fixed assets, whether
now owned or hereafter
-160-
acquired, or acquire by purchase or otherwise all or substantially all the
business, property or fixed assets of, or stock or other evidence of beneficial
ownership of, any Person or any division or line of business of any Person,
except:
(i) any Subsidiary of Company may be merged with or into Company
or any wholly-owned Subsidiary of Company, or may be liquidated, wound up
or dissolved, or all or any part of its business, property or assets may be
conveyed, sold, leased, transferred or otherwise disposed of, in one
transaction or a series of transactions, to Company or any wholly-owned
Subsidiary of Company; PROVIDED that, in the case of such a merger, Company
or such wholly-owned Subsidiary shall be the continuing or surviving
corporation and if any such transaction involves a Subsidiary Guarantor,
the surviving corporation shall be the Company or such Subsidiary
Guarantor;
(ii) Company and its Subsidiaries may make Consolidated Capital
Expenditures;
(iii) Company and its Subsidiaries may sell or otherwise dispose
of assets in transactions that do not constitute Asset Sales; PROVIDED that
the consideration received for such assets shall be in an amount at least
equal to the fair market value thereof and make Investments permitted
pursuant to subsection 7.3(ii); and
(iv) subject to subsection 7.10, Company and its Subsidiaries may
make Asset Sales (a) of the property, plant and equipment of Xxxx France;
(b) constituting sale/leaseback transactions of its real property located
in Sayama, Japan, and Westmont, Illinois; (c) of the vacated warehouse
located in Cedar Rapids, Iowa; (d) of the apartment buildings located in
Sayama, Japan; (e) of obsolete surplus or excess equipment and machinery
located in Wyomissing, Pennsylvania, and Cedar Rapids, Iowa; and (f) of
other assets having a fair market value not in excess of $2,000,000 for any
given Fiscal Year; PROVIDED that (x) the consideration received for such
assets shall be in an amount at least equal to the fair market value
thereof; (y) the consideration received therefor shall be at least 85% in
cash and the balance of any consideration not received as cash shall be
represented by promissory notes which shall be pledged to Agent pursuant to
the applicable Collateral Documents; and (z) the net cash proceeds of such
asset Sales shall be applied to prepay Loans in accordance with subsection
2.4B(iii)(a) in an amount equal to such net cash proceeds.
7.8 SALES AND LEASE-BACKS.
Except as permitted by subsection 7.7(iv)(b), no Borrower shall nor
shall any Borrower permit any of its Subsidiaries to, directly or indirectly,
become or remain liable as lessee or as a guarantor or other surety with respect
to any lease, whether an Operating Lease or a Capital Lease, of any property
(whether real, personal or mixed), whether now owned or hereafter acquired,
(i) which such Borrower or any of its Subsidiaries has sold or
-161-
transferred or is to sell or transfer to any other Person (other than such
Borrower or any of its Subsidiaries) or (ii) which such Borrower or any of its
Subsidiaries intends to use for substantially the same purpose as any other
property which has been or is to be sold or transferred by such Borrower or any
of its Subsidiaries to any Person (other than such Borrower or any of its
Subsidiaries) in connection with such lease.
7.9 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.
No Borrower shall nor shall any Borrower permit any of its
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with any holder of 5%
or more of any class of equity Securities of Holdings or Company or with any
Affiliate of Holdings or Company or of any such holder, on terms that are less
favorable to Holdings or Company or that Subsidiary, as the case may be, than
those that might be obtained at the time from Persons who are not such a holder
or Affiliate; PROVIDED that the foregoing restriction shall not apply to (i) any
transaction between Company and any of its wholly-owned Subsidiaries or between
any of its wholly-owned Subsidiaries, (ii) reasonable and customary fees paid to
members of the Boards of Directors of Company and its Subsidiaries,
(iii) payment of Transaction Costs and payments permitted under subsection 7.5,
(iv) reasonable financial advisory or structuring fees paid to Stonington for
services rendered by Stonington, including without limitation financial advisory
fees to Stonington for services related to the Acquisition, and reimbursement of
out-of-pocket expenses, and (v) arms-length transactions in the ordinary course
of business with other companies managed by Stonington.
7.10 DISPOSAL OF SUBSIDIARY STOCK.
Except pursuant to the Collateral Documents and except for any sale of
100% of the capital stock or other equity Securities of any of its Subsidiaries
in compliance with the provisions of subsection 7.7(i) or (iv), no Borrower
shall:
(i) directly or indirectly sell, assign, pledge or otherwise
encumber or dispose of any shares of capital stock or other equity
Securities of any of its Subsidiaries, except to qualify directors if
required by applicable law; or
(ii) permit any of its Subsidiaries directly or indirectly to
sell, assign, pledge or otherwise encumber or dispose of any shares of
capital stock or other equity Securities of any of its Subsidiaries
(including such Subsidiary), except to Company, another Subsidiary of
Company, or to qualify directors if required by applicable law.
7.11 CONDUCT OF BUSINESS; LIMITATIONS ON SUBSIDIARIES.
A. From and after the Closing Date, no Borrower shall nor shall any
Borrower permit any of its Subsidiaries to, engage in any business other than
(i) the businesses
-162-
engaged in by such Borrower and its Subsidiaries on the Closing Date and similar
or related businesses and (ii) such other lines of business as may be consented
to by Requisite Lenders.
B. Neither Holdings nor any of its Subsidiaries shall incur any
Indebtedness, Contingent Obligations or other obligations or liabilities on
behalf of, or with respect to, an Inactive Subsidiary.
7.12 AMENDMENTS OF CERTAIN DOCUMENTS; DESIGNATION OF DESIGNATED SENIOR
INDEBTEDNESS.
A. AMENDMENTS OR WAIVERS OF CERTAIN RELATED AGREEMENTS. No Borrower
will, nor will any Borrower permit any of its Subsidiaries to, agree to any
material amendment to, or waive any of its material rights under, or make any
payment consistent with such an amendment of, or change to, any Related
Agreement (other than any Related Agreement evidencing or governing any
Subordinated Indebtedness, the Assumed Guaranties and the Customer Notes related
to the Assumed Guaranties) after the Closing Date without in each case obtaining
the prior written consent of Requisite Lenders to such amendment or waiver.
B. AMENDMENTS OF DOCUMENTS RELATING TO SUBORDINATED INDEBTEDNESS, THE
ASSUMED GUARANTIES AND THE CUSTOMER NOTES RELATED TO THE ASSUMED GUARANTIES. No
Borrower shall nor shall any Borrower permit any of its Subsidiaries to, amend
or otherwise change the terms of any Subordinated Indebtedness, the Assumed
Guaranties and the Customer Notes related to the Assumed Guaranties or any
agreement related thereto or any guaranty entered into by any Loan Party in
connection therewith, or make any payment consistent with an amendment thereof
or change thereto, if the effect of such amendment or change is to increase the
interest rate on such Subordinated Indebtedness, such Assumed Guaranties or such
Customer Notes, change any dates upon which payments of principal or interest
are due thereon, change any of the covenants with respect thereto in a manner
which is more restrictive to such Borrower or any of its Subsidiaries, change
any event of default or condition to an event of default with respect thereto in
a manner which is more restrictive to such Borrower, change the redemption,
prepayment or defeasance provisions thereof, change the subordination provisions
thereof (or of any guaranty thereof), or change any collateral therefor (other
than to release such collateral), or if the effect of such amendment or change,
together with all other amendments or changes made, is to increase the
obligations of the obligor thereunder or to confer any additional rights on the
holders of such Subordinated Indebtedness, such Assumed Guaranties or such
Customer Notes (or a trustee or other representative on their behalf) which
would be adverse to any Loan Party or Lenders.
C. DESIGNATION OF "DESIGNATED SENIOR INDEBTEDNESS". No Borrower shall
nor shall any Borrower permit any of its Subsidiaries to, designate any
Indebtedness as "Designated Senior Indebtedness" (as defined in the Senior
Subordinated Note Indenture) for
-163-
purposes of the Senior Subordinated Note Indenture without the prior written
consent of Requisite Lenders.
7.13 FISCAL YEAR.
No Borrower shall change its Fiscal Year-end from September 30.
7.14 DEPOSIT ACCOUNTS.
No Borrower shall nor shall any Borrower permit any of its
Subsidiaries to, maintain any Deposit Account which is not a Lock Box Account, a
Blocked Account or a Concentration Account under the exclusive dominion and
control of the applicable Agent.
7.15 FOREIGN UNFUNDED PENSION PLANS.
No Borrower shall, nor shall any Borrower permit any of its
Subsidiaries to, adopt or amend any Foreign Unfunded Pension Plan if such
adoption or amendment could reasonably be expected to result in a Material
Adverse Effect.
SECTION 8. EVENTS OF DEFAULT
If any of the following conditions or events ("EVENTS OF DEFAULT")
shall occur:
8.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure by any Borrower to pay any installment of principal of any
Loan when due, whether at stated maturity, by acceleration, by notice of
voluntary prepayment, by mandatory prepayment or otherwise; failure by any
Borrower to pay when due any amount payable to an Issuing Lender in
reimbursement of any drawing under a Letter of Credit; or failure by any
Borrower to pay interest on any Loan or any fee or any other amount due under
this Agreement within five days after the date due; or
8.2 DEFAULT IN OTHER AGREEMENTS.
(i) Failure of any Borrower or any of its Subsidiaries to pay
when due any principal of or interest on one or more items of Indebtedness
(other than Indebtedness referred to in subsection 8.1) or Contingent
Obligations in an aggregate principal amount of $5,000,000 or more, in each
case beyond the end of any grace period provided therefor; or (ii) breach
or default by any Borrower or any of its Subsidiaries with respect to any
other material term of (a) one or more items of Indebtedness or Contingent
Obligations in the aggregate principal amounts referred to in clause (i)
above or (b) any loan agreement, mortgage, indenture or other agreement
relating to such item(s) of Indebtedness or Contingent Obligation(s), if
the effect of such breach
-164-
or default is to cause, or to permit the holder or holders of that
Indebtedness or Contingent Obligation(s) (or a trustee on behalf of such
holder or holders) to cause, that Indebtedness or Contingent Obligation(s)
to become or be declared due and payable prior to its stated maturity or
the stated maturity of any underlying obligation, as the case may be (upon
the giving or receiving of notice, lapse of time, both, or otherwise); or
8.3 BREACH OF CERTAIN COVENANTS.
Failure of any Borrower to perform or comply with any term or
condition contained in subsection 2.5 or 6.2 or Section 7 of this Agreement; or
8.4 BREACH OF WARRANTY.
Any representation, warranty, certification or other statement made by
any Borrower or any of its Subsidiaries in any Loan Document or in any statement
or certificate at any time given by any Borrower or any of its Subsidiaries in
writing pursuant hereto or thereto or in connection herewith or therewith shall
be false in any material respect on the date as of which made; or
8.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS.
Any Borrower or any of its Subsidiaries shall default in the
performance of or compliance with any term contained in this Agreement or any of
the other Loan Documents, other than any such term referred to in any other
subsection of this Section 8, and such default shall not have been remedied or
waived within 30 days after receipt by any Borrower of notice from the
applicable Agent or any Lender of such default; or
8.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having jurisdiction in the premises shall enter a
decree or order for relief in respect of Holdings, any Borrower or any of
its Material Subsidiaries in an involuntary case under the Bankruptcy Code
which decree or order is not stayed; or (ii) an involuntary case shall be
commenced against Holdings, any Borrower or any of its Material
Subsidiaries under the Bankruptcy Code; or a decree or order of a court
having jurisdiction in the premises for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other officer having
similar powers over Holdings, any Borrower or any of its Material
Subsidiaries, or over all or a substantial part of its property, shall have
been entered; or there shall have occurred the involuntary appointment of
an interim receiver, trustee or other custodian of Holdings, any Borrower
or any of its Material Subsidiaries for all or a substantial part of its
property; or a warrant of attachment, execution or similar process shall
have been issued against any substantial part of the property of Holdings,
any Borrower or any
-165-
of its Material Subsidiaries, and any such event described in this clause
(ii) shall continue for 60 days unless dismissed, bonded or discharged; or
8.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Holdings, any Borrower or any of its Material Subsidiaries
shall have an order for relief entered with respect to it or commence a
voluntary case under the Bankruptcy Code, or shall consent to the entry of
an order for relief in an involuntary case, or to the conversion of an
involuntary case to a voluntary case, under any such law, or shall consent
to the appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property; or Holdings, any
Borrower or any of its Material Subsidiaries shall make any assignment for
the benefit of creditors; or (ii) Holdings, any Borrower or any of its
Material Subsidiaries shall be unable, or shall fail generally, or shall
admit in writing its inability, to pay its debts as such debts become due;
or the Board of Directors of Holdings, any Borrower or any of its Material
Subsidiaries (or any committee thereof) shall adopt any resolution or
otherwise authorize any action to approve any of the actions referred to in
clause (i) above or this clause (ii); or
8.8 JUDGMENTS AND ATTACHMENTS.
Any money judgment, writ or warrant of attachment or similar process
involving (i) in any individual case an amount in excess of $2,500,000 or
(ii) in the aggregate at any time an amount in excess of $5,000,000 (in either
case to the extent not adequately covered by insurance as to which a solvent and
unaffiliated insurance company has acknowledged coverage) shall be entered or
filed against Holdings, any Borrower or any of its Subsidiaries or any of their
respective assets and shall remain undischarged, unvacated, unbonded or unstayed
for a period of 60 days (or in any event later than five days prior to the date
of any proposed sale thereunder); or
8.9 DISSOLUTION.
Any order, judgment or decree shall be entered against Holdings, any
Borrower or any of its Subsidiaries decreeing the dissolution or split up of
Holdings, any Borrower or that Subsidiary and such order shall remain
undischarged or unstayed for a period in excess of 60 days; or
8.10 EMPLOYEE BENEFIT PLANS.
There shall occur one or more ERISA Events which individually or in
the aggregate results in or might reasonably be expected to result in liability
of any Borrower or any of its Subsidiaries in excess of $2,500,000 during the
term of this Agreement; or there shall exist an excess of aggregated accumulated
benefit obligations, as defined in Statement of Financial Accounting Standards
No. 87, over the aggregate total fair market value for all
-166-
Pension Plans (excluding for purposes of such computation (1) each Pension Plan
with respect to which the fair market value of the assets exceeds such
accumulated benefit obligations and (2) each Foreign Unfunded Pension Plan),
which exceeds $12,000,000; or
8.11 CHANGE IN CONTROL.
(i) A change shall occur in the Board of Directors of Holdings
so that a majority of the Board of Directors of Holdings ceases to consist
of the individuals who constituted the Board of Directors of Holdings on
the Closing Date (or individuals whose election or nomination for election
was approved by a vote of at least 75% of the directors then in office who
either were directors of Holdings on the Closing Date or whose election or
nomination for election previously was so approved); or
(ii) any Person or Group (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission), other than Stonington and its
Affiliates, shall become or be the owner, directly or indirectly,
beneficially or of record, of shares representing more than 30% of the
aggregate ordinary voting power represented by the issued and outstanding
capital stock of Holdings on a fully diluted basis, unless Stonington and
its Affiliates shall own and continue to so own capital stock representing
not less than a majority of such aggregate ordinary voting power; or
(iii) at any time prior to a Public Offering, Stonington shall
cease to own, directly or indirectly, beneficially or of record, at least
51% of each of the Holdings Common Stock or any other class of voting
capital stock of Holdings; or
(iv) Holdings shall cease to beneficially own and control,
directly or indirectly, 100% of the issued and outstanding shares of
capital stock of Company or shall cease to have the ability to elect all of
the Board of Directors of Company;
(v) Company shall cease to beneficially own and control,
directly or indirectly, 100% of the issued and outstanding shares of
capital stock of each of the other Borrowers (other than directors'
qualifying shares) or Company shall cease to have the ability to elect all
of the Board of Directors of each of the other Borrowers; or
(vi) any "Change of Control" (as defined in the Senior
Subordinated Note Indenture) shall occur; or
8.12 INVALIDITY OF LOAN DOCUMENTS.
Any Guaranty for any reason, other than the satisfaction in full of
all Obligations, ceases to be in full force and effect (other than in accordance
with its terms) or is declared to be null and void; or any Loan Party denies
that it has any further liability,
-167-
including without limitation with respect to future advances by Lenders, under
any Loan Document to which it is a party, or gives notice to such effect; or the
validity of any Loan Document shall be contested by any Governmental Authority
(whether by a general suspension of payments or a moratorium on the payment of
any class of indebtedness or otherwise); or any treaty, law, regulation,
communique, decree, ordinance or policy of any Governmental Authority shall
purport to render any provision of any Loan Document invalid or unenforceable or
shall purport to prevent or materially delay the performance or observance by
any Loan Party of its obligations under any Loan Documents.
8.13 FAILURE OF SECURITY.
Any Collateral Document shall, at any time, cease to be in full force
and effect (other than by reason of a release of Collateral in accordance with
the terms thereof) or shall be declared null and void, or the validity or
enforceability thereof shall be contested by any Loan Party, or any applicable
Agent shall not have or shall cease to have a valid and perfected First Priority
security interest in the Collateral; or
8.14 ACTION RELATING TO CERTAIN SUBORDINATED INDEBTEDNESS.
Any event shall occur which, under the terms of the Senior
Subordinated Note Indenture shall require Holdings or any of its Subsidiaries to
purchase, redeem or otherwise acquire or offer to purchase, redeem or otherwise
acquire all or any portion of any such Subordinated Indebtedness; or Holdings or
any of its Subsidiaries shall for any other reason purchase, redeem or otherwise
acquire or offer to purchase, redeem or otherwise acquire, or make any other
payments in respect of, all or any portion of any such Subordinated
Indebtedness, except to the extent expressly permitted by subsection 7.5; or
8.15 FAILURE TO CONSUMMATE ACQUISITION, COMPANY MERGER OR XXXX JAPAN MERGER.
(i) The Acquisition or the Company Merger shall not be
consummated in accordance with this Agreement concurrently with the making
of the initial Loans, or the Acquisition or the Company Merger shall be
unwound, reversed or otherwise rescinded in whole or in part for any
reason; or
(ii) The Xxxx Japan Merger shall not be consummated in accordance
with this Agreement and with the terms of the applicable merger agreement
and the laws and regulations of Japan as soon as practicable after the
Closing Date and in any event no later than the first anniversary of the
Closing Date (or such greater number of days up to a maximum of sixty
additional days as may be agreed to by Administrative Agent in its sole
discretion); or
8.16 FAILURE BY RGS JAPAN TO EXECUTE LOAN DOCUMENTS OR ASSUME OBLIGATIONS.
-168-
(i) RGS Japan fails to execute this Agreement and the other Loan
Documents to which it is required to be a party at the Closing, or fails to
assume the obligations hereunder and thereunder immediately upon the
consummation of the purchase by New Xxxx Japan of all of the outstanding capital
stock of RGS Japan; or
(ii) Tomita fails to make any indemnity payment of $2,500,000 or
more pursuant to the Share Transfer Agreement; or
8.17 AMENDMENT OF CERTAIN DOCUMENTS OF HOLDINGS.
Holdings shall agree to any material amendment to, or waive any of its
material rights under, or otherwise change any material terms of, any of the
Purchase Agreement, the Holdings' Certificate of Designation, or the
Stockholders Agreement, in each case as in effect on the Closing Date, in a
manner adverse to Holdings or any of its Subsidiaries or to Lenders without the
prior written consent of Administrative Agent and Requisite Lenders; or Holdings
or any other Guarantor shall designate any Indebtedness as "Designated Senior
Debt" (as defined in the Senior Subordinated Note Indenture) for purposes of the
Senior Subordinated Note Indenture or any guaranty relating thereto without the
prior written consent of Requisite Lenders; or
8.18 CONDUCT OF BUSINESS RELATING TO HOLDINGS.
Holdings shall engage in any business other than owning 100% of the
capital stock of Company and entering into and performing its obligations under
and in accordance with the Loan Documents and the Related Agreements to which it
is a party, or shall own any assets other than (a) the capital stock of Company
and (b) Cash and Cash Equivalents in an amount not to exceed $1,000,000 at any
one time for the purpose of paying general operating expenses of Holdings or
shall incur or permit to exist any Indebtedness or any other liabilities other
than liabilities related to the permitted business of Holdings and which are not
material in amount, either individually or in the aggregate:
THEN (i) upon the occurrence of any Event of Default described in
subsection 8.6 or 8.7, each of (a) the unpaid principal amount of and accrued
interest on the Loans, (b) an amount equal to the maximum amount that may at any
time be drawn under all Letters of Credit then outstanding (whether or not any
beneficiary under any such Letter of Credit shall have presented, or shall be
entitled at such time to present, the drafts or other documents or certificates
required to draw under such Letter of Credit), and (c) all other Obligations
shall automatically become immediately due and payable, without presentment,
demand, protest or other requirements of any kind, all of which are hereby
expressly waived by each Borrower, and the obligation of each Lender to make any
Loan, the obligation of Agent to issue any Letter of Credit and the right of any
Lender to issue any Letter of Credit hereunder shall thereupon terminate, and
(ii) upon the occurrence and during the continuation of any other Event of
Default, the applicable Agent shall, upon the written request or with the
written consent of Requisite Lenders, by written notice to each Borrower,
declare all or any portion
-169-
of the amounts described in clauses (a) through (c) above to be, and the same
shall forthwith become, immediately due and payable, and the obligation of each
Lender to make any Loan, the obligation of Agent to issue any Letter of Credit
and the right of any Lender to issue any Letter of Credit hereunder shall
thereupon terminate; PROVIDED that the foregoing shall not affect in any way the
obligations of Lenders under subsection 3.3C(i).
Any amounts described in clause (b) above, when received by Agent,
shall be held by Agent pursuant to the terms of the Collateral Account Agreement
and shall be applied as therein provided.
Notwithstanding anything contained in the second preceding paragraph,
if at any time within 60 days after an acceleration of the Loans pursuant to
each paragraph each Borrower shall pay all arrears of interest and all payments
on account of principal which shall have become due otherwise than as a result
of such acceleration (with interest on principal and, to the extent permitted by
law, on overdue interest, at the rates specified in this Agreement) and all
Events of Default and Potential Events of Default (other than non-payment of the
principal of and accrued interest on the Loans, in each case which is due and
payable solely by virtue of acceleration) shall be remedied or waived pursuant
to subsection 10.6, then Requisite Lenders, by written notice to each Borrower,
may at their option rescind and annul such acceleration and its consequences;
but such action shall not affect any subsequent Event of Default or Potential
Event of Default or impair any right consequent thereon. The provisions of this
paragraph are intended merely to bind Lenders to a decision which may be made at
the election of Requisite Lenders and are not intended to benefit any Borrower
and do not grant any Borrower the right to require Lenders to rescind or annul
any acceleration hereunder, even if the conditions set forth herein are met.
SECTION 9. AGENT
9.1 APPOINTMENT.
BTCo and BT Tokyo, respectively, are hereby appointed (i)
Administrative Agent by each Lender and (ii) Japanese Agent by each Japanese
Lender, each so appointed hereunder and under the other Loan Documents, and each
such Lender hereby authorizes such Agent to act as its agent in accordance with
the terms of this Agreement and the other Loan Documents. Credit Suisse and The
Bank of Nova Scotia, respectively, are hereby appointed by each Lender as the
(i) Syndication Agent and (ii) Documentation Agent, each so appointed hereunder.
Agent agrees to act upon the express conditions contained in this Agreement and
the other Loan Documents, as applicable. The provisions of this Section 9 are
solely for the benefit of Agent, Syndication Agent and Documentation Agent and
Lenders and Borrowers shall have no rights as a third party beneficiary of any
of the provisions thereof. In performing its functions and duties under this
Agreement, Agent shall act solely as an agent of Lenders and does not assume and
shall not be deemed to have
-170-
assumed any obligation towards or relationship of agency or trust with or for
any Borrower or any of its Subsidiaries.
9.2 POWERS AND DUTIES; GENERAL IMMUNITY.
X. XXXXXX; DUTIES SPECIFIED. Each Lender irrevocably authorizes Agent to
take such action on such Lender's behalf and to exercise such powers, rights and
remedies hereunder and under the other Loan Documents as are specifically
delegated or granted to Agent by the terms hereof and thereof, together with
such powers, rights and remedies as are reasonably incidental thereto. Agent
shall have only those duties and responsibilities that are expressly specified
in this Agreement and the other Loan Documents. Agent may exercise such powers,
rights and remedies and perform such duties by or through its agents or
employees. None of Agent, Syndication Agent or Documentation Agent shall have,
by reason of this Agreement or any of the other Loan Documents, a fiduciary
relationship in respect of any Lender; and nothing in this Agreement or any of
the other Loan Documents, expressed or implied, is intended to or shall be so
construed as to impose upon Agent, Syndication Agent or Documentation Agent any
obligations in respect of this Agreement or any of the other Loan Documents
except as expressly set forth herein or therein.
B. NO RESPONSIBILITY FOR CERTAIN MATTERS. None of Agent, Syndication
Agent or Documentation Agent shall be responsible to any Lender for the
execution, effectiveness, genuineness, validity, enforceability, collectibility
or sufficiency of this Agreement or any other Loan Document or for any
representations, warranties, recitals or statements made herein or therein or
made in any written or oral statements or in any financial or other statements,
instruments, reports or certificates or any other documents furnished or made by
Agent, Syndication Agent or Documentation Agent to Lenders or by or on behalf of
any Borrower to Agent, Syndication Agent or Documentation Agent or any Lender in
connection with the Loan Documents and the transactions contemplated thereby or
for the financial condition or business affairs of any Borrower or any other
Person liable for the payment of any Obligations, nor shall Agent, Syndication
Agent or Documentation Agent be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions, covenants
or agreements contained in any of the Loan Documents or as to the use of the
proceeds of the Loans or the use of the Letters of Credit or as to the existence
or possible existence of any Event of Default or Potential Event of Default.
Anything contained in this Agreement to the contrary notwithstanding, none of
Agent, Syndication Agent or Documentation Agent shall have any liability arising
from confirmations of the amount of outstanding Loans or the Letter of Credit
Usage or the component amounts thereof.
C. EXCULPATORY PROVISIONS. None of Agent, Syndication Agent or
Documentation Agent shall nor any of its officers, directors, employees or
agents shall be liable to Lenders for any action taken or omitted by Agent,
Syndication Agent or Documentation Agent under or in connection with any of the
Loan Documents except to the extent caused by Agent's, Syndication Agent's or
Documentation Agent's gross negligence
-171-
or willful misconduct. If Agent, Syndication Agent or Documentation Agent shall
request instructions from Lenders with respect to any act or action (including
the failure to take an action) in connection with this Agreement or any of the
other Loan Documents, Agent, Syndication Agent or Documentation Agent shall be
entitled to refrain from such act or taking such action unless and until
Administrative Agent shall have received instructions from Requisite Lenders.
Without prejudice to the generality of the foregoing, (i) Agent, Syndication
Agent or Documentation Agent shall be entitled to rely, and shall be fully
protected in relying, upon any communication, instrument or document believed by
it to be genuine and correct and to have been signed or sent by the proper
person or persons, and shall be entitled to rely and shall be protected in
relying on opinions and judgments of attorneys (who may be attorneys for
Borrowers and their Subsidiaries), accountants, experts and other professional
advisors selected by it; and (ii) no Lender shall have any right of action
whatsoever against Agent, Syndication Agent or Documentation Agent as a result
of Agent, Syndication Agent or Documentation Agent acting or (where so
instructed) refraining from acting under this Agreement or any of the other Loan
Documents in accordance with the instructions of Requisite Lenders. Agent,
Syndication Agent and Documentation Agent shall be entitled to refrain from
exercising any power, discretion or authority vested in it under this Agreement
or any of the other Loan Documents unless and until it has obtained the
instructions of Requisite Lenders.
D. AGENT ENTITLED TO ACT AS LENDER. The agency hereby created shall in
no way impair or affect any of the rights and powers of, or impose any duties or
obligations upon, Agent, Syndication Agent or Documentation Agent in its
individual capacity as a Lender hereunder. With respect to its participation in
the Loans and the Letters of Credit, Agent, Syndication Agent and Documentation
Agent shall have the same rights and powers hereunder as any other Lender and
may exercise the same as though it were not performing the duties and functions
delegated to it hereunder, and the term "Lender" or "Lenders" or any similar
term shall, unless the context clearly otherwise indicates, include Agent in its
individual capacity. Agent, Syndication Agent and Documentation Agent and each
of their respective Affiliates may accept deposits from, lend money to and
generally engage in any kind of banking, trust, financial advisory or other
business with any Borrower or any of its Affiliates as if it were not performing
the duties specified herein, and may accept fees and other consideration from
any Borrower for services in connection with this Agreement and otherwise
without having to account for the same to Lenders.
9.3 REPRESENTATIONS AND WARRANTIES; NO RESPONSIBILITY FOR APPRAISAL OF
CREDITWORTHINESS.
Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs of each
Borrower and its Subsidiaries in connection with the making of the Loans and the
issuance of Letters of Credit hereunder and that it has made and shall continue
to make its own appraisal of the creditworthiness of each Borrower and its
Subsidiaries. None of Agent, Syndication Agent or Documentation Agent shall
have any duty or responsibility, either initially or on a continuing basis, to
make any
-172-
such investigation or any such appraisal on behalf of Lenders or to provide any
Lender with any credit or other information with respect thereto, whether coming
into its possession before the making of the Loans or at any time or times
thereafter, and none of Agent, Syndication Agent or Documentation Agent shall
have any responsibility with respect to the accuracy of or the completeness of
any information provided to Lenders.
9.4 RIGHT TO INDEMNITY.
Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify Agent, Syndication Agent or Documentation Agent to the extent that
Agent, Syndication Agent or Documentation Agent shall not have been reimbursed
by Borrowers, for and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits and reasonable costs and expenses
(including, without limitation, reasonable counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against Agent, Syndication Agent or Documentation Agent in
exercising its powers, rights and remedies or performing its duties hereunder or
under the other Loan Documents or otherwise in its capacity as Agent,
Syndication Agent or Documentation Agent in any way relating to or arising out
of this Agreement or the other Loan Documents; PROVIDED that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from Agent's, Syndication Agent's or Documentation Agent's gross negligence or
willful misconduct. If any indemnity furnished to Agent, Syndication Agent or
Documentation Agent for any purpose shall, in the opinion of Agent, Syndication
Agent or Documentation Agent be insufficient or become impaired, Agent,
Syndication Agent or Documentation Agent may call for additional indemnity and
cease, or not commence, to do the acts indemnified against until such additional
indemnity is furnished.
9.5 SUCCESSOR AGENT.
Agent, Syndication Agent or Documentation Agent may resign at any time
by giving 30 days' prior written notice thereof to Lenders and each Borrower,
and Agent, Syndication Agent or Documentation Agent may be removed at any time
with or without cause by an instrument or concurrent instruments in writing
delivered to each Borrower and Agent, Syndication Agent or Documentation Agent,
as the case may be, and signed by Requisite Lenders. Upon any such notice of
resignation or any such removal, Requisite Lenders shall have the right, upon
five Business Days' notice to each Borrower, to appoint a successor Agent,
Syndication Agent or Documentation Agent. Upon the acceptance of any
appointment as Agent, Syndication Agent or Documentation Agent hereunder by a
successor Agent, Syndication Agent or Documentation Agent that successor Agent,
Syndication Agent or Documentation Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring or
removed Agent and the retiring or removed Agent, Syndication Agent or
Documentation Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring or removed Agent's, Syndication
-173-
Agent's or Documentation Agent's resignation or removal hereunder as Agent,
Syndication Agent or Documentation Agent, the provisions of this Section 9 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent, Syndication Agent or Documentation Agent under this Agreement.
9.6 COLLATERAL DOCUMENTS AND GUARANTIES.
Each Lender hereby further authorizes Agent to enter into each
Collateral Document as secured party on behalf of and for the benefit of Lenders
and agrees to be bound by the terms of each Collateral Document; PROVIDED that,
subject to any provision of subsection 10.6 requiring the consent of any
additional Lenders, Agent shall not enter into or consent to any amendment,
modification, termination or waiver of any provision contained in any Collateral
Document or any Guaranty without the prior consent of Requisite Lenders, but
Agent may (i) release any Lien covering any items of Collateral that are the
subject of a sale or other disposition of assets permitted by this Agreement or
to which Requisite Lenders have consented and (ii) release any Guarantor (other
than any Borrower or Holdings) from its Guaranty if all of the capital stock of
such Guarantor is sold to a Person that is not any Affiliate of Company pursuant
to a sale or other disposition permitted hereunder or to which Requisite Lenders
have consented. Anything contained in any of the Loan Documents to the contrary
notwithstanding, each Lender agrees that no Lender shall have any right
individually to realize upon any of the Collateral under any Collateral Document
or to enforce any of the Guaranties, it being understood and agreed that all
rights and remedies under the Collateral Documents and the Guaranties may be
exercised solely by Agent for the benefit of Lenders in accordance with the
terms thereof.
SECTION 10. MISCELLANEOUS
10.1 ASSIGNMENTS AND PARTICIPATIONS IN LOANS AND LETTERS OF CREDIT.
A. GENERAL. Subject to subsection 10.1B, each Lender shall have the
right at any time to (i) sell, assign or transfer to any Eligible Assignee, or
(ii) sell participations to any Person in, all or any part of its Commitments or
any Loan or Loans made by it or its Letters of Credit or participations therein
or any other interest herein or in any other Obligations owed to it; PROVIDED
that no such sale, assignment, transfer or participation shall, without the
consent of Company, require Company to file a registration statement with the
Securities and Exchange Commission or apply to qualify such sale, assignment,
transfer or participation under the securities laws of any state; PROVIDED,
FURTHER that no such sale, assignment or transfer described in clause (i) above
shall be effective unless and until an Assignment Agreement effecting such sale,
assignment or transfer shall have been accepted by Administrative Agent and
recorded in the Register as provided in subsection 10.1B(ii); and PROVIDED,
FURTHER that no such sale, assignment, transfer or participation of any Letter
of Credit or any participation therein may be made separately from a sale,
assignment, transfer or participation of a corresponding interest in the
Revolving Loan Commitment and the
-174-
Revolving Loans of the Lender effecting such sale, assignment, transfer or
participation. Except as otherwise provided in this subsection 10.1, no Lender
shall, as between Borrowers and such Lender, be relieved of any of its
obligations hereunder as a result of any sale, assignment or transfer of, or any
granting of participations in, all or any part of its Commitments or the Loans,
the Letters of Credit or participations therein, or the other Obligations owed
to such Lender.
B. ASSIGNMENTS.
(i) AMOUNTS AND TERMS OF ASSIGNMENTS. Each Commitment, Loan,
Letter of Credit or participation therein, or other Obligation may (a) be
assigned in any amount to another Lender, or to an Affiliate of the
assigning Lender or another Lender, with the giving of notice to Company
and Administrative Agent or (b) be assigned in an aggregate amount of not
less than $5,000,000 (or such lesser amount as shall constitute the
aggregate amount of the Commitments, Loans, Letters of Credit and
participations therein, and other Obligations of the assigning Lender) to
any other Eligible Assignee with the consent of Company and Administrative
Agent and, in the case of an assignment of an Indemnity Amount or an
Indemnity Participation, the consent of the applicable Funding Lender
(which consent of Company, Administrative Agent and such Funding Lender
shall not be unreasonably withheld); PROVIDED that any such assignment by a
Lender (other than any assignment of Japanese Term Loans and Japanese
Revolving Loan Commitments required pursuant to subsection 2.1A(ii)) in
accordance with either clause (a) or (b) above shall effect a pro rata
assignment of each Type of Commitment and each Type of Loan of the
assigning Lender, and in the event that any such assigning Lender is an
Indemnifying Lender, shall also effect a pro rata assignment of any
Indemnity Participation and Indemnity Amount; PROVIDED FURTHER that
notwithstanding the foregoing, in the event that an Indemnifying Lender is
making an assignment to any other Lender or Eligible Assignee, which Lender
or Eligible Assignee desires to become a Japanese Lender or a US/UK Lender
hereunder, as the case may be, the applicable Funding Lender shall be
entitled to assign to such other Lender or Eligible Assignee, without
making a pro rata assignment of any other Type of Commitment or Type of
Loan of such Funding Lender, that portion of its Japanese Term Loans and
Japanese Revolving Loan Commitment or its UK Term Loans and US/UK Revolving
Loan Commitment, as the case may be, which represents the portion of the
Indemnity Participation and Indemnity Amount being assigned to such other
Lender or Eligible Assignee by such Indemnifying Lender, and upon such
assignment by such Funding Lender, such other Lender or Eligible Assignee
shall become a Japanese Lender or a US/UK Lender hereunder, as the case may
be. To the extent of any such assignment in accordance with either clause
(a) or (b) above, the assigning Lender shall be relieved of its obligations
with respect to its Commitments, Loans, Letters of Credit or participations
therein, or other Obligations or the portion thereof so assigned. The
parties to each such assignment shall execute and deliver to Administrative
Agent, for its acceptance and recording in the Register, an Assignment
Agreement, together with
-175-
(other than the assignment of Japanese Term Loans and Japanese Revolving
Loan Commitments required pursuant to subsection 2.1A(ii)) a processing and
recordation fee of $3,500, and with such forms, certificates or other
evidence, if any, with respect to any withholding tax matters as the
assignee under such Assignment Agreement may be required to deliver to
Administrative Agent or the appropriate persons, as the case may be,
pursuant to subsection 2.7B(iii)(a). Upon such execution, delivery,
acceptance and recordation, from and after the effective date specified in
such Assignment Agreement, (y) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment Agreement, shall have the rights
and obligations of a Lender hereunder and (z) the assigning Lender
thereunder shall, to the extent that rights and obligations hereunder have
been assigned by it pursuant to such Assignment Agreement, relinquish its
rights and be released from its obligations under this Agreement (and, in
the case of an Assignment Agreement covering all or the remaining portion
of an assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto; PROVIDED that, anything contained
in any of the Loan Documents to the contrary notwithstanding, if such
Lender is the Issuing Lender with respect to any outstanding Letters of
Credit such Lender shall continue to have all rights and obligations of an
Issuing Lender with respect to such Letters of Credit until the
cancellation or expiration of such Letters of Credit and the reimbursement
of any amounts drawn thereunder). The Commitments hereunder shall be
modified to reflect the Commitment of such assignee and any remaining
Commitment of such assigning Lender and, if any such assignment occurs
after the issuance of the Notes hereunder, the assigning Lender shall, upon
the effectiveness of such assignment or as promptly thereafter as
practicable, surrender its applicable Notes to Administrative Agent for
cancellation, and thereupon new Notes shall be issued to the assignee
and/or to the assigning Lender, substantially in the form of EXHIBIT IV or
EXHIBIT V annexed hereto, as the case may be, with appropriate insertions,
to reflect the new Commitments and/or outstanding Term Loans, as the case
may be, of the assignee and/or the assigning Lender.
(ii) ACCEPTANCE BY ADMINISTRATIVE AGENT; RECORDATION IN REGISTER.
Upon its receipt of an Assignment Agreement executed by an assigning Lender
and an assignee representing that it is an Eligible Assignee, together with
the processing and recordation fee referred to in subsection 10.1B(i) and
any forms, certificates or other evidence with respect to any withholding
tax matters that such assignee may be required to deliver to Administrative
Agent or the appropriate persons, as the case may be, pursuant to
subsection 2.7B(iii), Administrative Agent shall, if Administrative Agent
and Company have consented to the assignment evidenced thereby (in each
case to the extent such consent is required pursuant to subsection
10.1B(i)), (a) accept such Assignment Agreement by executing a counterpart
thereof as provided therein (which acceptance shall evidence any required
consent of Administrative Agent to such assignment), (b) record the
information contained therein in the Register, and (c) give prompt notice
thereof to Company.
-176-
Administrative Agent shall maintain a copy of each Assignment Agreement
delivered to and accepted by it as provided in this subsection 10.1B(ii).
C. PARTICIPATIONS. The holder of any participation (other than an
Indemnity Participation), other than an Affiliate of the Lender granting such
participation, shall not be entitled to require such Lender to take or omit to
take any action hereunder except action directly affecting (i) the extension of
the scheduled final maturity date of any Loan allocated to such participation or
(ii) a reduction of the principal amount of or the rate of interest payable on
any Loan allocated to such participation, and all amounts payable by Borrowers
hereunder (including without limitation amounts payable to such Lender pursuant
to subsections 2.6D, 2.7 and 3.6) shall be determined as if such Lender had not
sold such participation. Each Borrower and each Lender hereby acknowledges and
agrees that, solely for purposes of subsections 10.4 and 10.5, (a) any
participation will give rise to a direct obligation of such Borrower to the
participant and (b) the participant shall be considered to be a "Lender".
D. ASSIGNMENTS TO FEDERAL RESERVE BANKS. In addition to the assignments
and participations permitted under the foregoing provisions of this subsection
10.1, any Lender may assign and pledge all or any portion of its Loans, the
other Obligations owed to such Lender, and its Notes to any Federal Reserve Bank
as collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any operating circular issued by such Federal Reserve
Bank; PROVIDED that (i) no Lender shall, as between any Borrower and such
Lender, be relieved of any of its obligations hereunder as a result of any such
assignment and pledge and (ii) in no event shall such Federal Reserve Bank be
considered to be a "Lender" or be entitled to require the assigning Lender to
take or omit to take any action hereunder.
E. INFORMATION. Each Lender may furnish any information concerning
Company and its Subsidiaries in the possession of that Lender from time to time
to assignees and participants (including prospective assignees and
participants), subject to subsection 10.19.
10.2 EXPENSES.
Whether or not the transactions contemplated hereby shall be
consummated, each Borrower agrees to pay promptly (i) all the actual and
reasonable costs and expenses of preparation of the Loan Documents and any
consents, amendments, waivers or other modifications thereto; (ii) all the
actual and reasonable costs of furnishing all opinions by counsel for any
Borrower (including without limitation any opinions requested by Lenders as to
any legal matters arising hereunder) and of any Borrower's performance of and
compliance with all agreements and conditions on its part to be performed or
complied with under this Agreement and the other Loan Documents including,
without limitation, with respect to confirming compliance with environmental and
insurance requirements; (iii) the actual and reasonable fees, expenses and
disbursements of counsel to Agent (including actual and reasonable allocated
costs of internal counsel) in connection with the negotiation,
-177-
preparation, execution and administration of the Loan Documents and any
consents, amendments, waivers or other modifications thereto and any other
documents or matters requested by any Borrower; (iv) all the actual and
reasonable costs and expenses of creating and perfecting Liens in favor of Agent
on behalf of Lenders pursuant to the Loan Documents, including without
limitation costs of conducting record searches, examining Collateral, opening
bank accounts and lockboxes, depositing checks, receiving and transferring funds
(including charges for checks for which there are insufficient funds), costs of
title insurance premiums, real estate survey costs, and fees and taxes in
connection with the filing of financing statements, costs of preparing and
recording Loan Documents, fees and expenses of counsel for providing such
opinions as Agent or Requisite Lenders may reasonably request, and fees and
expenses of legal counsel to Agent; (v) all the actual costs and reasonable
expenses of obtaining and reviewing any appraisals provided for under this
Agreement and any environmental audits or reports provided for under this
Agreement; (vi) all other actual and reasonable costs and expenses incurred by
Agent, Syndication Agent and Documentation Agent in connection with the
syndication of the Commitments and the negotiation, preparation and execution of
the Loan Documents and any consents, amendments, waivers or other modifications
thereto and the transactions contemplated thereby; and (vii) after the
occurrence of an Event of Default, all costs and expenses, including reasonable
attorneys' fees (including actual and reasonable allocated costs of internal
counsel) and costs of settlement, incurred by Agent and Lenders in enforcing any
Obligations of or in collecting any payments due from any Loan Party hereunder
or under the other Loan Documents by reason of such Event of Default or in
connection with any refinancing or restructuring of the credit arrangements
provided under this Agreement in the nature of a "work-out" or pursuant to any
insolvency or bankruptcy proceedings.
10.3 INDEMNITY.
In addition to the payment of expenses pursuant to subsection 10.2,
whether or not the transactions contemplated hereby shall be consummated, each
Borrower agrees to defend, indemnify, pay and hold harmless Administrative Agent
and Lenders, and the officers, directors, employees, agents and affiliates of
Administrative Agent and Lenders (collectively called the "INDEMNITEES") from
and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, expenses and disbursements
of any kind or nature whatsoever (including without limitation the reasonable
fees and disbursements of counsel for such Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened by
any Person, whether or not any such Indemnitee shall be designated as a party or
a potential party thereto), whether direct, indirect or consequential and
whether based on any federal, state or foreign laws, statutes, rules or
regulations (including without limitation securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred
by, or asserted against any such Indemnitee, in any manner relating to or
arising out of this Agreement or the other Loan Documents or the Related
Agreements or the transactions contemplated hereby or thereby (including without
limitation Lenders' agreement to make
-178-
the Loans hereunder or the use or intended use of the proceeds of any of the
Loans or the issuance of Letters of Credit hereunder or the use or intended use
of any of the Letters of Credit) or the statements contained in the commitment
letter delivered by any Lender to any Borrower with respect thereto
(collectively called the "INDEMNIFIED LIABILITIES"); PROVIDED that Borrowers
shall not have any obligation to any Indemnitee hereunder with respect to any
Indemnified Liabilities to the extent such Indemnified Liabilities arise solely
from the gross negligence or willful misconduct of that Indemnitee as determined
by a final judgment of a court of competent jurisdiction. To the extent that
the undertaking to defend, indemnify, pay and hold harmless set forth in the
preceding sentence may be unenforceable because it is violative of any law or
public policy, each Borrower shall contribute the maximum portion that it is
permitted to pay and satisfy under applicable law to the payment and
satisfaction of all Indemnified Liabilities incurred by the Indemnitees or any
of them.
Without limiting the generality of the foregoing, each Borrower
further agrees to fully and promptly pay, perform, discharge, defend (subject to
Indemnitee's selection of counsel), indemnify and hold harmless each Indemnitee
from and against any Indemnified Environmental Liabilities; PROVIDED that
Borrowers shall not have any obligation to any Indemnitee hereunder with respect
to any Indemnified Environmental Liabilities to the extent such Indemnified
Environmental Liabilities arise solely from the gross negligence or willful
misconduct of that Indemnitee as determined by a final judgment of a court of
competent jurisdiction. To the extent that the undertaking to defend,
indemnify, pay and hold harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, each Borrower
shall contribute the maximum portion that it is permitted to pay and satisfy
under applicable law to the payment and satisfaction of all Indemnified
Environmental Liabilities incurred by the Indemnitees or any of them. As used
herein, "INDEMNIFIED ENVIRONMENTAL LIABILITIES" means any liabilities,
obligations, losses, damages (including, without limitation, natural resource
damages), penalties, actions, judgments, suits, claims (including Environmental
Claims), costs (including, without limitation, the costs of any investigation,
study, sampling, testing, abatement, cleanup, removal, remediation, or other
response action necessary to remove, remediate, clean up, or xxxxx any Hazardous
Materials or any activity relating to Hazardous Materials that is in violation
of any Environmental Laws or that presents a material risk of giving rise to an
Environmental Claim), expenses and disbursements of any kind or nature
whatsoever, whether direct, indirect or consequential and whether based on any
federal, state or foreign laws, statutes, rules or regulations (including
without limitation securities and commercial laws, statutes, rules or
regulations and Environmental Laws), on common law or equitable cause or on
contract or otherwise, that may be imposed on, incurred by, or asserted against
any such Indemnitee, in any manner relating to or arising out of: (i) any
Release, threatened Release or disposal of any Hazardous Materials at any of the
Facilities; (ii) the Release, threatened Release, or disposal at any location of
any Hazardous Materials generated at or originating from any of the Facilities
by or at the direction of Company or any of its Subsidiaries; (iii) any
Environmental Claim in connection with any of the Facilities; or (iv) the
operation of or violation of any Environmental Law at any of the Facilities.
-179-
10.4 SET-OFF; SECURITY INTEREST IN DEPOSIT ACCOUNTS.
In addition to any rights now or hereafter granted under applicable
law and not by way of limitation of any such rights, upon the occurrence of any
Event of Default and consultation with Administrative Agent each Lender is
hereby authorized by each Borrower at any time or from time to time, without
notice to any Borrower or to any other Person, any such notice being hereby
expressly waived, to set off and to appropriate and to apply any and all
deposits (general or special, including, but not limited to, Indebtedness
evidenced by certificates of deposit, whether matured or unmatured, but not
including trust accounts) and any other Indebtedness at any time held or owing
by that Lender to or for the credit or the account of such Borrower against and
on account of the obligations and liabilities of such Borrower under this
Agreement, the Letters of Credit and participations therein and the other Loan
Documents, including, but not limited to, all claims of any nature or
description arising out of or connected with this Agreement, the Letters of
Credit and participations therein or any other Loan Document, irrespective of
whether or not (i) that Lender shall have made any demand hereunder or (ii) the
principal of or the interest on the Loans or any amounts in respect of the
Letters of Credit or any other amounts due hereunder shall have become due and
payable pursuant to Section 8 and although said obligations and liabilities, or
any of them, may be contingent or unmatured. Each Borrower hereby further
grants to Administrative Agent and each Lender for the benefit of all Lenders a
security interest in all deposits and accounts maintained with Administrative
Agent or such Lender as security for the Obligations.
10.5 RATABLE SHARING
Lenders hereby agree among themselves that if any of them shall,
whether by voluntary payment, by realization upon security, through the exercise
of any right of set-off or banker's lien, by counterclaim or cross action or by
the enforcement of any right under the Loan Documents or otherwise, or as
adequate protection of a deposit treated as cash collateral under the Bankruptcy
Code, receive payment or reduction of a proportion of the aggregate amount of
principal, interest, amounts payable in respect of Letters of Credit, fees and
other amounts then due and owing to that Lender from a Borrower hereunder or
under the other Loan Documents (collectively, the "AGGREGATE AMOUNTS DUE" to
such Lender) which is greater than the proportion received by any other Lender
in respect of the Aggregate Amounts Due to such other Lender, then the Lender
receiving such proportionately greater payment shall (i) notify Agent and each
other Lender of the receipt of such payment and (ii) apply a portion of such
payment to purchase participations (which it shall be deemed to have purchased
from each seller of a participation simultaneously upon the receipt by such
seller of its portion of such payment) in the Aggregate Amounts Due to the other
Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by
all Lenders in proportion to the Aggregate Amounts Due to them; PROVIDED that if
all or part of such proportionately greater payment received by such purchasing
Lender is thereafter recovered from such Lender upon the bankruptcy or
reorganization of such Borrower or otherwise, those purchases shall be rescinded
and the purchase prices paid for such
-180-
participations shall be returned to such purchasing Lender ratably to the extent
of such recovery, but without interest. Each Borrower expressly consents to the
foregoing arrangement and agrees that any holder of a participation so purchased
may exercise any and all rights of banker's lien, set-off or counterclaim with
respect to any and all monies owing by such Borrower to that holder with respect
thereto as fully as if that holder were owed the amount of the participation
held by that holder.
10.6 AMENDMENTS AND WAIVERS.
No amendment, modification, termination or waiver of any provision of
this Agreement or of the Notes, and no consent to any departure by any Borrower
therefrom, shall in any event be effective without the written concurrence of
such Borrower and Requisite Lenders; PROVIDED that any such amendment,
modification, termination, waiver or consent which: increases the amount of any
of the Commitments or reduces the principal amount of any of the Loans; changes
in any manner the definition of "Pro Rata Share" or the definition of "Requisite
Lenders"; changes in any manner the provisions contained in the second paragraph
of subsection 2.1C(ii); changes in any manner any provision of this Agreement
which, by its terms, expressly requires the approval or concurrence of all
Lenders; postpones the date of any scheduled installment of principal of any of
the Loans; postpones the date on which any interest or any fees are payable;
decreases the interest rate borne by any of the Loans (other than any waiver of
any increase in the interest rate applicable to any of the Loans pursuant to
subsection 2.2E) or the amount of any fees payable hereunder; increases the
maximum duration of Interest Periods permitted hereunder; releases all or any
significant portion of the Collateral other than in accordance with the terms of
the Loan Documents; reduces the amount or postpones the due date of any amount
payable in respect of, or extends the required expiration date of, any Letter of
Credit; changes in any manner the obligations of Lenders relating to the
purchase of participations in Letters of Credit; increases the advance rates
provided for in the definition of "Company Borrowing Base" or in the definition
of "Xxxx Japan Borrowing Base" or in the definition of "Xxxx UK Borrowing Base"
to any level above the advance rates in effect as of the Closing Date; or
changes in any manner the provisions contained in subsection 8.1 or this
subsection 10.6 shall be effective only if evidenced by a writing signed by or
on behalf of all Lenders. In addition, (i) no amendment, modification,
termination or waiver of any provision of any Note shall be effective without
the written concurrence of the Lender which is the holder of that Note, (ii) no
amendment, modification, termination or waiver of any provision of
subsection 2.10 or of related definitions shall be effective without the written
concurrence of the Indemnifying Lenders holding a majority of the Japanese Term
Loan Exposure and the Japanese Revolving Loan Exposure and of Japanese Funding
Lender, and (iii) no amendment, modification, termination or waiver of any
provision of Section 9 or of any other provision of this Agreement which, by its
terms, expressly requires the approval or concurrence of Agent shall be
effective without the written concurrence of Agent. Administrative Agent may,
but shall have no obligation to, with the concurrence of any Lender, execute
amendments, modifications, waivers or consents on behalf of that Lender. Any
waiver or consent shall be effective only in the specific instance and for the
specific
-181-
purpose for which it was given. No notice to or demand on any Borrower in any
case shall entitle such Borrower to any other or further notice or demand in
similar or other circumstances. Any amendment, modification, termination,
waiver or consent effected in accordance with this subsection 10.6 shall be
binding upon each Lender at the time outstanding, each future Lender and, if
signed by any Borrower, on such Borrower.
10.7 INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or would otherwise be within
the limitations of, another covenant shall not avoid the occurrence of an Event
of Default or Potential Event of Default if such action is taken or condition
exists.
10.8 NOTICES.
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, telexed or sent by telefacsimile or mail or courier
service and shall be deemed to have been given when delivered in person or by
courier service, upon receipt of telefacsimile or telex, or three Business Days
after depositing it in the mail with postage prepaid and properly addressed;
PROVIDED that notices to Administrative Agent shall not be effective until
received. For the purposes hereof, the address of each party hereto shall be as
set forth under such party's name on the signature pages hereof or (i) as to
Borrowers and Agent, such other address as shall be designated by such Person in
a written notice delivered to the other parties hereto and (ii) as to each other
party, such other address as shall be designated by such party in a written
notice delivered to Agent.
10.9 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
A. All representations, warranties and agreements made herein shall
survive the execution and delivery of this Agreement and the making of the Loans
and the issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by law to the
contrary, the agreements of Borrowers set forth in subsections 2.6D, 2.7, 3.5A,
3.6, 10.2, 10.3 and 10.4 and the agreements of Lenders set forth in subsections
9.2C, 9.4 and 10.5 shall survive the payment of the Loans, the cancellation or
expiration of the Letters of Credit and the reimbursement of any amounts drawn
thereunder, and the termination of this Agreement.
10.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of Agent or any Lender in the exercise
of any power, right or privilege hereunder or under any other Loan Document
shall impair such
-182-
power, right or privilege or be construed to be a waiver of any default or
acquiescence therein, nor shall any single or partial exercise of any such
power, right or privilege preclude other or further exercise thereof or of any
other power, right or privilege. All rights and remedies existing under this
Agreement and the other Loan Documents are cumulative to, and not exclusive of,
any rights or remedies otherwise available.
10.11 MARSHALLING; PAYMENTS SET ASIDE.
No Agent nor any Lender shall be under any obligation to marshal any
assets in favor of any Borrower or any other party or against or in payment of
any or all of the Obligations. To the extent that any Borrower makes a payment
or payments to Agent or Lenders (or to Agent for the benefit of Lenders), or
Agent or Lenders enforce any security interests or exercise their rights of
setoff, and such payment or payments or the proceeds of such enforcement or
setoff or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, any other state or federal
law, common law or any equitable cause, then, to the extent of such recovery,
the obligation or part thereof originally intended to be satisfied, and all
Liens, rights and remedies therefor or related thereto, shall be revived and
continued in full force and effect as if such payment or payments had not been
made or such enforcement or setoff had not occurred.
10.12 SEVERABILITY.
In case any provision in or obligation under this Agreement or the
Notes shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
10.13 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS.
The obligations of Lenders hereunder are several and no Lender shall
be responsible for the obligations or Commitments of any other Lender hereunder.
Nothing contained herein or in any other Loan Document, and no action taken by
Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out of this Agreement and it shall not be necessary for any other
Lender to be joined as an additional party in any proceeding for such purpose.
10.14 HEADINGS.
Section and subsection headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
-183-
10.15 APPLICABLE LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
10.16 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of Lenders (it being understood that
Lenders' rights of assignment are subject to subsection 10.1). None of
Borrowers' rights or obligations hereunder nor any interest therein may be
assigned or delegated by any Borrower without the prior written consent of all
Lenders.
10.17 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY BORROWER ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY OBLIGATION MAY
BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE
OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT EACH BORROWER
ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY
ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT, SUCH OTHER LOAN
DOCUMENT OR SUCH OBLIGATION. Each Borrower hereby agrees that service of all
process in any such proceeding in any such court may be made by registered or
certified mail, return receipt requested, to such Borrower at its address
provided in subsection 10.8, such service being hereby acknowledged by such
Borrower to be sufficient for personal jurisdiction in any action against such
Borrower in any such court and to be otherwise effective and binding service in
every respect. Nothing herein shall affect the right to serve process in any
other manner permitted by law or shall limit the right of any Lender to bring
proceedings against any Borrower in the courts of any other jurisdiction.
10.18 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
-184-
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING
ESTABLISHED. The scope of this waiver is intended to be all-encompassing of any
and all disputes that may be filed in any court and that relate to the subject
matter of this transaction, including without limitation contract claims, tort
claims, breach of duty claims and all other common law and statutory claims.
Each party hereto acknowledges that this waiver is a material inducement to
enter into a business relationship, that each has already relied on this waiver
in entering into this Agreement, and that each will continue to rely on this
waiver in their related future dealings. Each party hereto further warrants and
represents that it has reviewed this waiver with its legal counsel and that it
knowingly and voluntarily waives its jury trial rights following consultation
with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER
SPECIFICALLY REFERRING TO THIS SUBSECTION 10.18 AND EXECUTED BY EACH OF THE
PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS
MADE HEREUNDER. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
10.19 CONFIDENTIALITY.
Each Lender shall hold all non-public information obtained pursuant to
the requirements of this Agreement which has been identified in writing as
confidential by any Borrower in accordance with such Lender's customary
procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices, it being understood and agreed
by each Borrower that in any event a Lender may make disclosures to Affiliates
of such Lender, to the legal counsel and accountants of such Lender or of such
Affiliates, or disclosures reasonably required by any bona fide assignee,
transferee or participant (who shall have agreed to the confidentiality of the
same) in connection with the contemplated assignment or transfer by such Lender
of any Loans or any participations therein or disclosures required or requested
by any governmental agency or representative thereof or pursuant to legal
process; PROVIDED that, unless specifically prohibited by applicable law or
court order, each Lender shall notify Company of any request by any governmental
agency or representative thereof (other than any such request in connection with
any examination of the financial condition of such Lender by such governmental
agency) for disclosure of any such non-public information prior to disclosure of
such information; and PROVIDED, FURTHER that in no event shall any Lender be
obligated or required to return any materials furnished by Company or any of its
Subsidiaries.
-185-
10.20 JUDGMENT CURRENCY.
(a) If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder in Dollars into another currency, the
parties hereto agree, to the fullest extent permitted by law, that the rate of
exchange used shall be that at which in accordance with normal banking
procedures an Agent or a Lender could purchase the Dollars with such other
currency in New York, New York on the Business Day immediately preceding the day
on which any such judgment, or any relevant part thereof, is given.
(b) The obligations of each Borrower in respect of any sum due from
it to any Agent or any Lender hereunder shall, notwithstanding any judgment in a
currency other than Dollars, be discharged only to the extent that on the
Business Day following receipt by such Agent or Lender of any sum adjudged to be
so due in such other currency such Agent or Lender may in accordance with normal
banking procedures purchase Dollars with such other currency; if the Dollars so
purchased are less than the sum originally due such Agent or Lender in Dollars,
such Borrower agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify such Agent or Lender against such loss, and if the
Dollars so purchased exceed the sum originally due to such Agent or Lender in
Dollars, Lender shall remit such excess to such Borrower.
10.21 COUNTERPARTS; EFFECTIVENESS.
This Agreement and any amendments, waivers, consents or supplements
hereto or in connection herewith may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by each Borrower
and Administrative Agent of written or telephonic notification of such execution
and authorization of delivery thereof.
10.22 NO IMMUNITY.
To the extent that any Borrower has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, such
Borrower hereby irrevocably waives such immunity in respect of its obligations
under this Agreement and, without limiting the generality of the foregoing,
agrees that the waivers set forth in this Section 10.22 shall have the fullest
scope permitted under the Foreign Sovereign Immunities Act of 1976 of the United
States and are intended to be irrevocable for purposes of such Act.
-186-
[Remainder of page intentionally left blank]
-187-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
BORROWERS:
XXXX GRAPHIC SYSTEMS, INC.
By:
--------------------------------
Title:
-----------------------------
Notice Address:
Xxxx Graphics Systems, Inc.
000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: M. Xxxx Xxxxxxxxx
Telecopy No.: 000-000-0000
with copies to:
Stonington Partners, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Telecopy No.: 000-000-0000/8586
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopy No.: 000-000-0000
-1-
XXXX GRAPHIC SYSTEMS LIMITED
By:
--------------------------------
Title:
-----------------------------
Notice Address:
Xxxx Graphic Systems Limited
Xxxxxxxxx Xxxxxx
Xxxxxxx
Xxxxxxxxxx XX0 0XX
Xxxxxxx, The United Kingdom
Attention: Xxxxx Xxxxxxx
Telecopy No.: 00-0000-000000
with copies to:
Stonington Partners, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Telecopy No.: 000-000-0000/8586
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopy No.: 000-000-0000
-2-
XXXX GRAPHIC SYSTEMS JAPAN K. K.
By:
--------------------------------
Title:
-----------------------------
Notice Address:
Xxxx Graphic Systems Japan K. K.
Mitsuya Toranomon Building
22-14 Toranomon 1-Chome
Minato-Ku, Tokyo 105
Attention: Xxxx Xxxxxxxx
Telecopy No.: 00-0-0000-0000
with copies to:
Stonington Partners, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Telecopy No.: 000-000-0000/8586
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopy No.: 000-000-0000
-3-
ROCKWELL GRAPHIC SYSTEMS-JAPAN
CORPORATION
By:
--------------------------------
Title:
-----------------------------
Notice Address:
Rockwell Graphic Systems-Japan
Corporation
c/x Xxxx Graphic Systems Japan K. K.
Mitsuya Toranomon Building
22-14 Toranomon 1-Chome
Minato-Ku, Tokyo 105
Attention: Xxxx Xxxxxxxx
Telecopy No.: 00-0-0000-0000
with copies to:
Stonington Partners, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Telecopy No.: 000-000-0000/8586
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopy No.: 000-000-0000
-4-
LENDERS:
BANKERS TRUST COMPANY,
as Administrative Agent, as a Lender and
as a Funding Lender
By:
--------------------------------
Title:
-----------------------------
Notice Address:
NOTICE:
Bankers Trust Company
c/o BT Commercial Corporation
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telecopy No.: 000-000-0000
DOMESTIC LENDING OFFICE:
Bankers Trust Company
Commercial Finance Division
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxx
Telecopy No.: 000-000-0000
EURODOLLAR LENDING OFFICE:
Bankers Trust Company
Commercial Finance Division
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxx
Telecopy No.: 000-000-0000
-5-
CREDIT SUISSE,
as Syndication Agent, as a Lender and as
an Indemnifying Lender
By:
--------------------------------
Title:
-----------------------------
By:
--------------------------------
Title:
-----------------------------
Notice Address:
Credit Suisse
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy No.: 000-000-0000/5441
-0-
XXX XXXX XX XXXX XXXXXX,
as Documentation Agent, as a Lender and
as an Indemnifying Lender
By:
--------------------------------
Title:
-----------------------------
Notice Address:
The Bank of Nova Scotia
000 Xxxxxxxxx Xxxxxx XX
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxx
Telecopy No.: 000-000-0000
-7-
BANKERS TRUST COMPANY, TOKYO BRANCH, as
Japanese Agent and as a Lender
By:
--------------------------------
Title:
-----------------------------
Notice Address:
Bankers Trust Company, Tokyo Office
Tokyo Ginza Kyokai Building
0-0-0, Xxxxxxxxxx, Xxxxxxx-Xx
Xxxxx, Xxxxx
Attention: Xxxxx Xxxxxxxx
Telecopy No.: 00-0-0000-0000
with a copy to:
Bankers Trust Company
c/o BT Commercial Corporation
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telecopy No.: 000-000-0000
-8-
BANK OF AMERICA NATIONAL TRUST & SAVINGS
ASSOCIATION, as a Lender and as an
Indemnifying Lender
By:
--------------------------------
Title:
-----------------------------
Notice Address:
Bank of America National Trust &
Savings Association
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxxx
Telecopy No.: 000-000-0000
-0-
XXX XXXX XX XXX XXXX, as a Lender and as
an Indemnifying Lender
By:
--------------------------------
Title:
-----------------------------
Notice Address:
The Bank of New York
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telecopy No.: 000-000-0000
-00-
XXX XXXXXXX'X XXXXXXXX XXXX XX XX.
LOUIS, as a Lender and as an
Indemnifying Lender
By:
--------------------------------
Title:
-----------------------------
Notice Address:
The Boatmen's National Bank of
St. Louis
000 Xxxxxx Xxxxxx
00xx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
-11-
CAISSE NATIONALE DE CREDIT AGRICOLE, as
a Lender and as an Indemnifying Lender
By:
--------------------------------
Title:
-----------------------------
Notice Address:
Caisse Nationale de Credit Agricole
00 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxx
Telecopy No.: 000-000-0000
-12-
THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH, as a Lender and as an
Indemnifying Lender
By:
--------------------------------
Title:
-----------------------------
Notice Address:
The Dai-Ichi Kangyo Bank, Ltd.,
Chicago Branch
00 Xxxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Telecopy No.: 000-000-0000
-13-
DEUTSCHE FINANCIAL SERVICES HOLDING
CORPORATION, as a Lender and as an
Indemnifying Lender
By:
--------------------------------
Title:
-----------------------------
Notice Address:
Deutsche Financial Services Holding
Corporation
000 Xxxxxxxxx Xxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
Telecopy No.: 000-000-0000
-14-
THE FIRST NATIONAL BANK OF CHICAGO, as a
Lender
By:
--------------------------------
Title:
-----------------------------
Notice Address:
The First National Bank of Chicago
One First National Plaza
Suite 0088, 14th Floor
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
Telecopy No.: 000-000-0000
-15-
THE FUJI BANK, LIMITED, as a Lender and
as an Indemnifying Lender
By:
--------------------------------
Title:
-----------------------------
Notice Address:
The Fuji Bank, Limited
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telecopy No.: 000-000-0000
-16-
XXXXXX TRUST AND SAVINGS BANK, as a
Lender and as an Indemnifying Lender
By:
--------------------------------
Title:
-----------------------------
Notice Address:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0 Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
Telecopy No.: 000-000-0000
with copy to:
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx XxXxxxxx, Esq.
Telecopy No.: 000-000-0000
-17-
XXXXXX FINANCIAL, INC., as a Lender and
as an Indemnifying Lender
By:
--------------------------------
Title:
-----------------------------
Notice Address:
Xxxxxx Financial, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ASLU Portfolio Manager
Telecopy No.: 000-000-0000
-00-
XXX XXXXXXXXXX XXXX XX XXXXX TRUST
COMPANY, as a Lender and as an
Indemnifying Lender
By:
--------------------------------
Title:
-----------------------------
Notice Address:
The Industrial Bank of Japan Trust
Company
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telecopy No.: 000-000-0000
-19-
LASALLE NATIONAL BANK, as a Lender and
as an Indemnifying Lender
By:
--------------------------------
Title:
-----------------------------
Notice Address:
LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxxxx
Telecopy No.: 000-000-0000
with copy to:
Xxxxxx Xxxxxxx
00 Xxxxxx Xxxxx, Xxxxx X
Xxxxxxxxxx, Xxxxxxxx 00000
Telecopy No.: 000-000-0000
-20-
THE MITSUBISHI TRUST AND BANKING
CORPORATION, as a Lender and as an
Indemnifying Lender
By:
--------------------------------
Title:
-----------------------------
Notice Address:
The Mitsubishi Trust and Banking
Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy No.: 000-000-0000
-00-
XXXXXXXX XXXX XX XXXXXX, A CANADIAN
CHARTERED BANK, as a Lender and as an
Indemnifying Lender
By:
--------------------------------
Title:
-----------------------------
Notice Address:
National Bank of Canada,
a Canadian Chartered Bank
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopy No.: 000-000-0000
-22-
THE SANWA BANK, LIMITED, CHICAGO BRANCH,
as a Lender and as an Indemnifying
Lender
By:
--------------------------------
Title:
-----------------------------
Notice Address:
The Sanwa Bank, Limited,
Chicago Branch
00 Xxxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telecopy No.: 000-000-0000
-23-
THE SAKURA BANK, LIMITED, as a Lender
and as an Indemnifying Lender
By:
--------------------------------
Title:
-----------------------------
Notice Address:
The Sakura Bank, Limited
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxx
Telecopy No.: 000-000-0000
-24-
TRANSAMERICA BUSINESS CREDIT
CORPORATION, as a Lender and as an
Indemnifying Lender
By:
--------------------------------
Title:
-----------------------------
Notice Address:
Transamerica Business Credit
Corporation
International Corporation Centre
000 Xxxxxxxx Xxxxx Xxxxxx
Xxxxx X-000
Xxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxx
Telecopy No.: 000-000-0000
-25-
