Exhibit 10.7
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CREDIT AGREEMENT
among
COMMSCOPE, INC. OF NORTH CAROLINA,
CERTAIN BANKS,
THE CHASE MANHATTAN BANK,
as Administrative Agent,
and
THE CHASE MANHATTAN BANK,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
BANKBOSTON, N.A.,
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
CIBC INC.,
CREDIT LYONNAIS ATLANTA AGENCY,
FIRST UNION NATIONAL BANK,
THE FUJI BANK, LIMITED, ATLANTA AGENCY,
NATIONSBANK, N.A.,
TORONTO DOMINION (NEW YORK), INC.
and
WACHOVIA BANK, N.A.,
as Co-Agents
Dated as of July 23, 1997
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS................................................... 2
1.1 Defined Terms................................................. 2
1.2 Other Definitional Provisions................................. 20
SECTION 2. AMOUNT AND TERMS OF REVOLVING
CREDIT COMMITMENTS............................................ 20
2.1 Revolving Credit Commitments.................................. 20
2.2 Proceeds of Revolving Credit Loans............................ 21
2.3 Issuance of Letters of Credit................................. 21
2.4 Participating Interests....................................... 22
2.5 Procedure for Opening Letters of Credit....................... 22
2.6 Payments in Respect of Letters of Credit...................... 22
2.7 The Bid Loans................................................. 23
2.8 Procedure for Bid Loan Borrowing.............................. 24
2.9 Bid Loan Payments............................................. 27
2.10 Swing Line Commitment......................................... 27
2.11 Participations................................................ 29
SECTION 3. GENERAL PROVISIONS APPLICABLE TO
LOANS AND LETTERS OF CREDIT................................... 29
3.1 Procedure for Borrowing....................................... 29
3.2 Conversion Options............................................ 30
3.3 Changes of Commitment Amounts................................. 30
3.4 Optional Prepayments.......................................... 31
3.5 Mandatory Prepayments......................................... 31
3.6 Interest Rates and Payment Dates.............................. 32
3.7 Computation of Interest and Fees.............................. 33
3.8 Facility Fees................................................. 33
3.9 Certain Fees.................................................. 33
3.10 Letter of Credit Fees......................................... 33
3.11 Letter of Credit Reserves..................................... 34
3.12 Further Assurances............................................ 35
3.13 Obligations Absolute.......................................... 35
3.14 Assignments................................................... 36
3.15 Participations................................................ 36
3.16 Inability to Determine Interest Rate.......................... 36
3.17 Pro Rata Treatment and Payments............................... 37
3.18 Illegality.................................................... 40
3.19 Requirements of Law........................................... 40
3.20 Indemnity..................................................... 41
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3.21 Repayment of Loans, Evidence of Debt.......................... 42
3.22 Mitigation Obligations; Replacement of Banks.................. 43
SECTION 4. REPRESENTATIONS AND WARRANTIES................................ 44
4.1 Financial Condition........................................... 44
4.2 No Material Change............................................ 45
4.3 Corporate Existence; Compliance with Law...................... 46
4.4 Corporate Power; Authorization................................ 46
4.5 Enforceable Obligations....................................... 46
4.6 No Legal Bar.................................................. 47
4.7 No Material Litigation........................................ 47
4.8 Investment Company Act........................................ 47
4.9 Federal Regulation............................................ 47
4.10 No Default.................................................... 47
4.11 No Burdensome Restrictions.................................... 48
4.12 Taxes......................................................... 48
4.13 Subsidiaries.................................................. 48
4.14 Ownership of Property; Liens.................................. 48
4.15 ERISA......................................................... 48
4.16 Accuracy of Disclosure........................................ 49
4.17 Intellectual Property......................................... 49
SECTION 5. CONDITIONS PRECEDENT.......................................... 49
5.1 Conditions to Effectiveness of this Agreement................. 49
5.2 Conditions to Initial Loans and Letters of Credit............. 52
5.3 Conditions to All Loans and Letters of Credit................. 52
SECTION 6. AFFIRMATIVE COVENANTS......................................... 53
6.1 Financial Statements.......................................... 53
6.2 Certificates; Other Information............................... 55
6.3 Payment of Obligations........................................ 56
6.4 Conduct of Business and Maintenance of Existence.............. 56
6.5 Maintenance of Property; Insurance............................ 57
6.6 Inspection of Property; Books and Records; Discussions........ 57
6.7 Notices....................................................... 57
6.8 Additional Subsidiary Guarantors.............................. 58
SECTION 7. NEGATIVE COVENANTS............................................ 59
7.1 Amendments of Spin-Off Documents.............................. 59
7.2 Limitation on Liens........................................... 59
7.3 Limitation on Guarantee Obligations........................... 60
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7.4 Prohibition of Fundamental Changes............................ 61
7.5 Limitation on Sale of Assets.................................. 61
7.6 Limitation on Investments, Loans and Advances................. 62
7.7 Maintenance of Consolidated Net Worth......................... 62
7.8 Maintenance of Interest Coverage.............................. 62
7.9 Maintenance of Leverage Ratio................................. 62
7.10 Limitation on Dividends and Stock Repurchases................. 62
7.11 Transactions with Affiliates.................................. 63
7.12 Foreign Exchange Contracts.................................... 63
7.13 Commodity Xxxxxx.............................................. 63
7.14 Fiscal Year................................................... 63
7.15 Limitation on Indebtedness.................................... 63
SECTION 8. EVENTS OF DEFAULT............................................. 64
SECTION 9. THE CO-AGENTS; THE ADMINISTRATIVE
AGENT; ISSUING BANKS.......................................... 67
9.1 Appointment................................................... 67
9.2 Delegation of Duties.......................................... 68
9.3 Exculpatory Provisions........................................ 68
9.4 Reliance by Co-Agents and Administrative Agent................ 68
9.5 Notice of Default............................................. 69
9.6 Non-Reliance on Co-Agents, Administrative Agent and
Other Banks................................................... 69
9.7 Indemnification............................................... 70
9.8 Co-Agents and Administrative Agent in their Individual
Capacities.................................................... 70
9.9 Successor Co-Agent or Administrative Agent.................... 70
9.10 An Issuing Bank as Issuer of Letters of Credit................ 71
SECTION 10. MISCELLANEOUS................................................. 71
10.1 Amendments and Waivers........................................ 71
10.2 Notices....................................................... 72
10.3 No Waiver; Cumulative Remedies................................ 74
10.4 Survival of Representations and Warranties.................... 75
10.5 Payment of Expenses and Taxes................................. 75
10.6 Successors and Assigns; Participations; Purchasing Banks...... 76
10.7 Adjustments; Set-off.......................................... 80
10.8 Judgment...................................................... 81
10.9 Counterparts.................................................. 82
10.10 Integration................................................... 82
10.11 GOVERNING LAW; NO THIRD PARTY RIGHTS.......................... 82
10.12 SUBMISSION TO JURISDICTION; WAIVERS........................... 83
10.13 Acknowledgements.............................................. 83
10.14 No Bankruptcy Proceedings..................................... 84
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SCHEDULES:
Schedule I Lists of Addresses for Notices; Lending Offices; Commitment
Amounts
Schedule II RESERVED
Schedule III Domestic Subsidiaries
Schedule IV Foreign Subsidiaries
Schedule V Consents
Schedule VI Guarantee Obligations
EXHIBITS:
Exhibit A Bid Loan Confirmation
Exhibit B Bid Loan Offer
Exhibit C Bid Loan Request
Exhibit D-1 Subsidiary Guarantee
Exhibit D-2 Holdings Guarantee
Exhibit E-1 Opinion of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Exhibit X-0 Xxxxxxx xx Xxxxx X. Xxxxx XX, Xxx.
Exhibit F-1 Company Closing Certificate
Exhibit F-2 Holdings Closing Certificate
Exhibit G L/C Participation Certificate
Exhibit H Swing Line Loan Participation Certificate
Exhibit I Assignment and Acceptance
Exhibit J Exemption Certificate
Exhibit K Designation Certificate
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CREDIT AGREEMENT, dated as of July 23, 1997, among COMMSCOPE, INC. OF
NORTH CAROLINA, a North Carolina corporation (the "Company"), the several
lenders from time to time parties hereto (the "Banks"), THE CHASE MANHATTAN
BANK, a New York banking corporation, as administrative agent for the Banks
(in such capacity, the "Administrative Agent"), and THE CHASE MANHATTAN BANK
("Chase"), Bank of America National Trust and Savings Association,
BankBoston, N.A., Bank of Tokyo-Mitsubishi Trust Company, CIBC Inc., Credit
Lyonnais Atlanta Agency, First Union National Bank, The Fuji Bank, Limited,
Atlanta Agency, NationsBank, N.A., Toronto Dominion (New York), Inc. and
Wachovia Bank, N.A., as co-agents for the Banks (in such capacity,
collectively, the "Co-Agents"; each, individually, a "Co-Agent").
W I T N E S S E T H:
1. Pursuant to the Distribution Agreement dated as of June 12, 1997
(as amended, modified or supplemented from time to time in accordance with
subsection 7.1, the "Distribution Agreement") among General Instrument
Corporation, a Delaware corporation ("GI Holdings"), NextLevel Systems, Inc.,
a Delaware corporation ("NextLevel") which is an indirect wholly-owned
Subsidiary (such term and the other capitalized terms used in these recitals
having the meaning set forth in this Agreement unless the context otherwise
requires) of GI Holdings, and CommScope, Inc., a Delaware corporation
("CommScope") which is an indirect wholly-owned Subsidiary of GI Holdings and
the sole shareholder of the Company, GI Holdings has agreed to separate and
divide the existing businesses of GI Holdings so that (a) the business (the
"Communications Business") of the manufacture and sale of broadband
communications products used in the cable television, satellite and
telecommunications industries shall be owned directly and indirectly by
NextLevel, (b) the business (the "Cable Manufacturing Business") of the
manufacture and sale of coaxial, fiber optic and other electronic cable used
in the cable television, satellite and other industries shall be owned
directly and indirectly by CommScope, and (c) the business (the "Power
Semiconductor Business") of the manufacture and sale of discrete power
rectifiers and transient voltage suppression components used in
telecommunications, automotive and consumer electronic products shall be
directly and indirectly owned by GI Holdings which will be merged with
General Instrument Corporation of Delaware, Inc., a Delaware corporation ("GI
Delaware"), with GI Holdings as the surviving corporation, and be renamed
"General Semiconductor, Inc.", a Delaware corporation ("General
Semiconductor"), immediately following the separation and division described
above and prior to the distribution described in the succeeding paragraph.
2. Following the separation and division described in the preceding
paragraph (a) GI Holdings shall distribute, as a dividend to the holders of
the shares of its common stock, all of the capital stock of NextLevel, which,
at the time of the distribution, will own all of the capital stock of
CommScope, and promptly thereafter (b) NextLevel shall distribute, as a
dividend to the holders of the shares of its common stock, all of the capital
stock of CommScope (the transactions described in paragraph 1 above and this
paragraph 2, as more particularly described in the S-4 Filing (as defined
below), the "Spin-Off").
3. Pursuant to the Distribution Agreement and in connection with
the Spin-Off, certain pre-existing indebtedness of GI Holdings, NextLevel and
CommScope and their respective Subsidiaries will be paid in full and
cancelled and certain other transactions will be
consummated (the Spin-Off and the other transactions to be performed pursuant
to and in connection with the Spin-Off, the "Spin-Off Transactions").
4. The Company has requested that the Banks, the Administrative
Agent and the Co-Agents enter this Agreement in order to make available to
the Company the $350,000,000 credit facilities described herein on the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the Company, the Banks, the Administrative Agent
and the Co-Agents hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms defined in the
preamble hereto shall have the meanings set forth therein, and the following
terms have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the Prime
Rate in effect on such day, (b) the Base CD Rate in effect on such day
plus 1% and (c) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean the rate of
interest per annum publicly announced from time to time by Chase as its
prime rate in effect at its principal office in New York City (the Prime
Rate not being intended to be the lowest rate of interest charged by
Chase in connection with extensions of credit to debtors); "Base CD Rate"
shall mean the sum of (a) the product of (i) the Three-Month Secondary CD
Rate and (ii) a fraction, the numerator of which is one and the
denominator of which is one minus the C/D Reserve Percentage and (b) the
C/D Assessment Rate; "Three-Month Secondary CD Rate" shall mean, for any
day, the secondary market rate for three-month certificates of deposit
reported as being in effect on such day (or, if such day shall not be a
Business Day, the next preceding Business Day) by the Board through the
public information telephone line of the Federal Reserve Bank of New York
(which rate will, under the current practices of the Board, be published
in Federal Reserve Statistical Release H.15(519) during the week
following such day), or, if such rate shall not be so reported on such
day or such next preceding Business Day, the average of the secondary
market quotations for three-month certificates of deposit of major money
center banks in New York City received at approximately 10:00 A.M., New
York City time, on such day (or, if such day shall not be a Business Day,
on the next preceding Business Day) by the Administrative Agent from
three New York City negotiable certificate of deposit dealers of
recognized standing selected by it; and "Federal Funds Effective Rate"
shall mean, for any day, the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized
standing selected by it. If for any reason the Administrative Agent
shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Base CD Rate or the
Federal Funds Effective Rate, or both, for any reason, including the
inability or failure of the Administrative Agent to obtain
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sufficient quotations in accordance with the terms hereof, the ABR shall
be determined without regard to clause (b) or (c), or both, of the first
sentence of this definition, as appropriate, until the circumstances
giving rise to such inability no longer exist. Any change in the ABR due
to a change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate shall be effective as of the opening of
business on the effective day of such change in the Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate,
respectively.
"ABR Loans": Loans whose interest rate is based on the ABR.
"Absolute Rate Bid Loan": any Bid Loan bearing interest at an
absolute fixed rate.
"Absolute Rate Bid Loan Request": any Bid Loan Request requesting
the Bid Loan Lenders to offer to make Bid Loans at an absolute fixed rate
for the term of the Bid Loan.
"Administrative Agent": as defined in the preamble hereto.
"Affiliate": of any Person (a) any Person (other than a Subsidiary)
which, directly or indirectly, is in control of, is controlled by, or is
under common control with such Person including NextLevel and its
Subsidiaries for any period during which Holdings is a Subsidiary of
NextLevel, or (b) any Person who is a director or officer (i) of such
Person, (ii) of any Subsidiary of such Person or (iii) of any Person
described in clause (a) above. For purposes of this definition, control
of a Person shall mean the power, direct or indirect, either to (i) vote
10% or more of the securities having ordinary voting power for the
election of directors of such Person, or (ii) direct or cause the
direction of the management and policies of such Person whether by
contract or otherwise.
"Aggregate Extensions of Credit": at any particular time, the sum
of (a) the aggregate then outstanding principal amount of the Revolving
Credit Loans, (b) the aggregate then outstanding principal amount of the
Bid Loans, (c) the aggregate amount then available to be drawn under all
outstanding Letters of Credit, (d) the aggregate amount of Revolving L/C
Obligations and (e) the aggregate then outstanding principal amount of
the Swing Line Loans.
"Agreement": this Credit Agreement, as amended, supplemented or
modified from time to time.
"Agreement Currency": as defined in subsection 10.8(b).
"Applicable Index Rate": in respect of any Bid Loan requested
pursuant to an Index Rate Bid Loan Request, the applicable Eurodollar
Rate.
"Applicable Margin": for each Eurodollar Loan, the Facility Fee and
the Standby L/C fees, the rate per annum determined from time to time
based upon the Leverage Ratio determined as of the last day of the most
recent fiscal quarter for which the Company has delivered financial
statements pursuant to subsections 6.1(a) and (b) and the related
certificate of the chief financial officer of the Company referred to in
subsection 6.2 as set
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forth under the relevant column heading below opposite such Leverage
Ratio:
(in basis points)
Eurodollar Loan Standby
Leverage Ratio Applicable Margin Facility Fee L/C Fee
--------------- ----------------- ------------ ---------
Less than 1.50 to 1.0 22.50 10.00 22.50
Less than 2.0 to 1.0 but 25.00 15.00 25.00
greater than or equal to
1.5 to 1.0
Less than 2.5 to 1.0 but 41.25 18.75 41.25
greater than or equal to
2.0 to 1.0
Less than 2.75 to 1.0 but 50.00 25.00 50.00
greater than or equal to
2.5 to 1.0
Less than 3.0 to 1.0 but 60.00 30.00 60.00
greater than or equal to
2.75 to 1.0
Greater than or equal to 90.00 35.00 90.00
3.0 to 1.0
For the purpose of this Agreement, any change in the Eurodollar
Loan Applicable Margin, the Facility Fee and the Standby L/C fees shall
become effective on the day following the delivery to the Administrative
Agent by the Company of the financial statements referred to in
subsections 6.1(a) and (b) and the related certificate of the chief
financial officer of the Company referred to in subsection 6.2 indicating
the Leverage Ratio as of the last day of such period. If the Company
shall fail to deliver the financial statements referred to in subsections
6.1(a) and (b) and the related certificate of the chief financial officer
of the Company referred to in subsection 6.2 indicating the Leverage
Ratio as of such last day, then the Applicable Margin, Facility Fee and
Standby L/C fee shall automatically, and without further act of the
Administrative Agent, the Co-Agents or any Bank, equal the highest
Applicable Margin, Facility Fee and Standby L/C fee set forth above.
Notwithstanding the foregoing, for the period from the Closing Date
through January 25, 1998, the Applicable Margin shall be calculated as if
the Leverage Ratio was less than 2.5 to 1.0 but greater than or equal to
2.0 to 1.0.
"Assignee": as defined in subsection 10.6(c).
"Assignment and Acceptance": an Assignment and Acceptance
substantially in the form of Exhibit I hereto.
"Available Revolving Credit Commitments": as to all the Banks, at a
particular time, an amount equal to the excess, if any, of (a) the
Revolving Credit Commitments at such time less (b) the Aggregate
Extensions of Credit.
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"Banks": as defined in the preamble hereto and including the
Designated Lenders, if any, from time to time; provided however, that the
term "Bank" shall exclude each Designated Lender when used in reference
to a Revolving Credit Loan (except to the extent a Designated Lender is
the obligee of a Revolving Credit Loan actually funded by it pursuant to
subsection 2.1(c) hereof), the Revolving Credit Commitments or terms
relating to the Revolving Credit Loans (except as noted above) and the
Revolving Credit Commitments.
"Benefitted Bank": as defined in subsection 10.7 hereof.
"Bid Loan": each Bid Loan made pursuant to subsection 2.7.
"Bid Loan Commitment Period": the period from and including the
Closing Date until the date which is 15 days prior to the Revolving
Credit Termination Date.
"Bid Loan Confirmation": each confirmation by the Company of its
acceptance of Bid Loan Offers, which Bid Loan Confirmation shall be
substantially in the form of Exhibit A and shall be delivered to the
Administrative Agent in writing, by telex or by facsimile transmission.
"Bid Loan Interest Payment Date": as to each Bid Loan, each
interest payment date specified by the Company for such Bid Loan in the
related Bid Loan Request.
"Bid Loan Lenders": Banks from time to time designated by the
Company as Bid Loan Lenders as provided in subsection 2.7.
"Bid Loan Maturity Date": as to any Bid Loan, the date specified by
the Company pursuant to subsection 2.8(d)(2) in its acceptance of the
related Bid Loan Offer.
"Bid Loan Offer": each offer by a Bid Loan Lender to make Bid Loans
pursuant to a Bid Loan Request, which Bid Loan Offer shall contain the
information specified in Exhibit B and shall be delivered to the
Administrative Agent by telephone, immediately confirmed by telex or
facsimile transmission.
"Bid Loan Request": each request by the Company for Bid Loan
Lenders to submit bids to make Bid Loans, which request shall contain the
information in respect of such requested Bid Loans specified in Exhibit C
and shall be delivered to the Administrative Agent in writing, by telex
or facsimile transmission, or by telephone, immediately confirmed by
telex or facsimile transmission.
"Board": the Board of Governors of the Federal Reserve System of
the United States.
"Borrowing Date": any Business Day specified in a notice pursuant
to (a) subsection 2.8, 2.10 or 3.1 as a date on which the Company
requests Bid Loan Lenders to make Bid Loans, a Swing Line Bank to make
Swing Line Loans or the Banks to make Revolving Credit Loans,
respectively, hereunder or (b) subsection 2.5 as a date on which the
Company requests an Issuing Bank to issue a Letter of Credit hereunder.
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"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law
to close, except that, when used in connection with a Eurodollar Loan,
"Business Day" shall mean any Business Day on which dealings in Dollars
between banks may be carried on in London, England and New York City.
"Cable Manufacturing Business": as defined in the recitals hereto.
"C/D Assessment Rate": for any day as applied to any ABR Loan, the
net annual assessment rate (rounded upward to the nearest 1/100th of 1%)
determined by the Administrative Agent to be payable on such day to the
Federal Deposit Insurance Corporation or any successor ("FDIC") for
FDIC's insuring time deposits made in Dollars at the offices of Chase in
the United States.
"CD Reserve Percentage": for any day as applied to any ABR Loan,
that percentage (expressed as a decimal) which is in effect on such day,
as prescribed by the Board (or any successor), for determining the
maximum reserve requirement for a Depositary Institution (as defined in
Regulation D of the Board) in respect of new non-personal time deposits
in Dollars having a maturity of 30 days or more.
"Change in Law": with respect to any Bank, the adoption of any law,
rule, regulation, policy, guideline or directive (whether or not having
the force of law) or any change therein or in the interpretation or
application thereof by any Governmental Authority, including, without
limitation, the issuance of any final rule, regulation or guideline by
any regulatory agency having jurisdiction over such Bank.
"Chase": as defined in the preamble hereto.
"Class": as to any Loan, its nature as a Revolving Credit Loan, Bid
Loan or Swing Line Loan.
"Closing Date": as defined in subsection 5.2.
"Co-Agents": as defined in the preamble hereto.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commercial L/C": a commercial documentary Letter of Credit under
which the relevant Issuing Bank agrees to make payments in Dollars for
the account of the Company, on behalf of the Company or any Subsidiary
thereof, in respect of obligations of the Company or any Subsidiary
thereof in connection with the importation or exportation of goods in the
ordinary course of business.
"Commitment Percentage" or "Revolving Credit Commitment Percentage":
as to any Bank at any time, the percentage which such Bank's Revolving
Credit Commitment constitutes of all Revolving Credit Commitments.
"Commitments": the collective reference to the Revolving Credit
Commitments
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and the Swing Line Commitment; individually, a "Commitment".
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within the
meaning of Section 4001 of ERISA or is part of a group which includes the
Company and which is treated as a single employer under Section 414 of
the Code.
"CommScope": as defined in the recitals hereto.
"Communications Business": as defined in the recitals hereto.
"Company": as defined in the preamble hereto.
"Consolidated EBITDA": for any period, Consolidated Net Income ((i)
including earnings and losses from discontinued operations and (ii)
excluding extraordinary non-cash gains and losses) of Holdings and its
Subsidiaries for such period, plus to the extent reflected as a charge in
the statement of consolidated net income for such period, the sum of (a)
interest expense (net of interest income), amortization and write-offs of
debt discount and debt issuance costs and commissions, discounts and
other fees and charges associated with Letters of Credit, (b) taxes
measured by income, (c) depreciation and amortization expenses and (d)
non-cash compensation expenses arising from the sale of stock, the
granting of stock options, the granting of stock appreciation rights and
similar arrangements.
"Consolidated Interest Expense": for any period the amount of
interest expense both expensed and capitalized (excluding amortization
and write offs of debt discount and debt issuance costs), net of interest
income, of Holdings and its Subsidiaries, determined on a consolidated
basis in accordance with GAAP for such period.
"Consolidated Net Income": for any period, the net income or net
loss of Holdings and its Subsidiaries for such period (excluding pre-tax
charges related to costs incurred in connection with the Spin-Off not
exceeding $10,000,000 in the aggregate for the period from July 1, 1997
to December 31, 1997), determined in accordance with GAAP on a
consolidated basis, as reflected in the financial statements furnished to
the Administrative Agent in accordance with subsections 6.1(a) and (b)
hereof.
"Consolidated Net Worth": as of any date of determination, all
items which in conformity with GAAP would be included under shareholders'
equity on a consolidated balance sheet of Holdings and its Subsidiaries
at such date, provided, that such amount shall be increased, on a
cumulative basis from July 1, 1997, for (i) amortization and write-offs
of debt discount and debt issuance costs, (ii) any amount reflected as a
charge in Holdings' consolidated income statements for non-cash
compensation arising from the sale of stock, the granting of stock
options, the granting of stock appreciation rights and similar
arrangements and (iii) pre-tax charges related to costs incurred in
connection with the Spin-Off not exceeding $10,000,000 in the aggregate
for the period from July 1, 1997 to December 31, 1997.
"Consolidated Total Indebtedness": as of any date of determination,
all Indebtedness of Holdings and its Subsidiaries which would be
reflected as debt on a
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consolidated balance sheet of Holdings prepared in accordance with GAAP.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of the
property owned by it is bound.
"Credit Documents": the collective reference to this Agreement, any
Registered Form Notes, the Holdings Guarantee and any Subsidiary
Guarantee executed and delivered pursuant to the terms of subsection 6.8.
"Credit Parties": the collective reference to Holdings and each
Subsidiary which is a party, or which at any time becomes a party, to a
Credit Document.
"Default": any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Designated Lender": means a special purpose corporation that is
identified as such on the signature pages hereto next to the caption
"Designated Lender" as well as each special purpose corporation that (i)
shall have become a party to this Agreement pursuant to subsection
10.6(i) hereto, and (ii) is not otherwise a Bank.
"Designating Lender": shall mean each Bank that is identified as
such on the signature pages hereto next to the caption "Designating
Lender" and immediately below the signature of its Designated Lender as
well as each Bank that shall designate a Designated Lender pursuant to
subsection 10.6(i) hereof.
"Designation Agreement": means a designation agreement in
substantially the form of Exhibit K attached hereto, entered into by a
Bank and a Designated Lender and accepted by the Company and the
Administrative Agent.
"Distribution Agreement": as defined in the recitals hereto.
"Dollars" and "$": dollars in lawful currency of the United States
of America.
"Domestic Lending Office": initially the office of each Bank
designated as such in Schedule I; thereafter, one or more other offices
of such Bank, as designated from time to time in a notice from such Bank
to the Administrative Agent.
"Domestic Subsidiary": any Subsidiary of the Company other than a
Foreign Subsidiary.
"DSC Litigation": the case entitled DSC Communications Corporation
and DSC Technologies Corporation v. Next Level Communications, Xxxxxx X.
Xxxxx and Xxxxx X. Xxxxxx, Case No. 4:95cv96 in the United States
District Court for the Eastern District of Texas, Sherman Division for
which the final judgment was entered on June 11, 1996.
"Effective Date": as defined in subsection 5.1.
"Environmental Laws": any and all Federal, state, local or
municipal laws, rules,
8
orders, regulations, statutes, ordinances, codes, decrees or requirements
of any Governmental Authority regulating, relating to or imposing
liability or standards of conduct concerning environmental protection
matters, including without limitation, Hazardous Materials, as now or may
at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
determined by the Administrative Agent to be the arithmetic mean (rounded
to the nearest 1/100th of 1%) of the offered rates for deposits in
Dollars with a term comparable to such Interest Period that appears on
the Telerate British Bankers Assoc. Interest Settlement Rates Page (as
defined below) at approximately 11:00 A.M., London time, on the second
full Business Day preceding the first day of such Interest Period;
provided, however, that if there shall at any time no longer exist a
Telerate British Bankers Assoc. Interest Settlement Rates Page,
"Eurodollar Base Rate" shall mean, with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum equal
to the rate at which Chase is offered deposits in Dollars at
approximately 11:00 A.M., London time, two Business Days prior to the
first day of such Interest Period in the interbank eurodollar market
where the eurodollar and foreign currency and exchange operations in
respect of Dollars are then being conducted for delivery on the first day
of such Interest Period for the number of days comprised therein and in
an amount comparable to the amount of its Eurodollar Loan to be
outstanding during such Interest Period. "Telerate British Bankers
Assoc. Interest Settlement Rates Page" shall mean the display designated
as Page 3750 on the Telerate System Incorporated Service (or such other
page as may replace such page on such service for the purpose of
displaying the rates at which Dollar deposits are offered by leading
banks in the London interbank deposit market).
"Eurodollar Lending Office": initially, the office of each Bank
designated as such in Schedule I; thereafter, one or more other offices
of such Bank, if any, which shall be making or maintaining Eurodollar
Loans as designated as such from time to time in a notice from such Bank
to the Administrative Agent.
"Eurodollar Loans": Loans the rate of interest applicable to which
is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
--------------------------------------
1.00 - Eurodollar Reserve Requirements
"Eurodollar Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal) of reserve requirements in effect on such day
(including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto), as now
and from time
9
to time hereafter in effect, dealing with reserve requirements prescribed
for eurodollar funding (currently referred to as "Eurodollar Liabilities"
in Regulation D of the Board) maintained by a member bank of the Federal
Reserve System.
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.
"Excluded Litigation": the DSC Litigation and any other litigation
specifically described and identified in the S-4 Filing, in each case
only to the extent that the responsibility for the DSC Litigation or such
other litigation, as the case may be, is borne by the party to whom the
Distribution Agreement has allocated responsibility therefor.
"Existing GI Delaware Credit Agreement": The Third Amended and
Restated Credit Agreement dated as of August 12, 1996, as amended, to
which GI Delaware is a party and for which Chase acts as administrative
agent.
"Extensions of Credit": the collective reference to the making of
any Loans and the issuance of any Letters of Credit.
"FL Affiliate": any of FL & Co., the partners of FL & Co. on the
Closing Date, any subordinated debt and equity partnership controlled by
FL & Co., any equity partnership controlled by FL & Co., any Affiliate of
FL & Co., any directors, executive officers or other employees or other
members of the management of Holdings, the Company or any Subsidiary
thereof (or any "associate" (as defined in Rule 405 under the Securities
Act of 1933, as amended) of any thereof or employee benefit plan
beneficially owned by any thereof), the Company or any Subsidiary thereof
on the Closing Date, or any combination of the foregoing.
"FL & Co.": Forstmann Little & Co., a New York partnership.
"Facility Fee": the facility fee payable by the Company pursuant to
subsection 3.8.
"Foreign Subsidiary": any Subsidiary of the Company or Holdings (a)
which is organized under the laws of any jurisdiction outside the United
States (within the meaning of Section 7701(a)(9) of the Code), or (b)
whose principal assets consist of capital stock or other equity interests
of one or more Persons which conduct the major portion of their business
outside the United States (within the meaning of Section 7701(a)(9) of
the Code).
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"General Semiconductor": as defined in the recitals hereto.
"GI Delaware": as defined in the recitals hereto.
"GI Holdings": as defined in the recitals hereto.
10
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation": as to any Person, any obligation of such
Person guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other
Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent (a) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (b) to
advance or supply funds (i) for the purchase or payment of any such
primary obligation or (ii) to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or solvency
of the primary obligor, (c) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (d) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation shall be
deemed to be an amount equal to the stated or determinable amount (based
on the maximum reasonably anticipated net liability in respect thereof as
determined by the Company in good faith) of the primary obligation or
portion thereof in respect of which such Guarantee Obligation is made or,
if not stated or determinable, the maximum reasonably anticipated net
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by the Company in good faith; provided,
however, that the amount of any Guarantee Obligation associated with the
Company's vendor financing programs shall be deemed to be the amount
estimated by the Company to be its liability in connection therewith and
for which the Company has estimated reserves in accordance with GAAP.
"Guarantees": the collective reference to the Holdings Guarantee
and the Subsidiary Guarantee.
"Hazardous Materials": any substance (a) which is or becomes
defined as a "hazardous waste," "hazardous substance," pollutant or
contaminant under any federal, state or local statute, regulation, rule
or ordinance or amendments thereto including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act (42
U.S.C. Section 9601 et seq.) and/or the Resource Conservation and
Recovery Act (42 U.S.C. Section 6901 et seq.); and (b) without
limitation, which is or contains petroleum products (including crude oil
or any fraction thereof), PCBs, asbestos, urea formaldehyde foam
insulation, radon gas or infectious or radioactive materials.
"Holdings": CommScope, Inc., a Delaware corporation.
"Holdings Guarantee": the Guarantee to be executed by Holdings in
favor of the Administrative Agent, for the ratable benefit of the Banks,
substantially in the form of Exhibit D-2 hereto, as the same may be
amended, supplemented or otherwise modified from time to time.
"Indebtedness": of any Person, at any particular date, (a) all
indebtedness of such
11
Person for borrowed money or for the deferred purchase price of property
or services (other than current trade payables or liabilities and
deferred payment for services to employees or former employees incurred
in the ordinary course of business and payable in accordance with
customary practices), (b) the face amount of all letters of credit issued
for the account of such Person and, without duplication, all drafts drawn
thereunder, (c) all liabilities (other than Lease Obligations) secured by
any Lien on any property owned by such Person, to the extent attributable
to such Person's interest in such property, even though such Person has
not assumed or become liable for the payment thereof, (d) lease
obligations of such Person which, in accordance with GAAP, should be
capitalized and (e) all indebtedness of such Person arising under
acceptance facilities; but excluding (y) customer deposits and interest
payable thereon in the ordinary course of business and (z) trade and
other accounts and accrued expenses payable in the ordinary course of
business in accordance with customary trade terms and in the case of both
clauses (y) and (z) above, which are not overdue for a period of more
than 90 days or, if overdue for more than 90 days, as to which a dispute
exists and adequate reserves in conformity with GAAP have been
established on the books of such Person.
"Indemnified Taxes": as defined in subsection 3.22(a).
"Indemnitee": as defined in subsection 3.22.
"Index Rate Bid Loan": any Bid Loan bearing interest based on the
Applicable Index Rate.
"Index Rate Bid Loan Request": any Bid Loan Request requesting the
Bid Loan Lenders to offer to make Bid Loans at an interest rate equal to
the Applicable Index Rate plus (or minus) a margin.
"Insolvency": with respect to a Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of such term as used in
Section 4245 of ERISA.
"Interest Coverage Ratio": as at the last day of any fiscal quarter
of Holdings, the ratio of (a) Consolidated EBITDA for the period of four
fiscal quarters ending on such day on a consolidated basis of Holdings
and its Subsidiaries, to (b) Consolidated Interest Expense for the period
of four fiscal quarters ending on such day on a consolidated basis of
Holdings and its Subsidiaries.
"Interest Payment Date": (a) as to ABR Loans, the last day of each
March, June, September and December, commencing on the first such day to
occur after any ABR Loans are made or any Eurodollar Loans are converted
to ABR Loans, (b) as to any Eurodollar Loan in respect of which the
Company has selected an Interest Period of one, two or three months, the
last day of such Interest Period, (c) as to any Eurodollar Loan in
respect of which the Company has selected an Interest Period of six
months, the day which is three months after the date on which such
Eurodollar Loan is made or an ABR Loan is converted to such a Eurodollar
Loan, and the last day of such Interest Period, (d) as to any other
Eurodollar Loan, each day on which principal of such Eurodollar Loan is
payable and (e) in the case of the Revolving Credit Loans, on the
Revolving Credit Termination Date.
12
"Interest Period": with respect to any Eurodollar Loan:
(a) initially, the period commencing on, as the case may be,
the Borrowing Date or conversion date with respect to such
Eurodollar Loan and ending one, two, three or six months thereafter
as selected by the Company in its notice of borrowing as provided in
subsection 2.10, 3.1 or its notice of conversion as provided in
subsection 3.2; and
(b) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan
and ending one, two, three or six months thereafter as selected by
the Company by irrevocable notice to the Administrative Agent not
less than three Business Days prior to the last day of the then
current Interest Period with respect to such Eurodollar Loan;
provided that the foregoing provisions relating to Interest Periods are
subject to the following:
(A) if any Interest Period would otherwise end on a day which
is not a Business Day, that Interest Period shall be extended to the
next succeeding Business Day, unless the result of such extension
would be to carry such Interest Period into another calendar month,
in which event such Interest Period shall end on the immediately
preceding Business Day;
(B) any Interest Period that would otherwise extend beyond the
Revolving Credit Termination Date shall end on the Revolving Credit
Termination Date, or if the Revolving Credit Termination Date shall
not be a Business Day, on the next preceding Business Day;
(C) if the Company shall fail to give notice as provided above
in clause (b), it shall be deemed to have selected a conversion of a
Eurodollar Loan into an ABR Loan (which conversion shall occur
automatically and without need for compliance with the conditions
for conversion set forth in subsection 3.2);
(D) any Interest Period that begins on the last day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(E) the Company shall select Interest Periods so as not to
require a prepayment (to the extent practicable) or a scheduled
payment of a Eurodollar Loan during an Interest Period for such
Eurodollar Loan.
"Issuing Bank": Chase and any other financial institution which is
a Co-Agent, as selected by the Company, with the approval of the
Administrative Agent and such Co-Agent, in accordance with subsection 2.5.
"Judgment Currency": as defined in subsection 10.8(b).
"L/C Application": a letter of credit application in the relevant
Issuing Bank's
13
then customary form for the type of letter of credit requested.
"L/C Participating Interest": an undivided participating interest
in the face amount of each issued and outstanding Letter of Credit and
the L/C Application relating thereto.
"L/C Participation Certificate": a certificate in substantially the
form of Exhibit G hereto.
"Lease Obligations": of the Company and its Subsidiaries, as of the
date of any determination thereof, the rental commitments of the Company
and its Subsidiaries determined on a consolidated basis, if any, under
leases for real and/or personal property (net of rental commitments from
sub-leases thereof), excluding however, obligations under leases which
are classified as Indebtedness under clause (d) of the definition of
Indebtedness.
"Letter of Credit": a letter of credit issued by an Issuing Bank
pursuant to the terms of subsection 2.3.
"Leverage Ratio": as of the last day of any fiscal quarter, the
ratio of Consolidated Total Indebtedness on a consolidated basis for
Holdings and its Subsidiaries on such day to Consolidated EBITDA for the
period of four consecutive fiscal quarters of Holdings ending on such day.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or preferential arrangement of any
kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the
filing of any effective financing statement under the Uniform Commercial
Code or comparable law of any jurisdiction in respect of any of the
foregoing, except for the filing of financing statements in connection
with Lease Obligations incurred by the Company or its Subsidiaries to the
extent that such financing statements relate to the property subject to
such Lease Obligations).
"Liquidity Bank": means for any Designated Lender, at any date of
determination, the collective reference to the financial institutions
which at such date are providing liquidity or credit support facilities
to or for the account of such Designated Lender to fund such Designated
Lender's obligations hereunder or to support the securities, if any,
issued by such Designated Lender to fund such obligations.
"Loans": the collective reference to the Revolving Credit Loans,
the Swing Line Loans and the Bid Loans; individually, a "Loan".
"Material Subsidiaries": any Subsidiary of the Company or Holdings
which at any time has a total asset book value (including the total asset
book values of any Subsidiaries), or for which Holdings, the Company or
any of its Subsidiaries shall have paid consideration (including the
assumption of Indebtedness) in connection with the acquisition of the
stock or the assets of such Subsidiary, in excess of $50,000,000, other
14
than Foreign Subsidiaries or other Subsidiaries if more than 75% of the
assets of such Subsidiaries are securities of foreign companies (such
determination to be made on the basis of fair market value). A
Subsidiary which is a Material Subsidiary shall continue to be a Material
Subsidiary notwithstanding that its total asset book value may fall to
less than $50,000,000.
"Money Market Rate": for any day, with respect to any Money Market
Rate Loan, the rate per annum quoted by a Swing Line Bank to the Company
in accordance with subsection 2.10(a) as the rate at which such Swing
Line Bank is willing to make such Loan.
"Money Market Rate Loans": Swing Line Loans the rate of interest
applicable to which is based upon the Money Market Rate.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NextLevel": as defined in the recitals hereto.
"Non-U.S. Bank": as defined in subsection 3.17(e).
"Obligations": the unpaid principal of and interest on the Loans
and all other obligations and liabilities of the Company to the
Administrative Agent, the Co-Agents or the Banks, whether direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter incurred, which may arise under, out of, or in connection with,
this Agreement, the other Credit Documents, any Letter of Credit or L/C
Application, any agreements between the Company and any Bank or any
Affiliate of a Bank relating to interest rate, currency or similar swap
and hedging arrangements or any other document made, delivered or given
in connection therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses (including,
without limitation, all fees and disbursements of counsel to the
Administrative Agent, the Co-Agents or any Bank) or otherwise.
"Other Taxes": as defined in subsection 3.22(b).
"Participant": as defined in subsection 10.6(b).
"Participating Bank": any Bank (other than the Issuing Bank with
respect to such Letter of Credit) with respect to its L/C Participating
Interest in each Letter of Credit.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
"Plan": any pension plan which is covered by Title IV of ERISA and
in respect of which the Company or a Commonly Controlled Entity is an
"employer" as defined in
15
Section 3(5) of ERISA.
"Power Semiconductor Business": as defined in the recitals hereto.
"Properties": each parcel of real property currently or previously
owned or operated by the Company or any Subsidiary.
"Refunded Swing Line Loans": as defined in subsection 2.10(b).
"Refunding Date": as defined in subsection 2.10(c).
"Register": as defined in subsection 10.6.
"Registered Form Note": as defined in subsection 3.21(e).
"Regulation G": Regulation G of the Board, as from time to time in
effect.
"Regulation U": Regulation U of the Board, as from time to time in
effect.
"Related Document": any agreement, certificate, document or
instrument relating to a Letter of Credit.
"Release Banks": at a particular time Banks that hold Revolving
Credit Commitments in an aggregate principal amount equal to at least 75%
of the aggregate Revolving Credit Commitments.
"Reorganization": with respect to a Multiemployer Plan, the
condition that such Plan is in reorganization as such term is used in
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c)
of ERISA or the regulations thereunder.
"Required Banks": at a particular time Banks that hold Revolving
Credit Commitments in an aggregate principal amount equal to at least 51%
of the aggregate Revolving Credit Commitments, provided, however, that
for the purposes of clause (y)(ii) of Section 8, Required Banks shall
mean Banks that hold at least 51% of (a) the aggregate then outstanding
principal amount of the Revolving Credit Loans, (b) the aggregate
outstanding principal amount of Bid Loans, as of the most recent date of
calculation of such amount pursuant to subsection 3.5(b), (c) the L/C
Participating Interests in the aggregate amount then available to be
drawn under all outstanding Letters of Credit and (d) the aggregate then
outstanding principal amount of Revolving L/C Obligations.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation (including,
without limitation, Environmental Laws) or determination of an arbitrator
or a court or other Governmental Authority, in each case applicable to or
binding upon such Person or any of its property or to which such Person
or any of its property is subject.
16
"Responsible Officer": the chief executive officer or the chief
operating officer of the Company or, with respect to financial matters, the
chief financial officer or controller of the Company.
"Restricted Payment": as defined in subsection 7.10.
"Revolving Credit Commitment": as to any Bank, its obligations to
make Revolving Credit Loans to the Company pursuant to subsection 2.1, and
to purchase its L/C Participating Interest in any Letter of Credit, in an
aggregate amount on the Closing Date not to exceed at any time the amount
set forth opposite such Bank's name in Schedule I under the heading
"Revolving Credit" and in an aggregate amount not to exceed at any time the
amount equal to such Bank's Revolving Credit Commitment Percentage of the
aggregate Revolving Credit Commitments, as the aggregate Revolving Credit
Commitments may be reduced from time to time pursuant to this Agreement;
collectively, as to all the Banks, the "Revolving Credit Commitments".
"Revolving Credit Commitment Period": the period from and including
the Closing Date to but not including the Revolving Credit Termination
Date.
"Revolving Credit Loan" and "Revolving Credit Loans": as defined in
subsection 2.1(a).
"Revolving Credit Termination Date": the earlier of (i) December 31,
2002 and (ii) any other date on which the Revolving Credit Commitments
shall terminate hereunder.
"Revolving L/C Obligations": the obligations of the Company to
reimburse the relevant Issuing Bank for any payments made by the relevant
Issuing Bank under any Letter of Credit that have not been reimbursed by
the Company pursuant to subsection 2.6.
"S-4 Filing": Amendment No. 4 to the Joint Registration Statement on
Form S-4 filed by CommScope and NextLevel Systems, Inc. with the Securities
and Exchange Commission on June 13, 1997 with respect to the Spin-Off.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Spin-Off": as defined in the recitals hereto.
"Spin-Off Documents": the collective reference to (i) the
Distribution Agreement, and (ii) the Ancillary Agreements (as defined in
the Distribution Agreement as in effect on the date hereof), as the same
may be amended, modified or supplemented from time to time.
"Spin-Off Transactions": as defined in the recitals hereto.
"Standby L/C": an irrevocable Letter of Credit under which the
relevant Issuing Bank agrees to make payments in Dollars for the account of
the Company, on behalf of
17
the Company or any Subsidiary thereof, in respect of obligations of the
Company or a Subsidiary thereof, including, without limitation, obligations
to government entities and incurred pursuant to contracts made or
performance undertaken, or to be undertaken, or like matters relating to
contracts to which the Company or a Subsidiary thereof is or proposes to
become a party in the ordinary course of the Company's or such Subsidiary's
business, including, without limitation, for insurance purposes or in
respect of advance payments or as bid or performance bonds.
"Subsidiary": as to any Person, any corporation, partnership or other
entity of which shares of stock of each class or other equity interests
having ordinary voting power (other than stock having such power only by
reason of the happening of a contingency) to elect a majority of the board
of directors or other managers of such corporation, partnership or other
entity are at the time owned by such Person or by one or more Subsidiaries
of such Person or by such Person and one or more Subsidiaries of such
Person. A Subsidiary shall be deemed wholly-owned by a Person who owns all
of the voting shares of such Subsidiary except for directors' qualifying or
similar shares.
"Subsidiary Guarantee": the Subsidiary Guarantee to be executed by
each Subsidiary Guarantor in favor of the Administrative Agent, for the
ratable benefit of the Banks, substantially in the form of Exhibit D-1
hereto, as the same may be amended, supplemented or otherwise modified from
time to time.
"Subsidiary Guarantor": any Subsidiary which enters into a Subsidiary
Guarantee pursuant to subsection 6.8.
"Swing Line Bank": Chase and each Bank then acting as a Co-Agent
hereunder selected by the Company which has agreed to make Swing Line Loans
to the Company.
"Swing Line Commitment": each Swing Line Bank's obligation to make
Swing Line Loans pursuant to subsection 2.10.
"Swing Line Loan" and "Swing Line Loans": as defined in subsection
2.10(a).
"Swing Line Loan Participation Certificate": a certificate in
substantially the form of Exhibit H hereto.
"Taxes": any tax, assessment, or other charge or levy and any
liabilities with respect thereto, including any penalties, additions to
tax, fines or interest thereon, imposed by or on behalf of any Governmental
Authority or any taxing authority thereof.
"Type": as to any Loan, its nature as an ABR Loan, a Eurodollar Loan
or a Money Market Rate Loan.
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No.
500 (or any successor publication), as the same may be amended from time to
time.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any other Credit
18
Document or any certificate or other document made or delivered pursuant
hereto.
(b) As used herein, any other Credit Document and any certificate or
other document made or delivered pursuant hereto, accounting terms relating to
Holdings, the Company and its Subsidiaries not defined in subsection 1.1 and
accounting terms partly defined in subsection 1.1 to the extent not defined,
shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and section, subsection,
schedule and exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to the singular and plural forms of such terms.
(e) Reference herein to the business, financial condition, properties,
results of operations, value or prospects of Holdings and its Subsidiaries taken
as a whole shall refer to Holdings and its Subsidiaries taken as a whole from
time to time after giving effect to the Spin-Off and all transactions
contemplated thereby, including the financing thereof.
SECTION 2. AMOUNT AND TERMS OF REVOLVING
CREDIT COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Bank agrees to extend credit to the Company from time to
time on any Borrowing Date during the Revolving Credit Commitment Period (i)by
purchasing an L/C Participating Interest in each Letter of Credit issued by an
Issuing Bank and (ii) by making loans in Dollars (individually, a "Revolving
Credit Loan", and collectively the "Revolving Credit Loans") to the Company from
time to time. Notwithstanding the foregoing, in no event shall any Revolving
Credit Loan or Swing Line Loan be made, or any Letter of Credit be issued, if,
after giving effect to such making or issuance and the use of proceeds thereof
as irrevocably directed by the Company, the Aggregate Extensions of Credit would
exceed the aggregate Revolving Credit Commitments. During the Revolving Credit
Commitment Period, the Company may use the Revolving Credit Commitments by
borrowing, prepaying the Revolving Credit Loans or Swing Line Loans in whole or
in part, and reborrowing, all in accordance with the terms and conditions
hereof, and/or by having the Issuing Banks issue Letters of Credit, having such
Letters of Credit expire undrawn upon or if drawn upon, reimbursing the relevant
Issuing Bank for such drawing, and having the Issuing Banks issue new Letters of
Credit.
(b) Each borrowing of Revolving Credit Loans pursuant to the Revolving
Credit Commitments shall be in an aggregate principal amount of the lesser of
(i) $3,000,000, or a whole multiple of $1,000,000 in excess thereof, and (ii)
the Available Revolving Credit Commitments, except that any borrowing of a
Revolving Credit Loan to be used solely to pay a like amount of Swing Line Loans
may be in the aggregate principal amount of such Swing Line Loans.
(c) Revolving Credit Loans by Designated Lenders. For any Bank which
is a
19
Designating Lender, any Revolving Credit Loan to be made by such Bank may
from time to time be made by its Designated Lender in such Designated Lender's
sole discretion, and nothing herein shall constitute a commitment to make
Revolving Credit Loans by such Designated Lender; provided that if any
Designated Lender elects not to, or fails to, make such Revolving Credit Loan,
its Designating Lender hereby agrees that it shall make such Revolving Credit
Loan pursuant to the terms hereof. Any Revolving Credit Loan actually funded by
a Designated Lender shall constitute a utilization of the Revolving Credit
Commitment of the Designating Lender for all purposes hereunder.
2.2 Proceeds of Revolving Credit Loans. The Company shall use the
proceeds of Revolving Credit Loans solely for the purposes of (a) financing the
payment of fees and expenses incurred in connection with this Agreement and the
Spin-Off, (b) making payments to the Issuing Banks to reimburse the Issuing
Banks for drawings made under the Letters of Credit, (c) repaying Swing Line
Loans, Bid Loans and Revolving Credit Loans after the Closing Date,
(d) financing general working capital needs of the Company or any of its
Subsidiaries, (e) paying a dividend to GI Delaware on the Closing Date and (f)
other general corporate purposes of the Company or any of its Subsidiaries,
including, without limitation, supporting payment of commercial paper issued by
the Company or Holdings in the United States commercial paper market, financing
acquisitions, payment of dividends and repurchases of debt and equity securities
issued by Holdings and the Company, all in accordance with the terms and
conditions hereof.
2.3 Issuance of Letters of Credit. (a) The Company may from time to
time request an Issuing Bank to issue a Letter of Credit, which may be either a
Standby L/C or a Commercial L/C, by delivering to the Administrative Agent at
its address specified in subsection 10.2 and such Issuing Bank an L/C
Application completed to the satisfaction of such Issuing Bank, together with
the proposed form of such Letter of Credit (which shall comply with the
applicable requirements of paragraph (b) below) and such other certificates,
documents and other papers and information as such Issuing Bank may reasonably
request; provided that if such Issuing Bank informs the Company that it is for
any reason unable to open such Letter of Credit, the Company may request another
Issuing Bank or, if all Issuing Banks are unable to do so, any Bank to open such
Letter of Credit upon the same terms offered to the initial proposed Issuing
Bank and each reference to an Issuing Bank for purposes of the Credit Documents
shall be deemed to be a reference to such Bank and provided further that no
Issuing Bank shall issue any Letter of Credit if, after giving effect to such
issuance, the sum of (i) the aggregate amount then available to be drawn under
all outstanding Letters of Credit and (ii) the aggregate amount of Revolving L/C
Obligations would exceed $50,000,000.
(b) Each Letter of Credit issued hereunder shall, among other things,
(i) be denominated in Dollars, (ii) be in such form requested by the Company as
shall be acceptable to the relevant Issuing Bank in its sole discretion and
(iii) have an expiry date occurring not later than the earlier of (x) 365 days
after the date of issuance of such Letter of Credit and (y) the date five
Business Days prior to the Revolving Credit Termination Date; provided that
unless the Issuing Bank notifies the Company not less than 30 days prior to the
expiry of such Letter of Credit that the Issuing Bank is not willing to extend
it, any Letter of Credit which has an expiry date of 365 days after its date of
issuance may by its terms be automatically extended for periods of one year from
the current or any future expiration date thereof (but not to any date which is
later than five Business Days prior to the Revolving Credit Termination Date).
Each L/C Application and each Letter of Credit shall be subject to the Uniform
Customs and, to the extent
20
not inconsistent therewith, the laws of the State of New York.
2.4 Participating Interests. Effective in the case of each Letter of
Credit opened by an Issuing Bank as of the date of the opening thereof, such
Issuing Bank agrees to allot and does allot, to itself and each other Bank, and
each Bank severally and irrevocably agrees to take and does take in such Letter
of Credit and the related L/C Application, an L/C Participating Interest in a
percentage equal to such Bank's Revolving Credit Commitment Percentage.
2.5 Procedure for Opening Letters of Credit. Upon receipt of any L/C
Application from the Company in respect of a Letter of Credit, the
Administrative Agent will promptly notify each Bank thereof. The relevant
Issuing Bank will process such L/C Application, and the other certificates,
documents and other papers delivered to such Issuing Bank in connection
therewith, upon receipt thereof in accordance with its customary procedures and,
subject to the terms and conditions hereof, shall promptly open such Letter of
Credit by issuing the original of such Letter of Credit to the beneficiary
thereof and by furnishing a copy thereof to the Company and each of the other
Banks, provided that no such Letter of Credit shall be issued if subsection 2.1
would be violated thereby.
2.6 Payments in Respect of Letters of Credit. (a) The Company agrees
forthwith upon demand by the relevant Issuing Bank and otherwise in accordance
with the terms of the L/C Application relating thereto (i) to reimburse such
Issuing Bank, through the Administrative Agent, for any payment made by such
Issuing Bank under any Letter of Credit on the next Business Day of such payment
by such Issuing Bank and (ii) to pay interest on any unreimbursed portion of any
such payment from the date of such payment until reimbursement in full thereof
at a rate per annum equal to (A) prior to the date which is one Business Day
after the day on which such Issuing Bank demands reimbursement from the Company
for such payment, the ABR and (B) on such date and thereafter, the ABR plus 2%.
(b) In the event that an Issuing Bank makes a payment under any Letter
of Credit and is not reimbursed in full therefor forthwith upon demand of such
Issuing Bank, and otherwise in accordance with the terms of the L/C Application
relating to such Letter of Credit, such Issuing Bank will promptly notify each
other Bank through the Administrative Agent. Forthwith upon its receipt of any
such notice, each other Bank will transfer to such Issuing Bank, through the
Administrative Agent, in immediately available funds, an amount equal to such
other Bank's pro rata share of the Revolving L/C Obligation arising from such
unreimbursed payment. Upon its receipt from such other Bank of such amount, the
Administrative Agent will complete, execute and deliver to such other Bank an
L/C Participation Certificate dated the date of such receipt and in such amount.
(c) Whenever, at any time after an Issuing Bank has made a payment
under any Letter of Credit and has received from any other Bank such other
Bank's pro rata share of the Revolving L/C Obligation arising therefrom, such
Issuing Bank receives any reimbursement on account of such Revolving L/C
Obligation or any payment of interest on account thereof (appropriately
adjusted, in the case of interest payments, to reflect the period of time during
which such Bank's participating interest was outstanding and funded), such
Issuing Bank will promptly distribute to such other Bank, through the
Administrative Agent, such other Bank's pro rata share thereof in like funds as
received; provided, that in the event that the receipt by such Issuing Bank of
such reimbursement or such payment of interest (as the case may be) is required
to be returned, such other Bank will return to such Issuing Bank, through the
Administrative
21
Agent, any portion thereof previously distributed by such Issuing Bank to it
in like funds as such reimbursement or payment is required to be returned by
such Issuing Bank.
2.7 The Bid Loans. Subject to the terms and conditions of this
Agreement, the Company may borrow Bid Loans from time to time during the Bid
Loan Commitment Period on any Business Day. The Company shall designate Banks
from time to time as Bid Loan Lenders by written notice to the Administrative
Agent. The Administrative Agent shall transmit each such notice of designation
promptly to each designated Bid Loan Lender. Each Bid Loan shall bear interest
at rates, be payable on the dates, be made in Dollars, and shall mature on the
date, agreed between the Company and the relevant Bid Loan Lender at the time
such Bid Loan is made; provided, that the maturity date for each Bid Loan (i)
shall be not less than 15 days nor more than 180 days after the Borrowing Date
therefor with respect to an Absolute Rate Bid Loan and (ii) shall be on the last
day of an Interest Period with respect to an Index Rate Bid Loan (and, in each
case, in any event shall be not later than the Revolving Credit Termination
Date). Within the limits and on the conditions hereinafter set forth with
respect to Bid Loans, the Company from time to time may borrow, repay and
reborrow Bid Loans; provided that no Bid Loan shall be made if, after giving
effect to the making of such Loan and the simultaneous application of the
proceeds thereof, the Aggregate Extensions of Credit would exceed the aggregate
amount of the Revolving Credit Commitments.
2.8 Procedure for Bid Loan Borrowing. (a) The Company shall request
Bid Loans by delivering a Bid Loan Request to the Administrative Agent, not
later than 12:00 Noon (New York City time) four Business Days prior to the
proposed Borrowing Date (in the case of an Index Rate Bid Loan Request), and not
later than 10:00 A.M. (New York City time) one Business Day prior to the
proposed Borrowing Date (in the case of an Absolute Rate Bid Loan Request).
Each Bid Loan Request may solicit bids for Bid Loans in an aggregate principal
of $10,000,000 or an integral multiple of $5,000,000 in excess thereof and
having not more than four alternative maturity dates. The Administrative Agent
shall notify each Bid Loan Lender promptly by telex or facsimile transmission of
the contents of each Bid Loan Request received by the Administrative Agent.
(b) In the case of an Index Rate Bid Loan Request, upon receipt of
notice from the Administrative Agent of the contents of such Bid Loan Request,
each Bid Loan Lender may elect, in its sole discretion, to offer irrevocably to
make one or more Bid Loans at the Applicable Index Rate plus or minus a margin
determined by such Bid Loan Lender in its sole discretion for each such Bid
Loan. Any such irrevocable offer shall be made by delivering a Bid Loan Offer
to the Administrative Agent, before 10:00 A.M. (New York City time) on the day
that is three Business Days before the proposed Borrowing Date, setting forth:
(1) the maximum amount of such Bid Loans for each maturity date and
the aggregate maximum amount of such Bid Loans for all maturity dates which
such Bank would be willing to make (which amounts may, subject to
subsection 2.7, exceed such Bid Loan Lender's Revolving Credit Commitment);
and
(2) the margin above or below the Applicable Index Rate at which such
Bid Loan Lender is willing to make each such Bid Loan.
The Administrative Agent shall advise the Company promptly but no later than
10:30 A.M. (New York City time) on the date which is three Business Days before
the proposed Borrowing
22
Date of the contents of each such Bid Loan Offer received by it. If the
Administrative Agent, in its capacity as a Bid Loan Lender, shall elect, in
its sole discretion, to make any such Bid Loan Offer, it shall advise the
Company of the contents of its Bid Loan Offer before 9:45 A.M. (New York City
time) on the date which is three Business Days before the proposed Borrowing
Date.
(c) In the case of an Absolute Rate Bid Loan Request, upon receipt of
notice from the Administrative Agent of the contents of such Bid Loan Request,
each Bid Loan Lender may elect, in its sole discretion, to offer irrevocably to
make one or more Bid Loans at a rate of interest determined by such Bid Loan
Lender in its sole discretion for each such Bid Loan. Any such irrevocable
offer shall be made by delivering a Bid Loan Offer to the Administrative Agent
before 10:00 A.M. (New York City time) on the proposed Borrowing Date, setting
forth:
(1) the maximum amount of such Bid Loans for each maturity date, and
the aggregate maximum amount of such Bid Loans for all maturity dates,
which such Bid Loan Lender would be willing to make (which amounts may,
subject to subsection 2.7, exceed such Bid Loan Lender's Revolving Credit
Commitment); and
(2) the fixed rate of interest at which such Bid Loan Lender is
willing to make each such Bid Loan.
The Administrative Agent shall advise the Company promptly but in no event later
than 10:30 A.M. (New York City time) on the proposed Borrowing Date of the
contents of each such Bid Loan Offer received by it. If the Administrative
Agent, in its capacity as a Bid Loan Lender, shall elect, in its sole
discretion, to make any such Bid Loan Offer, it shall advise the Company of the
contents of its Bid Loan Offer before 9:45 A.M. (New York City time) on the
proposed Borrowing Date.
(d) Before 12:00 noon (New York City time) three Business Days before
the proposed Borrowing Date (in the case of Bid Loans requested by an Index Rate
Bid Loan Request) and before 11:00 A.M. (New York City time) on the proposed
Borrowing Date (in the case of Bid Loans requested by an Absolute Rate Bid Loan
Request), the Company, in its absolute discretion, shall:
(1) cancel such Bid Loan Request by giving the Administrative
Agent telephone notice to that effect, or
(2) by giving telephone notice to the Administrative Agent
(immediately confirmed by delivery to the Administrative Agent of a
Bid Loan Confirmation in writing or by telex or fax transmission)(1)
subject to the provisions of subsection 2.8(e), accept one or more of
the offers made by any Bid Loan Lender or Bid Loan Lenders pursuant to
subsection 2.8(b) or subsection 2.8(c), as the case may be, of the
amount of Bid Loans for each relevant maturity date and (2) reject any
remaining offers made by Bid Loan Lenders pursuant to subsection
2.8(b) or subsection 2.8(c), as the case may be.
If the Company fails to give any such notice prior to such time, such Bid Loan
Request shall be deemed to have been canceled.
(e) The Company's acceptance of Bid Loans in response to any Bid Loan
Request
23
shall be subject to the following limitations:
(1) the principal amount of Bid Loans accepted for each maturity date
specified by any Bid Loan Lender in its Bid Loan Offer shall not exceed the
maximum amount for such maturity date specified in such Bid Loan Offer;
(2) the aggregate principal amount of Bid Loans accepted for all
maturity dates specified by any Bid Loan Lender in its Bid Loan Offer shall
not exceed the aggregate maximum amount specified in such Bid Loan Offer
for all such maturity dates;
(3) the Company may not accept offers for Bid Loans for any maturity
date in an aggregate principal amount in excess of the maximum principal
amount of Bid Loan requested in the related Bid Loan Request for such
maturity date; and
(4) if the Company accepts any of such offers, it must accept offers
based solely upon pricing for such relevant maturity date and upon no other
criteria whatsoever and if two or more Bid Loan Lenders submit offers for
any maturity date at identical pricing and the Company accepts any of such
offers but does not wish to (or by reason of the limitations set forth in
subsection 2.7 or in clause 2.8(e)(3) cannot) borrow the total amount
offered by such Bid Loan Lenders with such identical pricing, the Company
shall accept offers from all of such Bid Loan Lenders in amounts allocated
among them pro rata according to the amounts offered by such Bid Loan
Lenders (or as nearly pro rata as shall be practicable after giving effect
to the requirement that Bid Loans made by a Bid Loan Lender on a Borrowing
Date for each relevant maturity date shall be in a principal amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof).
(f) If the Company notifies the Administrative Agent that a Bid Loan
Request is cancelled pursuant to subsection 2.8(d)(1), the Administrative Agent
shall give prompt telephone notice thereof to the Bid Loan Lenders.
(g) If the Company accepts pursuant to subsection 2.8(d)(2) one or
more of the offers made by any Bid Loan Lender or Bid Loan Lenders, the
Administrative Agent promptly shall notify each Bid Loan Lender which has made
such a Bid Loan Offer of (i) the aggregate amount of such Bid Loans to be made
on such Borrowing Date for each maturity date and (ii) the acceptance or
rejection of any offers to make such Bid Loans made by such Bid Loan Lender.
Before 12:00 Noon (New York City time) on the Borrowing Date specified in the
applicable Bid Loan Request, each Bid Loan Lender whose Bid Loan Offer has been
accepted shall make available to the Administrative Agent at its office set
forth in subsection 10.2 the amount of Bid Loans to be made by such Bid Loan
Lender in immediately available funds. The Administrative Agent will make such
funds available to the Company as soon as practicable on such date at the
Administrative Agent's aforesaid address. As soon as practicable after each
Borrowing Date, the Administrative Agent shall notify each Bank of the aggregate
amount of Bid Loans advanced on such Borrowing Date and the respective maturity
dates thereof.
(h) Unless otherwise agreed by the Bid Loan Lender making a Bid Loan,
such Bid Loan may not be optionally prepaid prior to the scheduled maturity date
thereof.
(i) For any Bid Loan Lender which is a Designating Lender, any Bid
Loan to be made by such Bid Loan Lender may from time to time be made by its
Designated Lender in such
24
Designated Lender's sole discretion, and nothing herein shall constitute a
commitment to make Bid Loans by such Designated Lender; provided that if any
Designated Lender elects not to, or fails to, make any such Bid Loan that has
been accepted by the Company in accordance with the foregoing, its
Designating Lender hereby agrees that it shall make such Bid Loan pursuant to
the terms hereof.
2.9 Bid Loan Payments. (a) The Company shall repay to the
Administrative Agent for the account of each Bid Loan Lender which has made a
Bid Loan (or the Bid Loan Assignee in respect thereof, as the case may be) on
the applicable Bid Loan Maturity Date the then unpaid principal amount of such
Bid Loan. The Company shall not have the right to prepay any principal amount
of any Bid Loan except with the consent of the relevant Bid Loan Lender.
(b) The Company shall pay interest on the unpaid principal amount of
each Bid Loan from the Borrowing Date to the applicable Bid Loan Maturity Date
at the rate of interest specified in the Bid Loan Offer accepted by the Company
in connection with such Bid Loan (calculated on the basis of a 360-day year for
actual days elapsed), payable on each applicable Bid Loan Interest Payment Date.
(c) If all or a portion of the principal amount of any Bid Loan shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue principal amount shall, without limiting any rights of
any Bank under this Agreement, bear interest from the date on which such payment
was due at a rate per annum which is 2% above the rate which would otherwise be
applicable to such Bid Loan until the stated maturity date of such Bid Loan, and
for each day thereafter at a rate per annum which is 2% above the ABR, in each
case until paid in full (as well after as before judgment).
2.10 Swing Line Commitment. (a) Subject to the terms and conditions
hereof, each Swing Line Bank agrees to make swing line loans (individually, a
"Swing Line Loan"; collectively, the "Swing Line Loans") to the Company from
time to time during the Revolving Credit Commitment Period in Dollars in an
aggregate principal amount (when added together with all other Swing Line Loans)
at any one time outstanding not to exceed $30,000,000, provided that at no time
may the Aggregate Extensions of Credit exceed the Revolving Credit Commitments.
Amounts borrowed by the Company under this subsection may be repaid and, through
but excluding the Revolving Credit Termination Date, reborrowed.
The Swing Line Loans may from time to time be (i) ABR Loans, (ii)
Money Market Rate Loans or (iii) a combination thereof, as determined by the
Company and notified to the Administrative Agent and the applicable Swing Line
Bank in accordance herewith, and shall not be entitled to be converted into
Eurodollar Loans. The Company may, on any Borrowing Date for Swing Line Loans
and prior to the time that an irrevocable notice requesting such Swing Line
Loans must be made pursuant to this subsection 2.10(a), request a quote of the
Money Market Rate which would be applicable for such Swing Line Loans from a
Swing Line Bank, specifying the amount of the proposed Money Market Rate Loans
and the maturity date thereof (which shall be no less than one and no more than
30 days following such Borrowing Date). Upon receipt of such quote, the Company
shall promptly (but not later than the time that an irrevocable notice
requesting such Swing Line Loans must be made pursuant to this subsection
2.10(a)) notify the Administrative Agent and the applicable Swing Line Bank
whether it requests such Swing Line Bank to make Money Market Rate Loans at such
Money Market Rate. The Company shall give the Administrative Agent and the
applicable Swing Line Bank irrevocable
25
notice (which notice must be received by the Administrative Agent and the
applicable Swing Line Bank prior to 12:00 Noon, New York City time) on the
requested Borrowing Date specifying the amount of each requested Swing Line
Loan, which shall be in minimum amount of (i) in the case of Swing Line Loans
which are ABR Loans, $500,000 or a whole multiple thereof and (ii) in the
case of Swing Line Loans which are Money Market Rate Loans, $1,000,000 or a
whole multiple of $1,000,000 in excess thereof.
The proceeds of each Swing Line Loan will be made available by the
applicable Swing Line Bank to the Company by crediting the specified account of
the Company with such proceeds in the manner from time to time agreed by the
Company and the applicable Swing Line Bank. The proceeds of Swing Line Loans
may be used solely for the purposes referred to in subsection 2.2.
(b) Each Swing Line Bank (i) at any time in its sole and absolute
discretion may, (ii) if any Event of Default has occurred and is continuing,
shall and (iii) on the thirtieth day (or if such day is not a Business Day, the
next Business Day) after the Borrowing Date with respect to any Swing Line Loans
shall, on behalf of the Company (which hereby irrevocably directs each Swing
Line Bank to act on its behalf), request each Bank, including such Swing Line
Bank, to make a Revolving Credit Loan in Dollars to the Company (which shall be
initially an ABR Loan) in an amount equal to such Bank's Revolving Credit
Commitment Percentage of the amount of such Swing Line Loans (the "Refunded
Swing Line Loans") outstanding on the date such notice is given. Unless any of
the events described in paragraph (f) of Section 8 shall have occurred (in which
event the procedures of paragraph (c) of this subsection shall apply) each Bank
shall make the proceeds of its Revolving Credit Loan available to the
Administrative Agent for the account of the applicable Swing Line Bank at the
office of the Administrative Agent located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 prior to 12:00 Noon (New York City time) in funds immediately
available on the Business Day next succeeding the date such notice is given.
The proceeds of such Revolving Credit Loans shall be immediately applied to
repay the Refunded Swing Line Loans.
(c) If prior to the making of a Revolving Credit Loan pursuant to
paragraph (b) of this subsection one of the events described in paragraph (f) of
Section 8 shall have occurred, each Bank will, on the date such Loan would
otherwise have been made (the "Refunding Date"), purchase an undivided
participating interest in the Refunded Swing Line Loans in an amount equal to
its Revolving Credit Commitment Percentage of such Refunded Swing Line Loans.
On the Refunding Date, each Bank will immediately transfer to the Administrative
Agent, for the account of the applicable Swing Line Bank, in immediately
available funds, the amount of its participation in Dollars and upon receipt
thereof the Administrative Agent and the applicable Swing Line Bank will deliver
to such Bank a Swing Line Loan Participation Certificate dated the date of
receipt of such funds and in such amount.
(d) Whenever, at any time after the Administrative Agent or a Swing
Line Bank has received from any Bank such Bank's participating interest in a
Swing Line Loan, the Administrative Agent or such Swing Line Bank, as the case
may be, receives any payment on account thereof, the Administrative Agent or
such Swing Line Bank, as the case may be, will promptly distribute to such Bank
its participating interest in such amount (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Bank's
participating interest was outstanding and funded) in like funds as received;
provided, however, that in the event that such payment received by the
Administrative Agent or such Swing Line
26
Bank, as the case may be, is required to be returned, such Bank will return
to the Administrative Agent or such Swing Line Bank, as the case may be, any
portion thereof previously distributed by the Administrative Agent or such
Swing Line Bank, as the case may be, to it in like funds as such payment is
required to be returned by the Administrative Agent or such Swing line Bank,
as the case may be.
(e) Each Bank's obligation to make Revolving Credit Loans pursuant to
subsection 2.10(b) shall be absolute and unconditional and shall not be affected
by any circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Bank may have
against any other Bank or the Company, or the Company may have against any Bank
or any other Person, as the case may be, for any reason whatsoever; (ii) the
occurrence or continuance of a Default or an Event of Default; (iii) any adverse
change in the condition (financial or otherwise) of the Company or any of its
Subsidiaries; (iv) any breach of this Agreement by the Company or any other Bank
(not including any Swing Line Bank); or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.
2.11 Participations. Each Bank's obligation to purchase participating
interests pursuant to subsections 2.4 and 2.10(c) is absolute and unconditional
as set forth in subsection 3.15.
SECTION 3. GENERAL PROVISIONS APPLICABLE TO
LOANS AND LETTERS OF CREDIT
3.1 Procedure for Borrowing. (a) Except with respect to Swing Line
Loans, for which borrowing procedures are set forth in subsection 2.10, the
Company may borrow under the Commitments on any Business Day, provided that,
with respect to the borrowings, if any, to take place on the Closing Date, the
Company shall give the Administrative Agent irrevocable notice (which notice
must be received by the Administrative Agent prior to 10:00 A.M., New York City
time, on the Closing Date), and with respect to any subsequent borrowings, the
Company shall give the Administrative Agent irrevocable notice (which notice
must be received by the Administrative Agent prior to 12:00 Noon, New York City
time, (i) three Business Days prior to the requested Borrowing Date if all or
any part of the Loans are to be Eurodollar Loans and (ii) one Business Day prior
to the requested Borrowing Date if the borrowing is to be solely of ABR Loans)
specifying (A) the amount of the borrowing, (B) whether such Loans are initially
to be Eurodollar Loans or ABR Loans, or a combination thereof, and (C) if the
borrowing is to be entirely or partly Eurodollar Loans, the length of the
Interest Period for such Eurodollar Loans. Upon receipt of such notice the
Administrative Agent shall promptly notify each Bank (which notice shall in any
event be delivered to each Bank by 4:00 P.M., New York City time, on such date).
Not later than 12:00 Noon, New York City time, on the Borrowing Date specified
in such notice, each Bank shall make available to the Administrative Agent at
the office of the Administrative Agent specified in subsection 10.2 (or at such
other location as the Administrative Agent may direct) an amount in immediately
available funds equal to the amount of the Loan to be made by such Bank. Loan
proceeds received by the Administrative Agent hereunder shall promptly be made
available to the Company by the Administrative Agent's crediting the account of
the Company, at the office of the Administrative Agent specified in subsection
10.2, with the aggregate amount actually received by the Administrative Agent
from the Banks and in like funds as received by the Administrative Agent.
27
(b) Any borrowing of Eurodollar Loans hereunder shall be in such
amounts and be made pursuant to such elections so that, after giving effect
thereto, (i) the aggregate principal amount of all Eurodollar Loans having the
same Interest Period shall not be less than $5,000,000, or a whole multiple of
$1,000,000 in excess thereof, and (ii) no more than ten Interest Periods shall
be in effect at any one time.
(c) Eurodollar Loans shall be made by each Bank at its Eurodollar
Lending Office and ABR Loans shall be made by each Bank at its Domestic Lending
Office.
3.2 Conversion Options. The Company may elect from time to time to
convert Eurodollar Loans into ABR Loans by giving the Administrative Agent
irrevocable notice of such election, to be received by the Administrative Agent
prior to 12:00 Noon, New York City time, at least one Business Day prior to the
proposed conversion date, provided that any such conversion of Eurodollar Loans
shall only be made on the last day of an Interest Period with respect thereto.
The Company may elect from time to time to convert all or a portion of the ABR
Loans (other than Swing Line Loans) then outstanding to Eurodollar Loans by
giving the Administrative Agent irrevocable notice of such election, to be
received by the Administrative Agent prior to 12:00 Noon, New York City time, at
least three Business Days prior to the proposed conversion date, specifying the
Interest Periods selected therefor, and, if no Default or Event of Default has
occurred and is continuing, such conversion shall be made on the requested
conversion date or, if such requested conversion date is not a Business Day, on
the next succeeding Business Day. Upon receipt of any notice pursuant to this
subsection 3.2, the Administrative Agent shall promptly, but in any event by
4:00 P.M., New York City time, notify each Bank thereof. All or any part of the
outstanding Loans (other than Swing Line Loans and Bid Loans) may be converted
as provided herein, provided that partial conversions of Loans shall be in the
aggregate principal amount of $5,000,000, or a whole multiple of $1,000,000 in
excess thereof, and the aggregate principal amount of the resulting Eurodollar
Loans outstanding in respect of any one Interest Period shall be at least
$5,000,000 or a whole multiple of $1,000,000 in excess thereof.
3.3 Changes of Commitment Amounts. (a) The Company shall have the
right, upon not less than three Business Days' notice to the Administrative
Agent, to terminate or, from time to time, reduce the Revolving Credit
Commitments subject to the provisions of this subsection 3.3. To the extent, if
any, that the Aggregate Extensions of Credit exceeds the amount of the Revolving
Credit Commitments as then reduced, the Company shall be required to make a
prepayment equal to such excess amount, the proceeds of which shall be applied
first, to payment of the Swing Line Loans then outstanding, second, to payment
of the Revolving Credit Loans which are not Eurodollar Loans then outstanding,
third, to payment of any Revolving L/C Obligations then outstanding, and last,
to cash collateralize any outstanding Letters of Credit, Bid Loans and Revolving
Credit Loans which are Eurodollar Loans on terms reasonably satisfactory to the
Administrative Agent. Any termination of the Revolving Credit Commitments shall
be accompanied by prepayment in full of the Revolving Credit Loan which are not
Eurodollar Loans, Swing Line Loans and Revolving L/C Obligations then
outstanding and by cash collateralization of any outstanding Letter of Credit,
Bid Loans and Revolving Credit Loans which are Eurodollar Loans on terms
reasonably satisfactory to the Administrative Agent. Upon termination of the
Revolving Credit Commitments any Letter of Credit, Bid Loan or Revolving Credit
Loan which is a Eurodollar Loan then outstanding which has been so cash
collateralized shall no longer be considered a "Letter of Credit", "Bid Loan" or
"Eurodollar Loan", as the case
28
may be, as defined in subsection 1.1 and any L/C Participating Interests
heretofore granted by an Issuing Bank to the Banks in such Letter of Credit
shall be deemed terminated (subject to automatic reinstatement in the event
that such cash collateral is returned and such Issuing Bank is not fully
reimbursed for any such L/C Obligations) but the Letter of Credit fees
payable under subsection 3.10 shall continue to accrue to such Issuing Bank
(or, in the event of any such automatic reinstatement, as provided in
subsection 3.10) with respect to such Letter of Credit until the expiry
thereof.
(b) Interest accrued on the amount of any partial prepayment pursuant
to this subsection 3.3 to the date of such partial prepayment shall be paid on
the Interest Payment Date next succeeding the date of such partial prepayment.
In the case of the termination of the Revolving Credit Commitments, interest
accrued on the amount of any prepayment relating thereto and any unpaid
commitment fee accrued hereunder shall be paid on the date of such termination.
Any such partial reduction of the Revolving Credit Commitments shall be in an
amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof, and
shall reduce permanently the Revolving Credit Commitments then in effect.
3.4 Optional Prepayments. The Company may at any time and from time
to time prepay Loans (other than Bid Loans), in whole or in part, without
premium or penalty, upon at least one Business Days' irrevocable notice to the
Administrative Agent in the case of ABR Loans and two Business Days' irrevocable
notice to the Administrative Agent in the case of Eurodollar Loans and
specifying the date and amount of prepayment, subject to subsection 3.20. Upon
receipt of such notice the Administrative Agent shall promptly notify each Bank
thereof. If such notice is given, the Company shall make such prepayment, and
the payment amount specified in such notice shall be due and payable, on the
date specified therein. Accrued interest on the amount of any Loans paid in
full pursuant to this subsection 3.4 shall be paid on the date of such
prepayment. Accrued interest on the amount of any partial prepayment shall be
paid on the Interest Payment Date next succeeding the date of such partial
prepayment. Partial prepayments of Revolving Credit Loans shall be in an
aggregate principal amount equal to the lesser of (A) $2,500,000 or a whole
multiple of $1,000,000 in excess thereof and (B) the aggregate unpaid principal
amount of the Revolving Credit Loans, as the case may be.
3.5 Mandatory Prepayments. (a) The Company shall, without notice or
demand, immediately prepay the Loans (other than Bid Loan and Eurodollar Loans
until the respective current Interest Periods therefor expire) and, if
necessary, cash collateralize Bid Loans and Eurodollar Loans to the extent that
the Aggregate Extensions of Credit exceeds the aggregate Commitments of all the
Banks then in effect. The Company will implement and maintain internal
accounting controls to monitor the borrowings and repayments of Loans by the
Company and the issuance of and drawings under Letters of Credit, with the
object of preventing any request for an Extension of Credit that would result in
the Aggregate Extensions of Credit being in excess of the Revolving Credit
Commitments. In the event that at any time the Company determines that the
Aggregate Extensions of Credit exceeds the Revolving Credit Commitments the
Company will immediately make or cause to be made such repayments or prepayments
of Loans (other than Bid Loans and Eurodollar Loans until the respective current
Interest Periods therefor expire) and, if necessary, cash collateralize Bid
Loans and Eurodollar Loans as shall be necessary to cause the Aggregate
Extensions of Credit to no longer exceed the Revolving Credit Commitments.
(b) The Administrative Agent will calculate the Aggregate Extensions
of Credit
29
from time to time, and in any event not less frequently than once during each
calendar month. In making such calculations, the Administrative Agent will
rely on the information most recently received by it from the Banks in
respect of outstanding Swing Line Loans, from the Bid Loan Lenders in respect
of outstanding Bid Loans, and Issuing Banks in respect of Revolving L/C
Obligations and the aggregate amount available to be drawn under outstanding
Letters of Credit. Upon making each such calculation, the Administrative
Agent will inform the Company and the Banks of the results thereof.
(c) In the event that on any date the Administrative Agent calculates
that the Aggregate Extensions of Credit exceeds the aggregate amount of the
Revolving Credit Commitments, the Administrative Agent will give notice to such
effect to the Company. The Company will immediately make or cause to be made
such repayments or prepayments of Loans or, if necessary, cash collateralize Bid
Loans as shall be necessary to cause the Aggregate Extensions of Credit to no
longer exceed the Revolving Credit Commitments.
(d) Upon the Revolving Credit Termination Date the Company shall, with
respect to each then outstanding Letter of Credit, if any, either (i) cause such
Letter of Credit to be cancelled without such Letter of Credit being drawn upon
or (ii) collateralize the Revolving L/C Obligations with respect to such Letter
of Credit with a letter of credit issued by banks or a bank satisfactory to the
Administrative Agent, or with cash collateral, all on terms satisfactory to the
Administrative Agent.
3.6 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall
bear interest for each day during each Interest Period with respect thereto on
the unpaid principal amount thereof at a rate per annum equal to the applicable
Eurodollar Rate determined for such Interest Period plus the Applicable Margin.
(b) ABR Loans shall bear interest for the period from and including
the date thereof until maturity thereof on the unpaid principal amount thereof
at a rate per annum equal to the ABR.
(c) Money Market Rate Loans shall bear interest for the period from
and including the date thereof until maturity thereof on the unpaid principal
amount thereof at a rate per annum equal to the Money Market Rate.
(d) If all or a portion of (i) the principal amount of any of the
Loans (other than Bid Loans) or (ii) any interest payable thereon shall not be
paid when due (whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall, without limiting the rights of the Banks under
Section 8, bear interest at a rate per annum which is (x) in the case of overdue
principal, 2% above the rate that would otherwise be applicable thereto pursuant
to the foregoing provisions of this subsection or (y) in the case of overdue
interest, 2% above the rate described in paragraph (b) of this subsection, in
each case from the date of such nonpayment until such amount is paid in full (as
well after as before judgment).
(e) Interest shall be payable in arrears on each Interest Payment
Date; provided that interest accruing pursuant to paragraph (d) of this
subsection shall be payable on demand by the Administrative Agent made at the
request of the Required Banks.
3.7 Computation of Interest and Fees. (a) Interest in respect of ABR
Loans at
30
any time when the ABR Loan is calculated based on the Prime Rate and all fees
hereunder shall be calculated on the basis of a 365 or 366, as the case may
be, day year for the actual days elapsed. Interest in respect of Eurodollar
Loans and other ABR Loans shall be calculated on the basis of a 360 day year
for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Company and the Banks of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR shall become effective as of the opening of business on the
day on which such change in the ABR becomes effective. The Administrative
Agent shall as soon as practicable notify the Company and the Banks of the
effective date and the amount of each such change.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Company and the Banks in the absence of manifest error. The Administrative
Agent shall, at the request of the Company, deliver to the Company a statement
showing the quotations used by the Administrative Agent in determining the
Eurodollar Rate.
3.8 Facility Fees. The Company agrees to pay to the Administrative
Agent, for the account of each Bank, a facility fee from and including July 22,
1997 to, but excluding, the Revolving Credit Termination Date on the amount of
such Bank's Revolving Credit Commitment (whether or not utilized) at the rate
per annum for each day during the period for which payment is made set forth in
the definition of Applicable Margin under the column captioned "Facility Fee".
The Facility Fee provided for in this subsection shall be payable quarterly in
arrears on the last day of each fiscal quarter, commencing September 30, 1997,
and on the Revolving Credit Termination Date with respect to the Revolving
Credit Commitments.
3.9 Certain Fees. (a) The Company, together with NextLevel and
General Semiconductor, agrees to pay to the Administrative Agent for its own
account certain fees in the amounts, and on the dates, specified in the letter
agreement dated June 18, 1997 among GI Delaware, Chase and Chase Securities Inc.
3.10 Letter of Credit Fees. (a) (i) In lieu of any letter of credit
commissions and fees provided for in any L/C Application relating to Standby
L/Cs (other than standard administrative issuance, amendment and negotiation
fees), the Company agrees to pay the Administrative Agent, for the account of
the relevant Issuing Bank and the Participating Banks, with respect to each
Standby L/C, a Standby L/C fee on the amount available to be drawn under each
Standby L/C payable, in arrears, on the last day of each fiscal quarter of the
Company, at the rate per annum for each day during the period for which payment
is made set forth in the definition of "Applicable Margin" under the column
captioned "Standby L/C Fee". The Standby L/C Fee provided for in this
subsection shall be payable quarterly in arrears on the last day of each fiscal
quarter, commencing September 30, 1997, and on the Revolving Credit Termination
Date.
(ii) In addition, the Company shall pay to each Issuing Bank of a
Standby L/C, in arrears on such day, a fee of 1/8 of 1% per annum on the amount
available to be drawn on such Standby L/C solely for its own account as Issuing
Bank of such Standby L/C and not on account of its L/C Participating Interest
therein.
(b) In lieu of any letter of credit commissions and fees provided for
in any L/C Application relating to Commercial L/Cs (other than standard
administrative issuance,
31
amendment and negotiation fees), the Company agrees to pay the Administrative
Agent, for the account of the relevant Issuing Bank and the Participating
Banks, with respect to each Commercial L/C, a Commercial L/C fee of 3/8 of 1%
(of which such Issuing Bank shall retain for its own account, as the issuing
bank and not on account of its L/C Participating Interest therein, 1/8 of 1%)
on the maximum face amount of each Commercial L/C payable on the date such
Commercial L/C is issued.
(c) In connection with any payment of fees pursuant to this
subsection 3.10, the Administrative Agent agrees to provide to the Company a
statement of any such fees so paid; provided that the failure by the
Administrative Agent to provide the Company with any such invoice shall not
relieve the Company of its obligation to pay such fees.
3.11 Letter of Credit Reserves. (a) If any Change in Law after the
date of this Agreement shall either (i) impose, modify, deem or make applicable
any reserve, special deposit, assessment or similar requirement against letters
of credit issued by an Issuing Bank or (ii) impose on such Issuing Bank any
other condition regarding this Agreement or any Letter of Credit, and the result
of any event referred to in clause (i) or (ii) above shall be to increase the
cost to such Issuing Bank of issuing or maintaining any Letter of Credit (which
increase in cost shall be the result of such Issuing Bank's reasonable
allocation of the aggregate of such cost increases resulting from such events),
then, upon demand by such Issuing Bank, the Company shall immediately pay to
such Issuing Bank, from time to time as specified by such Issuing Bank,
additional amounts which shall be sufficient to compensate such Issuing Bank for
such increased cost, together with interest on each such amount from the date
demanded until payment in full thereof at a rate per annum equal to the ABR. A
certificate submitted by such Issuing Bank to the Company concurrently with any
such demand by such Issuing Bank, shall be conclusive, absent manifest error, as
to the amount thereof.
(b) In the event that at any time after the date hereof any Change in
Law with respect to an Issuing Bank shall, in the opinion of such Issuing Bank,
require that any obligation under any Letter of Credit be treated as an asset or
otherwise be included for purposes of calculating the appropriate amount of
capital to be maintained by such Issuing Bank or any corporation controlling
such Issuing Bank, and such Change in Law shall have the effect of reducing the
rate of return on such Issuing Bank's or such corporation's capital, as the case
may be, as a consequence of such Issuing Bank's obligations under such Letter of
Credit to a level below that which such Issuing Bank or such corporation, as the
case may be, could have achieved but for such Change in Law (taking into account
such Issuing Bank's or such corporation's policies, as the case may be, with
respect to capital adequacy) by an amount deemed by such Issuing Bank to be
material, then from time to time following notice by such Issuing Bank to the
Company of such Change in Law, within 15 days after demand by such Issuing Bank,
the Company shall pay to such Issuing Bank such additional amount or amounts as
will compensate such Issuing Bank or such corporation, as the case may be, for
such reduction. If such Issuing Bank becomes entitled to claim any additional
amounts pursuant to this subsection 3.11(b), it shall promptly notify the
Company of the event by reason of which it has become so entitled. A
certificate submitted by such Issuing Bank to the Company concurrently with any
such demand by such Issuing Bank, shall be conclusive, absent manifest error, as
to the amount thereof.
(c) The Company agrees that the provisions of the foregoing paragraphs
(a) and (b) and the provisions of each L/C Application providing for
reimbursement or payment to an
32
Issuing Bank in the event of the imposition or implementation of, or increase
in, any reserve, special deposit, capital adequacy or similar requirement in
respect of the Letter of Credit relating thereto shall apply equally to each
Participating Bank in respect of its L/C Participating Interest in such
Letter of Credit, as if the references in such paragraphs and provisions
referred to, where applicable, such Participating Bank or any corporation
controlling such Participating Bank.
(d) Notwithstanding any other provision of this subsection 3.11, no
Bank shall demand compensation for any increased cost or reduction referred to
in subsection 3.11(a) or (b) if it shall not at the time be the general policy
or practice of such Bank to demand such compensation in similar circumstances
under comparable provisions of other credit agreements.
3.12 Further Assurances. The Company hereby agrees, from time to
time, to do and perform any and all acts and to execute any and all further
instruments reasonably requested by an Issuing Bank to effect more fully the
purposes of this Agreement and the issuance of Letters of Credit hereunder. The
Company further agrees to execute any and all instruments reasonably requested
by any Issuing Bank in connection with the obtaining and/or maintaining of any
insurance coverage applicable to any Letters of Credit.
3.13 Obligations Absolute. The payment obligations of the Company
under this Agreement with respect to the Letters of Credit shall be
unconditional and irrevocable and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances, including, without limitation,
the following circumstances:
(i) the existence of any claim, set-off, defense or other
right which the Company or any of its Subsidiaries may have at any time
against any beneficiary, or any transferee, of any Letter of Credit (or
any Persons for whom any such beneficiary or any such transferee may be
acting), any Issuing Bank, the Administrative Agent, any Co-Agent or any
Bank, or any other Person, whether in connection with this Agreement,
the Related Documents, any Credit Documents, the transactions contemplated
herein, or any unrelated transaction;
(ii) any statement or any other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iii) payment by any Issuing Bank under any Letter of Credit
against presentation of a draft or certificate which does not comply with
the terms of such Letter of Credit, except where such payment constitutes
gross negligence or wilful misconduct on the part of any Issuing Bank; or
(iv) any other circumstances or happening whatsoever, whether
or not similar to any of the foregoing, except for any such circumstances
or happening constituting gross negligence or wilful misconduct on the
part of any Issuing Bank.
3.14 Assignments. No Participating Bank's participation in any
Letter of Credit or any of its rights or duties hereunder shall be
subdivided, assigned or transferred (other than in connection with a transfer
of part or all of such Participating Bank's Revolving Credit Commitment in
accordance with subsection 10.6) without the prior written consent of the
33
relevant Issuing Bank, which consent will not be unreasonably withheld. Such
consent may be given or withheld without the consent or agreement of any
other Participating Bank. Notwithstanding the foregoing, a Participating Bank
may subparticipate its L/C Participating Interest without obtaining the prior
written consent of the relevant Issuing Bank.
3.15 Participations. Each Bank's obligation to purchase
participating interests pursuant to subsections 2.4 and 2.10(c) shall be
absolute and unconditional and shall not be affected by any circumstance,
including, without limitation, (i) any set-off, counterclaim, recoupment,
defense or other right which such Bank may have against any Issuing Bank, the
Company, Holdings or any other Person for any reason whatsoever; (ii) the
occurrence or continuance of a Default or an Event of Default; (iii) any
adverse change in the condition (financial or otherwise) of the Company; (iv)
any breach of this Agreement by the Company or any other Bank; or (v) any
other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.
3.16 Inability to Determine Interest Rate. In the event that the
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Company) that by reason of circumstances
affecting the interbank eurodollar market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for any Interest Period with
respect to (i) proposed Loans that the Company has requested be made as
Eurodollar Loans, (ii) any Eurodollar Loans that will result from the
requested conversion of all or part of ABR Loans into Eurodollar Loans or
(iii) the continuation of any Eurodollar Loan as such for an additional
Interest Period, the Administrative Agent shall forthwith give notice of such
determination, confirmed in writing, to the Company and the Banks at least
one day prior to the requested Borrowing Date, the conversion date or the
last day of such Interest Period, as the case may be. If such notice is
given (i) any requested Eurodollar Loans shall be made as ABR Loans, (ii) any
ABR Loans that were to have been converted to Eurodollar Loans shall be
continued as ABR Loans, and (iii) any outstanding Eurodollar Loans shall be
converted, on the last day of the then current Interest Period applicable
thereto, into ABR Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans shall be made.
3.17 Pro Rata Treatment and Payments. (a) Each borrowing of any
Loans (other than Swing Line Loans and Bid Loans) by the Company from the
Banks, each payment by the Company on account of any fee hereunder (other
than as otherwise set forth in subsections 3.9 and 3.10) and any reduction of
the Revolving Credit Commitments of the Banks hereunder shall be made pro
rata according to the relevant Commitment Percentages of the Banks. Each
payment (including each prepayment) by the Company on account of principal of
and interest on the Loans (other than Swing Line Loans and Bid Loans and
other than as set forth in subsections 3.18, 3.19 and 3.20) shall be made pro
rata according to the relevant Commitment Percentages of the Banks. All
payments (including prepayments) to be made by the Company on account of
principal, interest and fees shall be made without set-off or counterclaim
and shall be made to the Administrative Agent, for the account of the Banks,
at the Administrative Agent's office located at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 and in immediately available funds. The Administrative Agent
shall promptly distribute such payments ratably to each Bank in like funds as
received. If any payment hereunder (other than payments on Eurodollar Loans)
becomes due and payable on a day other than a Business Day, such payment
shall be extended to the next succeeding Business Day and, with respect to
payments of principal, interest thereon shall be payable at the then
applicable rate during such extension.
34
(b) Unless the Administrative Agent shall have been notified in
writing by any Bank prior to a Borrowing Date that such Bank will not make
the amount which would constitute its relevant Commitment Percentage of the
borrowing on such date available to the Administrative Agent, the
Administrative Agent may assume that such Bank has made such amount available
to the Administrative Agent on such Borrowing Date in accordance with
subsection 3.1 and the Administrative Agent may, in reliance upon such
assumption, make available to the Company a corresponding amount. If such
amount is made available to the Administrative Agent by such Bank on a date
after such Borrowing Date, such Bank shall pay to the Administrative Agent on
demand an amount equal to the product of (i) the daily average Federal funds
rate during such period as quoted by the Administrative Agent, times (ii) the
amount of such Bank's relevant Commitment Percentage of such borrowing, times
(iii) a fraction the numerator of which is the number of days that elapse
from and including such Borrowing Date to the date on which such Bank's
relevant Commitment Percentage of such borrowing shall have become
immediately available to the Administrative Agent and the denominator of
which is 360. A certificate of the Administrative Agent submitted to any
Bank with respect to any amounts owing under this subsection 3.17(b) shall be
conclusive, absent manifest error. If such Bank's relevant Commitment
Percentage of such borrowing is not in fact made available to the
Administrative Agent by such Bank within three Business Days of such
Borrowing Date, the Administrative Agent shall be entitled to recover such
amount with interest thereon at the rate per annum applicable to ABR Loans
hereunder, on demand, from the Company, without prejudice to any rights which
the Company or the Administrative Agent may have against such Bank hereunder.
Nothing contained in this subsection 3.17(b) shall relieve any Bank which
has failed to make available its ratable portion of any borrowing hereunder
from its obligation to do so in accordance with the terms hereof.
(c) The failure of any Bank to make the Loan to be made by it on any
Borrowing Date shall not relieve any other Bank of its obligation, if any,
hereunder to make its Loan on such Borrowing Date, but no Bank shall be
responsible for the failure of any other Bank to make the Loan to be made by
such other Bank on such Borrowing Date.
(d) All payments and optional prepayments (other than prepayments as
set forth in subsection 3.19 with respect to increased costs) of Eurodollar
Loans hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal
amount of all Eurodollar Loans with the same Interest Period shall not be
less than $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
(e) Each Bank, Assignee, Participant and Designated Lender that is
not a citizen or resident of the United States of America, a corporation,
partnership or other entity created or organized in or under the laws of the
United States of America, or any estate or trust that is subject to U.S.
federal income taxation regardless of the source of its income (a "Non-U.S.
Bank") shall deliver to the Company and the Administrative Agent, and if
applicable, the assigning Bank (or, in the case of a Participant, to the Bank
from which the related participation shall have been purchased) on or before
the date on which it becomes a party to this Agreement (or, in the case of a
Participant, on or before the date on which such Participant purchases the
related participation) either:
(A) (x) two duly completed and signed original copies of either
Internal Revenue Service Form 1001 (relating to such Non-U.S. Bank
and entitling it to a complete exemption from withholding of United
States federal income taxes on
35
all amounts to be received by such Non-U.S. Bank pursuant to this
Agreement and the other Credit Documents) or Form 4224 (relating to
all amounts to be received by such Non-U.S. Bank pursuant to this
Agreement and the other Credit Documents), or successor and related
applicable forms, as the case may be, and (y) two duly completed and
signed original copies of Internal Revenue Service Form W-8 or W-9, or
successor and related applicable forms, as the case may be; or
(B) in the case of a Non-U.S. Bank that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code and that does not comply
with the requirements of clause (A) hereof, (x) a statement in the form
of Exhibit J (or such other form of statement as shall be reasonably
requested by the Company from time to time) to the effect that such
Non-U.S. Bank is eligible for a complete exemption from withholding of
United States federal income taxes under Code Section 871(h) or 881(c),
and (y) two duly completed and signed original copies of Internal
Revenue Service Form W-8 or successor and related applicable form (it
being understood and agreed that no Participant and, without the prior
written consent of the Company described in clause (C) of the proviso
to the first sentence of subsection 10.6(c) or the second clause of
the first sentence of subsection 10.6(i), no Assignee or Designated
Lender shall be entitled to deliver any forms or statements pursuant to
this clause (B), but rather shall be required to deliver forms pursuant
to clause (A) of this subsection 3.17(e)).
Further, each Non-U.S. Bank agrees (i) to deliver to the Company and the
Administrative Agent, and if applicable, the assigning Bank (or, in the case
of a Participant, to the Bank from which the related participation shall have
been purchased) two further duly completed and signed original copies of such
Forms 1001, 4224, W-8 or W-9, as the case may be, or successor and related
applicable forms, on or before the date that any such form expires or becomes
obsolete and promptly after the occurrence of any event requiring a change
from the most recent form(s) previously delivered by it to the Company (or,
in the case of a Participant, to the Bank from which the related
participation shall have been purchased) in accordance with applicable U.S.
laws and regulations, (ii) in the case of a Non-U.S. Bank that delivers a
statement in the form of Exhibit J (or such other form of statement as shall
have been requested by the Company), to deliver to the Company and the
Administrative Agent, and if applicable, the assigning Bank, such statement
on an annual basis on the anniversary of the date on which such Non-U.S. Bank
became a party to this Agreement and to deliver promptly to the Company and
the Administrative Agent, and if applicable, the assigning Bank, such
additional statements and forms as shall be reasonably requested by the
Company from time to time, and (iii) to notify promptly the Company and the
Administrative Agent (or, in the case of a Participant, the Bank from which
the related participation shall have been purchased) if it is no longer able
to deliver, or if it is required to withdraw or cancel, any form or statement
previously delivered by it pursuant to this subsection 3.17(e). Each
Non-U.S. Bank agrees to indemnify and hold harmless the Company from and
against any Taxes imposed by or on behalf of the United States or any taxing
jurisdiction thereof, penalties, additions to tax, fines, interest or other
liabilities, costs or losses (including, without limitation, reasonable
attorneys' fees and expenses) incurred or payable by the Company as a result
of the failure of the Company to comply with its obligations to deduct or
withhold any Taxes imposed by or on behalf of the United States or any taxing
jurisdiction thereof (including penalties, additions to tax, fines or
interest on such Taxes) from any payments made pursuant to this Agreement to
such Non-U.S. Bank or the Administrative
36
Agent which failure resulted from the Company's reliance on any form,
statement, certificate or other information provided to it by such Non-U.S.
Bank pursuant to clause (B) or clause (ii) of this subsection 3.17(e). The
Company hereby agrees that for so long as a Non-U.S. Bank complies with this
subsection 3.17(e), the Company shall not withhold any amounts from any
payments made pursuant to this Agreement to such Non-U.S. Bank, unless the
Company reasonably determines that it is required by law to withhold or
deduct any amounts from any payments made to such Non-U.S. Bank pursuant to
this Agreement. Notwithstanding any other provision of this subsection
3.17(e), a Non-U.S. Bank shall not be required to deliver any form or
statement pursuant to the immediately preceding sentences in this subsection
3.17(e) that such Non-U.S. Bank is not legally able to deliver (it being
understood and agreed that the Company shall withhold or deduct such amounts
from any payments made to such Non-U.S. Bank that the Company reasonably
determines are required by law). If any Credit Party other than the Company
makes any payment to any Non-U.S. Bank under any Credit Document, the
foregoing provisions of this subsection 3.17(e) shall apply to such Non-U.S.
Bank and such Credit Party as if such Credit Party were the Company (but a
Non-U.S. Bank shall not be required to provide any form or make any statement
to any such Credit Party unless such Non-U.S. Bank has received a request to
do so from such Credit Party and has a reasonable time to comply with such
request).
3.18 Illegality. Notwithstanding any other provisions herein, if
any Requirement of Law or any change therein or in the interpretation or
application thereof occurring after the date that any lender becomes a Bank
party to this Agreement, shall make it unlawful for such Bank to make or
maintain Eurodollar Loans as contemplated by this Agreement, the commitment
of such Bank hereunder to make Eurodollar Loans or to convert all or a
portion of ABR Loans into Eurodollar Loans shall forthwith be cancelled and
such Bank's Loans then outstanding as Eurodollar Loans, if any, shall, if
required by law and if such Bank so requests, be converted automatically on
the date specified by such Bank in such request to ABR Loans. To the extent
that such affected Eurodollar Loans are converted into ABR Loans, all
payments of principal which would otherwise be applied to such Eurodollar
Loans shall be applied instead to such Bank's ABR Loans. The Company hereby
agrees promptly to pay any Bank, upon its demand, any additional amounts
necessary to compensate such Bank for any costs incurred by such Bank in
making any conversion in accordance with this subsection 3.18 including, but
not limited to, any interest or fees payable by such Bank to lenders of funds
obtained by it in order to make or maintain its Eurodollar Loans hereunder
(such Bank's notice of such costs, as certified to the Company through the
Administrative Agent, to be conclusive absent manifest error).
3.19 Requirements of Law. (a) In the event that, at any time after
the date hereof, the adoption of any Requirement of Law, or any change
therein or in the interpretation or application thereof or compliance by any
Bank with any request or directive (whether or not having the force of law)
from any central bank or other Governmental Authority:
(i) does or shall subject any Bank to any tax of any kind
whatsoever with respect to this Agreement or any Eurodollar Loans made
by it, or change the basis of taxation of payments to such Bank of
principal, commitment fee, interest or any other amount payable hereunder
(except for changes in the rate of tax on the overall net income of such
Bank), it being understood and agreed that, in the case of a Non-U.S.
Bank that does not comply with clause (A) of subsection 3.17(e), this
clause (i) shall apply only to the extent that it would have applied if
such Non-U.S. Bank were able to comply with clause (A) of subsection
3.17(e);
37
(ii) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement against
assets held by, or deposits or other liabilities in or for the account of,
advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Bank which are not otherwise
included in the determination of the Eurodollar Rate; or
(iii) does or shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank
of making, converting, renewing or maintaining advances or extensions of
credit or to reduce any amount receivable hereunder, in each case, in respect
of its Eurodollar Loans, then, in any such case, the Company shall promptly
pay such Bank, on demand, any additional amounts necessary to compensate such
Bank for such additional cost or reduced amount receivable which such Bank
deems to be material as determined by such Bank with respect to such
Eurodollar Loans, together with interest on each such amount from the date
demanded until payment in full thereof at a rate per annum equal to the ABR.
The Loans referred to in the last sentence of subsection 2.1(a) shall be
entitled to the benefits of this subsection 3.19.
(b) In the event that at any time after the date hereof, any Change
in Law with respect to any Bank shall, in the opinion of such Bank, require
that any Commitment of such Bank be treated as an asset or otherwise be
included for purposes of calculating the appropriate amount of capital to be
maintained by such Bank or any corporation controlling such Bank, and such
Change in Law shall have the effect of reducing the rate of return on such
Bank's or such corporation's capital, as the case may be, as a consequence of
such Bank's obligations hereunder to a level below that which such Bank or
such corporation, as the case may be, could have achieved but for such Change
in Law (taking into account such Bank's or such corporation's policies, as
the case may be, with respect to capital adequacy) by an amount deemed by
such Bank to be material, then from time to time following notice by such
Bank to the Company of such Change in Law as provided in paragraph (c) of
this subsection 3.19, within 15 days after demand by such Bank, the Company
shall pay to such Bank such additional amount or amounts as will compensate
such Bank or such corporation, as the case may be, for such reduction.
(c) A certificate submitted by such Bank, through the Administrative
Agent, to the Company shall be conclusive in the absence of manifest error.
The covenants contained in this subsection 3.19 shall survive the termination
of this Agreement and payment of the outstanding Loans.
(d) Notwithstanding any other provision of this subsection 3.19, no
Bank shall demand compensation for any increased cost or reduction referred
to above if it shall not at the time be the general policy or practice of
such Bank to demand such compensation in similar circumstances under
comparable provisions of other credit agreements.
3.20 Indemnity. The Company agrees to indemnify each Bank and to
hold such Bank harmless from any loss or expense which such Bank may sustain
or incur as a consequence of (a) default by the Company in payment of the
principal amount of or interest on any Eurodollar Loans or Absolute Rate Bid
Loans of such Bank, including, but not limited to, any such loss or expense
arising from interest or fees payable by such Bank to lenders of funds
obtained by it in order to make or maintain its Eurodollar Loans or Absolute
Rate Bid Loans
38
hereunder, (b) default by the Company in making a borrowing of Eurodollar
Loans or Absolute Rate Bid Loans after the Company has given a notice in
accordance with subsection 2.10 or 3.1 or in making a conversion of ABR Loans
to Eurodollar Loans after the Company has given notice in accordance with
subsection 3.2, (c) default by the Company in making any prepayment of
Eurodollar Loans or Absolute Rate Bid Loans after the Company has given a
notice in accordance with subsection 3.4 or (d) a payment or prepayment of a
Eurodollar Loan, Money Market Rate Loan or Absolute Rate Bid Loan or
conversion of any Eurodollar Loan into an ABR Loan, in either case on a day
which is not the last day of an Interest Period with respect thereto (or,
with respect to a Money Market Rate Loan, the maturity date thereof),
including, but not limited to, any such loss or expense arising from interest
or fees payable by such Bank to lenders of funds obtained by it in order to
maintain its Eurodollar Loans hereunder. This covenant shall survive
termination of this Agreement and payment of the outstanding Obligations.
3.21 Repayment of Loans, Evidence of Debt. (a) The Company hereby
unconditionally promises to pay (i) to the Administrative Agent for the
account of each Bank the then unpaid principal amount of each Revolving
Credit Loan on the Revolving Credit Termination Date, (ii) to the
Administrative Agent for the account of each Bid Loan Lender the then unpaid
principal amount of each Bid Loan on the Bid Loan Maturity Date applicable to
such Bid Loan, and (iii) to the Administrative Agent for the account of the
applicable Swing Line Bank the then unpaid principal amount of each Swing
Line Loan on the Revolving Credit Termination Date (or such other date as
required by subsection 2.10(a)).
(b) Each Bank shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Company to such
Bank resulting from each Loan made and each Letter of Credit issued by such
Bank, including the amounts of principal and interest payable and paid to
such Bank from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Extension of Credit made hereunder to the
Company, the Class and Type thereof and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Company to each Bank hereunder and (iii) the
amount of any sum received by the Administrative Agent hereunder for the
account of the Banks and each Bank's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Bank or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of each
Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any Bank may request that Loans made by it be evidenced by a
promissory note. In such event, the Company shall prepare, execute and
deliver to such Bank either (i) a promissory note payable to the order of
such Bank or (ii) if requested by such Bank, a promissory note payable to
such Bank and its registered assigns (a "Registered Form Note") and in each
case in a form approved by the Administrative Agent. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 10.2) be represented by one
or more promissory notes in such form payable to the order of the payee named
therein or, if such promissory note is a Registered Form Note, to such payee
and its registered assigns. Registered Form Notes may not be exchanged for
39
promissory notes that are not Registered Form Notes. A Registered Form Note
and the Obligation(s) evidenced thereby may be assigned or otherwise
transferred in whole or in part only by registration of such assignment or
transfer of such Registered Form Note and the Obligation(s) evidenced thereby
on the Register (and each Registered Form Note shall expressly so provide).
Any assignment or transfer of all or part of such Obligation(s) and the
Registered Form Note(s) evidencing the same shall be registered on the
Register only upon surrender for registration of assignment or transfer of
the Registered Form Note(s) evidencing such Obligation(s), duly endorsed by
(or accompanied by a written instrument of assignment or transfer duly
executed by) the holder thereof, and thereupon one or more new Registered
Form Note(s) in the same aggregate principal amount shall be issued to the
designated Assignee(s) and the old Registered Form Note shall be returned to
the Company marked "cancelled". No assignment of a Registered Form Note and
the Obligation(s) evidenced thereby shall be effective unless it shall have
been recorded in the Register by the Administrative Agent as provided in this
subsection 3.21(e).
3.22 Mitigation Obligations; Replacement of Banks. (a) If any Bank
requests compensation under subsection 3.11 or 3.19 or gives notice to the
Company pursuant to subsection 3.18, or if the Company withholds any amounts
from any payments made pursuant to this Agreement to any Non-U.S. Bank, then
such Bank or Non-U.S. Bank, as the case may be, shall use reasonable efforts
to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Bank or Non-U.S.
Bank, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to subsection 3.11 or 3.19, make it no longer unlawful for
such Bank to make or maintain Eurodollar Loans or eliminate the need to
withhold any amounts from any payments made pursuant to the Agreement, as the
case may be, in the future and (ii) would not subject such Bank to any
unreimbursed cost or expense and would not otherwise be disadvantageous to
such Bank. The Company hereby agrees to pay all reasonable costs and
expenses incurred by any Bank in connection with any such designation or
assignment.
(b) If any Bank requests compensation under subsection 3.11 or 3.19
or gives notice to the Company pursuant to subsection 3.18, or if the Company
withholds any amounts from any payments made pursuant to this Agreement to
any Non-U.S. Bank, or if any Bank defaults in its obligation to fund Loans
hereunder, then the Company may, at its sole expense and effort, upon notice
to such Bank or Non-U.S. Bank, as the case may be, and the Administrative
Agent, either (i) reduce or terminate the Revolving Credit Commitment of such
Bank or Non-U.S. Bank (and pay all amounts owed to such Bank or Non-U.S. Bank
under this Agreement other than Bid Loans prior to the expiration of the
Interest Periods therefor, unless such Bank or Non-U.S. Bank agrees to such
payment) or (ii) require such Bank to assign and delegate, without recourse
(in accordance with and subject to the restrictions contained in subsection
10.6), all its interests, rights and obligations under this Agreement (other
than any outstanding Bid Loans held by it) to an assignee that shall assume
such obligations (which assignee may be another Bank, if such Bank accepts
such assignment); provided that (A) the Company shall have received the prior
written consent of the Administrative Agent (and, if a Revolving Credit
Commitment is being assigned, the Issuing Bank and the Swing Line Bank),
which consent shall not unreasonably be withheld, (B) such Bank shall have
received payment of an amount equal to the outstanding principal of its Loans
(other than Bid Loans) and participations in Letter of Credit and Swing Line
Loans, accrued interest thereon, accrued fees and all other amounts payable
to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and
40
fees) or the Company (in the case of all other amounts) and (C) in the case
of any such assignment resulting from a claim for compensation under
subsection 3.11 or 3.19, a notice pursuant to subsection 3.18 or amounts
withheld from any payments made pursuant to this Agreement to any Non-U.S.
Bank, such assignment will result in a reduction in such compensation or
withholding or result in an assignment to a Bank which may make or maintain
Eurodollar Loans. A Bank shall not be required to make any such assignment
and delegation and the Company shall not be permitted to reduce or terminate
the Revolving Credit Commitments of a Bank if, prior thereto, as a result of
an irrevocable waiver by such Bank or otherwise, the circumstances entitling
the Company to require such assignment and delegation or make such reduction
or termination cease to apply.
(c) If any Bank becomes entitled to claim any additional amounts
pursuant to subsection 3.11 or 3.19, it shall promptly notify the Company,
through the Administrative Agent, of the event by reason of which it has
become so entitled. If any Bank has notified the Company through the
Administrative Agent of any increased costs pursuant to paragraph (a) of this
subsection 3.22, the Company at any time thereafter may, upon at least two
Business Days' notice to the Administrative Agent, prepay or convert into ABR
Loans all (but not a part) of the Eurodollar Loans then outstanding.
(d) The Company's indemnification obligations under subsection 3.20
shall apply to the transactions described in this subsection 3.22.
SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to enter into this Agreement and to
continue and make the Loans and to induce the Issuing Banks to issue, and the
Participating Banks to participate in, the Letters of Credit, the Company
hereby represents and warrants to each Bank, each Co-Agent and the
Administrative Agent, on and as of the Closing Date and, other than with
respect to subsection 4.2, on the date each Loan is made or Letter of Credit
is issued thereafter, that:
4.1 Financial Condition. (a) (i) The audited combined balance
sheet of the Cable Manufacturing Business at each of December 31, 1995 and
December 31, 1996 and the combined statements of operations, divisional net
equity and cash flows for each of the fiscal years ending December 31, 1994,
December 31, 1995 and December 31, 1996, reported on by Deloitte & Touche
LLP, and (ii) the unaudited combined balance sheet of the Cable Manufacturing
Business at March 31, 1997 and the related combined statements of operations,
divisional net equity and cash flows for the fiscal quarter ending March 31,
1997, certified as complete and correct and prepared in accordance with GAAP
(subject to normal year-end adjustments) by the chief financial officer of
the Company, copies of each of which have heretofore been furnished to each
Bank, are complete and correct and present fairly (except, with respect to
interim statements, for normal year-end adjustments) the combined financial
position of the Cable Manufacturing Business as at such dates, and the
combined results of operations and cash flows for the fiscal periods then
ended and, in the case of the statements referred to in the foregoing clause
(ii), the portion of the fiscal year through such date. All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except, with respect to interim statements, for normal year-end
adjustments and that such interim statements may be condensed
41
and exclude detailed footnote disclosure and except as concurred in by such
accountants or such chief financial officer, as the case may be, and as
disclosed therein).
(b) The unaudited pro forma combined balance sheet of the Cable
Manufacturing Business at March 31, 1997 (including the notes thereto) (the
"Pro Forma Balance Sheet"), and the related combined statements of operations
for the fiscal year ending December 31, 1996 and the fiscal quarter ended
March 31, 1997 (the "Pro Forma Statements of Operations"), copies of which
have heretofore been furnished to each Bank, have been prepared based upon
the combined balance sheet of the Cable Manufacturing Business as of March
31, 1997 and the combined statements of operations for the fiscal year ended
December 31, 1996 and the fiscal quarter ended March 31, 1997, respectively,
assuming that the Spin-Off occurred on January 1, 1996 and January 1, 1997,
respectively, and do not purport to represent what the financial position
actually would have been had the Spin-Off occurred on January 1, 1996 or
January 1, 1997, as the case may be, or to project the financial position of
the Cable Manufacturing Business for any future date. The Pro Forma Balance
Sheet presents fairly on a pro forma basis the combined financial position of
the Cable Manufacturing Business at March 31, 1997, and the Pro Forma
Statements of Operations present fairly on a pro forma basis the combined
operating results of the Cable Manufacturing Business for the respective
fiscal periods covered thereby, in each case assuming that the events and
assumptions specified in the preceding sentence had actually occurred or are
true, as the case may be, on March 31, 1997 or for the respective periods
covered by the Pro Forma Statements of Operations, as the case may be (except
(i) for changes in such financial position which are not materially adverse
to the financial position of the Cable Manufacturing Business, and (ii) as
provided in the notes thereto). The unaudited pro forma adjustments are based
upon currently available information and certain assumptions that the
management of the Cable Manufacturing Business believes to be reasonable. As
of the date of the Pro Forma Balance Sheet, the Cable Manufacturing Business
had no material obligation, contingent or otherwise, which was not reflected
therein or in the notes thereto and which would have a material adverse
effect on the business, financial condition, assets, liabilities, net assets,
properties, results of operations, value or prospects of Holdings and its
Subsidiaries taken as a whole (other than the Excluded Litigation, as to
which no representation is made).
4.2 No Material Change. Since June 13, 1997 (a) there has been no
occurrence (other than the Excluded Litigation as to which no representation
is made in this subsection 4.2) which has had a material adverse effect on
the business, financial condition, properties, results of operations, value
or prospects of the Company and its Subsidiaries taken as a whole, and (b)
other than as disclosed in any financial statements delivered hereunder
pursuant to subsection 6.1, neither the Company nor any of its Subsidiaries
has, since December 31, 1996, incurred any material obligation, contingent or
otherwise (other than in connection with the Excluded Litigation, as to which
no representation is made in this subsection 4.2), which has had a material
adverse effect on the business, financial condition, properties, results of
operations, value or prospects of the Company and its Subsidiaries taken as a
whole.
4.3 Corporate Existence; Compliance with Law. Each Credit Party and
its Subsidiaries (a) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation, (b)
has the corporate power and authority and the legal right to own and operate
its property, to lease the property it operates and to conduct the business
in which it is currently engaged, except to the extent that the failure to
possess such corporate power and authority and such legal right would not, in
the aggregate, have a material adverse effect on the business, financial
condition, properties, results of operations, value or
42
prospects of the Company and its Subsidiaries taken as a whole, (c) is duly
qualified as a foreign corporation and in good standing under the laws of
each jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification, except where the failure
to be so qualified would not have a material adverse effect on the business,
financial condition, properties, results of operations, value or prospects of
the Company and its Subsidiaries taken as a whole and (d) is in compliance
with all Requirements of Law (including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, any
so-called "Superfund" or "Superlien" law, or any applicable federal, state,
local or other statute, law, ordinance, code, rule, regulation, order or
decree regulating, relating to, or imposing liability or standards of conduct
concerning, any Hazardous Materials), except to the extent that the failure
to comply therewith would not, in the aggregate, have a material adverse
effect on the business, financial condition, properties, results of
operations, value or prospects of the Company and its Subsidiaries taken as a
whole.
4.4 Corporate Power; Authorization. Each Credit Party has the
corporate power and authority and the legal right to make, deliver and
perform the Credit Documents to which it is a party; and the Company has the
corporate power and authority and legal right to borrow hereunder and to have
Letters of Credit issued for its account hereunder. Each Credit Party has
taken all necessary corporate action to authorize the execution, delivery and
performance of the Credit Documents to which it is a party and, in case of
the Company, to authorize the borrowings hereunder and the issuance of
Letters of Credit for its account hereunder. No consent or authorization of,
or filing with, any Person (including, without limitation, any Governmental
Authority) is required in connection with the execution, delivery or
performance by any Credit Party, or the validity or enforceability against
any Credit Party, of any Credit Document to the extent that it is a party
thereto, or the guarantee of the Obligations pursuant to the Guarantees.
4.5 Enforceable Obligations. Each of the Credit Documents has been
duly executed and delivered on behalf of each Credit Party which is a party
thereto and each of such Credit Documents constitutes the legal, valid and
binding obligation of such Credit Party, enforceable against such Credit
Party in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws affecting creditors' rights generally and by general principles
of equity (regardless of whether enforcement is sought in a proceeding in
equity or at law).
4.6 No Legal Bar. The performance of each Credit Document, the
guarantee of the Obligations pursuant to the Guarantees and the use of the
proceeds of the Loans and of drawings under the Letters of Credit will not
violate any Requirement of Law or any Contractual Obligation applicable to or
binding upon any Credit Party, any of its Subsidiaries or any of its
properties or assets, which violations, individually or in the aggregate,
would have a material adverse effect on the ability of such Credit Party to
perform its obligations under the Credit Documents to the extent that it is a
party thereto, or which would give rise to any liability on the part of the
Administrative Agent, any Co-Agent or any Bank, or which would have a
material adverse effect on the business, financial condition, properties,
results of operations, value or prospects of the Company and its Subsidiaries
taken as a whole, and will not result in the creation or imposition (or the
obligation to create or impose) of any Lien on any of its or their respective
properties or assets pursuant to any Requirement of Law applicable to it or
them, as the case may be, or any of its or their Contractual Obligations.
4.7 No Material Litigation. No litigation, investigation
known to the Company or
43
proceeding of or by any Governmental Authority or any other Person is pending
against any Credit Party or any of its Subsidiaries, (a) with respect to the
validity, binding effect or enforceability of any Credit Document or with
respect to the Loans made hereunder, the use of proceeds thereof or of any
drawings under a Letter of Credit and the other transactions contemplated
hereby or thereby, or (b) except for the Excluded Litigation (as to which no
representation is made in this subsection 4.7), which would have a material
adverse effect on the business, financial condition, properties, results of
operations, value or prospects of the Company and its Subsidiaries taken as a
whole.
4.8 Investment Company Act. Neither any Credit Party nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company" (as each of the quoted terms is defined or used in the
Investment Company Act of 1940, as amended).
4.9 Federal Regulation. No part of the proceeds of any of the Loans
or any drawing under a Letter of Credit will be used for any purpose which
violates, or which would be inconsistent with, the provisions of Regulation
G, T, U or X of the Board. Neither the Company nor any of its Subsidiaries
is engaged or will engage, principally or as one of its important activities,
in the business of extending credit for the purpose of "purchasing" or
"carrying" any "margin stock" within the respective meanings of each of the
quoted terms under said Regulation U.
4.10 No Default. Neither the Company nor any of its Subsidiaries is
in default in the payment or performance of any of its or their Contractual
Obligations in any respect which would be materially adverse to the business,
financial condition, properties, results of operations, value or prospects of
the Company and its Subsidiaries taken as a whole. Neither the Company nor
any of its Subsidiaries is in default under any order, award or decree of any
Governmental Authority or arbitrator binding upon or affecting it or them or
by which any of its or their properties or assets may be bound or affected in
any respect which would be materially adverse to the business, financial
condition, properties, results of operations, value or prospects of the
Company and its Subsidiaries taken as a whole, and no such order, award or
decree would materially adversely affect the ability of the Company and its
Subsidiaries taken as a whole to carry on their businesses as presently
conducted or the ability of any Credit Party to perform its obligations under
any Credit Document.
4.11 No Burdensome Restrictions. Neither the Company nor any of its
Subsidiaries is a party to or is bound by any Contractual Obligation or
subject to any Requirement of Law or other corporate restriction which
materially and adversely affects the business, financial condition,
properties, results of operations, value or prospects of the Company and its
Subsidiaries taken as a whole.
44
4.12 Taxes. Each of the Company and its Subsidiaries has filed or
caused to be filed or has timely requested an extension to file or has
received an approved extension to file all tax returns which, to the
knowledge of the Company, are required to have been filed, and has paid all
taxes shown to be due and payable on said returns or extension requests or on
any assessments made against it or any of its property and all other taxes,
fees or other charges imposed on it or any of its property by any
Governmental Authority (other than those the amount or validity of which is
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided in the
books of the Company or its Subsidiaries, as the case may be), except any
such filings or taxes, fees or charges, the making of or the payment of
which, or the failure to make or pay, would not materially adversely affect
the business, financial condition, properties, results of operations, value
or prospects of the Company and its Subsidiaries taken as a whole; and, to
the knowledge of the Company, no claims are being asserted with respect to
any such taxes, fees or other charges (other than those the amount or
validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have
been provided in the books of the Company or its Subsidiaries, as the case
may be), except as to any such taxes, fees or other charges, the payment of
which, or the failure to pay, would not materially adversely affect the
business, financial condition, properties, results of operations, value or
prospects of the Company and its Subsidiaries taken as a whole.
4.13 Subsidiaries. The Subsidiaries of the Company listed on
Schedule III constitute all of the Domestic Subsidiaries of the Company and
the Subsidiaries listed on Schedule IV constitute all of the Foreign
Subsidiaries of the Company as of the Closing Date. The Company has no
Material Subsidiaries on the Closing Date.
4.14 Ownership of Property; Liens. The Company and each of its
Subsidiaries has good and marketable title to, or valid and subsisting
leasehold interests in, all its respective material real property, and good
title to all its respective material other property, and none of such
property is subject, except as permitted hereunder, to any Lien (including,
without limitation, Federal, state and other tax liens).
4.15 ERISA. No "prohibited transaction" (as defined in Section 406
of ERISA or Section 4975 of the Code) or "accumulated funding deficiency" (as
defined in Section 302 of ERISA) or Reportable Event (other than a Reportable
Event with respect to which the 30-day notice requirement under Section 4043
of ERISA has been waived or which occurs by reason of the Spin-Off
Transactions) has occurred during the five years preceding each date on which
this representation is made or deemed made with respect to any Plan in any
case the consequences of which would be materially adverse to the business,
financial condition, properties, results of operations, value or prospects of
the Company and its Subsidiaries taken as a whole. The present value of all
accrued benefits under each Single Employer Plan maintained by the Company or
a Commonly Controlled Entity (based on those assumptions used to fund such
Plan) did not, as of the most recent annual valuation date in respect of each
such Plan, exceed the fair market value of the assets of the Plan (including
for these purposes accrued but unpaid contributions) allocable to such
benefits by an amount that would be materially adverse to the business,
financial condition, properties, results of operations, value or prospects of
the Company and its Subsidiaries taken as a whole. The liability to which
the Company or any Commonly Controlled Entity would become subject under
ERISA if the Company or any such Commonly Controlled Entity were to withdraw
completely from all Multiemployer Plans as of the valuation date most
45
closely preceding the date hereof would not be materially adverse to the
business, financial condition, properties, results of operations, value or
prospects of the Company and its Subsidiaries taken as a whole. To the
Company's knowledge, no Multiemployer Plan is either in Reorganization or
Insolvent in any case the consequences of which would be materially adverse
to the business, financial condition, properties, results of operations,
value or prospects of the Company and its Subsidiaries taken as a whole.
4.16 Accuracy of Disclosure. All written information, other than
financial projections, which has been made available to the Administrative
Agent or the Banks by the Company or any of its representatives and all other
information which has been made available to the Administrative Agent or the
Banks by any officers of the Company and its Subsidiaries is complete and
correct in all material respects and does not contain any untrue statement of
a material fact or omit to state a material fact necessary in order to make
the statements contained therein not materially misleading. The financial
projections that have been made available to the Administrative Agent and the
Banks by the Company or any of its representatives have been prepared in good
faith based upon reasonable assumptions.
4.17 Intellectual Property. The Company and each of its
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of
its business as currently conducted except for those the failure to own or
license which would not have any reasonable likelihood of having a material
adverse effect on the business, operations, property, condition (financial or
otherwise) or prospects of the Company and its Subsidiaries, taken as a whole.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Effectiveness of this Agreement. The
effectiveness of this Agreement is subject to the satisfaction, or waiver by
each Bank (or, in the case of the conditions specified in subsections 5.1(b),
(c), (e) and (i), waiver by the Administrative Agent), immediately prior to
or concurrently with the effectiveness of this Agreement, of the following
conditions precedent on or prior to August 31, 1997 (the date of
effectiveness, the "Effective Date"):
(a) Agreement; Holdings Guarantee. The Administrative Agent shall
have received (i) this Agreement, executed and delivered by a duly
authorized officer of each of the Company, the Banks, the Co-Agents and
the Administrative Agent and (ii) the Holdings Guarantee, executed and
delivered by a duly authorized officer of Holdings.
(b) Legal Opinions. The Administrative Agent shall have received,
addressed to the Administrative Agent, the Co-Agents and the Banks, (i)
an opinion of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, special counsel
to Holdings and the Company, dated the Effective Date, substantially in
the form of Exhibit E-1 hereto with such changes thereto as may be
approved by and otherwise in form and substance satisfactory to the
Administrative Agent and its counsel, and (ii) an opinion of Xxxxx X.
Xxxxx XX, Esq., General Counsel to the Company, dated the Effective Date,
substantially in the form of Exhibit E-2 hereto with such changes thereto
as may be approved by and otherwise in form and substance satisfactory to
the Administrative Agent and its counsel. Such opinions shall also cover
such other matters incident to the transactions contemplated by this
Agreement as the
46
Administrative Agent shall reasonably require.
(c) Closing Certificates. The Administrative Agent shall have
received a Closing Certificate of Holdings and the Company, each dated
the Effective Date, substantially in the form of Exhibits F-1 and F-2
hereto, respectively, with appropriate insertions and attachments,
satisfactory in form and substance to the Administrative Agent and its
counsel, executed by the President or any Vice President and the
Secretary or any Assistant Secretary of Holdings and the Company,
respectively.
(d) No Violation. The consummation of the transactions contemplated
hereby shall not contravene, violate or conflict with, nor involve any
Bank in a violation of, any Requirement of Law, except for violations not
involving any Bank and which would not have a material adverse effect on
the business, financial condition, properties, results of operations,
value or prospects of the Company and its Subsidiaries taken as a whole.
(e) Consents, Authorizations, and Filings, etc. The Administrative
Agent shall have received copies of all consents, authorizations and
filings, if any, required in connection with the execution, delivery and
performance by each Credit Party, and the validity and enforceability
against each Credit Party, of the Credit Documents to which it is a
party, and such consents, authorizations and filings shall be in full
force and effect, except such consents, authorizations and filings,
including, without limitation, the consents, authorizations and filings
listed on Schedule V, the failure to obtain which would not have a
material adverse effect on the business, financial condition, properties,
results of operations, value or prospects of the Credit Parties and their
Subsidiaries taken as a whole.
(f) No Legal Constraints. There shall be no inquiry, injunction,
restraining order, action, suit or proceeding pending or entered or any
statute or rule proposed, enacted or promulgated by any Governmental
Authority or any other Person, which, in the opinion of the
Administrative Agent (i) would have a material adverse effect on the
making of the Loans or the issuance of the Letters of Credit or the
Spin-Off or (ii) other than the Excluded Litigation, has or will have a
material adverse effect on the business, financial condition, properties,
results of operations, value or prospects of the Credit Parties and their
Subsidiaries taken as a whole or (iii) would give rise to any liability
on the part of any Bank, the Administrative Agent or any Co-Agent in
connection with this Agreement, any other Credit Document or the
transactions contemplated hereby or thereby or (iv) would bar the making
of the Loans, the issuance of the Letters of Credit or the use of the
proceeds thereof in accordance with the terms of this Agreement.
(g) Absence of Certain Legal Developments. There shall have been no
development in any action, suit or proceeding which, in any such case in
the opinion of the Administrative Agent, (i) would have a material
adverse effect on the making of the Loans or the issuance of the Letters
of Credit or (ii) (A) except for the Excluded Litigation, has or will
have a material adverse effect on the business, financial condition,
properties, results of operations, value or prospects of the Credit
Parties and their Subsidiaries taken as a whole or (B) would give rise to
any
47
liability on the part of any Bank, the Administrative Agent or any
Co-Agent in connection with this Agreement, any other Credit Document or
the transactions contemplated hereby or thereby.
(h) Events of Default Under Other Agreements. There shall exist no
event of default (or condition which would constitute an event of default
with the giving of notice or the passage of time) under any capital
stock, financing agreements, lease agreements or other contracts of the
Company or its Subsidiaries which default would have a material adverse
effect on business, financial condition, properties, results of
operations, value or prospects of the Company and its Subsidiaries taken
as a whole.
(i) Related Agreements. The Administrative Agent shall have
received each additional document, instrument or piece of information
reasonably requested by the Banks, including, without limitation, a copy
of any debt instrument, security agreement or other material contract to
which any Credit Party or their Subsidiaries may be a party.
(j) Financial Statements. The Administrative Agent shall have
received a copy of the financial statements referred to in subsection
4.1(a) and (b), with a photocopy thereof for each Bank, which shall be
satisfactory in form and substance to the Administrative Agent.
(k) Business Plan. The Banks shall have received a satisfactory
business plan for the 1997 through 1999 fiscal years of the Company and a
reasonably satisfactory written analysis of the business and prospects of
the Company and its subsidiaries for the period from the Closing Date
through the Revolving Credit Termination Date. The Banks acknowledge
that they have received such business plan and analysis and that this
condition is satisfied.
(l) Additional Matters. All other documents and legal matters in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Administrative Agent and its
counsel.
5.2 Conditions to Initial Loans and Letters of Credit. The
obligation of each Bank to make its initial Loans and the obligation of each
Issuing Bank to issue its initial Letter of Credit are subject to the
satisfaction, or waiver by each Bank, immediately prior to or concurrently
with the making of such Loans or the issuance of such Letter of Credit, as
the case may be, of the following conditions precedent on or prior to
November 30, 1997 (the date of the initial Extensions of Credit, the "Closing
Date"):
(a) Effective Date. The conditions set forth in subsection 5.1 shall
have been satisfied or waived in accordance with the terms hereof.
(b) Spin-Off. (i) The Spin-Off Transactions that are scheduled to
occur under the Spin-Off Documents on or prior to the Closing Date shall
have been consummated in all material respects, and the conditions
precedent scheduled to occur under the Spin-Off Documents on or prior to
the Closing Date shall have been consummated in all material respects,
and the S-4 Filing and the Spin-Off
48
Documents on or prior to the Closing Date shall not have been amended in
any material respect without the consent of the Administrative Agent.
(ii) The rulings received by GI Holdings from the Internal Revenue
Service, to the effect that the Spin-Off will be tax-free for federal
income tax purposes to GI Holdings, NextLevel, CommScope and their
respective Subsidiaries and to the stockholders of GI Holdings, shall be
in full force and effect.
(c) Fees. The Administrative Agent shall have received for the account
of the Banks, or for its own account, as the case may be, all fees
(including the fees referred to in subsection 3.9) payable to the Banks
and the Administrative Agent on or prior to the Closing Date.
5.3 Conditions to All Loans and Letters of Credit. The obligation
of each Bank to make any Loan (other than any Revolving Credit Loan the
proceeds of which are to be used to repay Refunded Swing Line Loans or a Loan
that does not increase the aggregate outstanding principal amount of the
Loans of any Bank) and the obligation of each Issuing Bank to issue any
Letter of Credit (other than any Letter of Credit which is an extension,
renewal or replacement of an existing Letter of Credit and which does not
increase the face amount thereof) is subject to the satisfaction of the
following conditions precedent on the relevant Borrowing Date:
(a) Representations and Warranties. If such Loan is made (and/or
Letter of Credit issued) on the Closing Date, each of the representations
and warranties made in or pursuant to Section 4, or which are contained
in any other Credit Document or any certificate, document or financial or
other statement furnished by or on behalf of Holdings, the Company or any
Subsidiary thereof, at any time under or in connection herewith, shall be
true and correct in all material respects on and as of the Closing Date
as if made on and as of the Closing Date (unless stated to relate to a
specific earlier date, in which case such representations and warranties
shall be true and correct in all material respects as of such earlier
date). If such Loan is made (and/or Letter of Credit issued) subsequent
to the Closing Date, each of the representations and warranties made in
or pursuant to Section 4 (excluding the representations made pursuant to
subsection 4.2 which shall be made only on the Closing Date) or which are
contained in any other Credit Document or in any certificate, document or
financial or other statement furnished by or on behalf of Holdings, the
Company or any Subsidiary thereof shall be true and correct in all
material respects on and as of the date of such Loan (or Letter of
Credit) as if made on and as of such date (unless stated to relate to a
specific earlier date, in which case, such representations and warranties
shall be true and correct in all material respects as of such earlier
date).
(b) No Default or Event of Default. No Default or Event of Default
shall have occurred and be continuing on such date or after giving effect
to the Loan to be made or the Letter of Credit to be issued on such
Borrowing Date.
Each borrowing by the Company hereunder and the issuance of each
Letter of Credit by each Issuing Bank hereunder shall constitute a
representation and warranty by the Company as of the date of such borrowing
or issuance that the conditions in this subsection 5.3 have been satisfied.
49
SECTION 6. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in
effect, any Loan, or Revolving L/C Obligation remains outstanding and unpaid,
any amount remains available to be drawn under any Letter of Credit or any
other amount is owing to any Bank, any Co-Agent, any Issuing Bank, or the
Administrative Agent hereunder, it shall, and, in the case of the agreements
contained in subsections 6.3, 6.4, 6.5, 6.6 and 6.8 cause each of its
Subsidiaries to:
6.1 Financial Statements. Furnish to the Administrative Agent (with
sufficient copies for each Bank):
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of Holdings, a copy of the consolidated balance
sheet of Holdings and its consolidated Subsidiaries as at the end of such
year and the related consolidated statements of operations, stockholders'
equity and cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, reported on without a
"going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by Deloitte & Touche LLP or other
independent certified public accountants of nationally recognized
standing;
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of Holdings, the unaudited consolidated balance sheet of Holdings
and its consolidated Subsidiaries as at the end of such quarter, the
related unaudited consolidated statements of stockholders' equity and
cash flows of Holdings and its consolidated Subsidiaries from the
beginning of such fiscal year through the end of such quarter and the
related unaudited consolidated statements of operations of Holdings and
its consolidated Subsidiaries for such quarter, setting forth in each
case in comparative form the figures for the previous year, certified by
a Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments); and
(c) as soon as available, but in any event within 90 days after the
beginning of each fiscal year of Holdings to which such budget relates,
and a consolidated operating budget for Holdings and its Subsidiaries
taken as a whole, in each case as adopted by the Board of Directors of
Holdings.
All financial statements shall be complete and correct in all material
respects (subject, in the case of interim statements, to normal year-end
audit adjustments) and shall be prepared in reasonable detail (except that
interim statements may be condensed and may exclude detailed footnote
disclosure to the extent consistent with the rules and regulations of the
Securities and Exchange Commission relating to the presentation of financial
information in Quarterly Reports on Form 10-Q) and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as concurred in by such accountants or officer, as the case
may be, and disclosed therein and except that interim financial statements
need not be restated for changes in accounting principles which require
retroactive application, and operations which have been discontinued (as
defined in Accounting Principles Board Opinion No. 30) during the
50
current year need not be shown in interim financial statements as such either
for the current period or comparable prior period), provided that if for any
reason whatsoever the unaudited consolidated balance sheet of Holdings and
its consolidated Subsidiaries and the related unaudited consolidated
statements of operations, stockholders' equity and cash flows for such
quarter would be materially different than the unaudited consolidated balance
sheet of the Company and its consolidated Subsidiaries and the related
unaudited consolidated statements of operations, stockholders' equity and
cash flows for such quarter, then the Company shall also provide, as soon as
available, but in any event not later than 45 days after the end of each of
the first three quarterly periods of each fiscal year of the Company, the
unaudited consolidated balance sheet of the Company and its consolidated
statements of operations, stockholders' equity and cash flows of the Company
and its consolidated Subsidiaries for such quarter and the portion of the
fiscal year through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects (subject
to normal year-end audit adjustments);
In the event Holdings changes its accounting methods because of changes in
GAAP, or any change in GAAP occurs which increases or diminishes the
protection and coverage afforded to the Banks under current GAAP accounting
methods, the Company or the Administrative Agent, as the case may be, may
request of the other parties to this Agreement an amendment of the financial
covenants contained in this Agreement to reflect such changes in GAAP and to
provide the Banks with protection and coverage equivalent to that existing
prior to such changes in accounting methods or GAAP, and each of the Company,
the Administrative Agent, the Co-Agents and the Banks agree to consider such
request in good faith.
6.2 Certificates; Other Information. Furnish to the Administrative
Agent (with sufficient copies for each Bank other than reports listed in
subsection 6.2(c) which shall be made available by the Administrative Agent
to any Bank upon request):
(a) concurrently with the delivery of the consolidated financial
statements referred to in subsection 6.1(a), a letter from the
independent certified public accountants reporting on such financial
statements (i) stating that their audit examination has included a review
of the terms of subsections 7.3(b), 7.7, 7.8 and 7.9 of this Agreement
and any definitions set forth in this Agreement relating thereto, in each
case as they relate to accounting matters, and (ii) stating whether, in
connection with their audit examination, any condition or event that
constitutes any Default or 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 Default or Event of Default that would not be
disclosed in the course of their audit examination;
(b) concurrently with the delivery of the financial statements
referred to in subsections 6.1(a) and (b), a certificate of the chief
financial officer of the Company (i) stating that such officer has
obtained no knowledge of any Default or Event of Default except as
specified in such certificate; (ii) showing in detail as of the end of
the related fiscal period the figures and calculations supporting such
statement in respect of clause (b) of subsection 7.3, clause (i) of
subsection 7.2, clause (f) of subsection 7.15 and subsections 7.7, 7.8,
and 7.9; (iii) showing in detail as of the end of the related fiscal
period the Leverage Ratio as of the end of such fiscal period and the
calculations supporting such statement and stating the Applicable Margin
payable as a result of such
51
Leverage Ratio; (iv) if not specified in the financial statements
delivered pursuant to subsection 6.1, specifying the aggregate amount of
interest paid or accrued by Holdings, the Company and their respective
Subsidiaries, and the aggregate amount of depreciation, depletion and
amortization charged on the books of Holdings and its Subsidiaries,
during such accounting period; and (v) listing all Indebtedness for
borrowed money (other than Indebtedness hereunder) in each case incurred
since the date of the previous consolidated balance sheet of Holdings
delivered pursuant to subsection 6.1(a) or (b);
(c) promptly upon receipt thereof, copies of all final reports
submitted to Holdings and the Company by independent certified public
accountants in connection with each annual, interim or special audit of
the books of Holdings and the Company made by such accountants,
including, without limitation, any final comment letter submitted by such
accountants to management in connection with their annual audit;
(d) promptly upon their becoming available, copies of all financial
statements, reports, notices and proxy statements sent or made available
generally by Holdings, the Company or any of their respective
Subsidiaries and all regular and periodic reports and all final
registration statements and final prospectuses, if any, filed by the
Company or any of its Subsidiaries with any securities exchange or with
the Securities and Exchange Commission or any Governmental Authority
succeeding to any of its functions;
(e) concurrently with the delivery of the financial statements
referred to in subsections 6.1(a) and (b), a management summary
describing and analyzing the performance of Holdings, the Company and
their respective Subsidiaries during the periods covered by such
financial statements to the extent not included in the reports filed by
Holdings with the Securities and Exchange Commission which are delivered
to the Banks; and
(f) promptly, such additional financial and other information as any
Bank may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all
of its obligations and liabilities of whatever nature, except (a) when the
amount or validity thereof is currently being contested in good faith by
appropriate proceedings and reserves in conformity with GAAP with respect
thereto have been provided on the books of the Company or any of its
Subsidiaries, as the case may be, (b) for delinquent obligations which do not
have a material adverse effect on the business, financial condition,
properties, results of operations, value or prospects of the Company and its
Subsidiaries taken as a whole and (c) for trade and other accounts payable in
the ordinary course of business in accordance with customary trade terms and
which are not overdue for a period of more than 90 days (or any longer period
if longer payment terms are accepted in the ordinary course of business) or,
if overdue for more than 90 days (or such longer period), as to which a
dispute exists and adequate reserves in conformity with GAAP have been
established on the books of the Company and its Subsidiaries, as the case may
be.
6.4 Conduct of Business and Maintenance of Existence. Continue to
engage in business of the same general type as now conducted by it, and
preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business except for
52
rights, privileges and franchises the loss of which would not in the
aggregate have a material adverse effect on the business, financial
condition, properties, results of operations, value or prospects of the
Company and its Subsidiaries taken as a whole, and except as otherwise
permitted by subsections 7.4 and 7.5; and comply with all applicable
Requirements of Law except to the extent that the failure to comply therewith
would not, in the aggregate, have a material adverse effect on the business,
financial condition, properties, results of operations, value or prospects of
the Company and its Subsidiaries taken as a whole.
6.5 Maintenance of Property; Insurance. (a) Keep all property
useful and necessary in its business in good working order and condition
(ordinary wear and tear excepted); and
(b) Maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and with
only such deductibles as are usually maintained by, and against at least such
risks as are usually insured against in the same general area by, companies
engaged in the same or a similar business; provided that the Company may
implement programs of self insurance in the ordinary course of business and
in accordance with industry standards for a company of similar size so long
as reserves are maintained in accordance with GAAP for the liabilities
associated therewith.
6.6 Inspection of Property; Books and Records; Discussions. Keep
proper books of record and account in which full, true and correct entries
are made of all dealings and transactions in relation to its business and
activities in accordance with GAAP and all Requirements of Law; and permit
representatives of any Bank upon reasonable notice to visit and inspect any
of its properties and examine and make abstracts from any of its books and
records at any reasonable time and as often as may reasonably be desired upon
reasonable notice, and to discuss the business, operations, properties and
financial and other condition of the Company and its Subsidiaries with
officers and employees thereof and with their independent certified public
accountants.
6.7 Notices. Promptly give notice to the Administrative Agent and
each Bank:
(a) of the occurrence of any Default or Event of Default;
(b) of any (i) default or event of default under any instrument or
other agreement, guarantee or collateral document of Holdings or any of
its Subsidiaries which default or event of default has not been waived
and would have a material adverse effect on the business, financial
condition, properties, results of operations, value or prospects of the
Company and its Subsidiaries taken as a whole, or (ii) litigation,
investigation or proceeding which may exist at any time between Holdings
or any of its Subsidiaries and any Governmental Authority, or receipt of
any notice of any environmental claim or assessment against Holdings or
any of its Subsidiaries by any Governmental Authority, which in any such
case would have a material adverse effect on the business, financial
condition, properties, results of operations, value or prospects of the
Company and its Subsidiaries taken as a whole;
(c) of any litigation or proceeding affecting the Company or any of
its Subsidiaries (i) in which more than $25,000,000 of the amount claimed
is not
53
covered by insurance or (ii) in which injunctive or similar relief is
sought which if obtained would have a material adverse effect on the
business, financial condition, properties, results of operations, value
or prospects of the Company and its Subsidiaries taken as a whole;
(d) of the following events, as soon as practicable after, and in
any event within 30 days after, the Company knows thereof: (i) the
occurrence of any Reportable Event with respect to any Single Employer
Plan which Reportable Event would have a material adverse effect on the
business, financial condition, properties, results of operations, value
or prospects of the Company and its Subsidiaries taken as a whole, or
(ii) the institution of proceedings or the taking of any other action by
PBGC, the Company or any Commonly Controlled Entity to terminate,
withdraw from or partially withdraw from any Plan and, with respect to a
Multiemployer Plan, the Reorganization or Insolvency of such Plan, in
each of the foregoing cases which would have a material adverse effect on
the business, financial condition, properties, results of operations,
value or prospects of the Company and its Subsidiaries taken as a whole,
and in addition to such notice, deliver to the Administrative Agent and
each Bank whichever of the following may be applicable: (A) a
certificate of the chief financial officer of the Company setting forth
details as to such Reportable Event and the action that the Company or
such Commonly Controlled Entity proposes to take with respect thereto,
together with a copy of any notice of such Reportable Event that may be
required to be filed with PBGC, or (B) any notice delivered by PBGC
evidencing its intent to institute such proceedings or any notice to PBGC
that such Plan is to be terminated, as the case may be; and
(e) of a material adverse change known to the Company or any of its
Subsidiaries in the business, financial condition, properties, results of
operations, value or prospects of Holdings, the Company and their
respective Subsidiaries taken as a whole.
Each notice pursuant to this subsection 6.7 shall be accompanied by a
statement of the chief executive officer or the chief financial officer of
the Company setting forth details of the occurrence referred to therein and
(in the cases of clauses (a) through (e)) stating what action the Company
proposes to take with respect thereto.
6.8 Additional Subsidiary Guarantors. (a) If any Subsidiary of the
Company or Holdings (whether presently existing or hereafter created or
acquired) shall become a Material Subsidiary, the Company or Holdings shall
cause such Material Subsidiary to promptly thereafter execute and deliver a
Subsidiary Guarantee in favor of the Administrative Agent in substantially
the form of Exhibit D-1, each of which Subsidiary Guarantees shall be
accompanied by such resolutions, incumbency certificates and legal opinions
as are reasonably requested by the Administrative Agent and its counsel.
(b) In the event that there shall be a Change in Law which
eliminates the adverse tax consequences to the Company, Holdings or any of
their respective Subsidiaries which would have resulted on the date hereof
from the guarantee by a Subsidiary, which would be a Material Subsidiary but
for the fact that 75% of the assets of such Subsidiary are securities of
foreign companies, of the Loans and the other obligations of the Company
hereunder, the Company shall
54
promptly thereafter cause any such Subsidiary that has not previously
executed and delivered a Subsidiary Guarantee because of such adverse tax
consequences to deliver a Subsidiary Guarantee to the Administrative Agent to
the extent any such guarantee can be so executed and delivered without
adverse tax consequences to the Company, Holdings or any of their respective
Subsidiaries.
SECTION 7. NEGATIVE COVENANTS
The Company hereby agrees that from and after the Closing Date it
shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly so long as the Commitments remain in effect or any Loan or
Revolving L/C Obligation remains outstanding and unpaid, any amount remains
available to be drawn under any Letter of Credit or any other amount is owing
to any Bank, any Co-Agent, any Issuing Bank or the Administrative Agent
hereunder:
7.1 Amendments of Spin-Off Documents. Amend, waive or terminate, or
permit any amendment, waiver or termination of, any Spin-Off Document that
materially adversely affects (a) the Company and its Subsidiaries taken as a
whole, (b) the ability of Holdings or any of its Subsidiaries to perform
their respective obligations under the Spin-Off Documents or (c) the rights
and remedies of the Banks.
7.2 Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets, income or profits, whether now
owned or hereafter acquired, except:
(a) Liens for taxes, assessments or other governmental charges not
yet due or which are being contested in good faith and by appropriate
proceedings if adequate reserves with respect thereto are maintained on
the books of the Company or such Subsidiary, as the case may be, in
accordance with GAAP;
(b) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business in respect of obligations which are not yet due or
which are being contested in good faith and by appropriate proceedings if
adequate reserves with respect thereto are maintained on the books of the
Company or such Subsidiary, as the case may be, in accordance with GAAP;
(c) pledges or deposits in connection with workmen's compensation,
unemployment insurance and other social security legislation;
(d) Liens or deposits to secure the performance of bids, tenders,
trade or government contracts (other than for borrowed money), leases,
licenses, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary
course of business;
(e) easements, right-of-way, zoning and similar restrictions and
other similar encumbrances or title defects incurred, or leases or
subleases granted to others, in the ordinary course of business, which do
not interfere with or adversely affect in any material respect the
ordinary conduct of the business of the Company and its Subsidiaries
taken as a whole;
55
(f) Liens in favor of the Banks pursuant to the Credit Documents and
bankers' liens arising by operation of law;
(g) Liens on assets of corporations which became or become
Subsidiaries of the Company, provided that such Liens exist at the time
such corporations became or become Subsidiaries and are not created in
anticipation thereof;
(h) Liens on documents of title and the property covered thereby
securing Indebtedness in respect of the Letters of Credit which are
Commercial L/Cs;
(i) Liens not otherwise permitted by this subsection 7.2 securing
any Indebtedness permitted under this Agreement, provided that (i) the
aggregate principal amount of Indebtedness secured by such Liens
permitted by this paragraph (i) shall at no time exceed $75,000,000 and
(ii) no such Liens shall encumber any capital stock of Holdings, the
Company or any Subsidiary;
(j) any judgment or judicial attachment Lien with respect to any
judgment that does not constitute an Event of Default;
(k) license or leases in the ordinary course of business of patents,
copyrights, trademarks, trade names and other intellectual property owned
by the Company or any Subsidiary, which do not in the aggregate
materially detract from the value of its property or other assets or
materially impair the use thereof in the operation of its business, and
rights to royalties, fees and other compensation in respect of
intellectual property licensed, leased or used by the Company or any
Subsidiary;
(l) Liens arising solely out of consignments of inventory and
work-in-process in the ordinary course of business; and
(m) Liens on fixed or capital assets acquired or improved by the
Company or any Subsidiary; provided that (i) such security interests
secure Indebtedness permitted by clause (d) of subsection 7.15, (ii) such
security interests and the Indebtedness secured thereby are incurred
prior to or within 180 days after such acquisition or the completion of
such improvements and the Indebtedness secured thereby does not exceed
100% of the cost of acquiring or improving such fixed or capital assets
and (iv) such security interests shall not apply to any other property or
assets of Holdings, the Company or any Subsidiary.
7.3 Limitation on Guarantee Obligations. Create, incur, assume or
suffer to exist any Guarantee Obligation except:
(a) guarantees of obligations to third parties made in the ordinary
course of business in connection with relocation of employees of the
Company or any of its Subsidiaries;
(b) guarantees not otherwise permitted by this subsection 7.3 by the
Company and its Subsidiaries incurred in the ordinary course of business
for an aggregate amount not to exceed $75,000,000 at any one time;
56
(c) Guarantee Obligations existing on the Closing Date and described
in Schedule VI;
(d) Guarantee Obligations in respect of foreign currency exchange
contracts permitted by subsection 7.12 and commodity hedge agreements
permitted by subsection 7.13;
(e) Guarantee Obligations pursuant to the Guarantees;
(f) guarantees by the Company of Indebtedness and other obligations
of its Subsidiaries and by Subsidiaries of Indebtedness and other
obligations of other Subsidiaries and the Company, in each case as
permitted under this Agreement; and
(g) indemnities and other similar Guarantee Obligations arising out
of the Spin-Off Documents.
7.4 Prohibition of Fundamental Changes. Enter into any transaction
of acquisition of, or merger or consolidation or amalgamation with, any other
Person (including any Subsidiary or Affiliate of the Company or any of its
Subsidiaries), or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or make any material change in the present
method of conducting business or engage in any type of business other than of
the same general type now conducted by it, except for the transactions
otherwise permitted pursuant to subsections 7.5 and 7.6.
7.5 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, tax benefits, receivables and leasehold
interests), whether now owned or hereafter acquired except (a) for the sale
or other disposition of any property that, in the reasonable judgment of the
Company, has become uneconomic, obsolete or worn out, and which is disposed
of in the ordinary course of business; (b) for sales of inventory and
receivables made in the ordinary course of business; (c) that any Subsidiary
of the Company may sell, lease, transfer or otherwise dispose of any or all
of its assets (upon voluntary liquidation or otherwise) to the Company or a
wholly-owned Subsidiary of the Company and any Subsidiary of the Company may
sell or otherwise dispose of, or part with control of any or all of, the
stock of any Subsidiary to a wholly-owned Subsidiary of the Company or a
Subsidiary of the Company may merge with the Company (so long as the Company
is the surviving corporation) or another Subsidiary; and (d) for the sale or
other disposition by the Company or any of its Subsidiaries of other assets
consummated after the Closing Date, provided that (i) such sale or other
disposition shall be made for fair value on an arm's-length basis and (ii)
the aggregate fair market value of all such assets sold or disposed of under
this clause (d) shall not exceed 25% of the consolidated total assets of the
Company and its Subsidiaries as of the date of such sale; provided that in no
event shall the Company or any of its Subsidiaries sell any assets pursuant
to this clause (d) if the revenue generated by such assets would have
exceeded 25% of the consolidated net revenue of the Company and its
Subsidiaries for the preceding fiscal year.
7.6 Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase
any stock, bonds, notes, debentures or other securities of, or make any other
investment in, any Person, unless, after giving effect to such loan, advance,
extension of credit to, or acquisition of or investment in such other Person,
57
the Company shall be in pro forma compliance with subsections 7.7, 7.8 and
7.9 and no Default or Event or Default shall have occurred and be continuing
or shall result therefrom.
7.7 Maintenance of Consolidated Net Worth. Permit Consolidated Net
Worth at any time to be less than the sum (without duplication of any item)
of (i) $100,000,000 and (ii) 50% of the Consolidated Net Income of Holdings,
if positive, for each fiscal quarter (commencing with the fiscal quarter
beginning on or about July 1, 1997).
7.8 Maintenance of Interest Coverage. Permit the Interest Coverage
Ratio on the last day of any fiscal quarter to be less than 4.25 to 1.0.
7.9 Maintenance of Leverage Ratio. Permit, as of the last day of
any fiscal quarter, the Leverage Ratio to be greater than 3.25 to 1.0.
7.10 Limitation on Dividends and Stock Repurchases. Declare any
dividends on any shares of any class of stock, or make any payment on account
of, or set apart assets for a sinking or other analogous fund for, the
purchase, redemption, retirement or other acquisition of any shares of any
class of stock (including the outstanding capital stock of Holdings), whether
now or hereafter outstanding, or make any other distribution in respect
thereof, either directly or indirectly, whether in cash or property or in
obligations of the Company or any of its Subsidiaries (all of the foregoing
being referred to herein as "Restricted Payments"); except that:
(a) Subsidiaries may pay dividends directly or indirectly to the
Company or other Subsidiaries and each other owner of an equity interest
in such Subsidiary on a pro rata basis based on their relative ownership
interests, and Foreign Subsidiaries may pay dividends directly or
indirectly to Foreign Subsidiaries and each other owner of an equity
interest in such Foreign Subsidiary on a pro rata basis based on their
relative ownership interests;
(b) the Company may pay dividends to Holdings in an amount equal to
the amount required for Holdings to pay franchise taxes, fees and
expenses necessary to maintain its status as a corporation and other fees
required to maintain its corporate existence, provided that Holdings
shall promptly pay such taxes, fees and expenses; and
(c) the Company at any time may make Restricted Payments in an
aggregate amount not exceeding the sum of (i) $40,000,000 and (ii) 50% of
positive Consolidated Net Income after July 1, 1997, so long as (x) after
giving effect to such Restricted Payments, the Company shall be in pro
forma compliance with subsection 7.7 and (y) at the time thereof and
after giving effect thereto, no Default or Event of Default shall have
occurred and be continuing or shall result therefrom.
7.11 Transactions with Affiliates. Enter into any transaction,
including, without limitation, any purchase, sale, lease or exchange of
property or the rendering of any service, with any Affiliate except (a) for
transactions which are otherwise permitted under this Agreement and which are
in the ordinary course of the Company's or a Subsidiary's business and which
are upon fair and reasonable terms no less favorable to the Company or such
Subsidiary than it would obtain in a hypothetical comparable arm's length
transaction with a Person not an Affiliate, (b) as permitted under
subsections 7.3(a) and (f), subsection 7.6 and subsection 7.10 or (c) any
transactions entered into as part of the Spin-Off Transactions.
58
7.12 Foreign Exchange Contracts. Enter into any foreign currency
exchange contracts other than in the ordinary course of business.
7.13 Commodity Xxxxxx. Enter into any commodity hedge agreements
other than in the ordinary course of business.
7.14 Fiscal Year. Permit the fiscal year of the Company to end on a
day other than December 31, unless the Company shall have given at least 45
days prior written notice to the Administrative Agent.
7.15 Limitation on Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness (including any Indebtedness of any of its
Subsidiaries), except:
(a) Indebtedness of the Company under this Agreement and under any
Registered Form Notes;
(b) (i) Indebtedness of the Company to any of its Subsidiaries and
of any wholly-owned domestic Subsidiary to the Company or any other
Subsidiary; and (ii) Indebtedness of any wholly-owned foreign Subsidiary
to the Company or any other Subsidiary to the extent permitted by
subsection 7.6;
(c) Indebtedness consisting of reimbursement obligations under
surety, indemnity, performance, release and appeal bonds and guarantees
thereof and letters of credit required in the ordinary course of business
or in connection with the enforcement of rights or claims of the Company
or its Subsidiaries;
(d) Capital lease obligations, mortgage financings, purchase money
Indebtedness and industrial revenue bond issues in respect of real
property or equipment incurred by the Company prior to or within 180 days
after a capital expenditure in order to finance the purchase or
improvement of properties;
(e) Indebtedness consisting of foreign currency exchange contracts
permitted under subsection 7.12 or commodity hedge agreements permitted
under Subsection 7.13; and
(f) Indebtedness not otherwise permitted by the preceding clauses of
this subsection 7.15 not exceeding $100,000,000 in aggregate principal
amount at any one time outstanding.
SECTION 8. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) The Company shall fail to (i) pay any principal of any Loan when
due in accordance with the terms hereof or thereof or to reimburse an
Issuing Bank in accordance with subsection 2.6 or (ii) pay any interest
on any Loan or any other amount payable hereunder within five days after
any such interest or other amount becomes due
59
in accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by any Credit
Party in any Credit Document or which is contained in any certificate,
guarantee, document or financial or other statement furnished under or in
connection with this Agreement shall prove to have been incorrect in any
material respect on or as of the date made or deemed made; or
(c) The Company shall default in the observance or performance of
any agreement contained in subsection 6.7(a) or Section 7 of this
Agreement or any Credit Party shall default in the observance or
performance of any agreement contained in Section 2 of the Guarantee to
which it is a party; or
(d) The Company or any other Credit Party shall default in the
observance or performance of any other agreement contained in any Credit
Document, and such default shall continue unremedied for a period of 30
days; or
(e) Holdings or any of its Subsidiaries shall (i) default in any
payment of principal of or interest on any Indebtedness (other than the
Loans, the Revolving L/C Obligations and any intercompany debt) or in the
payment of any Guarantee Obligation, beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness or
Guarantee Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or Guarantee Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity,
any applicable grace period having expired, or such Guarantee Obligation
to become payable, any applicable grace period having expired, provided
that the aggregate principal amount of all such Indebtedness and
Guarantee Obligations under clauses (i) and (ii) equals or exceeds
$12,500,000; or
(f) (i) Holdings, the Company or any of their respective
Subsidiaries shall commence any case, proceeding or other action (A)
under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it,
or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts,
or (B) seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its assets,
or Holdings, the Company or any of their respective Subsidiaries shall
make a general assignment for the benefit of its creditors; or (ii) there
shall be commenced against Holdings, the Company or any of their
respective Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against Holdings, the Company or any of their
respective Subsidiaries any case, proceeding or other action seeking
60
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results
in the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days
from the entry thereof; or (iv) Holdings, the Company or any of their
respective Subsidiaries shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; or (v) Holdings, the
Company or any of their respective Subsidiaries shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving
any Plan, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA or which occurs by reason of the Spin-Off
Transactions), whether or not waived, shall exist with respect to any
Plan, (iii) a Reportable Event (other than a Reportable Event with
respect to which the 30-day notice requirement under Section 4043 of
ERISA has been waived) shall occur with respect to, or proceedings to
have a trustee appointed shall commence with respect to, or a trustee
shall be appointed to administer or to terminate, any Single Employer
Plan, which Reportable Event or institution of proceedings or appointment
of a trustee is, in the reasonable opinion of the Required Banks, likely
to result in the termination of such Plan for purposes of Title IV of
ERISA, and, in the case of a Reportable Event, such Reportable Event
shall continue unremedied for ten days after notice of such Reportable
Event is given and, in the case of the institution of proceedings, such
proceedings shall continue for ten days after commencement thereof or
(iv) any Single Employer Plan shall terminate for purposes of Title IV of
ERISA; and in each case in clauses (i) through (iv) above, such event or
condition, together with all other such events or conditions relating to
such Plans, if any, could subject the Company or any of its Subsidiaries
to any tax, penalty or other liabilities which in the aggregate are
material in relation to the business, financial condition, properties,
results of operations, value or prospects of the Company and its
Subsidiaries taken as a whole; or
(h) Except with respect to the Excluded Litigation, one or more
final judicial judgments or decrees shall be entered against the Company
or any of its Subsidiaries involving in the aggregate for all such
Persons a liability (not paid or fully covered by insurance) of
$10,000,000 or more and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within the time
required by the terms of such judgment; or
(i) Any Guarantee shall cease, for any reason, to be in full force
and effect or any Credit Party shall so assert in writing; or
(j) Holdings shall cease to own 100% of the issued and outstanding
capital stock of the Company, free and clear of all Liens; or Holdings
shall conduct, transact or otherwise engage in any business or
operations, incur, create, assume or suffer to exist any Indebtedness,
Guarantee Obligations or other liabilities or obligations or Liens, or
own, lease, manage or otherwise operate any properties or assets, other
than (i) incident to the ownership of all of the outstanding shares of
capital stock of the Company or the issuance of debt and equity
securities, provided that the net proceeds of such issuance are
concurrently advanced to, or contributed to the capital of, the Company,
unless such other
61
business owned by Holdings is related to the business of the Company and
such business is effectively contributed to the Company by merger,
purchase or any other acquisition transaction, within 90 days of the
acquisition by Holdings of such business, (ii) the issuance of guarantees
of Indebtedness of the Company and its Subsidiaries and of reimbursement
obligations of the Company and its Subsidiaries under surety, indemnity,
performance and appeal bonds, letters of credit and like instruments and
other obligations that the Company or any Subsidiary is permitted to
incur or (iii) the performance by Holdings of its obligations under the
Spin-Off Documents; or
(k) (i) Any Person or two or more Persons (except FL Affiliates
and, prior to consummation of the Spin-Off, NextLevel) acting in concert
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission promulgated under the
Exchange Act) of more than 33% of the outstanding shares of voting stock
of Holdings; or (ii) any Person or two or more Persons (except FL
Affiliates) acting in concert shall acquire the power to elect a majority
of the Board of Directors of Holdings;
then, and in any such event, (x) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) above, automatically (i) the
Commitments shall immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement shall
immediately become due and payable, and (ii) all obligations of the Company
in respect of the Letters of Credit, although contingent and unmatured, shall
become immediately due and payable and the Issuing Banks' obligations to
issue Letters of Credit shall immediately terminate and (y) if such event is
any other Event of Default, so long as any such Event of Default shall be
continuing, either or both of the following actions may be taken: (i) with
the consent of the Required Banks, the Administrative Agent may, or upon the
request of the Required Banks, the Administrative Agent shall, by notice to
the Company, declare the Commitments and any Bank's obligations to issue
Letters of Credit to be terminated forthwith, whereupon the Commitments and
such obligations shall immediately terminate; and (ii) with the consent of
the Required Banks, the Administrative Agent may, or upon the request of the
Required Banks, the Administrative Agent shall, by notice of default to the
Company, (A) declare all or a portion of the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement to be due
and payable forthwith, whereupon the same shall immediately become due and
payable, and (B) declare all or a portion of the obligations of the Company
in respect of the Letters of Credit, although contingent and unmatured, to be
due and payable forthwith, whereupon the same shall immediately become due
and payable and/or demand that the Company discharge any or all of the
obligations supported by the Letters of Credit by paying or prepaying any
amount due or to become due in respect of such obligations. All payments
under this Section 8 on account of undrawn Letters of Credit shall be made by
the Company directly to a cash collateral account established by the
Administrative Agent for such purpose for application to the Company's
reimbursement obligations under subsection 2.6 as drafts are presented under
the Letters of Credit, with the balance, if any, to be applied to the
Company's obligations under this Agreement as the Administrative Agent shall
determine with the approval of the Required Banks. Except as expressly
provided above in this Section 8, presentment, demand, protest and all other
notices of any kind are hereby expressly waived. Notwithstanding anything
herein to the contrary, no Default or Event of Default shall arise solely as
a result of the failure of NextLevel to distribute as a dividend to the
holders of the shares of its common stock all of the capital stock of
Holdings.
62
SECTION 9. THE CO-AGENTS; THE ADMINISTRATIVE
AGENT; ISSUING BANKS
9.1 Appointment. Each Bank hereby irrevocably designates and
appoints Chase, Bank of America National Trust and Savings Association,
BankBoston, N.A., Bank of Tokyo-Mitsubishi Trust Company, CIBC Inc., Credit
Lyonnais Atlanta Agency, First Union National Bank, The Fuji Bank, Limited,
Atlanta Agency, NationsBank, N.A., Toronto Dominion (New York), Inc. and
Wachovia Bank, N.A., as the Co-Agents of such Bank under this Agreement and
acknowledges that no Co-Agent, in its capacity as such, shall have any duties
under the Credit Documents. Each Bank hereby irrevocably designates and
appoints Chase as the Administrative Agent under this Agreement and
irrevocably authorizes Chase as Administrative Agent for such Bank to take
such action on its behalf under the provisions of the Credit Documents and to
exercise such powers and perform such duties as are expressly delegated to
the Administrative Agent by the terms of the Credit Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement, neither the Co-Agents
nor the Administrative Agent shall have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with
any Bank, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into the Credit Documents or
otherwise exist against the Co-Agents or the Administrative Agent.
9.2 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement and each of the other Credit Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. Without limiting
the foregoing, the Administrative Agent may appoint Chase Manhattan Bank
Agency Services Corporation as its agent to perform the functions of the
Administrative Agent hereunder relating to the advancing of funds to the
Company and distribution of funds to the Banks and to perform such other
related functions of the Administrative Agent hereunder as are reasonably
incidental to such functions. None of the Co-Agents nor the Administrative
Agent shall be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care, except as otherwise
provided in subsection 9.3.
9.3 Exculpatory Provisions. Neither the Co-Agents nor the
Administrative Agent nor any of their officers, directors, employees, agents,
attorneys-in-fact, Affiliates or Subsidiaries shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with the Credit Documents (except for its or such Person's own
gross negligence or willful misconduct), or (ii) responsible in any manner to
any of the Banks for any recitals, statements, representations or warranties
made by any Credit Party or any officer thereof contained in the Credit
Documents or in any certificate, report, statement or other document referred
to or provided for in, or received by any Co-Agent or the Administrative
Agent under or in connection with, the Credit Documents or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of the
Credit Documents or for any failure of any Credit Party to perform its
obligations thereunder. None of the Co-Agents or the Administrative Agent
shall be under any obligation to any Bank to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, any Credit Document, or to inspect the properties, books or
records of any Credit Party.
9.4 Reliance by Co-Agents and Administrative Agent. Each of the
Co-Agents
63
and the Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed
by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Company), independent
accountants and other experts selected by such Co-Agent or the Administrative
Agent. Each of the Co-Agents and the Administrative Agent may deem and treat
the payee of any promissory note issued under or in connection with this
Agreement as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with such
Co-Agent or the Administrative Agent. Each of the Co-Agents and the
Administrative Agent shall be fully justified in failing or refusing to take
any action under any Credit Document unless it shall first receive such
advice or concurrence of the Required Banks (or, where unanimous consent of
the Banks is expressly required hereunder, such Banks) as it deems
appropriate or it shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. Each of the
Co-Agents and the Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under any Credit Document in
accordance with a request of the Required Banks (or the Release Banks with
respect to matters requiring the consent of the Release Banks), and such
request and any action taken or failure to act pursuant thereto shall be
binding upon all the Banks.
9.5 Notice of Default. None of the Co-Agents or the Administrative
Agent shall be deemed to have knowledge or notice of the occurrence of any
Default or Event of Default hereunder unless such Co-Agent or the
Administrative Agent has received written notice from a Bank or the Company
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall
promptly give notice thereof to the Banks. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Banks; provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Banks.
9.6 Non-Reliance on Co-Agents, Administrative Agent and Other Banks.
Each Bank expressly acknowledges that none of the Co-Agents or the
Administrative Agent nor any of their respective officers, directors,
employees, agents, attorneys-in-fact, Subsidiaries or Affiliates has made any
representations or warranties to it and that no act by any Co-Agent or the
Administrative Agent hereafter taken, including any review of the affairs of
the Credit Parties, shall be deemed to constitute any representation or
warranty by any Co-Agent or the Administrative Agent to any Bank. Each Bank
represents to each Co-Agent and to the Administrative Agent that it has,
independently and without reliance upon any Co-Agent or the Administrative
Agent or any other Bank, and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Credit Parties and made its own decision to make its
Loans hereunder, issue and participate in the Letters of Credit and enter
into this Agreement. Each Bank also represents that it will, independently
and without reliance upon any Co-Agent or the Administrative Agent or any
other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under the Credit
64
Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other
condition and creditworthiness of the Credit Parties. Except for notices,
reports and other documents expressly required to be furnished to the Banks
by the Administrative Agent hereunder, none of the Co-Agents and the
Administrative Agent shall have any duty or responsibility to provide any
Bank with any credit or other information concerning the business, financial
condition, assets, liabilities, net assets, properties, results of
operations, value, prospects and other condition or creditworthiness of the
Credit Parties which may come into the possession of any Co-Agent or the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact, Affiliates or Subsidiaries.
9.7 Indemnification. The Banks severally agree to indemnify each of
the Co-Agents and the Administrative Agent in its capacity as such (to the
extent not reimbursed by the Credit Parties and without limiting the
obligation of the Credit Parties to do so), ratably according to the
respective amounts of their Commitment Percentages, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at
any time (including without limitation at any time following the payment of
the Loans) be imposed on, incurred by or asserted against any Co-Agent or the
Administrative Agent in any way relating to or arising out of the Credit
Documents or any documents contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted by any
Co-Agent or the Administrative Agent under or in connection with any of the
foregoing; provided that no Bank shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting solely
from any Co-Agent's or the Administrative Agent's gross negligence or willful
misconduct; and provided further that no Designated Lender shall be liable
for any payment under this subsection 9.7 so long as, and to the extent that,
its Designating Lender make such payments. The agreements contained in this
subsection 9.7 shall survive the payment of the Loans and all other amounts
payable hereunder.
9.8 Co-Agents and Administrative Agent in their Individual
Capacities. Each of the Co-Agents and the Administrative Agent and their
respective Affiliates and Subsidiaries may make loans to, accept deposits
from and generally engage in any kind of business with the Credit Parties as
though such Co-Agent or Administrative Agent were not a Co-Agent or the
Administrative Agent hereunder, as the case may be. With respect to its
Loans made or renewed by it and any Letter of Credit issued by or
participated in by it, each of the Co-Agents and the Administrative Agent
shall have the same rights and powers, duties and liabilities under the
Credit Documents as any Bank and may exercise the same as though it were not
a Co-Agent or the Administrative Agent, as the case may be, and the terms
"Bank" and "Banks" shall include each of the Co-Agents and the Administrative
Agent in their individual capacities.
9.9 Successor Co-Agent or Administrative Agent. Each Co-Agent and
the Administrative Agent may resign as Co-Agent or Administrative Agent, as
the case may be, upon 30 days' notice to the Banks. The resignation of any
Co-Agent shall be effective without any further act or deed on the part of
such former Co-Agent. If the Administrative Agent shall resign as
Administrative Agent under the Credit Documents, then the Required Banks
shall appoint from among the Banks a successor agent for the Banks which
successor agent shall be approved by the Company (which approval shall not be
unreasonably withheld) and upon its acceptance thereof, such successor agent
shall succeed to the rights, powers and duties of the Administrative Agent
and the term "Administrative Agent" shall mean such successor agent effective
upon its appointment, and the former Administrative Agent's rights, powers
and duties
65
as Administrative Agent shall be terminated, without any other or further act
or deed on the part of such former Administrative Agent or any of the parties
to this Agreement. After any retiring Co-Agent's or Administrative Agent's
resignation hereunder as Co-Agent or Administrative Agent, as the case may
be, 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 Co-Agent or
Administrative Agent, as the case may be, under the Credit Documents.
9.10 An Issuing Bank as Issuer of Letters of Credit. Each Bank and
each Co-Agent hereby acknowledge that the provisions of this Section 9 shall
apply to any Issuing Bank, in its capacity as issuer of any Letter of Credit,
in the same manner as such provisions are expressly stated to apply to the
Administrative Agent.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. No Credit Document nor any terms
thereof may be amended, supplemented or modified except in accordance with
the provisions of this subsection 10.1. With the written consent of the
Required Banks, the Administrative Agent and the respective Credit Parties
may, from time to time, enter into written amendments, supplements or
modifications to any Credit Document for the purpose of adding any provisions
to such Credit Document to which they are parties or changing in any manner
the rights of the Banks or of any such Credit Party or any other Person
thereunder or waiving, on such terms and conditions as the Administrative
Agent may specify in such instrument, any of the requirements of any such
Credit Document or any Default or Event of Default and its consequences;
provided, however, that:
(a) no such waiver and no such amendment, supplement or modification
shall directly or indirectly release Holdings from its obligations under
the Holdings Guarantee or any Subsidiary Guarantor from its obligations
under the Subsidiary Guarantee without the written consent of the Release
Banks, except as otherwise provided; and
(b) no such waiver and no such amendment, supplement or modification
shall (x) extend the scheduled final maturity of any Loan (other than a
Bid Loan) or extend the expiry date of any Letter of Credit beyond the
Revolving Credit Termination Date, or reduce the rate or extend the time
of payment of interest thereon, or change the method of calculating
interest thereon, or reduce or extend the time of payment of any fee
payable to the Banks hereunder, or reduce the principal amount thereof,
or increase the amount of any Bank's Commitments, without the written
consent of each Bank affected thereby, or (y) amend, modify or waive any
provision of this subsection 10.1 or reduce the percentages specified in
the definition of Required Banks or Release Banks, or change the
percentage of the Banks required to waive a condition precedent under
Section 5 or consent to the assignment or transfer by any Credit Party of
any of its rights and obligations under any Credit Document, in each
case, without the written consent of each Bank, provided that with
respect to any Bid Loan, no such waiver and no such amendment, supplement
or modification shall be made without the written consent of each Bank
holding such Bid Loan.
Any such waiver and any such amendment, supplement or modification described
in this subsection 10.1 shall apply equally to each of the Banks and shall be
binding upon each Credit Party, the Banks, the Co-Agents, the Administrative
Agent. No waiver, amendment, supplement
66
or modification of any Letter of Credit shall extend the expiry date thereof
without the written consent of the Participating Banks. In the case of any
waiver, the Company, the Banks, the Co-Agents and the Administrative Agent
shall be restored to their former position and rights hereunder and under the
outstanding Notes, and any Default or Event of Default waived shall be deemed
to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right
consequent thereon. Each Designating Lender may act on behalf of its
Designated Lender with respect to any rights of its Designated Lender to
grant or withhold any consent hereunder to the fullest extent it has been so
delegated to act by its Designated Lender pursuant to its Designation
Agreement.
The Administrative Agent shall in all cases be protected in relying
on the representation of a Designating Lender that such Designating Lender
may act on behalf of its Designated Lender without independent verification.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy or telex), and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made when delivered by hand, or three
Business Days after being deposited in the mail, postage prepaid, or, in the
case of telecopy notice, when sent, confirmation of receipt received, or, in
the case of telex notice, when sent, answerback received, addressed as
follows in the case of each Credit Party and the Administrative Agent, and as
set forth in Schedule I in the case of any Bank, or to such other address as
may be hereafter notified by the respective parties hereto:
The Company: CommScope, Inc. of North Carolina
0000 Xxxxxx-Xxxxx Xxxxxxxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Treasurer
Telecopy: (000) 000-0000
With a copy to: Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: F. Xxxxxxx Xxxxxxx, Esq.
Telecopy: (000) 000-0000
The Administrative The Chase Manhattan Bank
Agent: c/o Chase Securities Inc.
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Telecopy: (000) 000-0000
67
The Co-Agents: The Chase Manhattan Bank
c/o Chase Securities Inc.
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Telecopy: (000) 000-0000
Bank of America National Trust
and Savings Association
000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx XxXxxxx
Telecopy: (000) 000-0000
BankBoston, N.A.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx 00-00-00
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Americas
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
CIBC Inc.
Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: E. Xxxxx Xxxxxx
Telecopy: (000) 000-0000
Credit Lyonnais Atlanta Agency
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx, Xx.
Telecopy: (000) 000-0000
68
First Union National Bank
000 X. Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxxx XxXxxxxxx
Telecopy: (000) 000-0000
The Fuji Bank, Limited, Atlanta Agency
Marquis Xxx Xxxxx, Xxxxx 0000
000 Xxxxxxxxx Xxxxxx Avenue, NE
Suite 2100
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxx
Telecopy: (000) 000-0000
NationsBank, N.A.
NationsBank Corporate Center
NC1-007-08-07
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Xx.
Telecopy: (000) 000-0000
Toronto Dominion (New York), Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Wachovia Bank, N.A.
X.X. Xxx 00000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
provided that any notice, request or demand to or upon the Administrative
Agent or the Banks pursuant to subsections 2.3, 2.8, 2.10, 3.1, 3.2, 3.3 and
3.4 shall not be effective until received and provided further that the
failure to provide the copies of notices to the Company provided for in this
subsection 10.2 shall not result in any liability to the Administrative
Agent, any Co-Agent or any Bank.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent, any Co-Agent or
any Bank, any right, remedy, power or privilege hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
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10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the Letters of
Credit.
10.5 Payment of Expenses and Taxes. The Company agrees:
(a) to pay or reimburse the Administrative Agent for all of its
out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement
or modification to, the Credit Documents and any other documents prepared
in connection herewith, and the consummation of the transactions
contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent;
(b) to pay or reimburse each Bank, each Co-Agent and the
Administrative Agent for all their costs and expenses incurred in
connection with, and to pay, indemnify, and hold the Administrative
Agent, each Co-Agent and each Bank harmless from and against any and all
other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever arising out of or in connection with, the enforcement or
preservation of any rights under any Credit Document and any such other
documents, including, without limitation, reasonable fees and
disbursements of counsel to the Administrative Agent, each Co-Agent and
each Bank incurred in connection with the foregoing and in connection
with advising the Administrative Agent with respect to its rights and
responsibilities under this Agreement and the documentation relating
thereto;
(c) to pay, indemnify, and to hold the Administrative Agent, each
Co-Agent and each Bank harmless from, any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other similar taxes (other than
withholding taxes), if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation
of any of the transactions contemplated by, or any amendment, supplement
or modification of, or any waiver or consent under or in respect of, any
Credit Document and any such other documents; and
(d) to pay, indemnify, and hold the Administrative Agent, each
Co-Agent and each Bank and their respective officers, directors,
employees and agents harmless from and against any and all other
liabilities, obligations, losses, damages (including punitive damages),
penalties, fines, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including, without
limitation, reasonable experts' and consultants' fees and reasonable fees
and disbursements of counsel and third party claims for personal injury
or real or personal property damage) which may be incurred by or asserted
against the Administrative Agent, any Co-Agent or the Banks (x) arising
out of or in connection with any investigation, litigation or proceeding
related to this Agreement, the other Credit Documents, the proceeds of
the Loans, or any of the other transactions contemplated hereby, whether
or not the Administrative Agent, any Co-Agent or any of the Banks is a
party thereto, (y) with respect to any environmental matters, any actual
or alleged environmental compliance expenses and any actual or
70
alleged remediation expenses in connection with the presence, suspected
presence, release or suspected release of any Hazardous Materials in or
into the air, soil, groundwater, surface water or improvements at, on,
about, under, or within the Properties, or any portion thereof, or
elsewhere in connection with the transportation of Hazardous Materials to
or from the Properties or (z) without limiting the generality of the
foregoing, by reason of or in connection with the execution and delivery
or transfer of, or payment or failure to make payments under, Letters of
Credit (it being agreed that nothing in this subsection 10.5(d)(z) is
intended to limit the Company's obligations pursuant to subsection 2.6);
(all the foregoing, collectively, the "indemnified liabilities"), provided
that the Company shall have no obligation hereunder with respect to
indemnified liabilities of the Administrative Agent, any Co-Agent or any Bank
or any of their respective officers, directors, employees or agents arising
from (i) the gross negligence or willful misconduct of such Administrative
Agent, Co-Agent or Bank or their respective directors, officers, employees or
agents or (ii) legal proceedings commenced against the Administrative Agent,
any Co-Agent or any Bank by any security holder or creditor thereof arising
out of and based upon rights afforded any such security holder or creditor
solely in its capacity as such or (iii) legal proceedings commenced against
the Administrative Agent, any Co-Agent or any such Bank by any Transferee (as
defined in subsection 10.6). The agreements in this subsection 10.5 shall
survive repayment of the Loans and all other amounts payable hereunder.
10.6 Successors and Assigns; Participations; Purchasing Banks. (a)
This Agreement shall be binding upon and inure to the benefit of the Company,
the Banks, the Co-Agents and the Administrative Agent, and their respective
successors and assigns, except that no Borrower may assign or transfer any of
its rights or obligations under this Agreement without the prior written
consent of each Bank.
(b) Any Bank may, in the ordinary course of its commercial banking
or lending business and in accordance with applicable law, at any time sell
to one or more banks or other entities ("Participants") participating
interests in any Loan owing to such Bank, any participating interest of such
Bank in the Letters of Credit, any Commitment of such Bank or any other
interest of such Bank hereunder and under the other Credit Documents,
provided, however, that no Bank shall sell any such participating interest to
any Participant which is a Non-U.S. Bank that is unable to deliver to such
Bank either an Internal Revenue Service Form 4224 or Form 1001 pursuant to
clause (A) of subsection 3.17(e) hereof. In the event of any such sale by a
Bank of participating interests to a Participant, such Bank's obligations
under this Agreement to the other parties to this Agreement shall remain
unchanged, such Bank shall remain solely responsible for the performance
thereof for all purposes under this Agreement and the other Credit Documents
and the Company and the Administrative Agent shall continue to deal solely
and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement and the other Credit Documents. The Company
agrees that if amounts outstanding under this Agreement are due and unpaid,
or shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall be deemed to have
the right of setoff in respect of its participating interest in amounts owing
under this Agreement to the same extent as if the amount of its participating
interest were owing directly to it as a Bank under this Agreement; provided
that such Participant shall only be entitled to such right of setoff if it
shall have agreed in the agreement pursuant to which it shall have acquired
its participating interest to share with the Banks the proceeds thereof, as
provided in subsection
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10.7. The Company also agrees that each Participant shall be entitled to the
benefits of subsections 3.11, 3.18, 3.19 and 3.20 with respect to its
participation in the Letters of Credit and in the Commitments and the Loans
outstanding from time to time; provided that no Participant shall be entitled
to receive any greater amount pursuant to such subsections than the
transferor Bank would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Bank to such Participant
had no such transfer occurred.
(c) Any Bank may, in the ordinary course of its commercial banking
or lending business and in accordance with applicable law, at any time sell
to any Bank or any Affiliate thereof (including any Affiliate or Subsidiary
of such transferor Bank) and, with the consent of the Company and the
Administrative Agent, the Issuing Bank, if applicable, and the Swing Line
Bank, if applicable (which in each case shall not be unreasonably withheld),
sell to one or more additional banks or financial institutions (an
"Assignee"), all or any part of its rights and obligations under this
Agreement and the other Credit Documents and with respect to the Letters of
Credit, pursuant to an Assignment and Acceptance executed by such Assignee,
such assigning Bank (and, in the case of an Assignee that is not then a Bank
or an affiliate thereof, by the Company and the Administrative Agent), and
delivered to the Administrative Agent for its acceptance and recording in the
Register (as defined below); provided that (A) each such sale pursuant to
this subsection 10.6(c) (I) to a Person which is not then a Bank or an
Affiliate of a Bank shall be of Commitments and/or Loans of $10,000,000 (or
if such assigning Bank has Commitments and Loans in an amount less than
$10,000,000 in the aggregate, such lesser amount) or more and (II) to a
Person which is then a Bank or an Affiliate of a Bank may be in any amount,
(B) in the event of a sale of less than all of such rights and obligations,
such Bank after such sale shall retain Commitments and/or Loans (without
duplication) aggregating $10,000,000; and provided further that the foregoing
shall not prohibit a Bank from selling participating interests in accordance
with subsection 10.6(b) in all or any portion of its Commitments and/or Loans
(without duplication) and (C) each Assignee which is a Non-U.S. Bank shall
comply with the provisions of clause (A) of subsection 3.17(e) hereof, or,
with the prior written consent of the Company which may be withheld in its
sole discretion, with or without cause, the provisions of clause (B) of
subsection 3.17(e) hereof (and, in either case, with all of the other
provisions of subsection 3.17(e) hereof), and provided, further, that no Bank
shall assign any Bid Loans pursuant to this subsection 10.6(c) except in
connection with the assignment of all of its Loans and Commitments under this
Agreement. If at any time any Co-Agent shall own less than 5% of the
Commitments and/or the Loans (without duplication), then such Co-Agent shall,
at the Company's request after consultation with the Administrative Agent, no
longer be entitled to the benefits of the title "Co-Agent" under this
Agreement and shall promptly resign as a Co-Agent; provided that nothing
contained in this sentence shall be construed or interpreted as impairing any
right of a resigning Co-Agent in its capacity as a Bank under this Agreement;
and provided further that the foregoing shall not prohibit a Co-Agent from
selling participating interests in accordance with subsection 10.6(b) in all
or any portion of its Commitments and/or Loans. Upon such execution,
delivery, acceptance and recording, from and after the effective date
determined pursuant to such Assignment and Acceptance, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Bank
hereunder with the Commitments as set forth therein, and (y) the assigning
Bank thereunder shall, to the extent of the interest transferred, as
reflected in such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Bank's rights and
obligations under this Agreement, such assigning Bank shall cease to be a
party hereto). Such Assignment and Acceptance shall be deemed to amend
72
this Agreement and Schedule I hereto to the extent, and only to the extent,
necessary to reflect the addition of such Assignee and the resulting
adjustment of Commitment Percentages arising from the purchase by such
Assignee of all or a portion of the rights and obligations of such assigning
Bank under this Agreement.
(d) The Administrative Agent acting on behalf of and as agent for
the Company, shall maintain at its address referred to in subsection 10.2 a
copy of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Banks and
the registered owners of the Obligations evidenced by the Registered Form
Notes and the Commitments of, the principal amount of any Loans owing to,
and, if such Bank has any Revolving Credit Commitment, the L/C Participating
Interests of, each Bank from time to time. The entries in the Register shall
be conclusive, in the absence of manifest error, and the Company, the
Administrative Agent and the Banks shall treat each Person whose name is
recorded in the Register as the owner of the Loans, Registered Form Notes or
L/C Participating Interests recorded therein for all purposes of this
Agreement. Any assignment of a Loan, Registered Form Notes or other
obligation hereunder shall be effective only upon appropriate entries with
respect thereto being made in the Register. Any assignment or transfer of an
obligation hereunder evidenced by a promissory note shall be registered in
the Register only upon the surrender of such note for registration of such
assignment or transfer, and thereupon one or more new notes shall be issued
to the Assignee and the old note shall be returned by the Administrative
Agent to the Company, marked "cancelled". The Register shall be available
for inspection by the Company or any Bank at any reasonable time and from
time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank and an Assignee (and, in the case of an Assignee that is not
then a Bank or an Affiliate thereof, by the Company and the Administrative
Agent), together with payment to the Administrative Agent of a registration
and processing fee of $4,000 if the Assignee is not a Bank or an Affiliate
thereof prior to the execution of such Assignment and Acceptance and $1,000
otherwise, the Administrative Agent shall (i) promptly accept such Assignment
and Acceptance and (ii) on the effective date determined pursuant thereto,
record the information contained therein in the Register and give notice of
such acceptance and recordation to the Banks and the Company.
(f) The Company authorizes each Bank to disclose to any Participant
or Assignee (each, a "Transferee") and any prospective Transferee any and all
financial information in such Bank's possession concerning Holdings, the
Company and their respective Subsidiaries and Affiliates which has been
delivered to such Bank by or on behalf of the Company pursuant to this
Agreement or which has been delivered to such Bank by or on behalf of the
Company in connection with such Bank's credit evaluation of Holdings, the
Company and their respective Subsidiaries and Affiliates prior to becoming a
party to this Agreement.
In addition, the Company authorizes the disclosure by any Designated
Lender of any non-public information with respect to itself which has been
delivered to the Banks hereunder to any rating agency, commercial paper
dealer, or provider of a surety, guaranty or credit or liquidity enhancement
to such Designated Lender.
(g) If, pursuant to this subsection 10.6, any interest in this
Agreement is transferred to any Transferee which would be a Non-U.S. Bank
upon the effectiveness of such
73
transfer, the assigning Bank shall cause such Transferee, concurrently with
the effectiveness of such transfer, (i) to represent to the assigning Bank
(for the benefit of the assigning Bank, the Administrative Agent and the
Company) that under applicable law and treaties no United States federal
income taxes or United States backup withholding taxes will be required to be
withheld by the Administrative Agent, the Company or the assigning Bank with
respect to any payments to be made to such Transferee in respect of the Loans
or L/C Participating Interests, (ii) to furnish to the assigning Bank (and,
in the case of any Assignee registered in the Register, the Administrative
Agent and the Company) such Internal Revenue Service Forms required to be
furnished pursuant to subsection 3.17(e) and (iii) to agree (for the benefit
of the assigning Bank, the Administrative Agent and the Company) to be bound
by the provisions of subsections 3.17(e).
(h) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Bank of any Loan to any Federal
Reserve Bank in accordance with applicable law; provided that any transfer of
Loans upon, or in lieu of, enforcement of or the exercise of remedies under
any such pledge shall be treated as an assignment thereof which shall not be
made without compliance with the requirements of this subsection 10.6.
(i) Any Bank may at any time designate not more than one Designated
Lender to fund Revolving Credit Loans and/or Bid Loans on behalf of such
Designating Lender subject to the terms of this subsection 10.6(i) and the
provisions of the foregoing subsections 10.6(c), (d) and (e) hereof shall not
apply to such designation; provided that each Designated Lender which is a
Non-U.S. Bank shall comply with the provisions of clause (A) of subsection
3.17(e) hereof, or, with the prior written consent of the Company which may
be withheld in its sole discretion, with or without cause, the provisions of
clause (B) of subsection 3.17(e) hereof (and, in either case, with all of the
other provisions of subsection 3.17(e) hereof). No Bank may have more than
one Designated Lender at any time. Such designation may occur either by the
execution of the signature pages hereof by such Bank and Designated Lender
next to the appropriate "Designating Lender" and "Designated Lender"
captions, or by execution by such parties of a Designation Agreement
subsequent to the date hereof; provided, that any Bank and its Designated
Lender executing the signature pages hereof as "Designating Lender" and
"Designated Lender", respectively, on the date hereof shall be deemed to have
executed a Designation Agreement, and shall be bound by the respective
representations, warranties and covenants contained therein, and such
designation shall be conclusively deemed to be accepted by the Company and
the Administrative Agent. The parties to each such designation occurring
subsequent to the execution date hereof shall execute and deliver to the
Administrative Agent and the Company for their acceptance a Designation
Agreement. Upon such receipt of an appropriately completed Designation
Agreement executed by a Designating Lender and a designee representing that
it is a Designated Lender and consented to by the Company, the Administrative
Agent will accept such Designation Agreement and will give prompt notice
thereof to the Company and the other Banks, whereupon, (i) from and after the
effective date specified in the Designation Agreement, the Designated Lender
shall become a party to this Agreement with a right to make Revolving Credit
Loans and Bid Loans on behalf of its Designating Lender pursuant to
subsections 2.1(c) and 2.8(i), respectively, (ii) if so requested by such
Designated Lender, the Company shall execute and deliver to such Designated
Lender a promissory note in accordance with the terms of subsection 3.21(e)
hereof, and (iii) the Designated Lender shall not be required to make
74
payments with respect to any obligations and liabilities in this Agreement
except to the extent of excess cash flow of such Designated Lender which is
not otherwise required to repay obligations of such Designated Lender which
are then due and payable; provided, however, that regardless of such
designation and assumption by the Designated Lender, the Designating Lender
shall be and remain obligated to the Company, the Administrative Agent and
the Banks for each and every of the obligations of the Designating Lender and
its related Designated Lender with respect to this Agreement, including,
without limitation, any actions taken by the Designated Lender with respect
to the Agreement, any indemnification obligations under subsection 9.7 hereof
and any sums otherwise payable to the Company by the Designated Lender. Each
Designating Lender, or a specified branch or affiliate thereof, shall serve
as the administrative agent of its Designated Lender and shall on behalf of
its Designated Lender: (i) receive any and all payments made for the benefit
of such Designated Lender and (ii) give and receive all communications and
notices and take all actions hereunder, including, without limitation, votes,
approvals, waivers, consents and amendments under or relating to this
Agreement and the other Credit Documents. Any such notice, communication,
vote, approval, waiver, consent or amendment shall be signed by a Designating
Lender, or specified branch or affiliate thereof, as administrative agent for
its Designated Lender and need not be signed by such Designated Lender on its
own behalf. The Company, the Administrative Agent and the Banks may rely
thereon without any requirement that the Designated Lender sign or
acknowledge the same. No Designated Lender may assign or transfer all or any
portion of its interest hereunder or under any other Credit Document, other
than via an assignment to its Designating Lender or Liquidity Bank, if any,
or otherwise in accordance with the provisions of subsection 10.6(c) hereof.
10.7 Adjustments; Set-off. (a) If any Bank (a "Benefitted Bank")
shall at any time receive any payment of all or part of any of its Revolving
Credit Loans (other than payment of Swing Line Loans or Bid Loans) or L/C
Participating Interests, as the case may be, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in
clause (f) of Section 8, or otherwise) in a greater proportion than any such
payment to and collateral received by any other Bank, if any, in respect of
such other Bank's Revolving Credit Loans or L/C Participating Interests, as
the case may be, or interest thereon, such benefitted Bank shall purchase for
cash from the other Banks such portion of each such other Bank's Revolving
Credit Loans or L/C Participating Interests, as the case may be, or shall
provide such other Banks with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such benefitted Bank to
share the excess payment or benefits of such collateral or proceeds ratably
in accordance with their Commitment Percentages with each of the Banks;
provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefitted Bank, such purchase
shall be rescinded, and the purchase price and benefits returned, to the
extent of such recovery, but without interest. The Company agrees that each
Bank so purchasing a portion of another Bank's Loans and/or L/C Participating
Interests may exercise all rights of payment (including, without limitation,
rights of set-off) with respect to such portion as fully as if such Bank were
the direct holder of such portion. The Administrative Agent shall promptly
give the Company notice of any set-off, provided that the failure to give
such notice shall not affect the validity of such set-off.
(b) Upon the occurrence of an Event of Default specified in
subsection 8(a) or 8(f), the Administrative Agent, each Bank and each
Co-Agent are hereby irrevocably authorized at any time and from time to time
without notice to the Company, any such notice being hereby waived by the
Company, to set off and appropriate and apply any and all deposits (general
or
75
special, time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by the Administrative Agent, such Bank or such Co-Agent or any
Affiliate thereof to or for the credit or the account of the Company, or any
part thereof in such amounts as the Administrative Agent, such Bank or such
Co-Agent may elect, on account of the liabilities of the Company hereunder
and under the other Credit Documents and claims of every nature and
description of the Administrative Agent, such Bank or such Co-Agent against
the Company, in any currency, whether arising hereunder or under any other
Credit Document, as the Administrative Agent, such Bank or such Co-Agent may
elect, whether or not the Administrative Agent, such Bank or such Co-Agent
has made any demand for payment and although such liabilities and claims may
be contingent or unmatured. The Administrative Agent, each Bank and each
Co-Agent shall notify the Company promptly of any such setoff made by it and
the application made by it of the proceeds thereof, provided that the failure
to give such notice shall not affect the validity of such setoff and
application. The rights of the Administrative Agent, each Bank and each
Co-Agent under this paragraph are in addition to other rights and remedies
(including, without limitation, other rights of setoff) which the
Administrative Agent, such Bank or such Co-Agent may have.
10.8 Judgment. (a) If for the purpose of obtaining judgment in any
court it is necessary to convert a sum due hereunder in one currency into
another currency, the parties hereto agree, to the fullest extent that they
may effectively do so, that the rate of exchange used shall be that at which
in accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency on the Business Day
preceding the day on which final judgment is given.
(b) The obligation of the Company in respect of any sum due to any
Bank or the Administrative Agent hereunder shall, notwithstanding any
judgment in a currency (the "Judgment Currency") other than that in which
such sum is denominated in accordance with the applicable provisions of this
Agreement or the other Credit Documents (the "Agreement Currency"), be
discharged only to the extent that on the Business Day following receipt by
such Bank or the Administrative Agent (as the case may be) of any sum
adjudged to be so due in the Judgment Currency such Bank or the
Administrative Agent (as the case may be) may in accordance with normal
banking procedures purchase the Agreement Currency with the Judgment
Currency; if the amount of the Agreement Currency so purchased is less than
the sum originally due to such Bank or the Administrative Agent (as the case
may be) in the Agreement Currency, the Company agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Bank or
the Administrative Agent (as the case may be) against such loss, and if the
amount of the Agreement Currency so purchased exceeds the sum originally due
to any Bank or the Administrative Agent (as the case may be), such Bank or
the Administrative Agent (as the case may be) agrees to remit to the Company
such excess.
10.9 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Company and the Administrative Agent. This
Agreement shall become effective with respect to the Company, the Co-Agents,
the Administrative Agent and the Banks when the Administrative Agent shall
have received copies of this Agreement executed by the Company, the Co-Agents
and the Banks, or, in the case of any Bank, shall have received telephonic
confirmation from such Bank stating that
76
such Bank has executed counterparts of this Agreement or the signature pages
hereto and sent the same to the Administrative Agent and the other conditions
set forth in subsection 5.1 shall have been satisfied or waived in accordance
with the terms thereof.
10.10 Integration. This Agreement and the other Credit Documents
represent the entire agreement of the Credit Parties, the Administrative
Agent, the Co-Agents and the Banks with respect to the subject matter hereof
and thereof, and there are no promises, undertakings, representations or
warranties by the Administrative Agent, any Co-Agent or any Bank relative to
the subject matter hereof or thereof not expressly set forth or referred to
herein or in the other Credit Documents.
10.11 GOVERNING LAW; NO THIRD PARTY RIGHTS. THIS AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK. THIS AGREEMENT IS SOLELY FOR THE BENEFIT OF THE PARTIES HERETO
AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, AND, EXCEPT AS SET FORTH IN
SUBSECTION 10.6, NO OTHER PERSONS SHALL HAVE ANY RIGHT, BENEFIT, PRIORITY OR
INTEREST UNDER, OR BECAUSE OF THE EXISTENCE OF, THIS AGREEMENT.
10.12 SUBMISSION TO JURISDICTION; WAIVERS. (a) EACH PARTY TO THIS
AGREEMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(i) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS CREDIT AGREEMENT OR ANY OF THE OTHER CREDIT
DOCUMENTS, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK, THE COURTS OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(ii) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT
IN SUCH COURTS, AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR
THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND
AGREES NOT TO PLEAD OR CLAIM THE SAME;
(iii) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH IN SUBSECTION 10.2 OR AT
SUCH OTHER ADDRESS OF WHICH THE ADMINISTRATIVE AGENT SHALL HAVE BEEN
NOTIFIED PURSUANT THERETO; AND
(iv) AGREES THAT NOTHING CONTAINED HEREIN SHALL
77
AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER
JURISDICTION.
(b) EACH PARTY HERETO UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING REFERRED TO IN PARAGRAPH (a) ABOVE.
10.13 Acknowledgements. The Company hereby acknowledges that:
(a) none of the Administrative Agent, any Co-Agent or any Bank has
any fiduciary relationship to any Credit Party, and the relationship
between the Administrative Agent, the Co-Agents and the Banks, on the one
hand, and the Credit Parties, on the other hand, is solely that of
creditor and debtor; and
(b) no joint venture exists among the Banks or among any Credit
Parties and the Banks.
10.14 No Bankruptcy Proceedings. Each of the Company, the Banks and
the Administrative Agent agrees that it will not institute against any
Designated Lender or join any other Person in instituting against any
Designated Lender any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding under any federal or state bankruptcy or similar law,
for one year and one day after the payment in full of the latest maturing
commercial paper note issued by such Designated Lender.
78
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in New York, New York by their proper and duly
authorized officers as of the day and year first above written.
COMMSCOPE, INC. OF NORTH CAROLINA
By: /s/ Xxxxx X. Xxxxx, XX
-------------------------------
Title: Secretary
THE CHASE MANHATTAN BANK,
as Administrative Agent, as a Co-Agent
and as a Bank
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Co-Agent
and as a Bank
By: /s/
-------------------------------------
Title:
BANKBOSTON, N.A., as a Co-Agent
and as a Bank
By: /s/
-------------------------------------
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as a Co-Agent and as a Bank
By: /s/
-------------------------------------
Title:
CIBC INC., as a Co-Agent and as a Bank
By: /s/
--------------------------------------
Title:
CREDIT LYONNAIS ATLANTA AGENCY, as a
Co-Agent and as a Bank
By: /s/
---------------------------------------
Title:
FIRST UNION NATIONAL BANK, as a
Co-Agent and as a Bank
By: /s/
---------------------------------------
Title:
THE FUJI BANK, LIMITED, ATLANTA
AGENCY, as a Co-Agent and as a Bank
By: /s/
-----------------------------------------
Title:
NATIONSBANK, N.A., as a Co-Agent
and as a Bank
By: /s/
-----------------------------------------
Title:
TORONTO DOMINION (NEW YORK), INC., as a
Co-Agent and as a Bank
By: /s/
-----------------------------------------
Title:
WACHOVIA BANK, N.A., as a Co-Agent
and as a Bank
By: /s/
------------------------------------------
Title:
BANQUE NATIONALE DE PARIS
By: /s/
------------------------------------------
Title:
By: /s/
------------------------------------------
Title:
BANQUE PARIBAS
By: /s/
------------------------------------------
Title:
By: /s/
------------------------------------------
Title:
CAISSE NATIONALE DE CREDIT AGRICOLE
By: /s/
------------------------------------------
Title:
XXXXXXXXXXX XX, XXXXXXX AGENCY
By: /s/
------------------------------------------
Title:
By: /s/
------------------------------------------
Title:
DESIGNATED LENDER:
FOUR WINDS FUNDING CORPORATION
By: /s/
-----------------------------------------
Title:
By: /s/
-----------------------------------------
Title:
DESIGNATING LENDER:
COMMERZBANK AG, ATLANTA AGENCY
By: /s/
-----------------------------------------
Title:
By: /s/
-----------------------------------------
Title:
FLEET NATIONAL BANK
By: /s/
-----------------------------------------
Title:
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED
By: /s/
-----------------------------------------
Title:
THE MITSUI TRUST AND BANKING
COMPANY, LIMITED
By: /s/
-----------------------------------------
Title:
THE SANWA BANK LIMITED, CHICAGO
BRANCH
By: /s/
-----------------------------------------
Title:
SCOTIABANC INC.
By: /s/
-----------------------------------------
Title:
THE SUMITOMO BANK, LTD., CHICAGO
BRANCH
By: /s/
-----------------------------------------
Title:
THE SUMITOMO TRUST AND BANKING CO.,
LTD., NEW YORK BRANCH
By: /s/
-----------------------------------------
Title:
TOKAI BANK, LTD.- ATLANTA AGENCY
By: /s/
-----------------------------------------
Title:
YASUDA TRUST & BANKING COMPANY,
LTD. NEW YORK BRANCH
By: /s/
-----------------------------------------
Title:
